2006-07-11
ZONING BOARD OF APPEALS
July 11, 2006
Agenda
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Town of Wappinger Zoning Board of Appeals
MEETING DATE: July 11, 2006
TIME: 7:30 PM
Town Hall
20 Middlebush Road
Wappinger Falls, NY
Approve minutes for May 23, 2006
Approve minutes for June 13, 2006
Approve minutes for June 27, 2006
Approve site minutes for July 8, 2006
Adjourned Public Hearing:
Appeal No. 06-7315
Timothy & Stacey Roe:an- Seeking an area variance of Section 240-37 of District Regulations in an R-15
Zoning District.
-Where a rear yard setback of 30 feet is reQuired, the applicant is proposine: a rear yard setback of 14
feet, to allow for a 27 foot above ground pool, thus reQuestine: a variance of 16 feet.
The property is located at 59 Kretch Circle and is identified as Tax Grid No. 6156-01-380741 in the
Town of Wappinger.
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 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 vard setback of 20 feet is reauired, the applicant is proposing a side vard setback of 13.6 feet to allow
for an existinl! metal shed. thus reauestinl! 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 reauired for motor vehicle use in buildinl! # 1, the applicant is proposing a total lot
size of 3.6 acres. thus reauestinl! 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 of2 acres is reauired for a proposed use in buildinl! # 3. the applicant is proposing a total lot size
of 3.6 acres. thus reauestinl! 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.
Closed the public hearing on April 25, 2006. Expires on June 26,2006. Applicant granted one day extension to June 27,
2006.
Discussions:
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Appeal No. 06-7317
Robert & Loretta Usher- 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 reQuired, the applicant is proposine: a side yard setback of 19
feet, to allow for a 25 ft. X IS ft. above ground pool with a side aluminum deck, thus reQuestine: a variance
of 6 feet.
The property is located at 105 Spook Hill Road and is identified as Tax Grid No. 6257-01-203529 in the
Town of Wappinger.
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T own of Wappinger
Zoning Board of Appeals
MINUTES
Town of Wappinger
Zoning Board of Appeals
July 11,2006
Summarized Minutes
Members Present:
Mr. Prager,
Mr. Warren,
Ms. McEvoy-Riley,
Mr. DellaCorte,
Member Absent:
Mr. Fanuele,
Others Present:
Mr. Caviglia,
Mr. Stolman,
Mrs. Lukianoff,
Mrs. Roberti,
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Minutes of July 11, 2006
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Town Hall
20 Middlebush Road
Wappinger Falls, NY
Vice-Chairman
Member
Member
Member
Chairman
Special Counsel
Town Planner
Zoning Administrator
Secretary
SUMMARY
Adiourned Public Hearin2:s:
Timothy & Stacey Rogan
Public Hearin2:s:
228 Myers Corners Road
Discussions:
Robert & Loretta Usher
Variance Granted.
Adjourned the Public Hearing to August 22, 2006.
Site visit for July 15, 2006 and Public Hearing on July
25, 2006.
Town of Wappinger
Zoning Board of Appeals
Page 2
Minutes of July 11, 2006
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Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to approve the minutes for May 23, 2006.
Second the motion.
All present voted aye.
Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to approve the minutes for June 13,2006.
Second the motion.
All present voted aye.
Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to approve the minutes for June 27, 2006.
Second the motion.
All present voted aye.
Mr. Warren:
Mr. DellaCorte:
Vote
Motion to approve the Site Minutes for July 8, 2006.
Second the motion.
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Appeal No. 06-7315
Timothy & Stacey ROl!:an- Seeking an area variance of Section 240-37 of District Regulations in an R-15
Zoning District.
- Where a rear yard setback of 30 feet is required, the applicant is proposinl!: a rear yard setback of 14
feet, to allow for a 27 foot above ground pool, thus reQuestinl!: a variance of 16 feet.
The property is located at 59 Kretch Circle and is identified as Tax Grid No. 6156-01-380741 in the
Town of Wappinger.
Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to open the adjourned public hearing.
Second the motion.
All present voted aye.
Mr. Prager
Joe Ennesser has said that this will not be a problem. Does anyone else have a
comment or question?
Mr. Warren:
Mr. DellaCorte:
Vote:
Motion to close the public hearing.
Second the motion.
All present voted aye.
Ms. McEvoy-Riley:
Motion to grant the variance. The property is not unique although this is
substantial at 53 %. The recreation department has no problem with this
and it is self-created.
Second the motion.
Ms. McEvoy-Riley:
Mr. Warren:
Mr. Prager:
Mr. DellaCorte:
Aye.
Aye.
Aye.
Aye.
Mr. Warren:
Roll Call:
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Town of Wappinger
Zoning Board of Appeals
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Minutes of July 11, 2006
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Appeal No. 06-7317
Robert & Loretta Usher- 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 19
feet, to allow for a 25 ft. X IS ft. above ground pool with a side aluminum deck, thus reQuestinl! a
variance of 6 feet.
The property is located at 105 Spook Hill Road and is identified as Tax Grid No. 6257-01-203529 in the
Town of Wappinger.
Mr. Usher:
I have a corner lot and I would like to install a pool. If I put the pool in the rear
I will require a rather large variance but by putting the pool in the side I will
only need 6 feet to the side yard.
Mr. Prager:
Is the side you will be putting this on secluded?
Mr. Usher:
Yes. There is a row of Blue Spruce on the side and a lot offoliage in the rear
of the yard.
Mr. Prager:
We will do a site visit so could you please stake this out for us. Mark out the
property line as well.
Mr. Usher:
I have already done that.
Mr. Prager:
Fine and we are setting your public hearing for July 25, 2006.
Mr. Usher:
Thank you.
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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 of20 feet is required, the applicant is proposing a side yard setback of 13.6 feet to
allow for an existing metal shed. thus requesting 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 building # 1, the applicant is proposing a total lot
size of3.6 acres. 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 a lot size of2 acres is required for a proposed use in building # 3, the applicant is proposing a total lot size
of 3.6 acres, thus requesting 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.
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MR. PRAGER: I will turn the
meeting over to Mr. Warren, since I
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recuse myself from the next appeal.
MR. CA VIGLIA: I was under the
impression we were going to have an
executive session before you reopen
the hearing.
MR. WARREN: I did not know
that.
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Zoning Board of Appeals
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MR. DELLACORTE: I did not know
that. Did anybody know that?
So moved.
MR. WALSH: For the record, I'd
like the reason for the executive
session.
MR. WARREN: I make a motion.
MR. CA VIGLlA: Seconded.
MR. DELLACORTE: Seconded.
MR. WARREN: All in favor?
MR. DELLACORTE: Aye.
MR. WARREN: Aye.
MR. WALSH: Is there a reason
for the executive session?
MR. CA VIGLlA: Some legal
issues regarding the hearing itself
and some jurisdictional issues that
have come up. We want to make sure
they're clarified before we open the
public hearing.
MR. WALSH: I would like to
leave open that's something anybody
can object to. I don't know enough
about the rational for that. We're a
__ there are a very narrow group of
reasons why you can go to executive
session. That's what I'm asking.
MR. CA VIGLIA: We're required
to give the subject matter regarding
Stolman.
MR. STOLMAN: The record should
show it's either an executive session
or advice of Counsel. If it's advice
of Counsel, there are no limitations.
So, let's do it. Let's go. (Recess
for executive session.)
MR. WARREN: Motion to close
the executive meeting.
MR. DELLACORTE: Second. So
moved.
MS. RILEY: Second.
MR. WARREN: That was basically
on personnel matters and the advice
of Counsel on jurisdiction.
MR. CA VIGLlA: For the record,
the reopening of the public hearing
was stipulated to by all parties
previously and presumably the board
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will be reopening it.
It's been agreed by stipulation
it's going to be limited to the issue
of noise. With that proviso, we can
proceed.
MR. STOLMAN: Entertain
comments from the public. Any
Minutes of July 11, 2006
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Zoning Board of Appeals
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Minutes of July 11, 2006
comments?
MR. WARREN: The mailings are
all in order.
MS. ROBERTI: Yes, they are.
MR. WALSH: You all know what
I'm going to say.
MR. STOLMAN: Did you have a
question for Marco?
MR. ADAMS: I misunderstood
your comment. I thought you wanted a
stipulation.
MR. CA VIGLlA: I'm putting on
the record we're reopening the
original hearing pursuant to
stipulation among the parties. Also
that we would limit the balance of it
to the noise issue.
MR. ADAMS: I don't recall any
stipulation limiting the subject
matter.
MR. FRY: I don't either.
MR. SIMEONE: I have a
transcript here, if it helps.
MR. CA VIGLlA: Off the record
for a minute.
(Whereupon, a discussion was
held off the record.)
MR. CA VIGLlA: Back on the
record. Reading from page
twenty-four of the transcript of May
24, 2006 transcript as transcribed by
J&L Reporting Service, this is Mr.
Simeone. I believe, this is line
thirteen:
I believe the objectants should
have the opportunity to reopen the
public record so testimony can be
taken from both sides on the noise
issue, et cetera, et cetera.
MR. ADAMS: Are we on the
record or off the record?
MR. CA VIGLlA: We can be on the
record now.
MR. ADAMS: I believe
ultimately the board accepted Mr.
Roberts' recommendation that the
public hearing be held on the
environmental review issues. I don't
think there was coupled with that
recommendation any limitation on the
scope of that public review. As a
practical matter nine tenths of my
remarks will be -- were devoted to
one issue. I don't think there was
any explicit understanding that the
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Town of Wappinger
Zoning Board of Appeals
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Minutes of July 11, 2006
environmental review process would be
limited to that one issue.
MR. WALSH: Is there an extra
copy of these minutes? I have not
seen them as you're reading them off.
MR. SIMEONE: I don't have one.
MR. WALSH: The meeting was
Tuesday May 23rd. Is there a set of
the minutes?
SEC*: We're getting them for
you.
MR. STOLMAN: While we're
waiting, could I get a copy of this
plan?
MR. WALSH: Of course. This is
one of the several sheets that came
from the Planning Board. As you
know, there is no separate submission
for here.
MR. STOLMAN: This one and the
one you have, you have updated 4/25.
MR. WALSH: I'll make sure I
send you a complete set of them, a
current Planning Board management.
MR. CA VIGLIA: Again, on the
record, I can't find anymore detail
on that issue. It refers to the EAF,
which is a document as a whole,
although there were also the other
comments placed on the record from
the transcript. It would seem that
the EAF as a whole would be
considered. Those issues that
naturally arise there under.
MR. ADAMS: EAF, the wetlands
report, in addition to the wetlands
report.
MR. WALSH: We said in there, I
hope you'll find it in there, when we
were asked to consent to having
another public hearing in effect.
MR. CA VIGLIA: Reopening it.
MR. WALSH: We had to notice a
new public hearing.
MR. CA VIGLIA: Right, because
we originally closed it.
MR. WALSH: We decided there
would be certain submission dates and
we had to get our stuff in by a
certain date. Just for the record,
the date on the opponent material is
after the submission date. The
submission date agreed to was the
20th. I put in my letter here, I
respectfully suggest that anything
Town of Wappinger
Zoning Board of Appeals
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Minutes of July 11, 2006
submitted after the agreed upon date
should be rejected.
MR. STOLMAN: They could read
it into the record tonight.
MR. WALSH: We said all the
material to be considered was to be
in by that time.
MR. CA VIGLIA: Wasn't something
from you originally tardy as well?
MR. WALSH: No. David asked us
to update, to add a section
identifying this was a coordinated
review in the SEQRA process.
MR. CA VIGLlA: I recommend to
the board to take that under
advisement.
MR. WALSH: Note my objection.
MR. CA VIGLlA: Whether that's a
material breach or not, that's
something they can consider.
MS. RILEY: We asked for public
comment on the environmentals. We
need to move this along.
MR. WARREN: Go ahead with the
public comment.
MR. CA VIGLlA: Does anybody
have a public comment?
MR. SIMEONE: Just quickly on
Mr. Walsh's point about the
timeliness of the submission.
Frank Simeone, on behalf of
William Parsons.
Just on Mr. Walsh's point, I
understood it was a three week
submission date, it was submitted on
June 21st. In the event that the
board should determine that the
submission made by Mr. Adams appears
on behalf of his client, Mr.
Simenetti and my client jointly I
have the B-Line associates report of
June 21st, 2006 which is a noise
consultant on behalf of the abutters
here. I will submit that at this
time.
I will point out in reliance on
that report many aspects of the noise
submission in the EAF submitted by
the applicant, which are insufficient
both procedurally and substantively,
both with respect to the manner in
which the testing was conducted, as
well as the conclusions. If I could
also, without repeating too much of
what's been said before, I'd like to
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Town of Wappinger
Zoning Board of Appeals
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Minutes of July 11, 2006
note that your performance standards,
the performance standards of the Town
in its zoning code pursuant to the
codes provisions shall be complied
with. There's nothing discretionary
about this hearing. I believe, given
the inconclusiveness of the report
submitted by the applicant, there's
very little doubt those performance
standards have not been met. I would
ask that the board, if a
determination is made at tonight's
meeting, to take a hard look. That
upon taking that hard look the board
find that it's own and the Town
zoning codes performance standards,
as well as the performance standards
set forth in the subdivision
regulation, have not been met in the
applicant's submission.
If the board wishes to consider
that further, I think this board can,
under it's regulations hire, at the
cost of the applicant, it's own noise
consultant to weigh the contentions
on either side.
Just to reiterate, the
performance standards 241-01 are to
be met and continued conformance
shall be a requirement. To reduce to
the minimum to reasonable minimum
dissemination of smoke, gas, dirt,
odor, et cetera and (b) control noise
perceptible beyond the town
boundaries. As submitted in Mr.
Lang's tonight and earlier submitted
by Mr. Adams, even considered at its
broadest, it cannot be said that a
standard has been set that would
control noise perceptible beyond the
boundaries of the site of the use.
There's a statement in the
applicant's submission that a two
hundred fifteen foot distant
residence was beyond --
MS. RILEY: If you're using a
lawn mower.
MR. SIMEONE: There's an
exception in the code for ambient
noise, small engines, I believe.
MS. RILEY: I was curious.
MR. SIMEONE: In regard to
whether there's noise beyond the
boundaries of the use here, even in
reading it in its most favorable
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Zoning Board of Appeals
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Minutes of July 11, 2006
light, the applicant's consultant
took no readings from that residence,
just made his determination based on
an unscientific and personal read
from a distance of twenty feet from
the building, and that was with one
motorcycle being operated inside the
building.
Your code in regard to
performance standards indicates that
sound level meters and filters are to
be used, shall be employed mandatory,
shall be employed, that's 241-03 in
terms of the standards for noise.
I think we all understand that
this is a rather unusual application,
both in terms of how it's worked its
way to this board and also in its
present status before this board. In
light of that, I would ask the board
to consider the entire record here
and consider the public comment that
you have received from your very
earliest date of the public hearing,
probably nine months ago, which has
been ununiformally to the next, even
before the application was granted
your noise standards have been
violated in that respect, I ask that
you reject the application.
MR. ADAMS: I have some written
comments I'd like to hand out.
MR. WARREN: State your name
for the record.
MR. ADAMS: Let me say as a
procedural matter I think any
decision by the board in terms of
environmental analysis is premature
until there's a final site plan. I
don't know this board has the
perspective to take that procedural
step of making an environmental
impact analysis. The analysis has to
spring from the site plan as finally
approved by the board or something in
its final form. I don't know if
that's before the board or not.
MR. WARREN: State your name.
MR. ADAMS: As to these remarks
and my prior remarks, I want to
supplement briefly the comments of
the sound expert that has been
submitted to you. That, in fact, is
the central issue in this matter,
because the record in this proceeding
Town of Wappinger
Zoning Board of Appeals
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Page 10
Minutes of July 11, 2006
has addressed that more than any
other issue.
Without repeating the comments
of the consultants, I would add some
further thoughts for the Board to
consider. It's essential the board
retain it's own consultant in order
to make its analysis of this issue.
Only through an independent analysis
can you have what I'm going to call a
valid issue. Their own analysis,
that type of analysis is inherently
self-serving. You need to have an
objective, as opposed to a non
objective, analysis.
Additionally, during the prior
hearing, when the issue of noise came
up, there was testimony to the fact
that purchasers of these custom
motorcycles, quite frankly, have a
preference for higher sounding
mufflers, and because of that
preference, obviously that greater
impact needs to be analyzed with the
normal impact of a motorcycle.
Additionally, it's been my
experience, and there's testimony in
the record, that motorcyclists are a
very social group of people, they
often travel in groups. So, that
when you measure noise impacts in
this situation, you have to be
sensitive to the presence of severa
riders, as opposed to the noise
generated by one motorcycle. I think
these issues together have to be
studied. As Frank said, you need to
take a hard look, the record here is
so clear in terms of the existence of
this issue. You have a planner, I
don't know about his expertise in
noise, it took me three weeks to find
a noise consultant, I had to go to
somebody in Westchester, to a third
person, fourth the person. They're a
scarce resource. That's why it took
us so long to submit something to
you. It's an area that needs special
attention by this Board. I highly
recommend that that analysis be done
by an independent consultant. We
would have no objection to the
retention of a separate consultant
for that purpose.
One other minor issue I want to
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Zoning Board of Appeals
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Page 11
Minutes of July 11, 2006
bring up, aside from the noise.
That's in the EAF there's a report by
a wetlands consultant, Mr. Jacobson.
He identifies two separate wetlands
in his report. I didn't have the
benefit of looking at that map. The
town does have a very stringent
wetlands local law. Not only are
wetlands protected in this town, but
buffers around the wetlands. Quite
frankly, the buffer area of one
hundred feet be larger than the
protected wetland. I've seen no
analysis of the local law as it
relates to the wetlands on this site,
and the impact of any activity on
this site relative to the wetlands.
That's a substantial deficiency in
terms of the submission that has been
made to you. I have no other
comments.
MR. CA VIGLIA: Can I ask you a
question? You said you thought the
review of the noise prior to the
review as a site plan was premature.
What is your suggestion?
MR. ADAMS: I don't know. I
would think that the Planning Board
should give some indication to the
Zoning Board -- I realize the site
plan is fixed, because we're talking
about existing buildings as opposed
to new construction. There may be
other site amenities the Planning
Board may be considering fencing and
landscaping and so forth. We don't
know if that's going to be there
until the Planning Board takes action
and says, these are the additional
site amenities appropriate for the
particular use.
MR. CA VIGLIA: I'm asking for
clarity. You think the issue of
noise analysis and so forth should be
done after a site map is developed,
as well as any testing and
considerations?
MR. ADAMS: There's going to be
a direct relationship between site
amenities and noise impacts in terms
of fencing and so forth. Until the
board has a definitive understanding
what the amenities are, I think it's
premature.
MR. CA VIGLIA: Do you think
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it's a possibility to make a
determination regarding the noise
impact without the final site plan
being in place?
MR. ADAMS: It's more
speculative when you don't have the
site plan.
MR. CA VIGLIA: But you propose
we go ahead with our own expert.
What would that expert be doing?
MR. ADAMS: I talked before, I
don't want to go back to
uncoordinated review. To some extent
I thought there was more merit to a
coordinated review, where we come
together rather than acting
independently. I think the board
should let the Planning Board, i
it's appropriate, make their
environmental determination on a
coordinated versus uncoordinated. I
think you have a real issue here,
procedural, given the character of
the issues before you, that's the
environmental issues how you're going
to tie these two together.
MR. CA VIGLIA: Why do you think
it's pertinent to address the noise
issue, as far as the variances are
concerned? If the Planning Board is
going to be receiving this to look at
the site plan and will be making its
own determination regarding the noise
issue, especially with the plan
already in place and all these
additional factors, would it be more
logical then to have the board make
the decision without consideration of
noise factor since that would be
addressed by the Planning Board?
MR. ADAMS: I don't think you
can do it on a piecemeal basis. I
don't know how you can sit here and
say, we're going to examine only
certain aspects of the environmental
issues.
MR. CA VIGLIA: I reviewed your
submission here. You make a
reference to a case that's attached,
at least my copy doesn't have that.
Just for the record, the case is the
matter of Stanley Avy v. The Town of
Amenia.
MR. ADAMS: I thought the case
was pertinent because Amenia is a lot
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like Wappinger, it's a small town,
you have a motor vehicle facility a
little larger, we're not talking
about a large project. It's the same
issue for the smaller projects as the
larger projects. Avery Terrace was
remapped back to the board because
they felt they had not conducted the
adequate hard look review.
MR. WARREN: Thank you.
MR. WALSH: My name is Don
Walsh.
(Whereupon Mr. Walsh was sworn
in.)
MR. WALSH: If I may, this is,
you know, a classic case of let's
pick up as much mud and throw it
against the wall and see what sticks.
What we have here is an unusual,
extremely unusual issue, that the law
that governs the noise itself, a
motorcycle shop sales, that wasn't
part of the original application.
Now it has come up, you're being
asked not to grant a variance, not to
grant a special use permit, all of
the things you have to look at.
You're being asked to correct an
error. By the way, the zoning
Administratrix wrote a letter saying
a special use permit is necessary for
the sale of motorcycles on this shop.
We didn't ask for a variance on that.
That's the first application on here.
That came up when we brought that to
your attention. This is a retail use
under the law, and the law that was
kind of forgotten about, to use the
words of another public official not
here tonight, Mr. Stolman was kind
enough to review that. They made the
determination that this indeed did
exist and it's a retail use. When
you have something that's strictly
administrative in nature, nobody is
asking you to make a determination to
weigh a lot of factors. If you came
up with an environmental review each
time you're asked to correct a
mistake when something is permitted
in the law, that would be absolutely
overwhelming. You're being asked to
say, yes, the law is this. By the
way, the motorcycle shop is going to
follow the tenants, which he
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Minutes of July 11, 2006
introduced the tenant and saying, I
will do these things, there isn't
really any other room for review,
environmentally or otherwise. When
the law was added, Mr. Stolman's firm
did it, the environmental review on
making the sale of jet skis,
motorcycles, et cetera, retail use.
The Planning Board signed off on it.
That was signed by Mr. Parsons. This
was something they wanted to do. The
Town did, in retrospect, we shouldn't
have done that, but he did it. I'm
asking for some variances and Counsel
is quite correct saying it's an
unusual thing with variances, where
every building is ready, no one is
asking to build anything on here.
Speaking on the three variances
themselves, the one that allows the
shed to remain we put on the record
earlier, Mr. Simeone and I had, he
doesn't have any objection to that,
as long as the shed itself stays.
That's a valuable screening thing on
their side.
MR. SIMEONE: That's correct.
MR. WALSH: The other two
variances deal with the existing side
lots and the buildings are there. I
asked Tanya when I came to the Town
considers the site plan for the
original subdivision get, guess what
they didn't do it. We're going
through a site plan process, they
wanted to have a site plan in place,
so they knew where the buildings were
on the site. I agreed with that. To
be honest with you, there was no
other way to determine by the Town
records what there was. There was
one piece of paper in the entire
records that said Parsons
subdivision. All water under the
bridge. Things that happened a long
time ago.
The three variances, one of
which Mr. Simeone and I agree on, the
one with the shed, the other
variances no one said anything
against them. We put enough in the
record for them. We can get the vote
without batting the eye. I ask you
to respectfully consider, you have a
law right now that deals with noise
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Minutes of July 11, 2006
issues, but you don't have a business
that can create noise. The business
can't be on the site operating until
the business gets a letter that goes
in as part of its license application
that will say he's allowed to have
this kind of thing there. We haven't
been able to get that, Tanya withdrew
the earlier letter. The fact, what
we have right now is, we have an
issue that's cut and dry. This is
absolutely permitted on the site
until the business is operating.
There is no way to say that the
business is in violation of any noise
ordinance. You have a noise
ordinance and a zoning administrator.
You have George Cole, a solid
building inspector, who can be out
there in five minutes if there was a
noise complaint. There couldn't be a
report. It's all speculative in
nature. I put in there the very
minor test they asked, the question
with the long form what about noise
issues. I couldn't ignore it. We
have ran a very basic, Counsel is
right, a simple test to make sure
there wasn't something that would
jump off the page.
The law exists. The law
permit, the kind of business Mr.
Schwartz said I will be bound by the
noise ordinance and the statute, if
not, I realize I will be in full
violation of the law, I will deal
with the penalties, including a
Planning Board decision to pull the
CO.
The wetlands issues, those
matters were addressed at the
Planning Board. After the first
meeting, when both your Town engineer
and Dave's representative were at
that meeting, we were required to
file the wetland report, all which we
did do. It's been discussed a couple
of times at the Planning Board
meetings. I'm asking you to consider
the narrow scope.
Now, three variances, one of
which is actually fairly close to
being stipulated on, the one with the
shed on the side, the other two which
have not been opposed on the record,
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one interpretation the law permits
not a motor repair shop, but a
motorcycle sales shop. If you say
that fairly, I'm back to the Planning
Board. At the same time we'll be
working through a lot of the other
issues that have come up. Your
decision, as far as the letter is
concerned, allows him to start a
licensing process, which means he has
along road to hoe thereto. We have
extended through tonight, I'm
respectfully asking the board to vote
on those issues tonight.
MR. STOLMAN: The two non shed
variances, did you describe those a
set back variances?
MR. W ALSO: No one deals with,
bear with me a second, the total
acreage on the site that was with
respect to the special use permit to
be required for building number
three, that building number three.
MR. STOLMAN: I know what
they're for. I thought in your
remarks before you said they were
setback variances.
MR. W ALSO: I was
characterizing the first one as a
setback. That was incorrect. The
other two deal with the acreage. One
of which is the minimum lot
requirement in building one. When
Mr. Roberts wrote the letter that
says building one is grand fathered as
to its use of automotive sales. He
didn't say the area used in there,
the point six acres in the front, is
the actual sales area. That's all we
rented to them. They're not spilling
out or going anywhere else. We're
asking the board to rule on that.
They're limited to that, what is
actually in the lease. The
grandfather covers the actual use.
The second one is the letter
that's dealing with building number
three, which is that, in the event
you give us a special -- that your
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Planning Board gives us a special use
perm it for the use of this building
as an auto shop, that the area around
that building will be what is
reserved for that.
I will say on the record now, I
don't want anybody to think I was
hiding anything. I want to make sure
you understand that, to the test that
I had in that building, in building
three, the proposed auto shop user
has withdrawn. He was not able to
wait this out and he's not in a
position to go ahead with this. I
read the statute and had our
attorneys read the statute, doesn't
say a special use permit goes with
the building. That gives me the
option to put someone else in there.
Or if it goes specifically with Mr.
Libro. I have to make -- I have to
leave that to you to make a
determination whether that's an
appropriate request. The property is
listed with Century 21. The only
automotive tenant was Mr. Libro.
He's no longer in the picture that's
dealing with the building three
request.
MR. CA VIGLIA: You're not
stating the building will be used for
retail?
MR. WALSH: The only thing
listed is what's listed in your
ordinance. I went to the realtor and
says, this is what the ordinance
permits, like a garden center.
MR. STOLMAN: Are you
withdrawing?
MR. WALSH: No, I'm not. I'm
asking Counsel in the event a special
use permit is generic to the
building, leave the application
continuing. If it's a special use
permit, if there's an intention that
I'm not aware of, that it has to be
to a particular tenant, I don't have
that tenant any longer. We went
through it. We had our attorneys go
through it carefully.
MR. STOLMAN: That should be
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researched.
MR. WALSH: I need to know the
issue, if this board decided not to
go to, that particular issue, I
withdraw the request that be voted
on. I request that all other matters
be --
MR. CA VIGLIA: Building three
the application as it stands was
automotive repair.
MR. WALSH: Yes.
MR. CA VIGLIA: That's the use
you're stating for the record.
That's what we're deciding on
MR. WALSH: That's what you're
deciding on, the special use permit
we asked the Planning Board to give
us is based on it being an auto
repair facility. It's set up with
lifts and everything else. It's a
special use permit. It requires
discretion -- if they find a
different tenant, such as a gardener
or internet retail use, any of the
other things that fall into your
ordinance, we'll never be back here
again. I certainly do have a tenant,
Mr. Schwartz, a local businessman,
for the motorcycle sales shop. I
don't have a tenant for the back
building. He's formally withdrawn.
Our lease with him was contingent on
getting the Town's permission. He
didn't suffer the financial loss on
that. He didn't get in when he
wanted to. As we all know,
procedures take time, much to my
undying regret, but they do.
MR. WARREN: Anybody else?
MR. SIMEONE: I would like to
note the statement made by Mr. Walsh,
with lack of failure of any
opposition to the variances, that's
not fair. The comments tonight were
to the EAF issues. I have a letter
to the board on April 25th that sets
forth fully, plus the record in this
matter, lengthy objections
procedurally and substantively with
respect to the area variances being
made, and I repeat the same comment
Page 19
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Zoning Board of Appeals
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Minutes of July 11, 2006
8 on behalf of my client.
9 MR. DELLACORTE: Anything you
10 want to say?
11 MR. STOLMAN: I think you can
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on it. If there's any question, I'll
make some comment.
MR. SCOW ARTZ: Michael
Schwartz.
This property that we're
talking about has been operating for
X amount of years. It was a junk
yard, it was an automobile dealership
with a full body shop, auto repair
shop, and it was one of the largest
construction companies in the area.
The noise there was whatever. You
have a plumbing supply house right on
the corner. You have a gas station
across the street. We're in a
commercial area over there. You have
to -- you just can't assume that
something is going to happen before
it happens. Everybody is talking
about noise, noise, noise. There's
been no noise. At the time, if
someone feels there's noise, they
need to contact the proper authority
and prove there's noise. So, you
know, everybody keeps saying about
noise and everything. It don't make
no sense. You have to have something
to happen before you can say it
happened. I just wanted to make that
point. Nobody ever complained with
all these other businesses running
for years, and the people that are
com plaining now are the people that
were connected with these properties.
So, you know, I hope that that can be
taken into note.
MR. CA VIGLIA: I have a
question. Since you're only going to
be doing retail sales, what does that
entail in terms of operating the
motorcycle?
MR. SCOW ARTZ: It's hard to
say. Right now I don't know what is
going to happen. I wouldn't even
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Zoning Board of Appeals
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Minutes of July 11, 2006
9 want to speculate right now. I'd be
10 lying to you if! told you.
11 Understand a normal operation, if you
12 walked into a normal dealership, most
13 dealerships have repair and sales.
14 Now, when you sell an item, most of
15 the time if a customer came into my
16 shop and he said I want to buy that
17 part, you give him the part, he takes
18 off. If he tells me to put the part
19 on the bike, I put the part on the
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bike. That doesn't mean me running
the bike.
MR. CA VIGLIA: You're going to
be doing retail sales of motorcycles,
I want to come in and buy a
motorcycle. When you get the
motorcycles in your inventory, what
do you do, as far as things that
might emanate or cause noise? Do you
run it around the building, you rev
it up, what do you do?
MR. SCHWARTZ: I don't have any
retail sale of motorcycles. When we
talk about retail sale of
motorcycles, we're talking about the
parts. I wish I had the kind of
money to have motorcycles in the shop
to actually sell. I don't have that
kind of money. What we're talking
about, we have parts, you know, and
some other biker paraphernalia.
MR. CA VIGLIA: You won't be
selling finished motorcycles.
MR. SCHWARTZ: I do hope some
day I can. At the present I don't
have the resources to bring a Harley
Davidson dealership in there.
MR. CA VIGLIA: You'll be
selling parts and accessories?
MR. SCHWARTZ: I don't have the
resources. I hope some day my
resources are big enough where I
could bring a major distributor in
there and sell the bikes out of the
shop. I mean, that's my ultimate
goal, I'm not going to lie to you.
Right now I don't have that kind of
money. The money is enormous to
bring something like that in. Plus
the insurances are sky high.
Insurances alone are just
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astronomical. So, maybe it was
misunderstood. Motorcycle sales, if
you went into any of the shops in the
area or anyplace --
MR. CA VIGLlA: I'm talking
about your shop.
MR. SCHWARTZ: Down the line,
if I could afford it, right now I
don't have any bikes in my shop to
sell. I have parts.
MR. CA VIGLlA: Once you're in
business, after all this is done, one
of the things I think that isn't
clear, because of the some of the
things being submitted start talking
about motorcyclists congregating
there, I was trying to figure out
factually what that is predicated on.
MR. SCHWARTZ: We never said
motorcycles congregating there. Just
like you ride a motorcycle, you might
pull up to my shop and say, I'd like
to buy a part off the wall. People
go to the deli to get a sandwich, I
run a motorcycle business. They're
not going to drive in with a car and
by motorcycle parts.
MR. CA VIGLIA: Thank you.
MR. ADAMS: I want to note the
application squarely says motor
vehicle sales. I think we have to
infer from that that what was said is
what was meant.
MR. CA VIGLlA: Do you agree
with that?
MR. SCHWARTZ: In order for me
to run a business in New York State,
I have to apply for certain licenses.
When I apply for the license, in
order for me to sell the part, I have
to have a New York State repair shop
license, a sales license and the New
York State comes to the shop, makes
sure I'm on commercial property and
I'm proper. That's why we presented
as that. I'm not going to, even if I
went there, like when I did
originally come to the Town, I came
to the Town to find out the code so I
could send it up to the state. If
they said to me, we're not going to
let you do that, if you want to just
run a business out of there, go
ahead, I would have been in business
already. I cannot do it under New
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York State and Federal guidelines, I
can't do it. It's like walking into
a car dealership, she will have the
New York State registration sign up.
They have to have it.
MR. CA VIGLIA: Although you
represented that the business is a
motor vehicle sales, you're not going
to be doing that, but you're going to
be selling retail parts of
motorcycles.
MR. SCHWARTZ: I'm going to be
selling retail parts for motorcycles.
At the time when my financial monies
show up and I can do this, I do want
to try and get motorcycle sales. I
have to get -- New York State has to
give me the authority to do that.
Even if I sold a part, New York State
comes in and says, where is your
registration number? That part is
going onto a motor vehicle item, God
forbid if anything happens, I'm
liable. New York State wants to make
sure I'm a legitimate business and
I'm following all protocols.
MR. WALSH: I was the one that
filled that out. I asked him, he had
his license requirements and I said,
there is no such thing as a parts
license. He said, I understand it.
I want to do it some day, here's what
I want to do. I thought it correctly
and accurately described not only
what he is doing now and in the
future and dealt with the state
license.
MR. WARREN: I think we ought
to hire a noise consultant.
MS. RILEY: I think it's a good
thought. I have some reservations
about it. If you're thinking about a
consultant, it has merit. My
reservations are, one, there's
nothing there now; two, you don't
know what the site plan is. That was
very good of John Adams to point that
out. I'm not sure how much that will
do for us right now. Those are my
reservations about it, if this board
so chooses. I wish we had something
more clear. I think if this board so
chooses, I'd be persuaded to hold
those reservations in abeyance and
agree with you if you'd like to hire
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a consultant.
MR. DELLACORTE: I agree with
the applicant in terms of, there's
nothing there to measure, if he's not
going to be having motorcycles.
MR. STOLMAN: I believe the
application is for motor vehicle --
for motorcycle sales. If Mr.
Schwartz's finances come in a week
from Thursday, he wants to sell
bikes, he doesn't want to come back
here for more permission.
MR. WALSH: He's asking for the
type of recognition he needs from the
Town of Wappinger in order to get a
license from New York State. There
is no such thing as a parts license.
It's a motorcycle sales license.
MR. STOLMAN: If his ship comes
in a week from Thursday and he'll
want to sell bikes, at that point
without coming back here. The
application, even though in the near
term he might not be selling bikes,
the application is for the sale of
motorcycles.
MR. WALSH: That's completely
governed by the noise ordinance of
this Town. If he's in there and
violates the noise ordinances, shut
it down. The purview of this board
is to deal with the narrow issue
whether the motorcycle sales, which
is what he needs in the license
application, it's a retail use.
MR. STOLMAN: What Mr. Walsh is
saying is that the board shouldn't be
looking at the noise issue with
respect to building two. I would
respectfully disagree with that,
because the two area variances that
are being asked for with respect to
minimum lot area for Buildings 1 and
3 are in effect for putting or having
those uses on an undersized lot
relative to the minimum lot area
requirements. I would think that one
of the things you would look at would
be the cumulative impact of the three
buildings on that property, because
it's not as though building one
exists and building three exists and
he's looking for variances for a
minimum lot area and two don't exist
at all. Two sits in the middle of it
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all. You have to look at the
cumulative impacts. I would say that
two, in the midst of all that, is
important in terms of impacts, in
terms of the greater cumulative
impacts.
MR. WALSH: I respectfully
disagree with that, because this is
and of itself a very simple issue.
The issue is, do we permit this type
of sales in this zone? And the
answer is, yes, we do. It's already
been requested and analyzed. It was
done and it was done by Dave's firm
with the concept of the Planning
Board and Town Board. When they did
this, this is absolutely allowed,
what would you say to the Court, we
thought we had to review a law that's
already on the books, what it is very
very clear this is permitted in this
zone, as long as he's not a repair
shop. You know my opinion of the
repair shop thing, it's a mistake.
It's not here, it's not on the table.
Can he be allowed to sell motorcycles
and all the parts, et cetera, in this
zone? The answer should be without
any definition of anything else,
because you can't prove a negative is
yes. Respectfully submitted, John
Simonetti.
MR. SIMEONE: I guess I've just
-- to me the whole -- I agree with
what you're saying. The whole thing
has to be looked at as a total
picture. For me as a neighbor living
next door, I don't want three
different businesses running, making
different noises as we're trying to
live in that environment and coexist
with them. Before that there was
never three businesses there, it was
one business, and that drove certain
things. Whether I agreed with that
business or didn't agree with that
business, that business got there.
I'm talking about the construction
business that was in there. Prior to
that, the noise level from the auto
business that Billy Parsons had was
relative. The noisiest thing that
went on back then, years ago we had
the phones with the bells on them
outside. Other than that, today I
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Minutes of July 11, 2006
can tell you that I don't say that
Mr. Schwartz has a lot of motorcycles
coming in and out of there, you can
hear motorcycles going in and out of
there. I can hear them. There are
other houses next to me, even more,
it's very limited today, because he
can't sell them yet. I have a hard
understanding you're going to have a
Harley dealership down the road and
you're not going to repair the bike,
there is no way I'd buy that bike and
get someone else to repair it for me.
I don't understand how you can sell
something and not repair it.
MR. DELLACORTE: You mentioned
you hear motorcycles. I wasn't aware
there was anything there to drive
into.
MR. SIMEONE: I don't know what
they do. I'm not saying he's selling
anything.
MR. DELLACORTE: There's
nothing there.
MR. SIMEONE: There's people in
the building he's in. There's
activities that go on there today.
There's motorcycles that go in there
today. There's lights on there at
night. I see lights over there that
drive out through that entranceway.
MR. WALSH: This matter has
been looked at, because of what I
feel are completely unsubstantial
complaints to the Town by the
building inspector. Certainly there
are people that come there, the
entire building number one is
occupied, there's a law firm.
MR. SIMEONE: In the back.
MR. WALSH: The back is part of
the parking area.
MR. SIMEONE: You said to me no
one goes back there. One of the nice
things this gentleman, Mr. Adamo is
the site manager, and is there
constantly. Frank Adamo.
MR. WALSH: The question that
has come up, I know you are there on
a regular ongoing basis, I did not
bring Mr. Adamo to testify as to the
use. Tanya's office raised a
question of the lawn being cut. Any
truth to that whatsoever.
MR. ADAMO: I cut the grass
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Minutes of July 11, 2006
myself. I couldn't get a landscaper
to do it. I maintain the buildings.
Yes, I'm in and out. The people in
the front are in and out. The gate
in the front is open during the day.
1 don't know of any activity during
the night.
MR. DELLA CORTE: Do you have a
motorcycle?
VOICE: No.
MR. DELLACORTE: Tanya, what
Mr. Walsh was saying that you've
addressed the fact that there's
nothing back there.
TANYA: Yes, at a previous time
we did go out to the site to look at
the inspection to see whether the
business was being run. There was no
business being run at the time.
MR. DELLACORTE: Mr. Schwartz
said there was a construction company
operating back there, the largest
construction company.
MR. SCHWARTZ: Gale's
Construction.
MR. SIMEONE: That was before,
yes.
MR. SCHWARTZ: Prior to us
going, prior to me.
MR. SIMEONE: I realize they
were there before. They went out of
business and, you know, I came down
to talk to Tanya on them being there.
I tried to understand how they got
there. You told me they were
grandfathered in.
MR. DELLACORTE: They were not
quiet, in your opinion?
MR. SIMEONE: No, I don't
disagree with Mr. Schwartz. The good
thing about it, they work from early
in the morning, usually three o'clock
in the afternoon it was quiet and
nighttime and weekends.
MR. SCHWARTZ: Just so I can
make a point. At the Planning Board
it was put into evidence the used car
dealership up front has numerous
amount of people that work there.
They all have motorcycles. They have
access to the whole yard. They're
moving cars twenty-four hours a day.
They have motorcycles running in and
out. I was accused of riding a
motorcycle. Unfortunately, I don't
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Minutes of July 11, 2006
even own a motorcycle in my own name.
They own motorcycles. There's a
numerous amount of them that ride.
They're in and out of there all day
long. I'm not going to say some of
my friends come up and see me. I'm
not doing business up there.
MR. SIMEONE: There's been
reference in prior testimony before
your board Mr. Schwartz in one of his
earlier comments referred to the same
time he confronted somebody taking
pictures. That was me in October of
last year. I did take pictures at
that time of custom motorcycles
parked outside the premises. I'm
really surprised to know that with
the record that's been before this
board already and the Planning Board
this is one of the reasons for a
coordinated agency review. I would
submit that it can be seriously
contended. Nothing has happened up
to this point. It was understood at
other hearings, I think back in
October, people came and testified
that stuff is going on, stuff was
going on at night. Is that a
business? I think we heard Mr. Boric
back in April tell us they're there,
but they're not paying rent, subject
to what occurs at this stage. I
don't want to, you know, this is not
a swearing contest, I want to point
out the fact it's been before this
board and the Planning Board there's
certainly activity going on there
that's already affected neighbors and
you heard about it.
MR. SIMONETTI: The overall
picture, this can't be looked at
building one, two or three. Comments
were made building one, which is the
auto sales, is only in the blacktop
parking lot in the front. You're
hearing the cars going into the back
part of the auto sales business,
which says, it goes back to the size
of the lot and the total impact of
having three different businesses run
in that lot. In my mind, one is more
than is needed there from the size of
the lot and from an environmental
impact point of view. There's an
automobile business there that's
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Zoning Board of Appeals
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Minutes of July 11, 2006
grandfathered to allow two other
businesses similar to that. To hook
onto the grandfather business is
ridiculous.
MR. WALSH: The difficulty is
that we have three existing buildings
on one lot, each of them has
different purposes. Just so no one
gets the impression what's been run
there what isn't. Mr. Schwartz
signed a lease contingent on Town
approval the end of last summer.
When he came in to get the letter
from Tanya, he was told he had to go
through the special use permit
process. We did not tell him get
out, because obviously he had already
leased the building. He cleaned the
building. That was in consideration
of part of his rent deal. He cleaned
it top to bottom he continue to help
Mr. Adamo cleaning up the mess there
that was an IRS ceased area in the
back with sixty-two pieces of heavy
equipment being auctioned off. The
place was used as an auction site
until last May 28 or 29. Mr.
Schwartz, that billing is there, it's
cleaned, we've gotten permits from
the Town to do the plumbing repairs
there. We hope to rent it to him in
the future. Everybody knows we can't
until that time comes. That didn't
stop the complaint from going to
Tanya's department. They have been
out there as recently as last week
with the grass cutting issue and
that's fine.
MR. WARREN: Anybody else would
like to make a comment?
MS. RILEY: I think the
comments are valid. I'm more opposed
to hiring someone. I would hire a
noise consultant.
MR. FRY: My name is Mark Fry.
As to the noise issue, I had
submitted to Counsell went through
fourteen hundred pages of information
on motorcycle noise testing and there
is no question there are clear test
procedures available. We can
certainly say there are loud
motorcycles, soft motorcycles,
there's adequate ways to determine
when a motorcycle is running.
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Minutes of July 11, 2006
There's the American National
Standards Institute procedure also
used by New York State in your local
ordinance Chapter 166. It's quite
specific, three microphones tells the
sound pressure left and the overall
volume within that volume, what the
distribution of frequency is from
very low noises to very high. There
is no question once this business is
up and running you will be able,
based upon your own sound ordinance
166 or 240, to get out exactly the
*type a meters positioned along the
particular lines. What I have a real
problem with, I have no doubt we can
get ten sound experts out there
today, there's nothing to test.
There's nothing to test. We could
put twenty extremely illegally loud
motorcycles in the building and
violate the ordinance. We can put
five Honda 50's inside of that
building and we'd find they weren't
-- they were well within the
ordinance. The important thing in
this case is to note you have three
ordinances. With the event there is
no allocation Mr. Schwartz has made
noise, there have been no complaints
registered with the Wappingers
Police. There's this constant
allegation sometime in the future Mr.
Schwartz's business will make noise.
I will submit we have two Town of
Wappinger's ordinances to deal with
the noise. We have New York State
law to deal with that noise and we
have the EP A regulations to deal with
that noise. In the event sometime in
the future this isn't just
motorcycles, leaf blowers and all of
those things are covered, chain saws
are covered, lawn mowers are covered,
so any of those nuisance noises
coming from any premise you have the
adequate tools and very specific
tools in the Town of Wappinger to
take care of them. I think if we had
something we could quantitatively
measure at this point, I would say
let's get two sets of sound experts
out there and a tie breaker and
measure it. We have to presume every
time someone buys a motorcycle EP A
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Zoning Board of Appeals
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Minutes of July 11, 2006
regulations have gone into effect.
That's not to say there aren't people
that modify their own motorcycle to
make it illegal and break the law, if
it costs them a two hundred fifty
dollar fine.
In your deliberations I think
the issue -- the presumption there's
going to be noise in the future gets
us way off on a track we don't want
to go down.
MR. ADAMS: Based on
activities, not ordinances, all the
reference to the ordinances is
irrelevant at the present time.
MR. WALSH: What isn't
irrelevant is the timeframe we have
given for the Board deliberations and
all the timeframe was extended
through tonight; is that correct?
SEC*: Yes.
MR. WALSH: The sixty-two day
period, we were very careful to
stipulate the days and the time
frames, et cetera.
MR. CA VIGLlA: I don't recall
that. It's on your website. There
was a stipulation as to the papers
going back and forth between the
parties and the board so that that
portion wouldn't drag on, and we can
reopen the hearing. This is the
original hearing we reopened pursuant
to the stipulation.
MR. WALSH: We agreed we would
meet on the 27th and extended it one
more day because of my issues. It
was extended by us until tonight by
letter.
MR. FRY: This is the letter
that was sent to you?
MR. WALSH: I believe that's
the time. The board could make its
own decisions what the time was. I
respectfully request that you stick
to the timeframe.
MR. CA VIGLlA: We have a
transcript. Notwithstanding the
subsequent letter was the reopening
of it with the sole proviso it would
be limited to, although I thought
simple noise issue, apparently the
EAF issue. Also in good conscience,
how can you deprive the board, if it
wants to seek independent review of
Page 31
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the noise issue, which is obviously a
bone of contention in this
proceeding, how can you want to deny
the board to make an intelligent and
informed decision, since we have both
parties here that submitted expert
testimony, which in large part
contradicts, in that it supports your
position and the other side supports
it's position?
MR. WALSH: With the greatest
respect, one, as you know from the
beginning, I don't believe that this
matter, that the noise issue is a
matter that should be in front of
this board at all. This is an
administrative matter.
As far as building two is
concerned, with that letter we were
very careful about that, about the
sixty-two day period with the
extensions. I'm requesting that the
board vote one way or the other
tonight.
MR. FRY: If I might read into
the record from the letter June 23rd,
2000, the second paragraph:
We note that the public hearing
on this matter was closed by a vote
of the board on April 25th. The
board is required under local law to
render its decision on this matter on
or before June 26th, 2006. The
applicant hereby requests and agrees
that the deadline for your decision
on this matter be extended to July
II th, 2006. We further note that the
applicant, the ZBA board and the
attorney -- and the attorneys for the
neighboring property owners, Mr.
Parsons and Mr. Simenetti, agreed to
the following stipulations at the ZBA
meeting held on May 23rd, 2006.
All parties agreed to hold one
additional public hearing on this
matter, while further agreeing that
this will not serve to extend the
board's decision deadline. The
applicant --
Point two. The applicant
agreed to submit a revised EAF to the
board by June 6, 2006. Attorneys for
the neighboring property owners
agreed to submit their response to
the revised EAF to the board by Jun
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Minutes of July 11, 2006
20.
This letter is on the record.
It seems to me we have been
here for a year or thereabouts, and I
think this issue, we can go back and
forth. At this point we'd like to
ask you for your decision. I know
it's not an easy decision to make.
You've heard a lot of back and forth
on this. In our view, the sixty-two
days were up. We agree, as you see
in the agenda tonight, to extend
testimony from the 26th of June to
the 27th and we agreed to extend it
to July 11 tho
MR. CA VIGLlA: I'm going to
rely on the record and the
aforementioned transcript earlier in
these proceedings where it was on the
record on page thirty, it be
stipulated that a certain sequence
would take place regarding exchanging
papers and that we would agree to
have a public hearing at a time which
is going to be determined now by the
board to address the issues raised by
the EAF. Et cetera, et cetera. A
date was agreed upon when that
hearing would take place. There's
nothing that states that this was a
separate hearing or that anyone was
preserving some sort of argument or
right, that we were still under the
sixty-two day requirement, and if you
think about it, that would be almost
an impossible stipulation to enter
into, because you're agreeing to
having a public hearing which
wouldn't necessarily be able to be
closed in the one session, and yet be
under a sixty-two day timeframe to
make a decision. It's so
contradictory in and of itself. I
don't think -- my understanding was
not that the sixty-two day provision
would be applying. That's why we
sought the stipulation of all parties
at the time. That's what the board
is acting under. I don't know what
Mr. Simeone's recollection is. I'm
relying on the record here. My
advice to the board is that there is
no sixty-two day clock running at
this time. I understand that you
wrote in a letter. I don't think
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that necessarily places us in that
position.
MR. WALSH: We were very
specific about that. I wanted to
move the application.
MR. FRY: About a single
additional public hearing. Not
reopening a series of public
hearings.
MR. CA VIGLIA: If the board
decides it needs to adjourn this in
order to make its opinion and
informed decision, the board has an
absolute right to do that. It's not
a bunch of different or additional
hearings. It's a continuation of the
same hearing and it's an adjournment.
With all due respect, we would
disagree with you. I think that
everyone here is, and certainly the
board, is anxious to conclude this
matter as much as anybody else. It
has an obligation to do whatever it
decides it needs to do to make a
sound decision.
MR. WALSH: I understand your
advice. I register my objection.
MR. WARREN: From this point on
I think I would like to propose a
motion to hire an outside firm
consultant for noise.
MR. DELLACORTE: For noise?
MR. WALSH: To test what?
MR. DELLACORTE: For noise?
For what we were discussing before
regarding the entire site?
MS. RILEY: Yes.
MR. DELLACORTE: You want to
hire an outside consultant at the
expense of the applicant; is that
what it is?
MR. WALSH: I object to that.
MR. CA VIGLIA: The money would
be coming from the escrow.
MR. STOLMAN: They're in the
middle of a motion.
MR. WALSH: I'm making a point.
MR. STOLMAN: You're
interrupting their motion.
MR. DELLACORTE: The motion
would be to hire a noise consultant
to consider the entire three building
site?
MR. WARREN: That's right.
MR. DELLACORTE: Paid for by
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the escrow?
MR. CA VIGLIA: The monies would
come from the escrow.
MR. DELLACORTE: I'll second
it.
I'll make the motion. I agree
with the chairman. I will make the
motion.
MS. RILEY: I will second.
MR. WARREN: Yes.
MR. CA VIGLIA: Are you going to
be making a motion now on adjourning
the public hearing?
MS. RILEY: I so move.
MR. WALSH: Who's going to
coordinate getting the expert?
MR. CA VIGLIA: They're in the
middle of the motion. Please wait.
Let them finish the motion. If you
have an inquiry, I'm sure the board
will entertain it.
MR. WARREN: Make a motion to
adjourn the public hearing.
SECRETARY: I need a date.
MR. DELLACORTE: August 22nd.
SECRETARY: Will you have it in
time?
MR. STOLMAN: I would think so.
Tomorrow morning I'll contact a noise
expert, tell him he's been authorized
to go ahead. I would assume by the
22nd of August he can have his work
done. I would assume so.
MR. WARREN: That's a
reasonable date.
MR. STOLMAN: That's quite a
ways off.
RIGHTl: August 22nd.
MR. DELLACORTE: Anymore
motions?
SECRETARY: Motion to adjourn.
MR. DELLACORTE: I'll second
the motion to adjourn.
We're done, except for Mr.
Walsh's comment.
MR. STOLMAN: We have a noise
expert Potamic Hudson Engineering.
I'd be happy to supply his
information.
MR. WALSH: This has been lined
up.
MR. STOLMAN: We have a
proposal from him.
MR. WALSH: We didn't discuss
it here.
Town of Wappinger
Zoning Board of Appeals
Page 35
Minutes of July 11, 2006
~
15 MR. STOLMAN: It actually was
16 one of the personnel matters we
17 discussed in executive session and,
18 as you know, personnel matter is
19 perfectly legal.
20 MR. WALSH: Not quite that
21 type. I understand.
Ms. McEvoy-Riley:
Mr. Warren:
Vote:
Motion to adjourn.
Second the motion.
All present voted aye.
Meeting ended at 10:00 PM
Respect~lly Submitted,)
06~lU~aLY7(
Barbara Roberti, Secretary
Secretary - Zoning Board of Appeals
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