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2004-11-09 ZONING BOARD OF APPEALS November 9, 2004 Agenda \.- Town of Wappinger Zoning Board of Appeals MEETING DATE: November 9, 2004 TIME: 7:30 PM Town Hall 20 Middlebush Road Wappinger Falls, NY Approve minutes for October 26, 2004. Approve Site Minutes for October 30, 2004 Approve 2005 meeting dates. Public Hearing: Appeal No. 04-7235 RJA Holdine:. Inc. -Seeking an Interpretation following the determination of the Zoning Administrator, dated May 28,2004 regarding Section 240-37 and Section 240-16 (c) 3 and its applicability to the proposed use as a commercial development / Real Estate office. The property is located on 51 Myers Corners Road and is identified as Tax Grid No. 6157-02-899988 in the Town of Wappinger. '-" Appeal No. 04-7247 Lucien & Linda Cicie:line -Seeking an area variance of Section 240-37 of District Regulations in an R-10 Zoning District. - Where a side yard setback of 12 feet is required, the applicant is proposing a side yard setback of 2 feet on each side to allow for a 26 X 40 foot 2-car e:arae:e. thus reQuestine: a variance of 10 feet on each side. - Where a rear yard setback of 25 feet is required, the applicant is proposing a rear yard setback of 10 feet to allow for a 26 X 40 foot 2-car e:arae:e. thus reQuestine: a variance of 15 feet. The property is located on 376 River Road South and is identified as Tax Grid No. 5956-12-926552 in the Town of Wappinger. Discussions: Appeal No. 04-7248 Patrick & Susan McIntyre -Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. - Where a side yard setback of 20 feet is required, the applicant is proposing a side yard setback of 9.4 feet to allow for a 24 X 24 foot 2-car e:arae:e. thus reQuestine: a variance of 10.6 feet. The property is located on 3 Maxwell Place and is identified as Tax Grid No. 6257-02- 652508 in the Town of Wappinger. ~ 1 Town of Wappinger Zoning Board of Appeals Page 1 Minutes of November 9,2004 MINUTES ~ Town of Wappinger Zoning Board of Appeals November 9, 2004 Summarized Minutes Town Hall 20 Middlebush Road Wappinger Falls, NY Mr. Fanuele, Mr. Warren, Mr. DellaCorte, Mr. diPiemo, Mr. Prager, Chairman Member Member Member Vice-Chairman MINUTES APPROVED i~n\J 2-3> 2Q~4 Members Present: Others Present: Mr. Caviglia, Special Counsel Mrs. Lukianoff, Zoning Administrator Mrs. Roberti, Secretary SUMMARY '-' Public Hearinf!: RJA Holdings - Closed Public Hearing. Discussion on January 11, 2005 Lucien & Linda Cicigline - Variance Granted with conditions. Discussion: Patrick & Susan McIntyre -Public Hearing on November 23,2004. ~ ~ I ,..--- ., ~ '-' '-' Page 2 Town of Wappinger Zoning Board of Appeals Mr. Warren: Mr. DellaCorte: Vote: Mr. Warren: Mr. DellaCorte: Vote: Mr. DellaCorte: Mr. diPiemo: Vote: Minutes of November 9, 2004 Motion to approve Minutes for October 26, 2004. Second the motion. All present voted aye. Motion to approve Site Minutes for October 30, 2004 as amended Second the motion. All present voted aye. Motion to approve Calendar Dates for 2005. Second the motion. All present voted aye. Appeal No. 04-7235 RJA Holdin2. Inc. -Seeking an Interpretation following the determination of the Zoning Administrator, dated May 28,2004 regarding Section 240-37 and Section 240-16 (c) 3 and its applicability to the proposed use as a commercial development / Real Estate office. The property is located on 51 Mvers Corners Road and is identified as Tax Grid No. 6157-02-899988 in the Town of Wappinger. Present: Mr. Prager: Mr. diPiemo: Vote: Mr. Prager: Mrs. Roberti: Mr. Fanuele: Mr. Adams: J on Adams Robert Macho Richard Cantor Motion to open the public hearing. Second the motion. All present voted aye. Are the mailings in order? Yes. Swore in the applicant. This property has been before this board in prior proceedings. At this time Mr. Adams handed paperwork to Mrs. Roberti for the record. I am submitting the history of this building which quite frankly is nothing new tonight from before. The only new circumstance being the subject ofthis appeal, namely whether the occupancy of this building by the applicant and his use of the building for commercial purposes is a lawful use as a continuation of ~ Town of Wappinger Zoning Board of Appeals '-' Mr. Fanuele: '-" Mr. Macho: Mr. Adams: Mr. Macho: Mr. Adams: Mr. Macho: Mr. Fanuele: Mr. Macho: Mr. Prager: ~ Page 3 Minutes of November 9,2004 the commercial use of that building. I have the applicant here tonight and he is prepared to testify as to the use of the building. The use was summarized in the submittal to the board. It is basically used as an office for his commercial operations. The documents I have tonight show the use and history of this property. This building was built prior to any enactment of a zoning ordinance as a chicken rotisserie products store. In 1971 Mrs. Hettinger appeared before the board to use the building and received approval to use the building for a non-conforming building. Mr. Adams proceeded to go over the history of the buildingfor the board. From April 8, 2003 I submit sworn testimony given by Mrs. Hettinger as to the use of the building and its history. The use of the building continued as a commercial building until my client purchased the property on October 8, 2003 from Mrs. Hettinger. At that time my client has occupied the building and has occupied it continuously since that date. It is our belief that since the commencement of the use of that building from the Hettinger's through our client's current use of that building there has been a continuous use of the building. It is our position that this board has treated this building on more than one occasion as a commercial building and it is our position that this board continues that use. Swore in Robert Macho. I am Robert Macho the President ofRJA Holdings. We are using this building as an office for my construction business and a real estate office for RJA Holdings, Inc. The only things done to it is siding, windows and the building fa9ade has been repaired. We also changed the panels in the drop ceiling. Did you change the footprint of the building? No. Did you clean up any of the structures in the rear of the building? The two storage structures are still there and pretty much the same. Do you use them for storage and what kind? Lawn mover, shovels and kitchen cabinets that sometimes we need to store because we can't deliver them right away. Maybe for a few days. This occurs maybe once a month. We have a showroom out on Route 9 for showing them. You own the property in the rear that you are building homes on? Page 4 Town of Wappinger Zoning Board of Appeals '-" Mr. Macho: Mr. Macho: Mr. Macho: Mr. Adams: Mr. Fanuele: Mr. Prager: Mr. Fanuele: Mr. Cantor: \... ~ Minutes of November 9, 2004 I own Treeline Builder's which owns that property. Is that what you use the kitchens for? No. It's for other residential homes that I build. I have no further comments at this time but reserve the right for later to comment. Does the board have any comments or questions? Not right now. Any comments from the audience? Richard Cantor with the firm of Teahan and Constantino. I am here on behalf of Regina and Salvatore Pace of 53 Meyers Corners Road. I am here to be heard in opposition to this appeal. They want the property to be used in conformance with the zoning code. This is an R-20 zone and the Hettinger use was non-conforming. This applicant is using this property for a construction business which is also not permitted in the R-20 zone. Mr. Adam was asserting to use that there has been a continuous use, that's irrelevant. The Town of Wappinger code prohibits a change in a non-conforming use except to a conforming use. The question before you is whether the applicant's use is the same use as the Hettinger use. The Zoning Administrator's determination was correct. I agree with some of the history that Mr. Adams stated to you. It's true there are CO's stating this is a non-conforming property for the Hettinger use. The applicant's use is not the Hettinger use, it's a very different use. We have cited in our September 20, 2004 letter many cases that stand for the legal proposition that a generic similarity in use: commercial commercial is not sufficient in the absence of a zoning code which allows generic identity of non-conforming uses. That's not your code. Your code simply says that you cannot change a non- conforming use to another non-conforming use. So the case law is clear that this generic similarity while Hettinger was commercial, the applicant is commercial is not enough. It is also clear from your 1971 resolution that there was never a determination that could be used generically for commercial purposes. Before I continue on this, the first argument in my letter is that the Town of Wappinger issued two violations for this property. The first is the zoning violation which is the subject of this appeal and this appeal is staid pending Town of Wappinger Zoning Board of Appeals Page 5 Minutes of November 9, 2004 '-' this appeal. But the second violation is a building code violation and has nothing to do with this appeal. That is for the applicant doing work on this property without a building permit, he never obtained a permit. The procedural point that we are making is that the Town of Wappinger has a violation provision that says that when there are open violations you can't get any further town approvals. There is an open code violation and under Section 240-12 it prohibits this applicant from getting any further approvals. We also provided you information in our letter of September 20, 2004 that shows several things. First of all this applicant came into this property with eyes wide open. He owns four or five acre residential property directly behind this Hettinger piece. When he bought this piece he stated at the time he had the intention of tearing down this building and incorporating the Hettinger property with the property directly behind it. The applicant in furtherance of that statement went to the planning board and filed an application for subdivision approval. He never came back to the planning board and by self help without any approval from the town moved into this building to run his office for his real estate business without any zoning or building code approval for the changes that he made. This is a commercial builder who was fully aware of the Hettinger dispute and he bought this property to end the commercial use. My clients welcome neighbors in single family homes. He told you that his property is consistent with residential property but I have 5 additional photographs taken this Sunday. The bottom line conclusion is: 1. There's an outstanding building code violation on this property. 2. The code does not allow the applicant's use because it is a change from the Hettinger use. 3. This applicant has no basis to make any fairness equitable claim before you. This applicant walked in as a real estate developer eyes wide open and misrepresented his intentions for the property. We would ask you to deny this appeal and uphold the Zoning Administrator either on the procedural ground that this applicant can't ask for the relief until he clears up the violation or if you get past that then on the merits ofthe ground that this is a prohibited change in use. ~ Mr. Fanuele: Swore in Mr. Salvatore Pace. Mr. Pace: I took these photographs on Sunday, November 7,2004. I am against this and these photos represent what was there on Sunday and still is today. Mr. Prager: Just for the record I want to make sure its in writing, the building right now is being used for what? ~ Town of Wappinger Zoning Board of Appeals \... Mr. Macho: Mr. Adams: Mr. Macho: ~ Mr. Adams: Mr. Macho: '-' Page 6 Minutes of November 9, 2004 For an office. One of the uses that I believe Mr. Cantor acknowledged was a permitted use as a non-conforming use if you recall was an office slash machine sales slash something else. So the office use is a continuation of the use that is permitted. The tractor trailer that you will see and the only reason you can see it is because our other facility was full and it had to be delivered there. It only comes once a month or every other month. Otherwise the kitchen cabinets are delivered every week or so to our other facility. So they only come around once a month or maybe every other month. We get stuck and we have to take the delivery and put it in my storage unit. As for the permit, your saying I needed a permit, I only put up siding and windows and I didn't need a permit for that. The reason I have a thing against me is because there was an old soffet around that building attached to block and it was rotted to nothing and about to fall down. I ripped it down and we only put a small decorative soffet on the front and which is still to be determined if it is structural or not. I have discussed this with George and it is his determination to make at this point. So that's where my problem is right now. I would also submit to the board on the context of the procedural arguments raised by and on behalf of the neighbors that 240-12 alluded to the zoning violations. Obviously this board is here as an appellant board in the event of an alleged violation waiting for your determination. Another thing I want to say about the other presentation is that it has gone far a field. You have a narrow issue before you tonight. We made an appeal simply on the issue of the Zoning Administrator's determination that the use was either permitted or not permitted. How the premises are being used quite frankly is not an issue before this board but in as much as some pictures have been submitted I would like to have Mr. Macho address them. Picture # 5: This is my salesman's jeep that he just bought about a month ago and he has a rag top underneath it. Since it was good weather he took the hard top off and it lies there now but I would say since the cold is here, watch how fast that disappears. There are no other machines here and you will never see them on the property. Picture # 6: That is my pickup truck. I have been away for the last week on vacation and I don't usually leave it their on the weekend. Town of Wappinger Zoning Board of Appeals '--' Mr. Fanuele: Mr. Macho: Mr. Adams: Mr. Fanuele: Mrs. Pace; Mr. Fanuele: Mrs. Pace: ~ Mr. Cantor: Mr. Macho: Mr. Prager: Mr. Macho: Mr. Fanuele: Mr. DellaCorte: ~ Page 7 Minutes of November 9,2004 That's my salesman and he just bought that vehicle for his wife and it has a bubble in the front tire and that will be leaving. Picture # 7: This is our box truck that we use to make deliveries with our kitchens and whatever we might need on a job. Do you park that there regularly? It's either here or at the other facility. Picture # 9: This is a 1995 dodge van that has no plates or registration and it was sold as of yesterday, it is mine. We have nothing further. Mrs. Pace you had your hand up? The tractor trailer we think is there a little more often. We have been asked to accept deliveries. The tractor trailer drivers have come to us and they have asked us to accept their cabinets. I'm at work and I've come home unexpectedly and found tractor trailers there with boxes all over the place. Swore in Mrs. Pace. Regina Pace, 53 Myers comers Road. Mr. Adams in a manor I would respectfully suggest is outrageous was telling you that the 1971 ZBA determination allowed office use. It uses the word office. It uses the word office to modify word machine. It says office machine sales and service. The use was sales and service. Mr. Macho's opinion that he doesn't require a building code, the place to say that if he chooses too is the justice court across the hall where the matter is pending, not here. For your purposes on the procedures issue that is an outstanding violation. If the violation is incorrect that is not a zoning matter but a justice matter. The violation is specifically for the soffet. The property behind this building you own just to reiterate? Yes. Does anyone on the board have any comments? I'm still unclear about the violation. Is there an outstanding violation right now? Town of Wappinger Zoning Board of Appeals ~ Mr. Adams: Mr. Cantor: Mr. Fanuele: Mr. diPierno: Mr. Warren: Roll Call: Mr. Fanuele: Mr. Cantor: '-' Mr. Fanuele: Mr. Adams: '-' Page 8 Minutes of November 9,2004 There is an allegation of a violation. But this proceeding and our appeal to you prevents the proceeding from going further. There are two Town of Wappinger allegations of violations. Is there anyone else with a comment or question? Hearing none. Motion to close the public hearing. Second the motion. Mr. Warren: Aye. Mr. diPiemo: Aye. Mr. Prager: Aye. Mr. DellaCorte: Aye. Mr. Fanuele: Aye. I would like to not make a decision tonight and would rather have us think about what was said tonight and we do have a new member and I want him to catch up on his reading. We will schedule this for December 14, 2004. I have a preexisting obligation for that date. The next meeting will be January 11, 2005 . We will meet on that evenmg. At this time the applicant and opposing attorney left the room when it was discovered that January 11, 2005 would be one day later than the 62 days allotted for making a decision after closing a public hearing. Mr. Caviglia went to the hall and spoke with Mr. Adams who agreed on an extension of the one day necessary. Mr. Adams said that he would speak with Mr. Cantor regarding the extension of one day. For the record we will consent to the extension for January 11, 2005 and we will have Mr. Cantor fax his acknowledgement to Barbara tomorrow. Town of Wappinger Zoning Board of Appeals Page 9 Minutes of November 9,2004 Appeal No. 04-7247 Lucien & Linda Cichdine -Seeking an area variance of Section 240-37 of District Regulations in an R-IO Zoning District. - Where a side yard setback of 12 feet is reauired, the applicant is proposing a side yard setback of 2 feet on each side to allow for a 26 X 40 foot 2-car i!arai!e. thus reauestini! a variance of 10 feet on each side. - Where a rear yard setback of 25 feet is reauired, the applicant is proposing a rear yard setback of 10 feet to allow for a 26 X 40 foot 2-car i!arai!e. thus reauestini! a variance of 15 feet. The property is located on 376 River Road South and is identified as Tax Grid No. 5956-12-926552 in the Town of Wappinger. ~ Mr. Prager: Mr. diPiemo: Vote: Mr. Fanuele: Mr. Cicigline: '-' Mr. diPiemo: Mr. Cicigline: Mr. Fanuele: Mr. Perillo: Mr. Prager: Mr. Cicigline: Mr. Fanuele: Ms. Leaham: ~ Motion to open the public hearing. Second the motion. All present voted aye. Swore in the applicant. I would like to put in a 2 car garage at the back of my property in a dead spot. It would be close to the property line but it won't obstruct any views and I spoke to three of my neighbors who had no problems with me putting this up. Do you have a garage now? No. Is there anyone in the audience that would like to say something for or against this variance? Swore in witness. Joseph Perillo. I live immediately to the south of Lucien, so one of the 10 foot variances that he is looking for is on my side. This is an area of old homes and old garages. This is the very best place to put his garage. It visually wi11look the best where he wants to place it. What is the size of your lot? The total is I believe .44 of an acre. Swore in witness. Benita Leaham. I am the property to the east and south. I would like to agree that this would be the most pleasing place for the garage. He has my support. Town of Wappinger Zoning Board of Appeals Mr. Prager: \.. Mr. diPiemo: Ms. Leaham: Mr. Warren; Ms. Leaham: Mr. Prager: Mr. Perillo: Mr. Fanuele: Mr. Prager: Mr. Cicigline: ~ Mr. DellaCorte: Mr. Cicigline: Mrs. Lukianoff: Mr. Prager: Mrs. Lukianoff: Mr. Fanuele: Mr. Warren: Mr. diPiemo: Vote: '-' Page 10 Minutes of November 9,2004 This is a large variance but I see why with this property. I think it is beneficial to the neighbors to place it there. The only place where he would not need a variance would mean the cutting down of two beautiful maples and then it would obstruct all of our views. How long are you there? I'm there 13 years but this was my mother and my grandmother's home. Mr. Perillo how long are you there? 2 Y2 years. This is a very large variance and there is no leeway for any mistakes. You actually have to squeeze the garage in. Do you know exactly where your property lines are? 4 Y2 years ago I had this surveyed and markers put in. The house with the red barn, have you spoken with them? Yes and they are in agreement. One point I would like to make because of the proximity to the barn is that before you really have major plans talk this over with the building inspector. If this is less than 6 feet you will need to adapt some of the building code requirements. Also the regulation states 3 feet to the side and at 2 feet you will need to increase the fire rating so please be aware of that. Is the fire rating for the insurance company? It is the requirement of the code. Anyone else? Hearing none. Motion to close the public hearing. Second the motion. All present voted aye. '-" ~ '-" .. Town of Wappinger Zoning Board of Appeals Mr. diPierno: Mr. DellaCorte: Roll Call: Page 11 Minutes of November 9,2004 Motion to grant the variances because if you look at the six requirements that we are guided by, it will not produce an undesirable look in the neighborhood, in fact the neighbor's are for it. There are other methods and this is very substantial but it won't be an impact on the environment. This is self-created and the property is unique to the neighborhood. Second the motion. Mr. Warren: Aye. Mr. diPiemo: Aye. Mr. Prager: Nay. Even though Mr. diPiemo gave a number of good reasons to grant this I'm afraid I have to go against this for a couple of reasons. Number one is that these variances are extremely high. One of them is 83% alone. To me you are changing the zoning code. There are some really good reasons why I can see it being put there but I think we are here to give variances when there is absolutely no place else to put the item. Mr. DellaCorte: Aye. Mr. Fanuele: Aye but I want to add the condition that the Building Inspector be very critical of the building placement and construction. Appeal No. 04-7248 Patrick & Susan McIntyre -Seeking an area variance of Section 240-37 of District Regulations in an R-20 Zoning District. - Where a side yard setback of 20 feet is reauired, the applicant is proposing a side yard setback of 9.4 feet to allow for a 24 X 24 foot 2-car e:arae:e. thus reauestine: a variance of 10.6 feet. The property is located on 3 Maxwell Place and is identified as Tax Grid No. 6257-02- 652508 in the Town of Wappinger. Mr. McIntyre: Mr. Fanuele: Mr. McIntyre: Mr. Fanuele: Mr. McIntyre: Mr. diPiemo: Mr. McIntyre: My wife and I would like to build a 2 car garage on our property. This is in Rockingham? Yes up by the water tower. Do you have a garage on the house now? Yes a one car under the house that will stay as a workshop or something. What will be on the second floor? It will be just extra storage space. ~ ~ ....... ., Page 12 Town of Wappinger Zoning Board of Appeals Mr. Farisi: Mr. Warren: Mr. Farisi: Mr. DellaCorte: Mr. McIntyre: Mr. Prager: Mr. McIntyre: Mr. diPiemo: Mr. McIntyre: Mr. Fanuele: Mr. McIntyre: Mr. Fanuele: Mr. McIntyre: Mr. Prager: Mr. diPiemo: Vote: Minutes of November 9, 2004 I am the proposed builder and this could be a future master bedroom with a bath. So it's a two story expansion? It's actually one and a half story. There is a 5 foot knee wall upstairs. The variance states that you need a variance because of the topography? The rear yard slopes down and there is also a pool back there. How long are you there? About 4 Yz years. Is this a standard raised ranch? Yes. Will the driveway remain where it is? Yes. We will follow up with a site visit on November 13,2004 and you're public hearing will be on November 23,2004. Put stakes in the ground to identify where the property line is and where the garage will be. Thank you. Motion to adjourn. Second the motion. All present voted aye. Meeting ended at 9:00 PM Respect ully Submitted, /.~~' Barbara Roberti, Secretary Secretary - Zoning Board of Appeals