1982-11-30A special meeting of the Zoning Board of Appeals of the
Town of Wappinger was held on Tuesday, November 30th, 1982, beginning
at 6:35 p.m., at the Town Hall, Mill Street, Wappingers Falls,
New York.
Members Present:
Carol A. Waddle, Chairperson
Angel Caballero
Charles A. Cortellino
Joseph E. Landolfi
G. George Urciuoli
Members Absent:
None
Others Present:
Jon Holden Adams, Attorney to the Town
Hans R. Gunderud, Bldg. Inspector/Zoning Admin.
Betty -Ann Russ, Secretary
UNFINISHED BUSINESS:
Appeal ## 638, at the request of Patricia F. Spross, seeking
a variance of Article IV, Section 421, paragraph 7 of the Town of
Wappinger Zoning Ordinance, to allow a guest house with full kitchen
facilities in a zone that allows for one single-family dwelling
on property located on Forest View Drive, being parcel ## 6257-04-
816023, in the Town of Wappinger and a request for an interpretation
of the term "guest house".
Mrs. Waddle noted that she would like to call this special
meeting of the Zoning Board of Appeals to order to consider the
application of Patricia Spross for an interpretation of the
zoning ordinance and a use variance and may she have a roll call
of the members.
The roll call was taken with all members being present.
Mrs. Waddle noted that the only matter that will be considered
this evening is the interpretation and the use variance, there
will be no testimony taken at this meeting since we are just
issuing our opinion which is as follows:
"Applicant on December 31, 1981 purchased a 3.6 acre parcel ,of
property containing a residence and accessory building. The
residence is located in an area zoned R-40 and at the time of
Zoning Board of Appeals -2- November 30th, 1982
purchase by applicant, the only permitted use was for a one -family
` residence. No allegations are made that any non -conforming use
existed at such time. Prior to the purchase, the accessory building
had been first used as a stable (constructed in the 19601s) but
apparently without first obtaining the necessary building permit
from the Town of Wappinger Building Inspector, it was converted in
the late 1970's to another use, namely that of a second residence
for a prior owner. The building is approximately 23 feet by 30 feet
in size, is supplied by water from the main house and is presently
occupied for an indefinite term by a friend who is not paying rent.
The building has both a phone and electricity, the former in the
name of the present occupant. The guest house has an "efficiency
Kitchen", a full bath, a living room and a bedroom. A second floor
bathroom and bedroom has been added by applicant. The building is
located 225 feet from the residence. A separate mailbox as well as
separate utility lines serve the building. The building, contrary
to applicable health regulations, does not have a septic system and
has only a cesspool. The land in question is encumbered by
restrictive covenants, including one that establishes a minimum
size for any "bungalow or house" on the premises. The building size
is less than the size prescribed by the covenant.
AS TO THE REQUEST FOR AN INTERPRETATION
The threshold question raised by the appeal of applicant is
whether the guest house as presently situated on the applicant's
premises and containing a full kitchen is a permitted accessory use
under the provisions of the town's zoning ordinance, which permits a
guest house as an accessory use. In resolving such a question of
interpretation, a finding must be made that the guest house,
containing a full kitchen, as an accessory use would be clearly
incidental -to the permitted use or residence and further, a finding
must be made upon a showing of proof by the applicant that it is
customary within the town or area for guest houses to have full
kitchens.
The Zoning Board of Appeals previously determined, upon
applications of another single-family owner who wished to establish a
separate kitchen within a guest house in a single-family zone that
such use was not a permitted accessory use under the zoning
ordinance of the Town of Wappinger. The board observed that zoning
for a single-family residence would normally connote the presence of
Zoning Board of Appeals -3- November 30th, 1982
only one full kitchen for a single family (appeal of Montfort,
decision dated July 14, 1981). The presence of only -one kitchen is
customary in a single-family occupancy circumstance. A guest house
is for transients who are visiting the occupants of the principal
residence and who as guest would avail themselves of the facilities
of that residences. including but not limited to kitchen and meal
facilities. The configuration of a guest house, as a use
subservient to the principal use, would not be that similar to the
principal use. The building occupied as a guest house by applicant
is so similar to the principal residence as to be functionally
indistinguishable from the principal use. Such does not constitute
a guest house; instead, a second one -family dwelling has been
created.
AS TO THE REQUEST FOR A VARIANCE
In the alternative, applicant seeks a use variance, contending
that a hardship will be occadioned if she is not permitted to use a
kitchen in the guest house, that the circumstance.is peculiar to her
property, and that the character of the neighborhood would not be
affected if the variance were granted.
No proof has been submitted that financial hardship will be
occasioned if the use variance is not -granted. The only financial
testimony or evidence preeente'& on the_issue-of-the-use variance was
that of the value attributed to the guest building alone. There is
a complete absence or failure of proof -as -it attaches to the parcel
when viewed in its entirety. As the use in question is one conceded
to be an accessory use by the applicant, it is inappropriate to
premise a finding of hardship solely upon an accessory use when
there is no showing of deprivation of the principal use. There is
also no showing of deprivation of the accessory use without the use
of a kitchen which would result in a hardship. The evidence is to
the contrary. Applicant's own testimony, to the extent deemed
credible, shows that applicant purchased the entire parcel in 1982
for $87,000. At the time, the property was appraised at $95,000.
Applicant's witness Balinger testified that the decreasedin value of
the guest house absent the tah would be approximately $3,000 to
$5,000. In view of the purchase of the property at a price
substantially less thantthe appri sedE value, no bais for a finding
of financial hardship exists upon the eveidence presented.
The evidence as to the cost of subdivision is found to be
incredible. Applicant has failed to substantiate the manner in
which she arrived at the cost of the same, and it can only be
concluded that substantial costs would include the cost of the
septic system which presently does not exist for the building and
and which would be necessary for legal occupancy of the premises
irrespective of subdivision.
ti
Zoning Board of Appeals
-4- November 30th, 1982
Consideration has also been given to the fact that at the time
it of the purchase of the property, applicant may have been unaware of
the fact that the building had been illegally converted from its
prior use as a barn to its use as a guest house without the
requisite certificate of occupancy. Such factor alone, however,
cannot be the basis for granting of a variance as lack of knowledge
cannot, by itself, form a basis for converting an illegal use to a
permitted use . In this circumstance, where there is not a
sufficient showing of financial hardship, the absence of such
knowledge is insufficient to overcome the general rule that a
self-created hardship precludes the granting of a variance.
The question of a self-created hardship also become revelant
when viewing the restrictive covenants which encumber the property.
One of the restrictive covenants encumbering the property limits the
size of any house or bungalow on the premises to that equal to or in
excess of 24 feet by 30 feet. The sole testimony at the hearing as
to the size of the house indicated that the size of the premises or
building in question was 23 feet by 30 feet. Under such
circumstances, applicant had constructive notice of facts suggesting
that occupancy of the premises as constructed could be unlawful or
in violation of restrictive covenants. Such would diminish the
viability of any claim that the rule of self-created hardship should
be waived.
In view of the failure of proof as to the first element of the
three -fold test for granting a use variance, consideration of the
second and third elements are moot and academic.."
Mrs. Waddle then noted that she would entertain a motion
on this variance.
A motion was then made by Mr. Cortellino, to deny the
requested variance. The motion was seconded by Mr. Landolfi.
Vote:
Mrs. Waddle - aye
Mr. Cortellino - aye
Mr. Urciuoli - aye
Mrs. Waddle noted motion so carried.
Mr. Caballero - aye
Mr. Landolfi - aye
Mrs. Waddle then noted that since this was the only consideration
before the Board she presumed that there is no further business
before the Board and would entertain a motion to close the meeting.
Zoning Board of Appeals -5- November 30th, 1982
A motion was made by Mr. Landolfi, seconded by Mr. Urciuoli,
rr to adjourn.
Motion Was Unanimously Carried
The meeting was adjourned at 6:40 p.m.
Respectfully submitted,
(Mrs.) tty-Ann Russ, Secretary
Zonin oard of Appeals
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