2006-04-25
ZONING BOARD OF APPEALS
APRIL 25, 2006
Agenda
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Town of Wappinger Zoning Board of Appeals
MEETING DATE: April 25, 2006
TIME: 7:30 PM
Town Hall
20 Middlebush Road
Wappinger Falls, NY
Approve minutes for March 14, 2006.
Approve site minutes for April 15, 2006.
Adjourned Public Hearing:
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 existinl! metal shed, thus reQuestinl! 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 buildinl! # 1, the applicant is proposing .!!.
total lot size of 3.6 acres, thus reQuestinl! 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 buildinl! # 3, the applicant is proposing.!!.
total lot size of 3.6 acres, thus reQuestinl! a combined variance of 3.4 acres.
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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Public Hearing:
Appeal No. 06-7300
Jose & Delia POl!Vo- 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 15
feet 8 inches to allow for a 4 X 8. 5 foot front porch, thus reQuestinl! a variance of 19 feet, 4 inches.
The property is located at 49 Old State Road and is identified as Tax Grid No. 6057-04-720034 in the
Town of Wappinger.
Appeal No. 06-7302
John Cristadoro- Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
-Where a rear yard setback of 40 feet is required, the applicant is proposinl! a rear yard setback of 35
feet 6 inches, to allow for an 18 foot above ground pool & 12 X 18 foot free standing deck, thus reQuestinl!
a variance of 4 feet 6 inches.
The property is located at 11 Vorndran Drive and is identified as Tax Grid No. 6357-01-038945 in the
Town of Wappinger.
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Appeal No. 06-7303
Dale Post- Seeking an area variance of Section 240-37 of District Regulations in an R-40 Zoning District.
-Where a side yard setback of25 feet is required, the applicant is proposinl! a side yard setback of 10
feet. to allow for a 12 X 20 foot wood shed, thus reQuestinl! a variance of 15 feet.
The property is located at 37 Smith Crossinl! Road and is identified as Tax Grid No. 6359-03-053386 in
the Town of Wappinger.
ZONING BOARD OF APPEALS
APRlL 25, 2006
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Appeal No. 06-7305
James & Rose Morse- Seeking an area variance of Section 240-37 of District Regulations in an R-20
Zoning District.
_ Where a side yard setback of 20 feet is reQuired, the applicant is proposin!! a side yard setback of 6.5
feet, to allow for a lOX 18 foot covered front porch, thus reQuestin!! a variance of 13.5 feet.
The property is located at 4-6 Starrs Crossin!! and is identified as Tax Grid No. 6157-01-381573 in the
Town of Wappinger.
Discussions:
Appeal No. 06-7307
Joe Clement Inc.- Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a rear yard setback of 40 feet is reQuired, the applicant is proposin!! a rear yard setback of 21.6
feet, to allow for a 24 X 32 foot garage, thus reQuestin!! a variance of 18.4 feet.
The property is located at 54 Easter Road and is identified as Tax Grid No. 6056-01-259729 in the Town
of Wappinger.
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Appeal No. 06-7304 A & B
Bar!!er Family Trust- Seeking an area variance of Section 240-37 of District Regulations in a GB Zoning
District.
_ Where 100 feet is reQuired for lot width at the build in!! line, the applicant is proposin!! 81 feet at the
build in!! line for a new office building, thus reQuestin!! a variance of 19 feet.
-Where 100 feet is reQuired for road fronta!!e, the applicant is proposin!! 52.66 feet of road fronta!!e,
thus reQuestin!! a variance of 47.34 feet on an existin!! condition.
The property is located at 280 New Hackensack Road and is identified as Tax Grid No. 6259-03-424153
in the Town of Wappinger.
Appeal No. 06-7311
John Borrell- Seeking an area variance of Section 240-37 of District Regulations in an R-40 Zoning
District.
_ Where a rear yard setback of 50 feet is reQuired, the applicant is propos in!! a rear yard setback of 40
feet, to allow for a 18 X 41 foot in-ground pool, thus reQuestin!! a variance of 10 feet.
The property is located at 7 U J Terrace and is identified as Tax Grid No. 6256-02-630996 in the Town of
Wappinger.
Appeal No. 06-7310
Martin Kirwan- Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning
District.
_ Where a side yard setback of 20 feet is reQuired, the applicant is propos in!! a side yard setback of 6
inches, to allow for a 20 X 24 foot one-level addition, thus reQuestin!! a variance of 19.6 feet.
The property is located at 6 Maxwell Place and is identified as Tax Grid No. 6257-02-653538 in the
Town of Wappinger.
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Town of Wappinger
Zoning Board of Appeals
Minutes of April 25, 2006
MINUTES
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Town Hall
20 Middlebush Road
Wappinger Falls, NY
Town of Wappinger
Zoning Board of Appeals
April 25, 2006
Summarized Minutes
Members Present:
Mr. DellaCorte, Member
Ms. McEvoy-Riley Member
Mr. Warren, Member
Chairman
Vice-Chairman
Mr. Fanuele,
Mr. Prager,
Member Absent:
Others Present:
Special Counsel
Town Attorney
Town Planner
Zoning Administrator
Secretary
Mr. Caviglia,
Mr. Roberts:
Mr. Holme:
Mrs. Lukianoff,
Mrs. Roberti,
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SUMMARY
Adiourned Public Hearin2:
-Closed Public Hearing. On Agenda, May 9, 2006.
228 Myers Corners Road
Public Hearin2:
-Variance Granted.
-Variance Granted.
-Variance Granted.
-Variance Granted.
Jose & Delia Pogyo
John Cristadoro:
Dale Post
James & Rose Morse
Discussions:
-Public Hearing on May 9, 2006.
-Public Hearing on May 9,2006.
-Public Hearing on May 9, 2006.
-Public Hearing on May 9, 2006.
Joe Clement, Inc.
Barger Family Trust
John Borrell
Martin Kirwan
s
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Town of Wappinger
Zoning Board of Appeals
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Page 2
Minutes of April 25, 2006
Appeal No. 06-7300
Jose & Delia P02VO- 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 15 feet 8 inches to allow for a 4 X 8. 5 foot front porch, thus reQuestine a variance
of 19 feet, 4 inches.
The property is located at 49 Old State Road and is identified as Tax Grid No. 6057-04-720034
in the Town of Wappinger.
Present:
Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Mr. Della Corte:
Mrs. Roberti:
Mr. Pogyo:
Mr. DellaCorte:
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Mr. Warren:
Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Mr. Warren:
Ms. McEvoy-Riley:
Roll Call:
George Pogyo - Applicant's son
Motion to open the public hearing.
Second the motion.
All present voted aye.
Are the mailings in order?
Yes they are.
My father needs a variance for his front porch. House was built close to
the road.
Yes you need a 19 feet, 4 inch variance.
We did a site inspection last week on this.
Is there anyone in the audience with a question on this? Hearing
none.
Motion to close the public hearing.
Second the motion.
All present voted aye.
Motion to grant the variance.
Second the motion.
Ms. McEvoy-Riley:
Mr. Warren:
Mr. DellaCorte:
Aye
Aye.
Aye.
Appeal No. 06-7302
John Cristadoro- Seeking an area variance of Section 240-37 of District Regulations in an R-20
Zoning District.
-Where a rear yard setback of 40 feet is required, the applicant is proposine a rear yard
setback of35 feet 6 inches, to allow for an 18 foot above ground pool & 12 X 18 foot free
standing deck, thus reQuestine a variance of 4 feet 6 inches.
The property is located at 11 Vorndran Drive and is identified as Tax Grid No. 6357-01-
038945 in the Town of Wappinger.
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Town of Wappinger
Zoning Board of Appeals
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Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Mr. Della Corte:
Mrs. Roberti:
Mr. Cristadoro:
Mr. DellaCorte:
Ms. McEvoy-Riley:
Mr. DellaCorte:
Vote:
Ms. McEvoy-Riley:
Mr. DellaCorte:
Roll Call:
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Page 3
Minutes of April 25, 2006
Motion to open the public hearing.
Second the motion.
All present voted aye.
Are the mailings in order?
Yes they are.
I am looking for a variance of 4.6 feet to put an above ground pool in.
Actually you already put in the pool but you still have yet to construct
the deck. We have done a site visit on this property also. Is there anyone
in the audience with a comment? Hearing none.
Motion to close the public hearing.
Second the motion.
All present voted aye.
Motion to grant the variance.
Second the motion.
Ms. McEvoy-Riley:
Mr. Warren:
Mr. DellaCorte:
Aye
Aye.
Aye.
Appeal No. 06-7303
Dale Post- Seeking an area variance of Section 240-37 of District Regulations in an R-40 Zoning
District.
-Where a side yard setback of 25 feet is reauired, the applicant is proposin!! a side yard
setback of 10 feet. to allow for a 12 X 20 foot wood shed, thus reauestin!! a variance of 15 feet.
The property is located at 37 Smith Crossin!! Road and is identified as Tax Grid No. 6359-03-
053386 in the Town of Wappinger.
Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Mr. Della Corte:
Mrs. Roberti:
Mr. Post:
Mr. DellaCorte:
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Mr. DellaCorte:
Mr. Warren:
Motion to open the public hearing.
Second the motion.
All present voted aye.
Are the mailings in order?
Yes they are.
My shed is located lO feet off the side yard and it's the best place for it.
We did a site visit on this property and his property is very hilly and he
doesn't seem to have room to move this. Is there anyone in the audience
with a question? Hearing none.
Motion to close the public hearing.
Second the motion.
Town of Wappinger
Zoning Board of Appeals
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Vote:
Ms. McEvoy-Riley:
Mr. Warren:
Roll Call:
Page 4
Minutes of April 25, 2006
All present voted aye.
Motion to grant the variance.
Second the motion.
Ms. McEvoy-Riley:
Mr. Warren:
Mr. DellaCorte:
Aye
Aye.
Aye.
Appeal No. 06-7305
James & Rose Morse- Seeking an area variance of Section 240-37 of District Regulations in an
R-20 Zoning District.
-Where a side vard setback of 20 feet is reQuired, the applicant is proposin2 a side yard
setback of 6.5 feet. to allow for a 10 X 18 foot covered front porch, thus reQUestin2 a variance
of 13.5 feet.
The property is located at 4-6 Starrs Crossin2 and is identified as Tax Grid No. 6157-01-
381573 in the Town of Wappinger.
Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Mr. Della Corte:
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Mrs. Roberti:
Mrs. Morse:
Mr. DellaCorte:
Mr. DellaCorte:
Ms. McEvoy-Riley:
Vote:
Ms. McEvoy-Riley:
Mr. Warren:
Roll Call:
Motion to open the public hearing.
Second the motion.
All present voted aye.
Are the mailings in order?
Yes they are.
We want to put a small porch on a pre-existing bungalow for my father
so that he may sit outside.
We did a site visit on this too. Does anybody in the audience have a
comment. Hearing none.
Motion to close the public hearing.
Second the motion.
All present voted aye.
Motion to grant the variance.
Second the motion.
Ms. McEvoy-Riley:
Mr. Warren:
Mr. DellaCorte:
Aye
Aye.
Aye.
Appeal No. 06-7307
Joe Clement Inc.- Seeking an area variance of Section 240-37 of District Regulations in an R-20
Zoning District.
-Where a rear yard setback of 40 feet is reQuired, the applicant is proposin2 a rear vard
setback of 21.6 feet. to allow for a 24 X 32 foot garage, thus reQUestin2 a variance of 18.4 feet.
The property is located at 54 Easter Road and is identified as Tax Grid No. 6056-01-259729 in
the Town of Wappinger.
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Town of Wappinger
Zoning Board of Appeals
Page 5
Minutes of April 25, 2006
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Mr. Clement:
I have consent from the current owner to come for this variance because
I will be purchasing this property. I took out a building permit and found
that the existing garage didn't have one and I am trying to legalize it.
Mr. Warren:
When was this built?
Mr. Clement:
About 15 years ago. The building inspector Sal told me that he thought
it was well built.
Mr. DellaCorte:
We will do a site visit on April 29th so please mark out the property line.
We will set your public hearing for May 9,2006.
Appeal No. 06-7304 A & B
Bareer Familv Trust- Seeking an area variance of Section 240-37 of District Regulations in a
GB Zoning District.
-Where 100 feet is reauired for lot width at the buildineline, the applicant is proposine 81
feet at the buildineline for a new office building. thus reauestine a variance of 19 feet.
-Where 100 feet is reauired for road frontaee, the applicant is proposine 52.66 feet of road
frontaee. thus reauestine a variance of 47.34 feet on an existine condition.
The property is located at 280 New Hackensack Road and is identified as Tax Grid No. 6259-
03-424153 in the Town of Wappinger.
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Mr. Miller:
I represent Mr. Barger and we are looking to build an office building
between Handy Rental and a dentist office on New Hackensack Road.
The PB has asked us to move the building forward to stay out of the
wetland buffer which causes one of the needed variances. The other
variance is for lot width and this is a pre-existing non-conforming lot.
Mr. DellaCorte:
Can you stake out the building for us and the property line and we will
do a site visit on April 29th and your public hearing will be on May 9th.
Mr. Miller:
Thank you.
Appeal No. 06-7311
John Borrell- Seeking an area variance of Section 240-37 of District Regulations in an R-40
Zoning District.
-Where a rear yard setback of 50 feet is reauired, the applicant is proposine a rear yard
setback of 40 feet. to allow for a 18 X 41 foot in-ground pool, thus reauestine a variance of 10
feet.
The property is located at 7 U J Terrace and is identified as Tax Grid No. 6256-02-630996 m
the Town of Wappinger.
Present:
Mr. John Borrell
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Town of Wappinger
Zoning Board of Appeals
Page 6
Minutes of April 25, 2006
Mr. Borrell:
We would like to install an in-ground pool and we are requesting a 10
foot variance.
Mr. DellaCorte:
As the rest we will do a site visit on April 29th and be sure to have the
pool and property lines staked out and we will also set your public
hearing for May 9th.
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Mr. Borrell:
Thank you.
Appeal No. 06-7310
Martin Kirwan- Seeking an area variance of Section 240-37 of District Regulations in an R-20
Zoning District.
-Where a side yard setback of 20 feet is reauired, the applicant is proposin2 a side yard
setback of 6 inches. to allow for a 20 X 24 foot one-level addition, thus reauestin2 a variance
of 19.6 feet.
The property is located at 6 Maxwell Place and is identified as Tax Grid No. 6257-02-653538
in the Town of Wappinger.
Present:
Elizabeth Mulligan - Daughter of Mr. Kirwan
Mrs. Mulligan:
This is a unique property in a cuI de sac and I want to move in and take
care of my father with my family. We need to add a bedroom, den and
bath.
Mr. DellaCorte:
This is something that we really need to see so make sure the property is
marked out and where you will be putting the addition. Your site visit
will be April 29th and your public hearing will be May 9th.
.........
Mrs. Mulligan:
Thank you.
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 reauired, the applicant is proposing a side yard
setback of 13.6 feet to allow for an existin2 metal shed. thus reauestin2 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 of3 acres is reauired for motor vehicle use in buildin2 # 1, the applicant is
proposing a total lot size of 3.6 acres. thus reauestin2 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 reauired for a proposed use in buildin2 # 3, the applicant is
proposing a total lot size of 3.6 acres. thus reauestin2 a combined variance of 3.4 acres.
The property is located at 228 Mvers Corners Road and is identified as Tax Grid No. 6258-02-702520 III
the Town of Wappinger.
PRESENT:
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Town of Wappinger
Zoning Board of Appeals
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Minutes of April 25, 2006
Don Walsh
Michael Swartz
Bill Parsons
Frank Simeone, Counsel to Bill Parsons
MR. WALSH: Next item on
tonight's agenda, an adjourned public
hearing on appeal number
05-7289-7290-7291-7292, dealing with
228 Myers Comers, LLC, seeking an
interpretation of Zoning
Administrator's letter of the
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
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 required
for motor vehicle use in building #1,
the applicant is proposing a total
lot size 00.6 acres, thus
requesting a combined variance of3.4
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 00.6,
thus requesting 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 lot size of 2 acres is
required for the proposed use in
building #2, the applicant is
proposing a total lot size 00.6
acres, thus requesting combined
variance of 3.4 acres.
The property is located 228
Myers Comers Road and is identified
as Tax Grid No. 6258-02-702520 in the
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Town of Wappinger
Zoning Board of Appeals
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Minutes of April 25, 2006
Town of Wappinger.
Mr. Walsh: I'm going to, with
your permission, briefly summarize
where we're at now. In light, as you
know, I was not here the last time
where there may have been some slight
confusion. I popped in earlier than
I thought. I didn't have a chance to
bring Mr. Fry up-to-date. Anyway,
I'll try to talk a little louder. I
don't have my hundred percent voice
yet. At that time different items
were reviewed that came up originally
from the February meeting -- February
meetings, we had a meeting February
14th and a meeting February 28th.
Just prior to the meeting, I'm going
to address basically the
interpretation issue first, because
that's the significant one, that's
obviously the one for the presence of
a motorcycle facility that's created
the discussions you've had in front
of you. It's something that
obviously is going to be dealt with
one way or the other. We're going to
be discussing this as we go through
this. At the time we were reaching
the point that we were opening the
public hearing here. I became aware
that of the separate existence of
240-67 and 240-70 in the code. I
wanted to do some brief research on
them. The reason I did that, was not
only when I suddenly saw them, I
realized they weren't in the book I
had, because I bought my book in '04
when Mr. Borek acquired the property.
I have the dates for you tonight. I
had given him a brief memo what had
gone on in '01. There was some
disputes about the use of the
property. I lent my book to someone
here in the town. When I didn't get
it back immediately, I bought another
one just prior to that meeting on the
14th. I saw how the sections worked.
When I asked them about them, they
were printed in December of'05, even
though they were passed in '01. I
heard from several people working
with the town, it's something we may
have forgot. A lot of things were
changed under local law 501. They
meant to change two things, they
Page 9
Town of Wappinger
Zoning Board of Appeals
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Minutes of April 25, 2006
meant to change the two for the --
240-67 and 70 section. They didn't
do it because they didn't use the
right words in 240-70. They repeated
the word sales rather than saying
repair. That's something that wil
come up and be discussed here later.
When I understood what was going on,
how they had done that, I finished my
review of the file, I passed that on
to Mr. Caviglia to look at.
MR. CA VIGLlA: Your supposition
of why that language is in there is
speculative and we have the planner,
representative from the planner here
tonight. He can clarify his position
on it. You or the other
representative have mentioned that
several times on the record, which is
incorrect. There's nothing in the
legislative intent of the resolution
that specifically states for 240-70,
the section in there was meant to
read something else. We can surmise
that. You can hypothesize that.
There's nothing to indicate that in
the legislative intent or not. Also,
just to save some time, the board has
heard several times your position on
that and it's very clear you've
submitted it in writing, there's a
language in the statute when Mr. Fry
was here last time, he at length went
through the description. I think
everybody here is well acquainted
with your position on that. My
understanding, just to try to focus
this evening with regard to that
interpretation of that section, it
really revolves around 240-67 sub
paragraph G. Your prospective tenant
indicated he is going to be doing
sales there. If it's being approved
as sales, that's fine. It doesn't
really bring into play, at least not
at this time, subsection 70.
MR. WALSH: I will stay away
from that.
MR. CA VIGLlA: Just to get
through this and save some time,
that's my position, and that's the
way I recall it and at your request,
in fact, meaning Mr. Fry's request to
address that if and when the board
wants to have a discussion about
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Town of Wappinger
Zoning Board of Appeals
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Minutes of April 25, 2006
that, that's why we had Mr. Holmes
and submitted something in writing
and has been gracious enough to
attend.
MR. WALSH: I laid that
preface. One of the exhibits I'm
being asked to give you tonight
reflects on that. It is my
supposition, it is the result of my
investigation, it's confirmed by
discussions outside of this room,
it's nothing to do with this board,
except for the fact that's the reason
I had to limit one of the
applications made here. I couldn't
ask you to allow a repair shop when
the repair shop was not permitted in
the law, as I read it. That's simply
my own opinion, that's the opinion of
our Counsel, who's not here tonight.
I couldn't burden you with something
that I didn't feel comfortable asking
you to do. It's a Town Board matter.
At that -- as of the time I was
preparing for this meeting, I did
obtain the transcript late today, I
was able to make a brieflist in
there of some of the questions you
had and also taking -- I did receive
the memo from Frederick P. Clark.
You had asked them to basically
review the file here in the town. I
don't mean simply the two things I
gave Mr. Caviglia, the master file
that had everything to do with local
law 05 of 01 and they did indeed do
that; they submitted to you a memo
that confirmed the interpretation I
made of 240-67 was correct. At the
same time that only deals with again
retail sales. I did think they would
do that. I thought that anybody who
had a background in town planning,
when they saw the file would think
that way. That's what the file says.
It's a very simple file you have here
that Chris, your Town Clerk, put
together. When I read it originally
and Frederick P. Clark obtained it
ovemighted from here, we got a bill
for that. They had the opportunity
to read it, they said the same thing.
One of the things they said in the
memo to you, even if this is retail,
it still has to conform with the
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other section, the other requirements
of 240-67 and 240-70. That's where
240-70 comes up. There's one section
that deals with this. The rest of
them deal with different repair
issues or outdoor storage, none of
which we have on this premise. None
of them have ever come up. Chris
raised correctly the parking issue,
does the parking conform, and we show
it in the site plan. We hadn't used
that calculation. We were working
with the Town's calculation on
commercial parking. They come out
exactly the same. I'm prepared to
submit tonight, just as another
exhibit for the Board's purposes,
this is a site plan exactly the same
as the one on the board. The
difference between this one and the
one you had before is the spaces
around building two are labeled with
either V for visitor or an E for
employee. If you read 240-67, the
section that deals with parking, it
requires for a retail facility here
such as this, that they have ten
visitor spots and that these spots on
this side, the first one of which is
handicap, that's the 240-67 doesn't
refer to it, you have to have a
handicap spot in there. At the same
time, since the earlier testimony
from Mr. Schwartz is that he will
have three employees or less, he must
have two spaces. That's what the two
spaces shown on here are. I
submitted one to Barbara. Let's pass
that across to the board so we have
those. I'm going to keep one. One,
Frank, for your file purposes. I say
the difference is just the labeling
of parking places to conform with
what Chris asked. In addition to
that, the transcript, when I had the
opportunity to review it, asked that
you had questions of when did Mr.
Borek's partnership come into title
and what I did was, I went directly
to the title company. It's something
I couldn't pick up on line. I picked
up the original annotated title
report, which I have to return. I'll
be happy to submit to Counsel. They
certify it on 1/20/04 is the date
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they actually closed the title. They
omitted the mortgages and did the
taxes and all that to date. I just
picked this up before I came here. I
can submit that here and pass that up
there. That's the date the real
estate transaction closed. That's
the day Mr. Parsons' mortgage was
paid off, among others. That's the
day the taxes were adjusted, et
cetera. So, while I don't have the
deed itself, the primary evidence I
have is the original binder that was
at the Judicial Title Agency. I
apologize I don't have anything more
than that. It's pretty self-
explanatory what there is.
In addition to that, the board
asked, I don't remember which one of
you it was, for the draft of the
lease under discussion that would
limit, based on what we talked about
earlier, that would limit the
prospective tenant to simply retail
use on the premises. What I did was,
I went to the attorney's office who
drafted it, this is not an executory
lease not signed and obviously the
entire deal is held up until we see
where it goes, section article 2.1, I
made copies of that page. I'm going
to submit the lease itself and
several copies of the page itself so
you can see the limitation. The
limitation is after the fact. It was
originally going to be permitted to
do the different things. We thought,
once we saw the law, I had to tell
them, I don't think you can. That
section now reads tenants shall use
an occupied demised premise solely
for the retail sale of motorcycles,
for no other purpose. That gave him
the opportunity if he wanted to to
discuss with the Town Board and see
if he can go into the other things
and if indeed there's a correction
necessary or no correction, whatever,
we're willing to rent it on the legal
terms we believe are there right now
in the law. So, I'll submit that to
Barbara.
I'm going to hand you three of
these, if that's okay to hand up to
the board. I'll keep the original
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lease here. These are the sections,
I highlighted them, I showed you one
of them earlier. Then the original
one in your file I highlighted the
paragraph. There were other
discussions that came up principally
where does this application fit into
the process overall. There's been
some objections by the attorneys
about the State Environmental Quality
Review Act compliance in this. I
asked the same questions before I
came to this board. I didn't know
how this town worked. A lot of
different towns work different ways.
You can confirm that with Mr.
Roberts. Chris is here. We were at
the planning board several months
before we came here. I asked that
question of Barbara, because I wasn't
sure how it went. We had filed
environmental reports at the Planning
Board that went through wetlands
reviews, things not in your purview,
went through the screening and
different plans for that. Held up
for a few months. They wanted me to
redo the plans before they sent me
here. When they referred me here, we
filed the five separate applications
that your town staff required. Since
that time I've withdrawn one
application. That's the application,
I'm trying to make this simple,
obviously, that's the application for
a zoning variance in respect to the
motorcycle shop. At least the way I
read 240-67, my surmise was it wasn't
necessary. Rather than bore you with
the details, I pulled it. In
addition to that, I had to make a
statement on the record there were a
variety of uses. Miss McEvoy-Riley
cited a couple. You asked the
question ofMr. Schwartz a couple of
times, what do you want to do, pin it
down, the amount of each use done on
the premises. In conjunction with
what you said, also based on my
review, I advised Mr. Schwartz after
talking to Mr. Boric, the premises
would not be rented to him, except
for what we believe to be the only
compliant use in the town under the
way the code is written now, which
Town of Wappinger
Zoning Board of Appeals
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was a retail sales facility. We
couldn't rent it for any other
purpose. It would be like batting
ourselves against the wall until the
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matter goes to the Town Board. We
put that onus on him. We had a
letter turned in to that effect. The
application at the Planning Board, I
haven't gone back there, I'm supposed
to limit the issues we're going to
deal with here. I would pull now the
application for an interpretation
which asks you to, Tanya's letter was
saying that this requires a special
use permit. If I had the
representation they were going to
issue a letter saying based on the
Frederick Clarke's letter that
doesn't require a special permit,
that's a permitted use in this zone,
it's strictly an administrative
matter and doesn't have to be here.
I didn't think it was appropriate and
approach a member of the staff while
the matter was here. I put that out
on the table. It's an administrative
matter only. That letter should be
forthcoming saying that's fine, he is
allowed to go in there under the
interpretation you requested and you
got from Frederick P. Clark with no
special use permit, no variances,
nothing else whatsoever. Later when
we get to it, we can deal with the
remaining three variances; one, the
side lot in respect to the shed, and
I'm not going to speak for Mr.
Simeone. We have spoken about that.
He doesn't have an objection to that.
He can tell you that himself. That's
a screening piece of shed. When you
visited, Mr. Warren, you weren't
there, you remember that's the shed
that sort of sits in back of the
Parsons' property, probably better
than a fence, it's big and screens
everything and plus keeps the
dumpsters safe. That would limit it
down to two, how much of the area
should we attribute to the automotive
sales facility in the front and what
are we going to do about the motor
vehicle repair shop in the back.
Again, I'm not sitting here jumping
up and down on that, because that has
a temporary quarters. I'm concerned
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about the one who doesn't, it's
strictly an administrative matter,
now shouldn't be before the board. I
would rather you talk to the planning
consultant yourself. I'm sure you'd
prefer, if! should shut up now. I
may have some questions for them
obviously, because I wasn't able to
participate fully in the process due
to being ill. I had the opportunity
to speak to them and make sure there
was a letter coming and make sure if
they needed anything from my file.
What I gave Frederick Clark, they
wanted copies of Tanya's letters to
us, so they understood the position
up here. The stuff they got from the
Town Clerk didn't have those in it.
That's what Mr. -- I was happy to
provide that documentation. I have
four requests in front of you. I'm
willing to pull one, the
interpretation. Obviously I have to
know, I have the letter forthcoming
and there's an administrative matter
and isn't necessary for me to do
anything as far as this board is
concerned. It pulls a huge monkey
off your back. I'm not holding
anything against the experts
whatsoever. They may not have had
that in their book either. I'm
willing to bet it wasn't in there.
It wasn't until we looked at it and
wasn't understood. Now we have it
and an interpretation on it that
deals with motorcycle retail use of
this premises in a nutshell. I thank
you for your time.
MR. CA VIGLlA: I'm going to
request that you have the title
search company that did that fax me a
copy of the deed itself. We have to
infer from the dates somebody
scribbled in. We'd appreciate that
and we'll make that part of the
record.
MR. WALSH: We'll provide that
to him. I ran there four o'clock and
said, give me something.
MR. CA VIGLlA: If you can fax
that either to me, or actually better
to Miss Roberti and it goes into the
town file.
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MR. WALSH: That will come from
Judicial. That answers the question.
It was definitely January '04 when
they closed.
MR. SIMEONE: Frank Simeone.
I'm here on behalf of the Parsons.
I'll try to be brief.
I have submitted a letter as of
today's date, I think you all have
it, to address a couple of items that
have come up that I didn't address in
my letter, including the
interpretation.
First of all, if that's in fact
what the code states, then I have to
submit we don't have a code in this
town, we don't know what we're
proceeding on. If an interpretation
such as that would be offered and
that's the basis for a withdrawal of
the application, so that now this can
be considered an administrative
matter, I don't know what code is
being applied. The public in the
town have every right to know that
the code says what it seems to say,
no more or no less.
With respect to the shed
variance on the side yard, that's the
only application before you that we
do not oppose with a condition, that
condition being if the side yard is
provided -- the variance on the side
yard is provided with the
understanding that because the shed
is there it, in fact, forms the
buffer that the shred remain. There
could be some concern what happens in
the future once the side yard
variance is given, the shed is taken
away, now Mr. Parsons lost his
buffer.
Now, just to address a couple
of things. I will be brief. I want
to read from the record when we were
here last month. I think it's
important to understand where this
will go.
MR. CA VIGLIA: What page?
MR. SIMEONE: Page 52, Mr.
Warren asked, is it going to be a
repair shop. Mr. Fry's response on
page 52, quote, it is our long term
intent, speaking both as landlord and
tenant, to both sell and repair.
That's our long term intent. That's
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what we'd like to ask this board to
allow us to do. In the interim, if
we have to settle for a half a loaf,
we'll do that while we're waiting for
the other half to be baked. Page 50,
if I sell an item and something goes
wrong with it, I have to be able to
repair it, otherwise who's going to
come to me anymore. I respectfully
submit the rental, the provisos which
have been submitted really mean
nothing in point of fact, we know
what is going to happen, quote.
I also point out as to the
assembly issue, last month we heard
Mr. Schwartz say that his skill is in
building bikes. Mr. Fry described it
as kit bikes. Mr. Schwartz said this
is something I can do. I submit
that's an assembly. It's not like
the Ikea situation. That's an
assembly. That's a non permitted use
in the neighborhood business zone. I
respectfully ask you to so find.
Lastly I'll address again what
is covered in my letter at length
with respect to performance standards
and the noise issue. The noise issue
is the main driver here with respect
to the neighbors. You've heard it
going way back since we were first
here. I don't believe the
performance standards require the
abutters to submit proof. I think,
in fact, the way your code is
written, it requires the applicant to
submit and to show, and I submit I
suggest that it hasn't been done.
I thank you for your time.
MR. ADAMS: I have the written
statement, I'm handing the original
to -- John Adams. I have individual
copies for each of the board members.
For the record, my name is John
Adams. I'm the attorney for the
adjacent property owner Simonetti.
I want to address first the
interpretation issue first from a
procedure standpoint. The letter of
the zoning administrator from which
an appeal was taken to you did not
address the issue of the construction
of section 210-67. The letter of the
zoning administrator dated December
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6, 2005 addressed instead the issue
of cumulative area that would be
necessary for three uses, three
independent uses on a single lot. So
that I don't even think that
discussion is procedurally before you
until you properly advertise and take
the other procedural steps necessary
for a new issue. Be that as it may,
I'll defer to the board in terms of
interpretation of this procedure,
although I feel that, quite frankly,
a new appeal is necessary, because
it's a new issue. I disagree with
the interpretation given by your
consultant, and as understood by the
applicant, 210, the proposed
motorcycle activity is still a motor
vehicle sales. You can't take away
the fundamental character. It's the
sale of motor vehicles. I submit to
you the only impact of 21 0-67 was to
reduce the minimum area required for
motor vehicle sales for motor
vehicles from the minimum of two
acres to the -- actually, they didn't
set any standard. They simply said,
you don't need two acres.
Interestingly, the consultant still
states the other provisions of 21 0-67
are applicable. You can't have it
both ways. You're either in or
you're out.
Secondly, with respect to that
issue, there's a town law provision
the board has to be aware of, I
addressed it in my letter, one of the
requirements of town law within a
zoning district, all standards must
be uniform. This regulation, in my
mind, would be contrary to the
standard of uniformity required by
town law, because it creates a
different standard within the NB
district for motor vehicle sales of a
size of less than fifteen hundred
something weight I think is the
standard. A greater standard for
vehicles in excess of that. It's my
belief to the extent that this
regulation was passed, it's probably
invalid because town law requires
uniformity. This creates a different
standard for motor vehicle sales of a
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lesser size than a greater size.
MR. DELLACORTE: Can I
interrupt you for one second? You
mentioned our consultant two times.
I heard you say our consultant.
MR. ADAMS: That was a mistake
on my part. The only consultant I'm
referring to is Frederick P. Clark.
Turning to other issues invited
by this application, there are a
myriad of issues outlined in the
letter. The first one, the threshold
issue, which the applicant harped on
tonight, we have spoken about before,
the environmental review process. I
don't know what this board intends to
do with that process. That decision
is supposed to be made as early in
the process as possible. I
respectfully submit to you a short
form EAF is well inadequate to
address the environmental issues
brought out in the testimony,
particularly last month, when among
other things, one of the speakers
said our vehicles are going to sound
louder than the conventional
motorcycles, because they're special
motorcycles. There's a noise impact
in there that's got to be reviewed.
There's also the issue of the
cumulative impact. Before you had
one use on this property, you may
have had three buildings, but one
use. Now you're going to have three
independent uses. There has to be
greater impacts of noise, traffic,
visual impact and so forth associated
with three independent uses rather
than one use. Before I dare say, and
Mr. Parsons could probably support
me, most of the activity is up front
because the public activity was
concentrated in the front part of the
lot, not on the rear portion. Now
you're inviting the public back into
the rear portion, as well as to the
front portion. That creates a
different impact than those impacts
with the historical use of the
property. It can't be examined by
this Board in a one page short form
environmental form. That form is to
be used only in the most routine, you
might say, of applications that the
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board would consider. But this, with
three different uses, as opposed to
one, requires something greater.
Then, of course, there's the
issue whether or not the board would
normally in this town, since the
Planning Board is involved
coordinating the review, I don't
think the board even addressed.
Then turning to the area
variance issues, I just have to
submit to you in a very straight
statement, that the application as
framed and submitted to you is well
inadequate. It contains no
justification. You could grant the
application, quite frankly, and he
won't be able to undertake the
activity he wants to undertake. He
probably omitted half the variances
he needs. I don't think the
applicant understood the nature of
the application necessary for the
three separate uses.
I'll give you an example. If I
understood the zoning administrator's
letter of December 6 correctly, she
said we now have three zoning lots
rather than one lot, because we have
three independent uses. That brings
into play all the standards,
frontage, side yard and so forth.
Half the variances necessary, if it
you look at the bulk standards, are
not applied for. Frontage is the
issue. The two rear zoning lots,
because they're not legal lots, don't
have frontage. How is that being
addressed? The application doesn't
address that. If the board wants to
close the public hearing tonight, I
have no objection. I think there are
a myriad of deficiencies associated
with this process. We need to bring
the application at some point to a
conclusion. I've been here for three
meetings now. I think it's in the
best interest of everybody to somehow
define what are we going to do to
bring this to a conclusion. That's
why I raised the environmental issues
and other procedural issues. Quite
frankly, this board is going to have
to give that direction in terms of
how we're going to proceed. I defer
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-- of course, it's one major use, the
issue involved here, and it's
addressed more fully in my letter, I
think one of the paramount objections
that my client has to this particular
application is the intensity of use
this applicant proposes to bring this
parcel. This parcel initially was
used as one integrated parcel. The
building in the front is broken up
into different types of rentals.
He's now -- that's always been deemed
as one use, that's to say the front
building. Now we're going to have
new uses, with separate uses being
introduced to building two and
building three. That creates three
uses on an area of three point six
acres, we can only consider the land
within the NB zone for this
particular use. Using my
computations of lot sizes based upon
the zoning administrator's
interpretation of December 6, which I
guess the applicant is conceding is
correct, it's my belief you need five
point four acres instead of three
acres. The zoning administrator
concluded that. So you need n if
you need a minimum lot area of three
acres and you have three uses which
require five point forty-four acres,
you're doubling the intensity of use
versus the required lot size. It's
my belief there's a point where you
have to say no, you're getting a
reasonable return from your property
for your existing uses, you're not
entitled to everything you think you
should get from an economical
standpoint. The Town Board said we
have NB standards. This is making a
mockery of the NB standards by the
intensity of use intended. This
board cannot, given the extent of the
variance, the size variance
requested, grant that relief, there's
a prohibition and the board should
deny it on that basis alone.
I'm happy to answer any
questions. I realize the letter is
quite lengthy. It's a culmination of
two or three meetings. One thing
about my letter, I've attached to my
letter some of the prior
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correspondence taken from the town
files. One of the issues from the
testimony is whether or not
particularly the repair shop and the
motor vehicle sales shops are
permitted as legal non conforming
use. The records of the town are
clear that subsequent to the
ownership of the property by Mr.
Parsons, there were subsequent uses
to the rear of the property,
particularly building number two,
that were different in character than
the proposed use of building two.
There's reference in the records to a
carpentry shop, there's reference in
the records to a contractor's yard.
It's clear that any potential for
legal non conformity ceased in terms
of motor vehicle sales -- repairs, I
think is permitted use in the zone,
the motor vehicle sales terminated
when the use of building two was
first used for carpentry and
subsequently used for a contractor's
yard. To the extent the applicant
relies on the principle legal non
conforming use, I don't think the
record supports him.
Any other questions, I'll be
happy to answer them.
MR. DELLACORTE: I want to
clarify one thing. I want to make
sure what I think you said, that the
comment of our consultant, you said
our consultant, you meant Fredrick
Clark and, therefore, Mr. Christopher
Holmes, that you thought they were
incorrect?
MR. ADAMS: No, I thought the
conclusion in that letter, that motor
vehicle sales were permitted in this
district was incorrect. I indicated
that the character of the use is
obvious. Selling motor vehicles
motorcycles and motor vehicles. The
fact I don't think the only impact of
Section G is to reduce the minimum
lot area necessary from the required
two acres to no lot area. I mean,
your own consultant said that the
provisions of 210-67 apply. 210-67
for motor vehicle sales
establishments, maybe some of them
are not applicable in this
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circumstances, like overhead doors,
he acknowledged parking applies, it's
still a motor vehicle sales facility.
240-67 as a result it's not permitted
in the NB zone. All motor vehicle
sales facilities are retail by
character. Selling Dodges or
Plymouths or Chrysler products or
whatever else, it's a retail
activity, it's also motor vehicle
sales. The town has a more
restrictive standard for motor
vehicle activity or sales.
MR. DELLACORTE: Thank you.
MS. MCEVOY -RILEY: The file
grows and gets more convoluted. I
guess at one point in the letter, and
talking about building two, was
carpentry, stain, paint and finishing
shop and storage for building
material; and building three was
mechanic shop or -- and building one
had the used car sales, the
attorney's office, the mortgage
company. I guess the question is,
would all the uses being jumbled?
I'm not sure what my question is.
MR. ADAMS: We're going back to
the first meeting. If you look at
the table for mixed uses, only
certain uses are permitted, which is
addressed in my letter.
MS. MCEVOY-RILEY: I can
actually go, and the direct opposite
of what your letter is trying to
point out to me, it's saying, yes,
all the non conforming uses have been
in use for forty years. What I'm
getting out of all this. I don't
know how particular, maybe our
attorney can help me understand, or
somebody can help me understand,
there are so many non conforming uses
on this lot with the three separate
buildings that have up to ten
different uses, none of which were
technically permitted, other than
they were always going. You
understand the question?
MR. CA VIGLIA: Partially. My
recollection is that there's -- that
the building one uses were all prior
non conforming uses that have been
continued to date.
MS. MCEVOY-RILEY: It's one
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parcel.
MR. ADAMS: There is no
challenge to the use ofbuilding one,
if that helps you at all.
MS. MCEVOY-RILEY: Building one
is connected. Building two and
building three is on the site, they
have always had uses that were not
conforming.
MR. CA VIGLIA: They were
accessory to building one, because
they were the same ownership and I
don't want to --
MS. MCEVOY -RILEY: Some of the
letters in there were different
owners.
MR. ADAMS: My issue to
conforming use was to building two.
Repair shops are permitted in the
zone. The legal conforming uses is
not germane to repair uses. I was
not addressing building one. Those
uses, I think, have been there for a
good period of time and we're not
challenging that.
MS. MCEVOY-RILEY: On that
property, talking about 228 Myers
Comers Road, where there's been this
existing non conforming use for forty
or more years.
MR. HOLMES: Chris Holmes.
Procedurally my understanding the
zoning administrator has made
determinations about that and the
questions before the Zoning Board are
about the interpretation of 240-67
and about the variances. So, I'm not
sure that the applicant is asking you
to make a determination about those.
MS. MCEVOY-RILEY: As part of
the variances as a whole, there's non
conformed use that's been utilized.
MR. HOLMES: Tanya has had a
determination on non conforming uses.
It's sorted out.
T ANY A: Initially, to my
understanding, that the building,
number one, still houses a non
conforming use, which has been
continuous. That's not in question.
That's not in question. I think what
is in question, which Mr. Adams
brought up, there are many uses on
the site that are stand alone uses.
Our code does not limit one use to a
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lot. In the schedule of use
regulations it mentions the fact
there are use or uses permitted on a
lot. Therefore, the proposed uses
for building two and building three
can be seen as places where permitted
uses could go.
MR. ADAMS: I would note for
the record her letter of December 6
states, in part, proposed two
separate stand alone uses, each of
which fall under the definition
garage repair. Such uses are
permissible in the NB zone, but
require special use permits. The
special use permits for such business
require a minimum lot area of two
acres. She was addressing for each
facility, a repair facility, not the
issue of motor vehicle sales.
MR. CA VIGLlA: You agree that
that's changed based on the fact that
they are now limiting building two
use to motorcycle sales, which now,
despite the objections you have to
it, as far as what they're going to
be doing, this is limited to sales.
MR. ADAMS: The application has
changed. The issue of interpretation
made by the zoning administrator was
not for sales. It was clearly stated
as being only for repair garages.
That's why I raised the procedural
issue is the issue yet before the
board, because the appeal wasn't from
a denial of a motor sales facility.
MR. CA VIGLlA: Your procedural
objection, correct me if I'm wrong,
the applicant should have done the
amended application which I believe
Mr. Fry at the last appearance said
he was going to submit something,
although I think yesterday, at least
I received yesterday a faxed letter
which sort of summarized what they
were going to change or not from Mr.
Walsh.
MR. ADAMS: At the last meeting we
talked about revisions to the
application. The time table for the
submission was April 11. I don't
think the revisions were submitted by
that date. That was the process we
mutually agreed would be observed as
part of the process.
T ANY A: I would like to go back
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a little bit. One of the statements
you said that the area requirements
were per facility. It's basically
per use.
MR. ADAMS: That's what I
understood your letter to say. You
have two separate stand alone uses,
each of those stand alone uses would
have to satisfy the regulations
within that zone.
TANYA: For the special use
requirement.
MR. ADAMS: The applicant is
correctly recognized to the extent
motor vehicle sales are permitted.
That's in dispute. It would be a
lesser area requirement for that
particular use, because the
provisions of 240-67.
MR. CA VIGLIA: And that the
retail sales, that's the intent of
that statute, would not require a
special use permit.
MR. ADAMS: It's logical when
you think about it. Motorcycles are
smaller. You don't have the huge
display area you would have with the
conventional motor vehicle
dealership. That was why they
reduced the area requirements for
smaller vehicles, because they don't
require the same needs. Even though
they're motor vehicles, they don't
have the same needs as motor vehicle
sales.
MR. WALSH: I just want to,
because I don't want to get off track
on the issue of what was interpreted,
Counsel is absolutely correct in
saying that the 240-67 does limit the
area could be nothing. What he's
missing, the point he's missing, the
clear point that section as written
says two separate things. I'm going
to yield to Chris, because you're the
one who wrote the letter. Would you
mind putting in the record, that says
it shall be a retail use and retail
appears in the chart?
MR. HOLMES: I'm waiting for
the Board to hear my summary. I
won't jump in until you're ready.
MR. WALSH: That would be good
before I continue, because that's
important.
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MR. ADAMS: I want to make one
quick comment. We have a
construction law that says if the
Town Board intended special use
permits not to be applicable to
smaller vehicle sales, they would
have said the special standards are
not applicable. That language is not
contained in 210-67.
MR. DELLACORTE: Anyone else
have anything to say before we move
onto Mr. Holmes?
Mr. Schwartz, you raised your
hand a while ago.
MR. SCHWARTZ: I'm fine.
MR. HOLMES: I imagine you all
have had time to look at 240-67.
Rather than read our memo word for
word, I would like to read that part
of the code word for word.
Notwithstanding requirements to the
contrary, so notwithstanding the
requirements above is how we read
that the sale of small motor vehicles
less than fifteen hundred pounds
gross weight, such as the go-carts,
jet skis and motorcycles shall be
permitted and regulated as a retail
use. So, I guess this section is
very important, permitted and
regulated as a retail use. I think
that's why our office and David
Stalman, the president of our firm,
was involved in analyzing. This
determined that this motorcycle, jet
skis and that type would be exempt
from the special permit. So, to go
on the sale of motor vehicles less
than fifteen hundred pounds weight
such as go-carts, jet skis and
motorcycles shall be provided, there
is no storage, the floor area for the
use is less than five thousand square
feet, and with the exception of the
-- this is sort of double negative --
with the exception of the minimum
acreage requirement, the use meets
all other requirements of 240-67 and
240-70. So, what that is saying,
it's our understanding that what the
last section with, the session of the
minimum acreage requirement, the use
don't have to meet the minimum
acreage requirement, but it has to
meet all the other requirements in
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this section. That's how we arrived
at our interpretation or our
recommended interpretation. Your job
is ultimately to interpret the law
and we're using the word two
different ways, your job is to
officially interpret it. We're
interpreting it based on our
experience and offering that to you
as our recommendation. So, I think
that's the essence of our reading of
the law and, you know, clearly the
law is open to interpretation. Other
people have interpreted it
differently and that's your job.
Anymore questions I'll be happy to
answer.
MR. WALSH: Can I go back now
that we have that on the table to ask
the question of Mr. Holmes to make
sure we all understand that?
The idea saying it's to be
regulated as a retail use, in the
table of uses that's in your zoning
book is retail, how is retail
characterized in the neighborhood
business zone.
MR. HOLMES: That's why we say
in the memo it's the principle
permitted use retail.
MR. WALSH: Principle permitted
use, which means it's not a special
permit use, which means it's not
required for a variance. That's why
it's written that way. What you have
here is something really rare. You
have a Town Board passed law. You're
not being asked to decide what the
town's passed or not. That rule's
particularly on the point. I'm an
ignorant jackass, I didn't see it.
It was not in the book I bought. I
found out from your clerk it wasn't
printed until the end of'05, when it
was printed and Tanya brought some of
the language to my attention, I
thought about what it meant. The
source of where that law came from is
nothing to do with here. Just help
me out, when did Mr. Ruggerio become
the supervisor?
VOICE: Elected in '01. Took
office in '01.
MR. WALSH: You're going to
hear Miss McEvoy-Riley, you're a
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newer member of the board, you're
going to hear the word self-created
hardship. Somebody has a fifty foot
frontage and sells off ten feet and
wants to build another house on it,
they created the hardship themselves.
This is a self-created hardship.
It's created by the opponent. It's
created by Mr. Parsons who subdivided
this property, who worked on the NB
zone itself, who has a house, as do
the Simonettis in the NB zone. It's
not like this is a residential area.
They're in the area. Obviously Mr.
Parsons, maybe the Simonettis, were
defrauded at some time. They could
have looked out the back door and
seen the huge concrete storage area.
Mr. Adams has done a great job for
me. You have a Keane & Beane letter,
this is what we think we should be
allowed to have. Mr. Roberts' letter
came later. I submitted these to you
earlier. Another letter on file from
Tanya saying, I reviewed Mr. Roberts'
letter, those are the principle uses
allowed on the site. These are
buildings in a subdivision. This is
one big old thing, including two
separate zones. We're not addressing
the residential zone. We have no
plans for that. This is to use these
buildings. Obviously we can keep
trying to find other tenants for the
building. I know right now I don't
have to, in my opinion, with the
motorcycle retail facility I know
that's permitted, based on what was
said here and from what was in the
massive revision of the code. I
agree Mr. Simeone pointed out the
thing about the shed, yes, we'll say
on the record the shed will not be
removed. If it was, we'll have to
come back and revisit that issue. I
accept if you want to vote on that
alone to keep the application moving
along. We consent to his terms. We
would leave the shed there to serve
as the buffering screen. At the same
time, I believe that the SEQRA issues
have been answered by your own staff.
The multiplicity is answered by the
vast file saying that's what the site
has always been. What is the result
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if we don't go ahead with this two
building in the back, a tax
certiorary. One phase is in an auto
repair shop, always has been. It's
set up that way. You saw it. The
other one is a principle permitted
use. We wouldn't have to come to the
town if other people came with
principle permitted uses under
things. We have no interest in
building new buildings and taking
these down. No new construction
planned. It's an unusual thing. You
heard all the things tonight,
everybody wants to build something.
We want to use what's on the site now
in a manner consistent with the use
it's always been. This is a
neighborhood business zone. It was
carved by the town, certain criteria
were put on. If certain more
criteria were done in '01 when they
looked at the sale of small vehicles
and said we're going to allow that
here. I guess we should ask Tanya, I
should ask, should I pull that
application about the interpretation
based on what Frederick P. Clark has
said? Right now it's a question of,
do I ask you to rule if we have to.
You obviously have your attorney with
you.
MR. DELLACORTE: Thank you.
Everybody for the fifteen minute
break.
MR. SIMEONE: I would like to
say, I'll be brief again, I have to
respond to the issue about this being
a self-created hardship. It frankly
cannot be. He's not the applicant
here. I'll point out with respect to
the enforcement of your code, the
interpretation, it's been suggested
by your planner, flies in the face of
every portion of your code, including
if you look at attachment 2:6, which
is the schedule of use regulations
for non residence districts, motor
vehicle sales establishments.
240-67, the exact thing we're talking
about sliding over to new
neighborhood business. It's not a
principle permitted use. It's not a
permitted use under a special permit.
If you go by your code, there's
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simply no way. If you try to read
the document as a whole, no way you
can find this as a principle
permitted use or whatsoever. The one
given on this table refers to 240-67.
Thank you.
MR. ADAMS: You need to read,
in addition to the sections we cited
to you, two additional sections;
240-37, that's district regulations
generally which says you have to read
everything together. More
importantly, read 240-49, that's the
special use section as indicative of
the intent of the Town Board, if they
intended it had not to be a special
use. These standards apply to all
special use standards. Read both of
those sections, as well as the
sections we referred to. They have
to be read together. I think, with
all due respect to Mr. Holmes', his
interpretation is not a correct one.
It is motor vehicle sales and subject
to all the standards of motor vehicle
sales.
MR. WALSH: Last, but not
least, obviously I would disagree
with that, what they did hear. The
Town Board amended the law, they
carved an exception, they did an
environmental study, they went
through the procedure. He's right on
point, it's a retail use and retail
use permitted in NB zone.
The one we didn't touch on
before was the noise issue. You have
a town noise ordinance, any property,
any use whatsoever must comply with
the noise ordinance. You have a
standard, you have a great standard,
any use within that zone must comply
with that or be subject to the code
enforcement. It's completely covered
by what exists right now in your *in
department, one of the best I've seen
written, noise ordinances.
MR. PARSONS: Bill Parsons. I
can't even get up. Simonettis grew
up in that place from the time he was
three years old. He bought it from
the estate of -- the family estate.
It isn't somebody that wasn't aware
what was there and everything. That
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property was never subdivided. My
house was always a separate piece of
property from the rest of it.
MR. DELLACORTE: I'd like to
make a motion.
MS. MCEVOY-RILEY: Could I make
a motion to close the public hearing?
MR. WARREN: Second. Public
hearing is closed. What we're going
to need is, Mr. Walsh, within one
week we need a full EAF form from you
and I need it to address -- we need
it to address the noise issue.
That's in one week.
MR. WALSH: Just to make sure
we get the dates, today is the 25th.
MR. DELLACORTE: We're talking
about May 2nd.
MR. WALSH: I ask you
respectfully to make it May 4th. I
will have incite engineering do that.
Of course, I object to that. I have
filed one with the Planning Board and
with the noise ordinance governs
under SEQRA I'm one of the fellows
that wrote that you're allowed to ask
for it.
MR. DELLACORTE: Thursday, May
4th to submit that.
MR. WALSH: I will deliver same
to you.
MR. DELLACORTE: Addressing the
noise issue.
MR. WALSH: It will pick up
everything I submitted in terms of
the long form that's already in. Do
you want the additional issues before
the Planning Board, including the
wetlands and everything? It will be
attached. It's already done.
MR. DELLACORTE: Yes. What
we're going to do in two weeks, which
is May 9th, that will be the next
meeting, we're going to convene to
discuss SEQRA and the full form.
MR. WALSH: I didn't hear that.
MR. DELLACORTE: We're
discussing the size of the agenda.
We're going to go to May the 9th, and
also I would like Mr. Holmes to
attend that to discuss that with you
specifically.
MR. HOLMES: Okay.
MR. WALSH: Should I forward a
copy of that to Mr. Holmes' office.
MR. DELLACORTE: Please. Thank
~
........
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Town of Wappinger
Zoning Board of Appeals
Page 34
Minutes of April 25, 2006
11
12
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you.
MR. CA VIGLIA: And me as well.
MR. WALSH: That will come from
Insight, the engineering firm,
Insight Engineering.
MR. DELLACORTE: Motion to
close.
Ms McEvoy-Riley:
Mr. Warren:
Vote:
Motion to adjourn.
Second the motion.
All present voted aye.
Meeting ended at 9:30 PM
/r'J /.
R"pectfu*mitted~
/::}'1?~JeeL
Barba1jl'U'eftf,' Secretary I
Secre{ary - Zoning Board of A peals
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