1967-11-14ME=
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The regular meeting of the Town of wappinger Zoning Board
Appeals was called to order on Tuesday. November 14, 19670 at
at the Town Hall, Mill Street, Wappingers Falls* New York.
Members Present:
Thomas I. Graham, Sr.
Richard E. Jacobson
James Mills, Jr.
Members Absent:
None
Others Present:
Susan J. Pike, Secretary
Joseph E. Ludewig, Building
Harold H. Reilly, Attorney
Gordon A. Hirt
H. Frederick Koehler
CLERK
of
8:00 p.m.,,
Inspector & Zoning Administrator
to the Town
PUBLIC HEARING - Appeal # 65, at the request of Arthur J. Bisom,
seeking a variance to permit the enlargement of his legally non-
conforming restaurant located on the northerly side of Myers corners
Road.. Town of Wappinger.
Mr. Graham read the notice of public hearing, which was
published in the November 9th edition of the W. & S. D. News.
Mr. and Mrs. Bisom were present for the appeal. Mr. Bisom
noted that their business is not a restuarant, but a "Take Out"
business. Mrs. Bisom stated that Section 416.032 of the Zoning
Ordinance is confusing and ambiguous, and a clear interpretation of
it should be made. In reference to the building, Mrs. Bisom stated
that they are very cramped for storage space, and they should have
both a Men's Room and a Ladies' Room. Mr. Bisom stated that about
a year and a half ago the Board of Health mound him in violation
because he does not have separate rest room facilities for men and
women. He noted that he has a record of this.
Mr. Koehler asked Mr. Bisom if he had heard from the Board of
Health on this matter since that time.
Mr. Bisom stated he has not.
Mr. Koehler pointed out that the Zoning Board deals with each
case as an individual matter rather than a general matter, and
therefore, will consider this case on its own merits. He noted
that it is not the intention of the Board to establish a precedent
for subsequent cases because there is no need to do so, and it is
instructed by the State not to do so.
Mr. Bisom stated that, during the past several months, he has
Zoning Board of Appeals -2- November 14, 1967
•► spoken with the Supervisor, and has appeared before the Town Board
and the Planning Board, asking for amendments to certain sections
of the Ordinance which would permit enlargement of non --conforming
uses. He noted that nothing was ever accomplished.
Mr. Bisom further stated that his is the only non -conforming
business on Myers corners Road, and that all other businesses on
this road are commercially zoned.
Mr. Koehler noted that Mr. Bisom, in explaining the hardship
on his appeal, stated "...my operation is greatly curtailed...".
Mr. Koehler asked for Mr. Bisom's interpretation of "Curtailed".
Mr. Bisom stated that their business lacks storage space and
separate rest room facilities. He felt that the lack of storage
space limits the amount of business they can do.
Mrs. Bisom noted that they have a large parking area in the
rear of the store. She stated that she was once told that this is
considered a part of their business, and that they could extend
the rear of the building without it affecting the parking area.
Mr. Koehler, quoting from a publication entitled "Local
Planning & Zoning" put out by the State of New York, read the
following:
"It has been upheld in the courts that merely because an owner
can secure a greater return from his property by changing its use
Now is not sufficient ground for granting a variance. Financial return
to a single owner must be subordinated to the effect upon the
neighborhood as a whole."
And, further quoting from a publication entitled "Zoning In
New York State", also put out by thec'State, Mr. Koehler read the
following:
"Many cases can be cited where boards of appeal have granted
variances on the grounds of "practical difficulty and unnecessary
hardship" that were unwarranted and probably unlawful. A common
expaple is the granting of permits for apartment houses in a
one -family residential district because the applicant says he could
make more money by doing this. Once such a variance is granted,
it would be discriminatory to continue to require the erection of
one -family residences on other lots in the area. Therefore, the
courts have recognized that the chance for a greater profit is no
basis.for a variance under the "practical difficulty and hardship"
clause."
Mr. Koehler asked if, in the event this would not be considered
pertinent in this case because of the reasons stated by the
appellant, there are any subsequent problems with regard to setback
and sideyard requirements.
Mr. Ludewig stated that the lot does not meet the minimum
requirement for a legal size residential lot in that district.
He explained that the building is presently in violation since it
does not meet the minimum front yard requirement of 35 ft., and in
Zoning Board of Appeals -3- November 14, 1967
these respects also, the building is legally non -conforming.
Mr. Bisom explained that the County, in widening Myers Corners
Road, took a portion of his front yard for the right-of-way.
No one else was present to speak in favor of the appeal.
Mr. Jack Peace, Patti Place, asked to speak, but neithtr in
favor of nor against the appeal. He commented that the traffic
situation on this particular section of Myers Corners Road is
dangerous, due to the fact that the patrons of this business pull
into the site and then back out onto the highway because the front
yard parking area is not large enough to enable them to turn their
cars around. He pointed out the fact that there are blind spots on
Myers Corners Road, immediately to the east and immediately to the
west of this site. He suggested that, if the site plan is changed,
all parking be confined to the rear yard, and curb cuts be provided
for entrance and exit.
Mr. Koehler noted that it is not the function of the Zoning
Board of Appeals to guide the appellant in the construction or
alteration of his property.
Mr. Henry Nissen, Patti Place, spoke against Mr. Bisom's
request, objecting to the architectural design of this building
and its affect on the neighborhood. He also noted that granting
this appeal due to the lack of storage would increase the profit
of the business.
Mr. Bisom stated that there are signs in the front yard of the
site instructing the customers to park in the rear of the building.
Mr. Peace stated that he would like very much to speak against
the appeal, although he had first thought to be constructive. He
stated that the building is an eyesore and does not fit the residential
area. He further stated that he does not feel that this business
should be allowed to expand.
No one else was present to speak for or against the appeal.
written notice of this hearing had been sent to all abutting property
owners.
The Chair declared the hearing closed at 8:35 p.m.
PUBLIC HEARING - Appeal # 66, at the request of Robert M. Strang,
seeking variances of the front and side yard setback regulations
to permit the construction of an addition to his existincjlresidence
located on the southeasterly side of Wheeler Hill Road, -town of
Wappinger.
Mrs. Robert Strang was present for the appeal and camel before
the Board and discussed the proposed plans.
Mr. Jim Forrester, Wheeler Hill Road (an abutting property
owner), was present and stated that he has reviewed the plana, and
has absolutely no objections whatsoever to the proposed addition.
He stated that he is in favor of the granting of Mr. Strangle"?Vequest.
All abutting property owners had been sent written notic mf
.
this hearing. No one else was present to speak for or agains the
appeal.
Zoning Board of Appeals -4- November 14, 1967
The Chair declared the hearing closed at 8:40 p.m.
PUBLIC HEARING - Appeal # 67, at the request of Nancy & Carmen
Perpetua, seeking a variance of the rear yard setback regulations
to permit the construction of a swimming pool on their property
located on the easterly side of Route 9, Town of Wappinger.
The Chairman read the notice of public hearing which had been
published in the November 9th edition of bhe W. & S. D. News.
Mr. and Mrs. Perpetua were present for their appeal and came
before the Board.
Mr. Ludewig noted that Section 422.6 of the Zoning Ordinance
is being appealed.
The Board was presented with a photograph of the Perpetua's
rear yard, which showed that the property has at least three
different elevations. These different elevations create a hardship
in that the only feasible location for the construction of the pool
is the extreme rear of the property.
Mr. Koehler asked if a fence will be constructed.
Mr. Perpetua replied yes.
All abutting property owners had been sent written notice of
this hearing. No one else was present tea speak for or against the
appeal.
The Chair declared the hearing closed at 8s45 p.m.
PUBLIC HEARING - Appeal # 68, at the request of Mendelson &
DeVivo Associates, Inc., and Scenic Apartments, Inc., seeking a
variance of the re}ulations of Section 421-2 of the Town of Wappinger
Zoning Ordinance to permit a change in approved site plan entitled
"Scenic Apartments, Inc.". Said project is located on the easterly
side of Route 9, Town of Wappinger.
The Chairman read the notice of public hearing which had been
published in the November 9th edition of the W. & S. D. News.
Messrs. Richard McCabe, Attorney, and Eared DeVivo, a principal
owner of the project, were present for the appeal. Mr. McCabe noted
that, although the denial of the permit was addressed to Mendelson
& DeVivo Assoc., Inc., and their name appears on the appeal, they
are only the construction corporation. He stated that Scenic
Apartments, Inc., is the realty corporation, and they are the real
applicant for this appeal. He explained that, for mortgage purposes,
the project is being developed in two phases. The first phase has
been completed, and the apartments which presently exist are fully
rented, with the exception of one apartment. Mr. McCabe noted that
there are existing assets of common facilities for sewer and water,
and a road which enters the project from Route 9 and which has not
been dedicated to the Town. They are about ready to commence the
1#4W construction of phase two. Mr. McCabe stated that in operating the
project as it now exists, even with full occupancy, they cannot meet
their expenses. Therefore, in order to be able to operate and meet
Zoning Board of Appeals -5- November 14, 1967
their expenses, they are asking to be permitted to alter the approved
site plan. The site plan was approved for the construction of a
total of 144 apartment units. It was noted that, if allowed to
construct 12 apartment units in addition to those approved, upon
the completion of phase two, the project could meet its expenses.
This is the request for which the appeal is made. However, the Zoning
Ordinance requires a minimum density of 5,000 sq. ft. per apartment
unit and the total number of units approved for construction in this
project is the maximum number allowed on this site in accordance
with this requirement. Therefore, a variance of Section 421-2 is
applied for to permit a decrease in the required density. Mr. McCabe
noted that permitting the construction of the 12 additional
apartments would result in a density of approximately 4,870 sq. ft.
per unit, instead of the required 5,000. Mr. McCabe went on to
explain that they feel that they have been highly over -assessed and
find it difficult to operate at the present time under the existing
valuation.
Mr. Koehler noted that profitability is not a criterion for
considering a variance.
Mr. McCabe stated that there is more equity involved in this
than profit. He noted that this is one of the most aesthetic
apartment projects in the Town. He stated further that they have
the mortgagee looking over their plans every time they want to do
something, and consequently, they may have to fold up and abandon
the second section if this variance is denied.
The Board.bad been presented with site plans showing the site
as it was approved, and as it is proposed to be altered. Mr. DeVivo
r4viewed said plans with the Board, noting existing and proposed
buildings, etc.
Mr. Koehler asked if there is a possibility of the existing
road in the project being extended to New Hackensack Road, inviting
thru traffic to Route 9.
Mr. McCabe stated that, although the reads are constructed to
meet the Town highway Specifications, the Town has not accepted them.
All abutting property owners had been sent written notice of
this hearing. No One else was present to speak for or against the
appeal.
The Chair declared the hearing closed at 9:00 p.m.
PUBLIC HEARING -- Appeal # 69, at the request of Frank F. Witham,
James T. Boyle, and Alexander Koskos, residents of Cider Mill Loop,
Town of Wappinger, seeking relief as persons aggrieved in the matter
of the granting of a building permit by the Building Inspector to
Highway Displays, Inc., for the erection of towers for television
receiving antennas and a head end station for the operation of a
community antenna television system on a parcel of land lying between
lots # 10 and 11 on Cider Mill Loop, in the Town of Wappinger.
Mr. William J. O'Hare, Attorney, was present in behalf of the
0045
Zoning Board of Appeals
-6- November 14, 1967
appellants.
Mr. Harold Reilly, Attorney to the Town, was present in behalf
of the Town Zoning Administrator,
The Chairman read the notice of public hearing, which was
published in the November 9th edition of the W. & S. D. News.
Mr. Reilly: "This afternoon, in behalf of the Zoning Inspector of
the Town of Wappinger, I served notice of motion on Mr. O'Hare,
indicating that the Zoning Board does not have jurisdiction over
the Zoning Inspector, and the appeal was filed against the Zoning
Laws and the By -Laws of this Board. The Notice of Appeal also
indicates that the decision in issuance of the building permit was
made on July 19, and the notice of appeal was filed on August 30,
which was more than 30 days subsequent to the submission of the
appeal."
Mr. O'Hare: "I was served this afternoon while I was in court and
never got the papers until 5 o'clock. I make a motion to dismiss
this, based on the fact that it is not timely. The Supreme Court
Library closes at 5 o'clock and I had no opportunity to do research.
Therefore, I move to dismiss."
Mr. Reilly: "We will consent to any reasonable time for submission
of papers, etc."
Mr. O'Hare: "Our appeal was dated August 30, Mr. Reilly could have
easily brought this action before this time."
Mr. Reilly: "This notice could have been made orally tonight without
notice. We will consent to reasonable amount of time for submission
of papers."
Mr. Koehler: "Mr. Reilly has moved to dismiss the appeal, and
counsel for the appellant is suggesting that he has not had time to
prepare an argument. Mr. Reilly is now saying that he is willing
to allow sufficient time to prepare an argument."
Mr. O'Hare: "There was no timely notice, which has to be at least
5 days prior to the hearing, which is scheduled for 9 o'clock tonight.
On those grounds, I am moving to dismiss this motion."
Mr. Reillyg "There is no procedure or guide lines in an administrative
hearing such as this. We could have made the motion orally tonight
and it would have been effective."
Mr. O'Hare: "The motion is defective in that it is not timely."
Mr. Reilly: "It is our position, in behalf of the Zoning Inspector,
that in accordance with the Ordinance and the By -Laws, the appellant
should have filed his Notice of Appeal within 30 days after the time
in which the Zoning Inspector made the determination and issued the
building permit."
Mr. O'Hare: "We requested forms, but forms were not sent. The
appeal was filed according to general standards. Some time later,
forms were sent and were filled out."
Mr. Reilly: "The petitioners submitted their own appeal on August 30."
Mr. O'Hare: "I don't go into the issue of the notice, the problem
zoning Board of Appeals --7- November 14, 1967
is you can have a building permit issued, someone can sit on it for
30 days and then start building, and you have no recourse. Right
now I'm moving to dismiss this motion as not being timely."
Mr. Jacobson: "I move that this Board adjourn to executive session
for a period of not longer than 10 minutes."
The motion was seconded by Mr. Hirt, and unanimously carried.
The Board went into an executive session at 9:12 p.m., and the
meeting was reconvened at 9:22 p.m.
Mr. Jacobsons "I move that Mr. Reilly's motion be dismissed."
The motion was seconded by Mr. Koehler. Unanimously Carried.
Mr. Reillys "I respectfully request adjournment of these proceedings
so that, in behalf of the Zoning Inspector, I can make legal remedies.
Based on your decision, we wish to take whatever steps we may feel
necessary to protect the Zoning Administrator, and not continue with
these proceedings. There may be legal steps the zoning Inspector
may want to take based on your decision."
Mr. O'Hare: "A decision has been made and possibly we could have
the issues determined at this time."
Mr. Reilly: "There is a jurisdictional question we want to have
decided prior to any hearing on the case."
Mr. O'Hare: "The Board has ruled, in essence, that it has jurisdiction.
The logical matter is to proceed with the public hearing. If the
matter is determined one way or the other, appellate courts can
determine the issue as to your ruling, plus any other rulings which
may come to the Board during the hearing or as a rebult of it."
Mr. Reilly: "There is a question as to whether the Board has
jurisdiction. It would be fruitless to do something if they don't
have jurisdiction to do it."
Mr. Koehler: "We have not ruled as to our jurisdiction in the matter.
The matter has not been placed before the Board. I would move for
dismissal of Mr. Reilly's second motion, pending further decision
of the Board."
There was no second to the motion.
Mr. Jacobson: "Mr. Reilly represents the Town and also the zoning
Inspector. Therefore, we have no recourse to get legal advice."
Mr. O'Hare: "When you have any trial„ usually in your trial you have
your original motions. Usually the court makes a ruling on your
motions. Thel the defendant presents his case, and then finally
the issue is determined. From that decision, your remedy of appeal
is proven."
Mr. Reilly: "When there is a motion made to hear or determine a
matter, it is to be determined whether they have jurisdiction to
hear it. Time is not of the essence in this matter, and we would
like to have the jurisdiction of this Board determined prior to
the time it hears this matter. we question the proceeding, going
on with the hearing prior to the time at which it is determined
whether your decision tonight is correct."
Mr. Koehler: "How can we be assured that time is not of the essence?"
Mr. Reillys "The structure which is the question of this z4Weal
Zoning Board of Appeals --8- November 14, 1967
has already been constructed."
Mr. Jacobson: "I don't understand what other group it is that is
going to determine whether we have jurisdiction."
Mr. Reilly: "The Supreme Court. I am asking for a postponement
so that I can confer with the Zoning Inspector so that we can determine
what other remedies he may avail himself to.,,
Mr. Graham: "I think any person has a right to be heard."
Mr. Reilly: "They also have a right to request adjournment of the
hearing to confer with their client."
Mr. Koehler: "The fact that we have not ruled favorably on your
first motion, I don't think, should prejudice the people that have
come to the hearing this evening."
Mr. Reilly: "I am only requesting an adjournment so that I can confer
with Mr. Ludewig. We would like to have a determination as to
jurisdiction of the Board, and a decision on the motion previously
made."
Mr. O'Hare: "If the hearing was held and an appeal was brought to
the Supreme Court, there could be a number of issues involved which
the court could rule on at that time.,,
Mr. Reilly: "This is a very essential matter to determine whether
the Board has jurisdiction to decide on the merits of the case. The
Supreme Court would decide, if we feel that such steps are indicated."
Mr. Jacobson: "Once we have moved on any issue within this Board,
�..- there could be no change. In essence, we would be adjourning to
wait and see if you're going to do anything about it. it should be
brought to the floor that the Zoning Board of Appeals made a request
for legal assistance some time ago."
Mr. Koehlers "How come they didn't get the forms earlier than they
did?"
Mr. Ludewig: "The Chairman took this up with the Town's Attorney."
Mr. Graham: "That's right."
Mr. Jacobson: "We think we denied this on good basis, and I question
whether we are in a position to seek legal advice."
Mr. Koehler: "I request a short executive session so that we may
dispatch with the second request of Mr. Reilly's."
Mr. Millss "I so move."
The motion was aeconded by Mr. Hirt. Unanimously Carried.
The Board went into executive session at 9s43 p.m., and the
meeting was reconvened at 905 p.m.
Mr. Hirt moved that Mr. Reilly's request be denied.. The motion
was seconded by Mr. Mills. Unanimously Carried.
The Chairman declared the public hearing open and asked if there
was anyone present who wished to speak in favor of the appeal.
Mr. O'Hare was recognized, and read the Notice of Appeal which
was originally submitted by the appellants. Referring to,,Section 220
of the Zoning ordinance, he read the definition of a "Public Utility"
and contended that the TV tower is not a public utility wit,*,,, that
En
Zoning Board of Appeals
_9.. November 14, 1967
definition. He read the definition of a "Private Utility" and
contended that the tower does not fall within that definition. He
also read the definition of a "Structure" and stated that the
Highway Displays building does come within that definition. Referring
to the map in said Ordinance, he noted that the zoning of this
property is deemed as R-40. Also, he noted that there is an issue
as to the yard setbacks and lot lines which, he stated, are evident
on the building permit itself. Referring to the GB zoning classification,
which is set forth on page 13 of the Zoning Ordinance and in which
permitted uses are subject to site plan approval by the Planning Board,
Mr. O'Hare noted that item # 4 defines the structure in question and,
therefore, site plan approval should have been obtained.
Mr. Hirt: "Is anyone present for Highway Displays?"
No one was present for them# but it was noted that written notice
of this hearing had been sent to them.
Mr. Reilly: "I think they are a necessary party for this hearing,
That is one of the reasons I requested an adjournment."
Mr. O'Hare: "In view of the fact that this is a residential district
and it is restricted through provisions of the Ordinance, you have
something that comes definitely within the provisions allowed only
in GB districts. The television structure is 40 ft, away from these
homes. Being a permitted use in GB, implication bars it from
residential. It's not even allowed in an LB district. Even as a
permitted use in GB, you have to have site plan approval by the
Planning Board. I would like to point out that you have parties here
that are aggrieved. As set forth in the Notice of Appeal, they are
adjoining property owners and owners of property in the immediate
area. The structure is a concrete block building with electronic
equipment, and is an eyesore, and it diminishes property values.
The support of this tower is questionable. If this thing flops down
in a heavy storm, it could cause property damage, or possible personal
injury. If you have next to your home, within 40 ft. of your building,
a big concrete building with some structures above it, it has to
diminish value."
Mr. Koehler: "There is a structural deficiency?"
Mr. O'Hare: "We have not retained engineers, it's just a matter of
opinion. The fact that it is there, and the way it is constructed,
would have an effect on the values of adjoining lands. The issue
here# I think, is the struettre is in violation of the existing zoning.
The mere fact that the appellants are adjoining property owners would
show that they are aggrieved parties. They were also never,` -notified
in writing of the issuance of the permit itself."
Mr. Koehler. "It was the opinion of the Building Inspector that it
was legal within the Ordinance, therefore, he issued the build'
rg
permit and did not have any obligation to serve notice."
Mr. O'Hare: "This was done in good faith, it is an error as far"as
judgement is concerned. Perusal of the Zoning Ordinance would show
Zoning Board of Appeals _10- November 14, 1967
�, that he is in error."
Mr. Jacobson: "I have a question for Mr. Ludewig. Was this parcel
involved in a site approval?"
Mr. Ludewig: "It is a part of a subdivision approved by the Planning
Board and filed in the Couhty Clerk's office. This lot was set aside,
marked on the filed map as a location for the water tower."
Mr. Jacobosn: "Was this ever returned to the Planning Board?"
Mr. Ludewigs "No."
Mr. O'Hare made reference to the Zoning Board By -Laws, and quoted
the following from page 3: "...Appeal must be made within thirty (30)
days after the date of receipt of written notification by the
interested party or parties of the decision of the enforcement officer."
Mr. Hirt noted that this refers to the written notice given to
an applicant when a building permit is denied.
Mr. Jacobson: "This site was approved for the water tower and an
additional structure was put on it."
Mr. Hirt: "Were the persons involved made aware, by the builder, of
the fact that it was not to be a building lot?"
Mr. O'Hare: "Assuming Mr. Ludewig is correct on this filed plan, it
was indicated that this was a vacant lot for water supply for the
development. This structure is a commercial enterprise and not a
water tower."
No one else present wished to speak in favor of the appeal.
"' The Chairman asked if anyone present wished to speak against
the appeal.
Mr. Reilly: "I would like to call Mr. Ludewig. While we're waiting
for him, I would like to call Mr. L'Archevesque to testify."
Mr. Robert L`Archevesque came before the Board.
Mr. Reillys "Are you familiar with the application of Highway
Displays, Inc., for a head end station and receiving antenna located
on Cider Mill Loop?"
Mr. L'Archevesque: "Yes."
Mr. Reilly: "Would you, for the record, indicate your position?"
Mr. L'Archevesque: "I am presently Confidential Assistant to the
Supervisor."
Mr. Reilly: "How did you become familiar with this?"
Mr. L'Archevesque: "Scene months ago, the Town Board was asked to
consider several applications for the formation of a CATV system,
and I was directed by them to review these applications to determine
which one of the applicants might offer the highwst quality services.
I submitted a document indicating Highway Displays the best selected,
anu recommended they be granted a permit. It was done, and it
became a matter of fact somewhere around June. In the process of
the contract being drawn, a public hearing was held."
Mr. Reilly: "In your negotiations with the applicant, Highway Displays,
Inc., did you have occasion to review with them the technical. aspects?*
Mr. L'Archevesque: "Yes."
Mr. Reilly: "To be specific, in reference to the structure in question,
Zoning Board of Appeals
-11- November 14, 1967
Mr. O'Hare has pointed out a provision and indicated that this is
the type of operati6n the facility Would fall under. The structure
that is located on Cider Mill Loop, does this transmit any electronic,
radio, or television signals, or is it receiving?"
Mr. L'Archevesques "Strictly receiving. It is not a transmitting
antenna."
Mr. Jacobson: "You stated this is not a transmitting installation,
I'm confused on transmitting and New York Telephone lines."
Mr. L'Archevesques "The antenna itself is designed and is being
utilized solely as a receiver of Tv signals. The signal: -:,is sent to
amplifiers which are located within the building. The output of
these amplifiers is put in KOAX cable or television wires. The
antenna does not transmit signals."
Mr. Jacobson: "What portion of this falls under the domain of the
Public Service Commission?"
Mr. L'Archevesques "Other State Public Service Commissions have
determined they have no jurisdiction. I am not familiar with New
York State Public Service Commission's position. There isa tariff
drawn by New York State Public Service Commission that does cover
that operation."
Mr. Jacobson: "The amplifiers and so forth do not fall under their
control?"
Mr. L'Archevesques "They do. The New York Telephone Company takes
over control of the signal as soon as it enters the Block house on
the site. Their duty is to get that signal thru the cable to the
actual home of the subscriber. They terminate their service at the
home, It is the CATV operator's responsibility from the tower to
the house and from the home to the TV set: 80% is controlled by
the Telephone Company and 20% is controlled by the CATV operator."
Mr. O'Hare: "Is the block house considered a structure?"
Mr. L'Archeves+ques "Yes, it is."
Mr. Koehler: "r#ho awns the property?"
Mr. Ludewigs "I believe Hill Top Water Works owns it, and leased
the site to Highway Displays."
Mr. Jacobson: "Were you directed by the Town Board?"
Mr. L'Archevesques "Yes."
Mr. Reilly called Mr. Ludewig to testify.
Mr. Reilly: "Would you state your name?"
Mr. Ludewigs "Joseph Ludewig."
Mr. Reilly; "Would you tell the Board your duties, being associated
with the Town of Wappinger?"
Mr. Ludewigs "Zoning Administrator and Building Inspector."
Mr. Reilly: "During the month of July, 1967, did you have occasion
to receive an application, as Zoning Inspector, from Highway Displays,
Inc.-, for the construction of a structure on a lot on Cider Mill Loop?"
Mr. Ludewigs "Yes."
Mr. Reillys "Would you tell the Board the nature of the application?"
Mr. Ludewig: "Highway Displays made an application to construct
Zoning Board of Appeals -12- November 14, 1967
144W towers and a head end station on a lot they leased from Hill Top
Water Works."
Mr. Reilly: "Did you issue it?"
Mr. Ludewig: "Yes."
Mr. Reilly: "Would you state, for the record, the particular
provisions that are set forth in Section 421 of the Zoning Ordinance?"
Mr. Ludewig: "Section 421 spells out the permitted uses in
residential zones. It states that only those uses specifically
listed are permitted. It also states that some of these uses are
followed by an asterisk, and where this asterisk appears, these
particular permitted uses are subject to additional standards and
procedures in Section 430, which deals with uses requiring special
permits."
Mr. Reilly: "In grafting the application, you based your opinion
on certain sections, and particularly 421. Would you state how you
arrived at your determination that this is a permitted use?"
Mr. Ludewig: "By the language of the Ordinance, following it down
through, since the application was for a lot that is in a residential
area, the residential zoning schedule pertains. They have under
regularly permitted uses, listed among other things, utility
transmission lines, unit substations, and in my opinion, this
application for a permit fell in that category. Therefore, I issued
the permit."
` Mr. Reilly: "As a rebuttal to some of the issues brought forth by
the appellant, have you, as the Building Inspector, had an occasion
to examine this structure?"
Mr. Ludewig: "Yes."
Mr. Reilly: "Would you say that this is safe and not likely to flop
over and cause damage; or is it structurally unsafe?"
Mr. Ludewig: "Frankly, we have a question on the structural stability
of the towers, and are now in the process of getting that information."
Mr. Reilly: "In reference to depreciation of value of adjoining lots,
you, as Zoning Inspector, had occasion to review the subdivision plat
when it came before the Planning Board, and can you state what this
lot Was designated as?"
Mr. Ludewig: "It is about the highest lot in the subdivision, and
ideally designated for water tank to feed water down to the development."
Mr. Reilly: "No further questions."
Mr. Mills: "Do you have any listing as to how big the water tower
will be?"
Mr. Ludewig: 1166' in diameter. Somewhere we heard the height could
be up to 60 ft. because they plan 2 million gallons capacity."
Mr. Hirt: "Do you have any information as to the square footage of
that lot?"
Mr. Ludewig: "I think it's on that plot plan."
.. Mr. Jacobson: "Does this structure meet the setback requirements
for this area?"
Mr. Ludewig: "Yes."
Zoning Board of Appeals -13- November 14, 1967
Mr. Jacobson: "Normally, do permitted use structures have to meet
sideyards, etc.?"
Mr. Ludewig: "Yes. The ordinance speaks of principal and accessory
use of the site."
Mr. Jacobson: "What was the 40 ft. distance referred to?"
Mr. Ludewig: "Refdrred to nearest residence, I believe. I disagree
with that, respectfully."
Mr. Jacobson: "In your opinion this structure meets sideyard and
all other requirements of that sense?"
Mr. Ludewig: "Yes."
Mr. Koehler: "Section 421.20-C states that a utility substation
shall be located on a lot not less than 10,000 sq. ft. in area."
Mr. Birt: "This lot contains more than 40,000 sq. ft."
Mr. O'Hare: "it is respectfully submitted that here in paragraph
20, discussing utility, the definition in the Ordinance does not
encompass this business enterprise we have here, so I don't think
that this would apply."
Mr. Hirt: "Considering the history of this type of company and the
date of the Ordinance, it could be updated. in 1963, this was
practically non-existent."
Mr. O'Hares "It falls squarely within your CSB zone."
Mr. Ludewig: "I considered that, but since this particular utility
has been licensed by and is bging governed by our Town Board, that
*NW fairly well indicates that it is a public utility."
Mr. O'Hare: "That is a good faith opinion, I am sure, but it is
inconsistent with the Ordinance."
Mr. Hirt: "Youtre referring to principal use which could be taken
in General Business."
Mr. O'Hare: "By implication, if you have to get a special permit
for structure as defined in Paragraph 4, obviously it shouldn't go
into a residential subdivision. It's not even allowed in Local
Business."
Mr. Reilly: "The reason he distinguishes this particular operation
as utility transmission or substation is the fact that it is
licensed and approved by the Town."
Mr. Jacobson: "What is it licensed as?"
Mr. Reilly: "They are licensed to do business on the streets and
highways of the Town of Wappinger."
Mr. Jacobson to Mr. L'Archevesques "I'd be interested in your
opinion as to what constitutes a substation."
Mr. L'Arehevesque: "The basic difference, a substation is determined
by the actual size of the installation, and in terms of its function
of receiving power at some level and dropping down to give it to
some given area. in terms of CATV, I would almost say that because
signals are being picked up off the area, that this would have to
be classified as a substation."
Mr. Birt: "Transforms either up or down?"
Zoning Board of Appeals -14- November 14, 1967
rr.. Mr. L'Archevesque: "Yes."
Mr. O'Hare: "There is continuing insistence that it doesn't come
under paragraph 4. An example is your power company, you have a
generator which generates electricity, continues through to various
substations. Here you're changing one thing down into a wire."
Mr. Graham: "You're doing the same thing in electric, transmitting
from DC to AC. This doesn't mean it's one continuous line."
Mr. O'Hares "The Cable TV originates in this block house and service
starts from that point and goes out to your customers."
Mr. L'Archevesque: "That is a substation, in my opinion."
Mr. Jacobson: "Are the rates governed by Public Service Commission?"
Mr. L'Archevesque: "No, the rates are governed by the Town Board."
Mr. Jacobson: "The Public Service Commission has no control?"
Mr. L'Archevesques "It has control over the rental that the New
York Telephone Company can charge Highway Displays for the use of
their lines, rental charges of tower and head end."
Mr. Hirt: "Are they regulated by anyone?"
Mr. L'Archevesque: "The Town of Wappinger, by contract."
Mr. Koehler: "in reference to setbacks being violated, Mr. Ludewig
stated that they are not."
Mr. O'Hares "I was under this impression, but I could be in error.
This is just my estimate, from obeervence, of what the distance
would be. The height of the tower shouldn't be more than the
distance of the building from the property line."
Mr. Koehler: "in your appeal, you are seeking to have the decision
of the Zoning Inspector reversed?"
Mr. O'Hare: "We are asking for a ruling by the Board as to whether
or not the issuance of this permit was in violation of the Ordinance.
It is permitted in General Business, but not in a residential area.
The permit should not have been issued."
Mr. Koehler: "Could you explain what is meant by "whatever other
action the Board deems necessary."?"
Mr. O'Hares "If something other than this particular relief deemed
itself necessary, then this would cover it."
Mr. Jacobson asked if there are any restrictions on sideyards,
etc., which would restrict the height of the towers.
Mr. Ludewig: "Section 414.03, Projecting Features Above the Roof
Level, states "Such features, however, shall be erected only to
such height as is necessary to accomplish the purpose they are
intended to serve." When we approved this plan, we did check it
and found it was in compliance. As far as I know, it is still in
compliance."
Mr. O'Hare: "Was a copy of the construction plans available upon
issuance of the permit?"
Mr. Ludewig: "Yes. I don't have it here."
Mr. O'Hare: "If the Board would like to hear evidence with reference
to diminishing property values, I am prepared to give it to them."
Zoning Board of Appeals -15- November 14, 1967
Mr. Reilly: "Do you have a qualified appraiser?"
Mr. O'Hare: "Yes, I do."
The Board did not feel it was pertinent information for this
hearing.
Mr. Koehler: "Is there anything you feel should be brought before
the Board?"
Mr. Reilly: "Not off hand."
The Chair declared the hearing closed at 10:58 p.m.
Mr. Reilly: "in behalf of myself, is there time to submit any
additional Papers?"
Mr. O'Hare: "I have nothing, but I would request that if anything
is submitted, it be submitted on notice."
The Secretary read the minutes of the regular meeting of
October 10, 1967.
A motion was made by Mr. Jacobson, seconded by Mr. Koehler,
to accept the minutes of the October 10, 1967, meeting, ss --read.
Motion Unanimously Carried
Mr. Mills: "I move that the variance requested by Robert M. Strang
in Appeal # 66 be granted, and the decision of the Building Inspector
be reversed."
The motion was seconded by Mr. Hirt. Unanimously Carried.
Mr. Hirt: "I move that the variance requested by Nancy & Carmen
Perpetua in appeal # 67 be granted, and the decision of the
Building Inspector be reversed."
The motion was seconded by Mr. Jacobson. Unanimously Carried.
The Board set a special executive meting for Tuesday,
November 280 1967, at 7:30 p.m., to review appeals # 65, 68, and 69.
The Board agreed to attend a joint meeting on Nov. 20th, with
the Planning Board and the Town Board, in reference to the rezoning
proposal for realigned Route 9.
A motion was made by Mr. Hirt, seconded by Mr. Koehler, to
adjourn the meeting. Unanimously Carried.
The meeting was adjourned at 11:28 p.m.
Respectfully submitted,
Susan J. Pike, Secretary
Town of Wappinger Zoning Board of Appeals
*4... sjp
APPROVED* FEBRUARY 13, 1968