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2004-12-14 ZONING BOARD OF APPEALS December 14, 2004 '-' Agenda Town of Wappinger Zoning Board of Appeals MEETING DATE: December 14, 2004 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for November 23, 2004. Public Hearing: Appeal No. 04-7249 Gie:e:les World Corp. -Seeking an area variance of Section 240-05 and 240-75 (3) of District Regulations in an HB Zoning District. - Where no adult use shall be permitted in any buildine: which is located within 400 feet of any residential zonine: district, the applicant is proposing a front yard setback of 209 feet, thus reQuestine: a variance of 191 feet. The property is located at 1180 Route 9 and is identified as Tax Grid No. 6157-04-652180 in the Town of Wappinger. Discussions: ~ Appeal No. 04-7250 BaislevNan Benschoten Site Plan- Seeking an area variance of Section 240-37 of District Regulations in an A-I Zoning District. - Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 84.1 feet to allow for a buildine: on lot 1. thus reQuestine: a variance of 15.9 feet. -Where a front yard setback of 100 feet is required, the applicant is,proposing a front yard setback of 86.9 feet to allow for a buildine:. on lot 2. thus reQuestine: a variance of 13.1 feet. The property is located at 110 Airport Drive and is identified as Tax Grid No. 6258-02- 654522 in the Town of Wappinger. ~ I Town of Wappinger Zoning Board of Appeals Page 1 Minutes of December 14, 2004 '-' MINUTES MiNUTES /\PPROVED !JAN 5 :; 20DS Town of Wappinger Zoning Board of Appeals December 14, 2004 Summarized Minutes Town Hall 20 Middlebush Road Wappinger Falls, NY Members Present: Mr. Fanuele, Mr. DellaCorte, Mr. diPiemo, Chairman Member Member Members Absent: Mr. Prager, Mr. Warren, Vice-Chairman Member '-' Others Present: Mr. Caviglia, Special Counsel Mrs. Lukianoff, Zoning Administrator Mrs. Roberti, Secretary SUMMARY Public Hearinf!: Giggles - Variance Granted with conditions. Discussion: Baisley/Van Benschoten - Public Hearing on January 11,2005. '" r Town of Wappinger Zoning Board of Appeals '-' Mr. diPierno: Mr. DellaCorte: Vote: Page 2 Minutes of December 14, 2004 Motion to approve Minutes for November 23, 2004. Second the motion. All present voted aye. Appeal No. 04-7249 Gh!:!!les World Corp. -Seeking an area variance of Section 240-05 and 240-75 (3) of District Regulations in an HB Zoning District. - Where no adult use shall be permitted in any buildin!! which is located within 400 feet of any residential zonin!! district, the applicant is proposing a front yard setback of 209 feet, thus reQuestin!! a variance of 191 feet. The property is located at 1180 Route 9 and is identified as Tax Grid No. 6157-04-652180 in the Town of Wappinger Present: \.. Mr. diPierno: Mr. DellaCorte: Vote: Mr. Fanuele: Mrs. Roberti: Mr. Fanuele: Mrs. Serino: Mr. diPierno: Mr. Serino: '-' Cynthia Dolan - Attorney for the Town of Wappinger Mr. & Mrs. Serino - Applicants Motion to open the public hearing. Second the motion. All present voted aye. Are the mailings in order? Yes they are. Swore in the applicants. Our attorney could not be here tonight and we are the owners of the company. We are here requesting a variance of 191 feet for a front yard setback. Our store falls under the zoning of adult use so we then need 400 feet to any residential district and we can provide 209 feet. I have a statement from my attorney here which I will read for the board. (A copy is attached.) You have two rather large windows, what will you use there? We will limit it to clothes and shoes. I explained to the other board that the only people that will be viewing it will be going 55 mph as they go by. It will be classy and upscale. ,- Town of Wappinger Zoning Board of Appeals '-' Mr. diPierno: Mr. Serino: Mr. DellaCorte: Mr. Serino: Mr. Fanuele: Mr. Serino: Mr. DellaCorte: Mr. Serino: Mr. DellaCorte: Mrs. Serino: '-' Mr. Fanuele: Mr. Caviglia: Mr. Fanuele: Ms. Dolan: Mrs. Serino: Mr. Caviglia: Mr. Kolb: \.r Page 3 Minutes of December 14, 2004 Do you plan on putting signage in the window as well? No, just an open sign. How about mannequins? Yes but nothing explicit. How old do people have to be to get in? 18 plus. Will you enforce it? Always, strictly. How long were you in the village? Six years. Does anyone in the audience have any comments or questions on this variance? Hearing none. I believe one of you had a question regarding the mannequins and the positioning of them. Yes how you will clothe them. All the mannequins will be standing in an upright position? You won't be posing any of them? It will be totally respectful. My kids live in this town. Are there any substitutes available for mannequins? A subsequent owner may not have good taste. One of our concerns is enforcement. Would you object to strictly clothing. A discussion took place trying to corne to an agreement on the window arrangements. Town of Wappinger Zoning Board of Appeals \.. Mr. Fanuele: Mr. Serino: Mr. Fanuele: Mr. Serino: Mr. Caviglia: Mr. Boudinot: '-" Mr. Fanuele: Mr. Boudinot: Mr. Fanuele: Mr. Boudinot: Mr. Fanuele: Mr. Boudinot: Mr. diPierno: Mr. DellaCorte: Vote: Mr. Fanuele: '-" Page 4 Minutes of December 14, 2004 Can we suggest that they remain vertical at all times? Yes, I totally understand. We just don't want to blacken out the windows. Ifwe grant the variance there will be two conditions, one will be no one under 18 and the window displays will be clothing only on vertical manneqUIns. We will agree to that. Just to be clear on the record that the ZBA and the applicants agree that the clothes will not be placed in compromising positions. Is that agreeable, in case 10 or 20 years from now anyone reading this record will understand the intent ofthese conditions. Bob Boudinot, 1190 Route 9. I own the property to the north, Affordable Storage. Swore in the witness. Do you object to this store? I had to go through zoning and planning for 1 1i years and I thought you had to have a hardship to get a variance. That's a use variance and they are looking for an area variance. Just a comment that you are setting a precedent here that everyone will have to live with. We look at where this is and this is an isolated building and not a strip mall. You have answered my question and I have no obj ection. Motion to close the Public Hearing. Second the motion. All present voted aye. Motion to grant the variance for 191 feet in the front yard setback with the following conditions: 1. No employees or patronage to anyone under 18 years of age. 2. Display windows are limited to apparel and shoes. Town of Wappinger Zoning Board of Appeals Page 5 Minutes of December 14, 2004 '-' Mr. DellaCorte: Roll Call: 3. Mannequins if used will be posed in an upright position. Second the motion. Mr. diPierno: Aye. Mr. DellaCorte: Aye. Mr. Fanuele: Aye. Mr. Caviglia: Make sure the planning board has a copy of these three conditions. Its our further understanding that these three conditions on the variance meet with your approval? Mr. Serino: Yes. '-' Appeal No. 04-7250 BaislevNan Benschoten Site Plan- Seeking an area variance of Section 240-37 of District Regulations in an A-I Zoning District. - Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 84.1 feet to allow for a buildine: on lot 1. thus reauestine: a variance of 15.9 feet. -Where a front yard setback of 100 feet is required, the applicant is proposing a front yard setback of 86.9 feet to allow for a buildine: on lot 2. thus reQuestine: a variance of 13.1 feet. The property is located at 110 Airport Drive and is identified as Tax Grid No. 6258-02- 654522 in the Town of Wappinger. Present: Brian Stokosa Mr. Van Benschoten Oswald and Gillespie Mr. Stokosa: This is currently before the planning board and this property is surrounded by wetlands that belong to the DEe. It is one parcel now and we are splitting it into two separate parcels. The planning board sent us to you for a variance in order to be able to push the buildings up toward Airport Drive for a larger buffer to the DEC in the rear. Mr. Fanuele: What's the front yard setback you are proposing? Mr. Stokosa: We are proposing 13'1" on lot two and 15'9" for lot one variances. This will give us 131.5 feet in the rear for lot one and 126.5 for lot two. Mr. DellaCorte: Can you come up here and explain this on the map? '-' . '-' '-' \... Town of Wappinger Zoning Board of Appeals Mr. Fanuele: Mr. diPierno: Mr. DellaCorte: Vote: Page 6 Minutes of December 14, 2004 Mr. Stokosa went to the board and explained the setbacks on the map. We will set your public hearing for January 11, 2005. Motion to adjourn. Second the motion. All present voted aye. Meeting ended at 8:30 PM Respeptfull y Submitted, d dl6~f /l & (I- Lt/J.-/t; , Barbara Roberti, Secretary Secretary - Zoning Board of Appeals LUKE CHARLES LlROT PA Fax:2219175 Dee 14 2004 17:56 P.03 ~ "-' (813) 221-9533 TEL LUKE CHARLES LIROT, P.A. @ ATI'ORNEY AND COUNSELOR AT LAW 112 EAST S1'REET, SlJ1TE ~ TAMPA, FL 33602 = '-" ..... (813)221-9175 fAX December 14, 2004 Timothy Serino Giggles World Corp. 641 Sheafe Road Suite D Poughkeepsie, New York 12601-5958 RE: Giggles World COf'p. v. T9wn of W"ppinge.,. et aL Case No. 04 CV lSS9 (Judge Brieant) Dear Tim and Darene: As yOu know, preexisting obligations have prevented my appearance to assist you tonight. In light of this, I have prepared the following statement for you to present to the Zoning Board of Appeals. The record owner of the property in question is Rotger Realty Corporation, and they have consented to the variance r~que$ted.. We are seeking a variance under Section 240-05 and Section 240-75(3) which prevents the operation of an adult business within 400 feet of a residential district. The format of our store includes only a small percentage of inventory that is adult in nature and the effort to operate the new facility at 1180 Route 9 was largely in part to a fire that destroyed our previous store which was located in a different jurisdiotion in Wappinger. We had ()rigin~ly taken the position that the small pefC(lDtage of sexually oriented inventory which is sold by the store did not render oW' fonnat an adult entertainment business. The Town took a different view and we were forced to file a lawsuit in fedetal court. Opinions issued in that federal court action and recent opinions from the United States Supreme Court have indicated thatstorcs such as ours, which do not allow the viewing or consumption of adult materials on the premises. and which dedicate only a portion of the store to adult oriented materials, do not cause the so-called ..secondary cffQ;ts" that are the only basi3 supporting diff'ecentialzorri4g of adult b1,lSine~. These decisions support our variance request. Simply stated, the small percentage of adult oriented materials that are offered by our store, and the 't fact that these materials are provided only to responsible adults of legal age to enjoy in the privacy of their own home, does not justify more stringent regulations being imposed on us than on any other retail faciJity. Not only has our experience in the stores we have operated in this area justify this conclusion, but research conducted by the Town has veri.fied this fact. The operation of our stores does not cause an increase in crime or any adverse impact on surrounding areas, regardless of opinions to the contrary. While there will always be a segment of society does not approve of adult oriented materials. the Courts have consistently held that this is a matter of personal choice that is 1=>TOtected hy the Con~titution the same way tho$e p(X)ple' s opinions to the contrary are l)rotected. , \.... '-" ~ "' LUKE CHARLES LIROT PA Fax:2219175 Dee 14 2004 17:56 P.02 December 14,2004 Page 2 of2 The facts justifying the variance for our ease are supported by the unique, arguably "non adult" characteristics of our business and the more important fact that the residential district that makes the subject property non confonning for an adult business is not utilized for residential purposes. This residential ly zoned. property is located across an intensive highway, Route 9. and the property is used as a utility easement which is the location of elaborate power lines, unlikely ever to be abandoned or removed. The Town restrictions, coupled with the uniqueness of this property, and further underscored by the constitutionally protected nature of materials we hope to sell. make the application of these restrictions an unnecessary hardship. This property is far removed from any other sensitive zoning uses and the granting of this variance will not have any impact on the character of the neighborhood or any nearby properties. There would be no way to operate our business and there is no way to reach the result we desire or the result that recent judicial decisions indicate is appropriate without the requested variance. Beca.\.W-e there is no residential use in the residential area. there will be no change in the intent or applicability of a reasonable application of those Code sections we seek a variance from. Our business causes no tangible impact and certainly will have no impact on a residential district being used for a power line easement. The requested easement will have absolutely no impact on the physical environmental conditions of the neighborhood and these will not be impacted because our business does not burden infrastrueture or create any kind of environmental problems any differently than any generic retail use. The need for this variance is not self created and was necessitated by ambiguities in the relevant Code section. The property is unique in that the residential district that disqualifies this property for an adult use is not now and never will be used for residential purposes. In conclusion. this property would be appropriately gnmted the variance we have requested. Under no circumstances will any ofthe signage or outer design of the building allow any of viewing of any adult oriented materials. No one outside the facility will be able to view any such materials under any circumstances. Our goal in seeking this variance is simply to provide a location for people who enjoy adult oriented materials to responsibly have access to those materials. We only wish to be good corporate citizens and we appreciate the oppOrtunity of makina this presentation tonight. Thank you. Sincerely, LUKE CHARLES LIROT, P.A. ~~ Luke Lirot LCUdlh