Loading...
1982-01-12The regular meeting of the Zoning Board of Appeals of the Town of Wappinger was held on Tuesday, January 12th, 1982 beginning at 8:05 p.m., at the Town Hall, Mill Street, Wappingers Falls, New York. Members Present: .0 Carol A. Waddle, Chairperson Charles A. Cortellino Joseph E. Landolfi Donald Mc Millen G. George Urciuoli Members Absent: None Others Present: Hans R. Gunderud-,Bldg. Inspector/Zoning Admin. Betty -Ann Russ, Se retary Mrs. Waddle then said good evening and that she would like to welcome those present to the Zoning Board of Appeals meeting this evening and noted that the procedure would be to hear each appeal, the Board will then discuss the appeal and at that time we ask that you do not interfere with our discussion which will be held up here in public, you have your chance at the public hearing and then the Board will close it and discuss what recommendations we will make and we may or may not render a decision this evening. She added that witnesses on the cases on the appeals will be sworn in before the Board and ask that each of you come forward and give your name and address when you are speaking for or against an appeal and please speak loud enough( so that everyone can hear you as this is a public meeting. The abutting property owners and appellants were notified according to the records available in the Assessor's Office. PUBLIC HEARINGS: Appeal # 581, at the request of American Lumber Company, Inc., seeking a Special Use Permit pursuant to Article IV, Section 422, paragraph GB - # 4 of the Town of Wappinger Zoning Ordinance, to permit them to construct a 4,400 square foot storage shed on their property located on River Road, in the GB zone, consisting of 6.5 acres, being parcel # 6056-01-174862, in the Town of Wappinger. Mrs. Waddle read the legal notice. Mr. Kenneth C. Russ of New Hackensack Road, Wappingers Falls, New York, was present in behalf of the Appellants. Mrs. Waddle swore Mr. Russ in. Mr. Russ noted that American Lumber had been in existence Zoning Board of Appeals -2- January 12th, 1982 for umpteen years, they would like to , if you have the plan it might help, this is a field survey which shows all existing structures, the existing parking, nothing is being changed on the site at all, the only change is the construction of the pole barn, this is to put more lumber under a roof, closed on two ends, open on the long side, more or less follows what they have down there, don't know that you will notice it as far as the construction but there are no changes proposed for the site other than -this construction which will be on the existing paved area. Mr. Urciuoli asked if the height of the building would be the same as the others. Mr. Russ replied yes, and that if you notice on the contours, the elevation is 40 to 18, this drops off down into here , so these nestle down here about the same elevation, about 14 to 18, simple pole barn construction. Mr. Cortellino then asked what was the "v" on the plan. Mr. Russ replied that this is an existing 12" pipe, this is the elevation and the invert, the bottom of the pipe, this is more for the Engineer to the Town than anybody else. 46� Mrs. Waddle then noted that she did have a letter from the Dutchess County Department of Planning indicating that they had no objection. Mrs. Waddle then noted that she had a letter from Michael Haubert which she would read: "As a property owner whose home is adjacent to American Lumber, I strongly oppose appeal # 581, which would allow them to build a 4,400 square foot storage shed on their property. In this enlightened era, when people are trying to bring the Hudson River back to its majestic days of old, the building of an industrial/commercial structure in a residential area is against all the priciples of ecology. We are fairly new residents to this area, and the appealing view of the Hudson River from the west side of our property was.a factor,%n ur buying our home. We would hate to have this view disappear after only nine months. At the present time, trucks waiting to load or unload are parked out on River Road. On many occasions their engines have been left running, leading to increased air and noise pollution. Expanding American Lumber could only lead to a greater amount of truck traffic, along with more fumes and noise, waking our neighborhood unliveable Zoning Board of Appeals -3- January 12th, 1982 IL and causing our property values to plunge. I appeal to your sense of fairness and community pride, not to approve this structure. Please read this letter at the hearing of January 12th, 1982, and submit it as part of the records." Mr. Gunderud noted that he would like to point out that the zone is not a residential zone, it is a GB zone. Mr. Russ then commented that also for the record there really is no increase in intensity of use, that area is surfaced now, material is stockpiled in the open, all we are doing is taking some of the area and putting a roof on it, don't think it indicates any real increase whatsoever. Mrs. Waddle commented that the gentleman probably:Akdn't realize just what they were going to do. Mr. Russ added that he tended to agree but if he did want to check we want him to realize that we are not contemplating an actual expansion of the use. Mr. Landolfi then made a made a motion that the Special Use Permit be granted. The motion was seconded by Mr. Cortellino. Motion Was Unanimously Carried Mrs. Waddle then closed the public hearing. The hearing was closed at 8:12 p.m. Mr. Mc Millen then asked if something could be done about the parking of trucks on River Road, there are two or three parked there and they do leave the trucks running, there might be something that could be done about this, the road is narrow here and it is a problem to get by when these trucks are parked. this. Mrs. Waddle noted that perhaps Mr. Gunderud could investigate Mr. Gunderud indicated that he would look into this. Mr. Russ noted that perhaps Mr. Croshier would want to know and perhaps could do something as it is a Town road they are parking on. 91 Zoning Board of Appeals -4- January 12th, 1982 Appeal # 582, at the request of Murray Ackerman (D.B.A.: Stage Door, Inc.), seeking variances of Section 474 (Parking Requirements), Section 422 (Building Setback & Lot Coverage), Section 412 (Required Street Frontage & Access to Said Frontage), Section 476 (Off-street Roading Requirements), and Section 413.3 (Yard Requirements at Corner Lots) of the Town of Wappinger Zoning Ordinance, to permit him to construct a building in property located at the intersection of Route 9 and Old State Road, being parcel # 6156-02-777824, (also known as Lot # 8 of the Montfort & Nestler Subdivision - Filed Map # 5224), in the Town of Wappinger. Mrs. Waddle read the legal notice. Mrs. Waddle noted that Mr. Russ would be considered to be sworn in for the evening. Mr. Kenneth C. Russ was present and noted that Mr. Ackerman and Mr. Montfort and Mr. Nestler were also here, think of it is alright the main element really aside from everything else which cropped up, which does create a problem, is the street frontage and access to street frontage, Hans picked this up initially when we came in for discussion about what variances would be needed, give some background think in 1974 this property was zoned HB -2 then also, Montfort and Nestler wanted to create a commercial subdivision, subdivide into two acre lots and the Town at that time was not interested in taking over a commercial street, however, the approval that was granted required that the road be constructed as a commercial street to Town specifications which include a sixty foot right-of-way, an extra thickness of blacktop, believe blacktop curbing and there was a waiver on that but in all aspects it was built under the inspection of the Highway Superintendent and the Town Engineer approved the drainage, this type of thing is not uncommon in industrial parks where you have common access, the problem that we have right now is that the new ordinance of which Hans is probably most familar, specifically says that you must derive access from a public street, and this becomes kind of a crucial element because since everyone agreed that it would be built to Town specs but would be a private road the question didn't crop up, the alternative and don't know how the Town Board would react, the alternative to not getting permission to use the street in that fashion would be to petition the Town to take over a commerical road, most Towns do not like to do it, they rank them with apartment complex, -streets, mobile home park streets, that type of thing, where you would have truck traffic and so on, and it was felt that this would be a better way to do it, this is a long time, the property has been sitting for seven years and Mr. Ackerman is the first person in to purchase a lot and think that this is really the most crucial element because it relates Zoning Board of Appeals -5- January 12th, 1982 not only to Mr. Ackerman's application but to the fellow buying the WL 1.4 next piece, there are eight parcels altogether. Mrs. Waddle asked if the Town had looked at this at all. Mr. Gunderud replied no, but that he had sent a letter to the Town Attorney. Mrs. Waddle then asked if this meant that they,would have to give -variances one"by one as -they come in instea§-of having it uniform from the Town. Mr. Gunderud replied that is one avenue apparently that could be taken, each one handled as a variance as under our present zoning ordinance you would have to derive the frontage, the other problem is also that this lot and the two other lots that front on Smithtown Road these are the only ones with legal frontage on approved Town 470-a 4 the ether lots are internal to this private road system so they would need variances for both not having frontage on a legal Town road as well as gaining access from not a legal Town road, Jon Adams has not really answered by letter but we did talk about it and he did say that another approach would be for the Town Board to pass a resolution whereby they would approve that as a ILprivate road, a commercial road, pass some type of special resolution. Mr. Cortellino commented that this wouldn't be accepting the road but approve and count it as it had legal access. Mr. Gunderud replied yes, some legal means. Mrs. Waddle noted that in that case the Board would not have the problem with each one coming in, and asked Mr. Russ if he had gone that route. Mr. Russ replied no. Mrs. Waddle noted that personally she would like-�,to see them go that route before the Board goes making variances on each parcel. Mr. Russ replied that he didn't know if under the law they could, think since we have a sittiatidn-i counter to the zoning ordinance think that our first step normally would be to come here, you can send us on or what have you but think we have to approach on that basis because ultimately suppose the Town Board does not wish to do anything, 7LI Zoning Board of Appeals -6- January 12th, 1982 not saying that would be so, but it would wind up back to the Zoning Board of Appeals and should be familar with what is going on, also didn't want to jump the gun and come into the Town and say they should take the road over because we had gone thru that seven years ago. Mr. Gunderud then noted that in Section 280-A of the Town Law there is a provision where the Town Board can by resolution establish an open development area wherein permits can be issued for the erection of structures to which access is given by a right-of-way or easement and there are other notations, not sure that would be the proper way to go. Mrs. Waddle commented that the Board would h4ndle this appeal but she would like the secretary write a letter to the Town Board advising them of the problem there and asking them to take a look at it and maybe come up with a resolution so we don't run into this each time a piece of property is sold in there. Mr. Cortellino then noted that on the road 'PP-41tiOn Hans says we have a letter into the Attorney and we want to see what the Attorney has to say in addition to what you are saying but that we could go thru the variances that are required also. Mr. Russ then noted that the other variances are requests of the applicant, it is a little different, are all lumped together, this one is general in nature, specific to the site, even if he wasn't seeking other variances we would still be here for the"road, and think that Mr. Ackerman could probably explain some of them, could tell you briefly on the parking requirement what we are looking for and we would be looking for that even if nothing else, the zoning ordinance, the Planning Board has the power to waive up to � of the parking, Mr. Ackerman who has been in the furniture business for many years feels that even that number is too much and as there is area available for additional parking we would like to have a variance for what he is showing on the map which is twelve parking spaces and think maybe now might be a lot simplier for him to give you background on the furniture business generally and what he is looking for if that would be okay. Mr. Jed Ackerman of 44 Brewster Woods, Brewster came before the Board and Mrs. Waddle swore him in. Zoning Board of Appeals -7- January 12th, 1982 Mr. Ackerman noted that they had owned and operated a business on Route 22 in Pawling, have been there for twenty years, been relatively successful and have over the years expanded our operations at that location, we felt that this is a need for this type of store in the Dutchess County area and as Wappinger is growing area we felt that this would be a good area to locate in, this is a fourth generation furniture family and feel that we are familar with the operation and what is needed particularly on the parking, this type of operation does require a lot of floor space for display, etc. but there is not that many customers at any one time, at the Pawling store we do not generally have more that three or four cars at a time, very few times do you see more than this, we don't have close out sates, don't really have specials, this is a medium to high priced operation, we have made a study at one time for a period of six months and kept a record for three or four days a­wdek.=and_generally there was not more than six or seven cars, that was about the most we ever had at any one time. Mrs. Waddle then asked what about off-street loading requirement, you are also asking for a variance on this. Mr. Gunderud noted that the off-street loading goes by the square footage, based on the tremendous size of the use it requires four off-street loading platforms, similar situation. Mr. Ackerman noted that they basically have one truck come in and unload, drop off merchandise and leave, are lucky if we have four or five trucks a week. Mrs. Waddle commented that they a * just looking for one loading bay. Mr. Russ replied yes, one loading area on the north side of the building, Hans is right on the new ordinance it requires four loading areas and in this particular case it is kind of pointless to create a lot of paved area plus a lot of site work involved. Mr. Ackerman noted as an example today they had one truck in the store, last week we had four trucks in, most of our manufacturers ship on their own trucks and they come in, they accumulate 30 to 40 pieces at one time, come every 2 to & weeks, basically using 15 to 20 trucks at the most, this is over a period of a year, this is what that Variance is for. Zoning Board of Appeals -8- January 12th, 1982 Mr. Cortellino then asked if the building would belong to him or will it Mr. Ackerman replied yes, we will own the building. Mr. Landolfi then asked how many people they would employ in this building. Mr. Ackerman replied that he would quess 4 to 5 people full time and more people employed as part time, want to be at the convenience of the people in the area so would most likely be like a 10 in the morning to 9 at night kind of thing so you might employ up to ten people but no more than four or five people there at a time. Mrs. Waddle noted that they were asking for 12 spaces and that was for customers, now you need spaces for the people to park. Mr. Russ replied no, this is for the total site. The Board then discussed similar operations. Mr. Russ noted that he like to refer to J.D.C. where there a lot of parking and generally you do not see more than six or eight cars there at any one time. Mr. Cortellino then made reference to Carl©'s Furniture on a weekend and it is jammed packed. Mr. Russ replied that he has also been there and it is a browse place. Mrs. Waddle then noted that she had been to Stage Door in Pawling and that people will probably come on a weekend and browse and that as it is a different type of furniture store then we are used to in this area, really don't think that 12 spaces will be enough. Mr. Russ noted that the ordinance requires 48 spaces. Mrs. Waddle added that 12 is too few, would agree to 24 spaces. Mr. Urciuoli then asked what would happen if the building is up and it doesn't work out and you have only twelve spaces. Mr. Ackerman noted that they were not planning to fail, believe it will work there, the decade of the 80's is for the double income family, this is a good area, not planning to fail, looked this over very carefully. Tow Mr. Cortellino noted that along this same line he could see giving on the truck platform as there is not a lot coming in but if the use changed it might be necessary to have more and feel if Zoning Board of Appeals -9- January 12th, 1982 -� the variance is granted it should be for the Ackerman's only as the next guy in might need more. Mr. Russ noted that physically it was no problem in adding to the parking if that is what the Board wants. Mrs. Waddle commented that she thinks they are underestimating what you are going to do on the weekends in this, this type of thing is usually jammed on the weekends. Mr. Ackerman noted that they were going on what they experience now, going by what we would have to develop rather than what could be developed for the parking if needed, don't feel it would be a problem. Mrs. Waddle noted that she would like to go half way, to 24 spaces if the Board would agree. Mr. Mc Millen commented that this wouldn't be a major construction change, it is just a matter of adding more blacktop. Mrs. Waddle then noted that she would like to take care of each variance individually. Mrs. Waddle asked if there was a motion on Section 476. Mr. Cortellino asked if this was for the loading and that he would like to make this a motion to grant the variance for one loading bay with the stipulation that this is for the Ackermans only. The motion was seconded by Mr. Landolfi. Motion Was Unanimously Carried By Those Members Present Mrs. Waddle then noted that they would go to the parking, Section 474. A motion was made by Mr. Cortellino to grant a variance to reduce the number of required parking spaces to 24 spaces. The motion was seconded by Mr. Mc Millen. Motion Was Unanimously Carried By Those Members Present Mrs. Waddle then noted that the Board would go to building setback and lot coverage. Mr. Russ noted that these could be broken also.. the big problem with the building setback is the massive. taking on Route 9, the taking line extends back anywhsre from 85 feet to 125 feet from the edge of the pavement, that is owned by the State, the Mr. Landolfi then noted that he had a question with regard to the notice and not specifying just how much of a variance was requested, usually see the number of feet, how much of a variance. Mr. Gunderud noted that in the past there have been cases where the legal did just say less than the minimum required. It was noted that this would be looked into and in the future would ask that this be specified on the applications for variances. Mr. Cortellino then noted that the other thing was that everyone comes along on both side of Route 9 says the same thing about the takings, and don't think it is a function of the Zoning Board when you see a continuing thing, think the Town Board should address it, the problem. Mr. Russ noted that in a nutshell if the taking lines made any sense and were consistent he would tend to agree that everyone would be equal but what happens here on this plan the purpose of the taking line is for the drainage swale, when you go north one property she starts cutting back in,, it staggers up and down Route 9 from Fishkill almost to Poughkeepsie, here it is not a taking of any consistency along the corridor or for additional lanes, this was primarily because of what they have done if you labk at the plan this becomes a whole drainage collection area, the disadvantage to us is that we have to get some kind of permission from the State to maintain their property or let it look the way it looks today which is deplorable, the State's preference is to have you get a permit and maintain it, think you have to look at it case by case because of that, the inconsistency makes quite a difference, again think that preference is not to have parking in the fmont of the building, think it looks much better, my preference is to let them get the exposure on Route 9 and then have the parking in the back, in this case would be on the side and the rear. Zoning Board of Appeals -10- January 12th, 1982 setback is 75 feet, what the Ackermans are concerned about is if you follow the wording of the ordinance the building would be' some 180 feet back from Route 9, it would be completely out of sight, the trade off to our way of thinking is that we are asking for 25 feet from the property line whish would give us from the north end we would be 115 feet back from the pavement and the south end we would be 145 feet back as far as the building goes, we would agree that there would be no parking in the front, we would have our entrance at the south end, that would just be grass and we would plant some stuff and it should look pretty nive, this is a separate issue because no matter how we wind up on the lot coverage, think this is ultimately is the kind of relief we would want as a separate issue, some kind of relief on this 75 foot setback which is a problem. Mr. Landolfi then noted that he had a question with regard to the notice and not specifying just how much of a variance was requested, usually see the number of feet, how much of a variance. Mr. Gunderud noted that in the past there have been cases where the legal did just say less than the minimum required. It was noted that this would be looked into and in the future would ask that this be specified on the applications for variances. Mr. Cortellino then noted that the other thing was that everyone comes along on both side of Route 9 says the same thing about the takings, and don't think it is a function of the Zoning Board when you see a continuing thing, think the Town Board should address it, the problem. Mr. Russ noted that in a nutshell if the taking lines made any sense and were consistent he would tend to agree that everyone would be equal but what happens here on this plan the purpose of the taking line is for the drainage swale, when you go north one property she starts cutting back in,, it staggers up and down Route 9 from Fishkill almost to Poughkeepsie, here it is not a taking of any consistency along the corridor or for additional lanes, this was primarily because of what they have done if you labk at the plan this becomes a whole drainage collection area, the disadvantage to us is that we have to get some kind of permission from the State to maintain their property or let it look the way it looks today which is deplorable, the State's preference is to have you get a permit and maintain it, think you have to look at it case by case because of that, the inconsistency makes quite a difference, again think that preference is not to have parking in the fmont of the building, think it looks much better, my preference is to let them get the exposure on Route 9 and then have the parking in the back, in this case would be on the side and the rear. Zoning Board of Appeals -11- January 12th, 1982 Mr. Ackerman noted that they want their building to look attractive, is important to exhibit our furniture as properly as possible, have glass and stone front, want an image of a first class furniture store, so a decorative front is important to our business. Mrs. Waddle noted that it will come up eventually, where would they put their sign. Mr. Ackerman replied that the main sign would be on the building. Mr. Russ noted that until people get used to they might have to put a small sign as a directory sign. Mrs. Waddle noted that they would have to come back for a variance for a temporary sign. Mr. Cortellino then asked if the front would be grass. Mr. Russ replied yes, the trade off would be that there would not be parking in the front of the building, nothing to block the view of the building, in this particular case this is the trade off, if not you are almost comp&fled to put the parking in the front when you have a 75 foot setback. Mr. Cortellino then noted that he was concerned that people would park in the front just as the handicapped parking spaces are abused, would park on the grass. Mr. Russ replied that the drop off would kill you, there is a guard rail across, there is no way you can get -access from Route 9 here, basically think that issue on the setback is separate from the lot coverage even though they are together, take these things one at a time, no matter what size building you wind up with we would be asking for some relief on the setback. Mrs. Waddle then noted that before the Board proceeded any further was there anyone present who wanted to speak with regard to this case. No one present wished to be heard. MM, Zoning Board of Appeals -12- January 12th, 1982 Mrs. Waddle then noted that the Board needed a motion on the building setback of 25 feet. A motion was then made by Mr. Mc Millen, to grant a variance to permit a 25 foot setback. The motion was seconded by Mr. Cortellino. Motion Was Unanimously Carried By Those Members Present Mrs. Waddle then noted Section 422 - Lot Coverage, was there a motion. Mr. Mc Millen asked about the total square footage of the lot. Mr. Russ replied two acres, permitted maximum coverage is 22,500 square foot and what they are asking for is 75. Mr. Mc Millen noted that they were asking for a variance of a 75,000. A motion was then made by Mr. Mc Millen, to grant the variance on lot coverage. The motion was seconded by Mr. Landolfi. Motion Was Unanimously Carried By Those Members Present Mrs. Waddle noted Section 413.3 Yard Requirements on Corner Lots. Mr. Gunderud noted that this was an interpretation, the lot is triangular in a sense and when the application was presented did not want to determine which was the frontliate„ is it Route 9 or ; the private road, whatever cameos a problem with the 75 foot setback from streets. Mr. Russ noted that this creates a problem, a number of these items came out of Hans reviewing this, if you take 75 feet back from Route 9 and 75 feet back from the private road and draw lines you can put a mobile home on it, in effect the site becomes totally unuseable, Hans has a point but this really creates a problem. Mr. Mc Millen noted that roughly the Board would be varying that one back right hand corner of the building, 75 feet back down to 25 feet. Mrs. Waddle asked if there was a motion on this. 0 Zoning Board of Appeals -13- January 12th, 1982 A motion was made by Mr. Mc Millen,to grant the variance. The motion was seconded by Mr. Urciuoli. Mr. Cortellino voted nay. Motion Was Carried It was then noted that Required Street Frontage and Access to Frontage needed to be covered, Section 412. It was noted that a letter was to be sent to the Town Board on this but did not believe it had been acted on. Mr. Mc Millen noted that what the Board had to vary was that the access would be from the private road. Mr. Gunderud noted that as Mr. Russ had discussed earlier the problem is that there is a whole subdivision which was approved by the Planning Board in 1974 which has eight lots which will have the same condition, this one is ground breaking. Mrs. Waddle added that she thought that after this one we really better impress on the Town Board the problem that we have over in that area and that some relief should be given. Mr. Russ added that the Board might want to refer to that specific section of Town Law, 280-A, Hans is right about that. Mr. Gunderud noted that in this particular case it could be considered since it is the first and only use of the property so far, that the driveway does provide access off of Old Route 9 which is a Town road but in the future there will be others that will be a problem. The Board then looked at the Montfort & Nestler subdivision. Mr. Mc Millen then asked why they couldn't bring an access to this parking lot off Old State Road. Mr. Russ replied because the State controls 200 feet back from their highway and seriously doubt, the whole purpose of this construction was to have all accesses off a controlled access point because it would create problems, could have ended up with eight separate access rather than this one controlled access point, might simplify things at this particular moment but don't think it would solve the problem long range and think we would also have quite a problem with D.O.T. trying to get that number of accesses. D Zoning Board of Appeals -14- January 12th, 1982 Mrs. Waddle then asked if there was a motion on Section 412. A motion was made by Mr. Landolfi, to grant the variance. The motion was seconded by Mr. Mc Millen. Motion Was Unanimously Carried By Those Members Present Mr. Ackerman then commented that he would like to thank the Board for their optimism that they would use the 24 parking spaces and for their consideration. The hearing was then closed at 8:55 p.m. Mrs. Waddle then noted that under "Unfinished Business" these appeals have already been heard at a public session and we are going to rule on them tonight. Mrs. Waddle noted Appeal # 573, at the request of Robert T. & Sandra A. Clopp, seeking a Special Use Permit pursuant to Section 421, paragraph 4 of the Town of Wappinger Zoning Ordinance, to operate the "L'll Friends and Company Nursery School" on their property located on 25 Wildwood Drive, being parcel # 6158-02-978719, in the Town of Wappinger, and what was the pleasure of the Board. Mr. Mc Millen commented that it was his recommendation that in reading an interpretation of the ordinance that one principal use will be permitted per lot and being that the nursery school is considered a principal use and residential school is considered a principal use it is his recrammehdation that the Board deny the Special Use Permit. Mrs. Waddle asked if he was making that in the form of a motion. Mr. Mc Millen replied yes and Mr. Urciuoli seconded the motion. Vote: Mrs. Waddle - aye Mr. Cortellino - abstained Mr. Landolfi - abstained Mr. Mc Millen - aye Mr. Urciuoli - aye Motion Was Carried Zoning Board of Appeals -15- January 12th, 1982 Mrs. Waddle then noted Appeal ## 580, at the request of Curtis W. and Margaret Conklin, seeking an interpretation of Section 404.32 of the Town of Wappinger Zoning Ordinance for a determination as to whether a change from one permitted use to another permitted use within the zone would violate said section of the ordinance and if an unfavorable interpretation is rendered a variance of Article IV, Section 404.32 of the Town of Wappinger Zoning Ordinance is sought to allow for a change of one permitted use to another permitted use on a non -conforming property which has other pre-existing uses on property located on Route 9, being parcel ## 6157-04-6332285, in the Town of Wappinger. Mr. Cortellino noted that the Board had already made the interpretation. Mrs. Waddle noted that the hearing had been held and that the Board had the papers they needed. Mr. Conklin asked if any clarification was needed. Mrs. Waddle replied that if there was the Board would call upon him and that she wished to read into the record a letter which was received from the Dutchess County Department of Planning. "In accordance with the provisions of General Municipal Law (Article 12b, Sections 239-1 and 239-m), the Dutchess County Department of Planning has reviewed subject referral with regard to pertinent inter -community and county -wide considerations. Upon analysis, the Department makes the following finds. Applicant seeks both an interpretation and a variance for a property located on the east side of Route 9, north of Mac Farland Road inter- section. The prq r�tyy comprises 2.6 acres of land in a highway business (HB -1) zoning district. An interpretation is requested on whether a change from one permitted use to another permitted use on a nonconforming property is allowed according to the zoning provisions on nonconforming uses and structures. Simultaneously, a variance has been requested to allow a change from one permitted use to another permitted use on this nonconforming property. Three existing, nonconforming uses now take place on the property; one residential use and two commercial uses. These uses may be continued due to the fact that they are non -conforming. Zoning Board of Appeals -16- January 12th, 1982 The Dutchess County Department of Planning recommends that the decision on an interpretation be based on the local study of the facts in this case. This Department further recommends that a decision on a variance be based on local study of the facts; this study should include a comprehensive review of the property and its nonconforming aspects. The overall thrust of any change should be a movement toward bringing the property into conformance with the existing district regulations The Dutchess County Department of Planning does not presume to base its decision on the legalities or illegalities of the facts or procedures enumerated in subject zoning action." Mrs. Waddle noted that she believed that there was a retail business in the front, and auto body shop and a residential use and that they we proposing to open a restaurant and that she must have been mistaken as at the last meeting it was her understanding that this would be a sandwich type operation and now from the plans it appears to be more of a bar. Mr. Conklin noted that they would like to get a variance to put another use in, it was a retail store, have a number of people who are interested who want it as a restaurant, have told people what we want and what we will require as part of the lease, want to upgrade the property, no live music, hours of operation would be limited, felt it would upgrade. Mrs. Waddle noted that the plans that the Board had seen looked like a barroom type of operation rather than a restaurant. Mr. Conklin noted that this was a plan submitted by Mr. Buckley not him, we are looking for a variance to bring a person into that building for a restaurant business not as a bar, if the plans that Mr. Buckley submitted are not up to our specifications, Mr. Buckley will not be our tenant, we have a number of people who are eagerly awaiting a decision on this. Mrs. Waddle noted that changing this would make it less non- conforming, could have a retail establishment and not have a problem. Mr. Conklin noted that he did not understand how going from one permitted use to another would make it more non -conforming. Mr. Cortellino noted that on legally non-kconforming properties it is not the intent of the Zoning Ordinance to advance these, it permits these to be continued but there are road blocks to force compliance, trying to get you to fit in, hardship is to show it can't yield a reasonable return. Zoning Board of Appeals -17- January 12th, 1982 Mr. Cortellino added that this has not been shown, have shown that it is a hardship under the legally non -conforming but if you have that land and perhaps if a furniture place went in you do have reasonable return. Mr. Conklin noted that they wanted to have the building maintained in a more proper manner, thought we would be more conforming, upgarding the property, plant, paint and proper decorum, it is a mixed area, thought the change to retail to restaurant was a change that would be more conforming, and noted the previous tenant in the building, agree it was a mess, will put stipulations in the lease, this will not happen, whoever goes in will have to agree and meet these stipulations. There was then a question from the Board if this would require site plan approval. Mr. Gunderud replied that in the case of a change of use would require a site plan approval. Mr. Conklin then went on at some length with regard to the previous history of the property and their plans to eventually operate a business there themselves and would then bring it into conformity. Mr. Conklin then asked about the lease, asking for a projection, short period. Mr. Conklin replied that they were talking 3 to 5 year lease, not talking about that much of an investment, kitchen area and up- gr$ding the waste system on the property. Mrs. Conklin noted that it was a restaurant, had two bathrooms. Mrs. Waddle noted that the Board had gone through this at the last hearing and did not think we have to continue in this vein, have to render a decision. Mr. Mc Millen then noted that this is iB an Highway Business zone, which refers to General Business, which in line refers to Shopping Center which then refers to Neighborhood Business, in permitted uses in NB are restuarants and other places serving food and beverages, feel this is a permitted use. Mr. Gunderud noted that the property is non -conforming in that there are three uses in the HB -1 zone, only one use per parcel is permitted, each are permitted uses but these are all non -conforming. Zoning Board of Appeals -18- January 12th, 1982 Mrs. Waddle noted that they wanted retail to restaurant, restaurant versus retail, retail is less non -conforming in that existed in the building previously. Mr. Mc Millen noted that he disagreed in that they were both permitted uses in the district, make them equally conforming. Mr. Cortellino noted that the purpose of this section was not to encourage non -conforming uses but rather to get them to conform. Mr. Conklin then interrupted and Mrs. Waddle advised him that the Board is under discussion amongst themselves and she would entertain no further discussion from off the floor, it is up to the Board to make a decision. The Board generally discussed the issue of non -con -forming uses and the purpose of this section and Mr. Gunderud noted that to make this parcel totally conforming this would have to be down to one use and this zoning ordinance does not really have a provisions on what is more or less non -conforming, that is up to the Board. Mrs. Waddle noted that if it was strictly retail there would be no problem. Mr. Gunderud noted that in his letter of November 5th he was strictly interpreting it, could only have the same use which in this case would be another rug store and other change would not be permitted, interpret it strictly and then can come before the Board. Mrs. Waddle then noted that if it was the same retail use it would be no problem. Mr. Gunderud noted that a restaurant is a conforming use but that this is a non -conforming property. Mrs. Waddle then noted that it was up to the Board to decide what is less non -conforming. Mr. Conklin noted that the Board had asked him about hardship. Mrs. Waddle noted that the Board had read this information, have gone beyond the bounds by permitting all this discussion, the hearing had been held and now it is up to the Board to make a decision. Zoning Board of Appeals -19- January 12th, 1982 Mr. Gunderud noted that this may be an opportunity to upgrade the property and this would go before the Planning Board. Mrs. Waddle noted that this would have to go to the Planning Board. Mr. Gunderud noted that there had been a site plan approval for the Drumstick, this was for 12 parking spaces, don't know what would be necessary in this case, if it was the same as the Drumstick with no changes and this was already approved but if it was not exactly the same would have to go through site plan approval. Mr. Landolfi noted that he would want the Planning Board to look at it. Mr. Mc Millen then asked Mr. Conklin if he was committed to a restaurant. Mr. Conklin replied that if he could be frank they are committed to rent it out, would like to get a good tenant, everyone we talked to about retail have had problems. Mr. Mc Millen noted that the Board did not want to say yes to a restaurant and then have Mr. Conklin come back and want retail, does he have a signed agreement to put a restaurant in. Mr. Conklin replied that they did not have a signed agreement, waiting for the Board's decision and Mrs. canklir thin asked Mr. Buckley if this was approved was he prepared to go in as long as he complied with stipulations of the lease. Mr. Buckley replied yes and that he had already spoken to the Conklins about it. Mrs. Waddle then asked if anyone wished to make a motion. It was noted that an interpretation had been rendered at the December meeting. Mr. Mc Millen then made a motion to grant a variance subject to site plan approval from the Town of Wappinger Planning Board. The motion was seconded by Mr. Landolfi. Mr. Gunderud noted then that the interpretation at the last meeting was that you would have to stay strictly the same use. The Board replied yes. Mr. Cortellino voted nay. The motion was carried. Please note that on the "ACtion on Appeal Form" indicated an "aye" vote for Mr. Cortellino and this will be corrected. Zoning Board of Appeals -20- January 12th, 1982 The motion was carried. Mrs. Waddle noted Edwin Niemcyk - Request for a rehearing to permit him to continue to operate an auto repair and parts business on residential property located on Old State Road, being parcel # 6057- 04-744305, in the Town of Wappinger. Mr. Niemcyk was present and presented a letter to the Board. The Board then read the material which was presented. Mr. Landolfi commented that he did not feel that this information was pertinent, not germaine to the subject. Mr. Cortellino added that hardship was not really an issue in this case, because if you live in a residential area and you can not meet your mortgage payment that is an economical hardship, this doesn't mean a variance should be granted to do something else, it is an economic hardship, if bought 20 acres of land and it can't be seen from the property is not the issue here, not the issue on what this should be decided. Mr. Mc Millen noted that the property was purchased as residential land,therefore, reasonable return is not a question in this case, return is still there, was purchased as residetial it can still be sold as residential land but to allow a commercial use in the middle of a residential area, just can't see that. Mr. Landolfi then noted that he thought it had been made clear to Mr. Ritter as to what the Board wanted to see in order for the Board make a decision on a rehearing, always willing to bend to help the people and thought it was clear and am confused as to what was presented here tonight. Mrs. Waddle added that this information was nothing more than what the Board had seen in the past. A motion was then made by Mr. Mc Millen, to deny a request for a rehearing. The motion was seconded by Mr. Cortellino. Motion Was Unanimously Carried By Those Members Present Zoning Board of Appeals -21 January 12th, 1982 Mrs. Waddle then noted that the Dutchess County Planning Federation would be having a general meeting on Tuesday, January 26th and see it doesn't say what time or where and that she would call Sally Mazzarella for this information, thought there would be some follow up on this, it will be about single-family conversions. A motion was then made by Mr. Cortellino, seconded by Mr. Landolfi, to adjourn. Motion Was Unanimously Carried By Those Members Present The meeting was adjourned at 9:30 p.m. br UNAPPROVED Respectfully submitted, (Mrs.), etty-Ann Russ, Secretary Zoning Board of Appeals