Kastanis Site Plan Town of Wappinger
ZONING DEPARTMENT
20 MIDDLEBUSH ROAD CONSTANCE O.SMITH
P.O.. SOX 324 SUperrisor
WAPPINGERS PALLS, NY 12590-0324
(914) 207-6257
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RECEOVED
D E C 14 1998
ELAINE SNOWDEN
To: Elaine Snowden TOWN CLERK
Town Clerk
From: Donald Close
Zoning Administrator
Re: Interpretation
Kastanis Salon
51 Myers Corners Road
Date: December 14, 1998
Attached you will find my interpretation regarding Kastanis Salon. The property is located at 51 Myers Corners
Road in the Town of Wappinger.
Town of Wappinger
ZONING DEPARTMENT
20 MIDDLE,BUSH ROAD ' CONSTANCE G. SMITH
P.O. BOX 324 Supervisor
WAPPINGERS FALLS, NY 12590-0324
)914)297-6257
r
December 14, 1998
Planning Board
Town of Wappinger
20 Middlebush Road
P.D. Box 324
Wappingers Falls, NY 12590
Attn: Philip DiNonno, Chairman
Re: Application for Site Platy Approval of Athanasios and Paul Kastanis
Property Location: 51 Myers Corners Load, Wappingers Falls, New fork
Dear Chairman and Board Members:
I have received an application for Athanasios and Paul Kastanis for site plan approval on a site located at 51
Myers Corners Road, Wappingers Falls, New York.
The current owner of the site is R.B. Hettinger, Inc. The site is located in an R-20 Residential District. The site
is presently used as the business site of HB Office Products, Inc. As per statement of Robert B. Hettinger of
R.B. Hettinger, Inc., HB Office Products, Inc. is a sales and service organization established in 1967, copy
attached. The business presently sells and services typewriters, calculators, transcribing and dictating machines,
time clocks, etc., as well as sells office supplies, rubber stamps, business cards, etc. The business also has an
incoming and outgoing fax service and also makes copies for local businesses. Prior to 1967, the premise was
used as a "take-out" food establishment. Based upon my research, the Town has continually treated this site as
a non-conforming use.
The site plan application of Athanasios and Paula Kastanis is to use the same site for a "beauty salon." In my
capacity as Zoning Administrator, it is my duty to determine whether or not a proposed use in an application for
site plan approval conforms to the requirements of the Town Zoning Law (Section 450.3).
In masking my decision. and determination herein, I have consulted with the Town Attorney and relied on a
memorandum his office prepared dated October 5, 1998, copy of which is attached. I have also retied on a.
certain determination made in an appellate case known as Prudence v. Town of Ithaca, 495 AD2d 662. In the
Prudence case, the Appellate Court determined:
Town of Wappinger Planning Board
Re: Athanasios &Paula Kastanis Site Plan
December 1.4, 1998
Page 2
"A non-conforming use having been in existence at the time the ordinance became effective, that use is allowed
to continue until it is abandoned...Moreover, another use may be substituted provided that the new use is one
which would have been permitted in the most restrictively zoned district in which the original use was allowed."
Based upon the above judicial interpretation,it is my determination that the proposal to use this site for a beauty
salon would be a permissible use of the site.
I
A review of Section 420.2, Schedule of Use Regulations, separately identifies "Retail" and "Service" uses.
Under Service,both"copy centers" and"hairdressers"are permitted examples of"Service"use. While the
present use by HB Office Products, Inc. appears to be a combination of"Retail" and "Service"uses, the
proposed new use will be essentially a"Service"use, although presumably some miscellaneous sales of
cosmetics and related products will occur. Under the Town Zoning Law, retail business and personal service
businesses are permitted principle uses in the same district. Accordingly, the proposed use of this site for a
beauty salon meets the test stated in the Prudence case as noted above and is acceptable to this office.
Respectfully,
0-1
Donald Close
Zoning Administrator
DC/In
Attachments
CC: Mr. Battistoni, Esq.
Mr. Roberts, Town Attorney
Mr. Paggi, Town Engineer
Mr. Wery, Town Planner
MEMMMUM
TO: Phrlup DiNonno, Chairman
Town of rWappinger planning Board
tX
FROM: Antonia T. Lucia
DATE: October 5, 1998
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RE: Permissible change of non-conforming use
FACTS
There is presently a half acre parcel being used by HB Office Equipment located in an R-20
Residential Zone. This is a non-conforming use. The property is being sold to a party who intends
to open a nail salon on site. This anticipated change muse would, in effect,be a change from a
Retail sales Business to a Personal Service Business.
QUESTIONS
1_ Is it permissible to make a lateral-type change in a non-confon-ning use of property and to
what extent?
2. is this a continuation of the non-conforming use?
DISCUSSION
Section 400.5.2.4 of the Town of Wappinger Zoning Code provides:
'Ito non-conforming use of land shall be changed to aaother non-conforming use."
Section 400.5.3.3 of the Code provides:
"A non-conforming use of a building may be changed only to conforming use."
These provisions, in effect, prohibit change from a non-conforming use to a use other than one
which conforms to the Zoning Law. This is a very restrictive Zoning Law. The constitutional
validity of such a Zoning Law has been affirmed. Under these provisions, one non-conforming use
may not be substituted for another. Such a change is unlawful even though the new use is similar to
the old. A new use may not be substituted simply because it is generically similar to an existing
non-conforming use. used on similar Zoning Laws, the Courts have prohibited the conversion of a
non-conforming bargain store to a diner (Somerset v. Perry, t 15 A132d 313); a non-conforming use
October 5, 1998
Page 2
for commercial storage to a plumbing business(Hull v_ Ithaca, 139 AD2d 887); a non-conforming
greeting card business to a business which compiles mailing lists (Campbell v. Rose, 634 NXS2d
137).
The test, according to one Appellate Court, is whether the new use is one which would have been
permitted in The most restrictively zoned district in which the original use is allowed (Prudence v.
Town of Ithaca,495 AD2d 662). In this case, both a retail business and personal service business
are principal permitted uses in the same districts. Accordingly, it appears that with regard to the
Town of Wappinger Zoning Code,the test enunciated in prudence has been met.
Moreover,The Town of Wappinger Zoning Law is silent as to a continuation of use. The
applicable test for a continuation of use has been enunciated by the Courts as follows:
"A continuation of use exists where the use is substantially the same as that which
previously existed and where the essential character of the use has not been
changed."
Thus, for example:
I.- A continuation was found where use of a clubhouse by a veteran's organization was
changed to use by a youth organization(YM and YWHA of Mid-Westchester v.
Town of Eastchester, 201 NYS2d 622);
2. A convalescent home and school for cardiac children was changed to a school for
mentally retarded children(Rogers v. Association for Help of Retarded Children,
308 N'Y' 126); and
3. The form of entertainment offered at a bar was changed from a rock band to dancing
girls (see Incorporated Village of Wilston Park v. 280 Hillside Avenue Restaurant
Corp.,55 AD2d 927).
In contrast to these cases, an impermissible change in non-conforming use was found to have
occurred where there was a qualitative change in use. As for example:
1. An 8-truck milk hauling business was changed to a 20-truck general trucking
business (Gilmore v. Beyer,46 AD2d 208);
2. A storage and service station for construction equipment was.remodeled to become
an automobile service station(Matter of Calcayni Construction Corp v.Zoning
Board.of Appeals of Town and Village of Harrison, 56 AD2d 845); and
3. A monument and stone-cutting business was remodeled,through the addition of
gasoline pumps, garage and service building,to become a gasoline service station
(Matter of Kaltenbach v. Board of Standards and Appeals,274 NY 34)..
October S, 1998
Page 3
Determining whether a particular use is a continuation of or a change in a non-conforming use is a
factual determination for the Planning Board in each case, As with any determination, it must be
rational and supported by substantial evidence in the record. Appropriate issues to be focused upon
are whether the building's appearance or structure will change and whether there will be an increase
in occupants or clientele. (Aboud v. Wallace, 94 AD2d 874, change from medical office to lobbying
office was allowed as a continuation of a non-conforming use).
In the case of Oreiro v. Board of Appeals of the City of White Plains, 204 AD2d 964,the Board of
Appeals determined that a change from a retail store to a retail Laundromat was a change Froin a
lawful non-conforming use to another use which was not permitted. The applicable Zoning
Ordinance in that case listed retail stores and retail laundromats separately in the Definitions Section
and in the Schedule of Use.Regulations. Moreover,there were different requirements detailed for
off-street parking and loading.
In the Town of Wappinger,there is no definition of either a retail sales business or a personal
service business. Such uses are,however, listed separately in the Use Regulations. Note,on the
other hand,that each is a permitted principal use in the same Districts and,that the Schedule of Off-
Street Parking Requirements considers them as one use, requiring the same number of spaces. This
would appear to be indicative of an anticipated number of similar occupants and clientele.
CONCLUSION
As already stated,the change from a retail business to a personal service business comports with the
Prudence test: the personal service business is allowed in the most restrictively zoned district in
which a retail business is allowed, since both are permitted principal uses in the same districts.
Moreover, if the question is asked whether this is a proper continuation of a non-conforming use, it
would appear that the facts of this case are closely related to that of Aboud v. Wallace, 94 AD2d
874, in which there was a change from a medical to a lobbying office. This was found not to be a
change in use since there would be no increase in occupants or clientele and there was no chane in
the appearance of the structure. Following this case,the change at issue would appear to be
substantially the same as that which previously existed and one in which the essential character of
the use has not been changed.
The Planning Board must conduct an inquiry as to the nature and intent of the use,the number of
employees to be staffed,the number of clients to be served,parking requirements and,whether the
essential character of the use has been changed,
TOTAL P.04
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Inventory a Complete We of
Otfko Suppil"and COmputsr Supplies
HO •Stationery A friendly place on
F •lyoewriters 51 Myers Corm_rs Road
F e Calculators Wappinwrs Fath,N.Y.12590
f •Date Supplies
•Diskettes 297-4066
BC •Furniture BMC d.a
E •Service
•Rentals
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HB Office .Products , Inc . is a sales and service organization .
established August ,1967 .
We sell and service typewriters , calculators , transcribing and
dictating machines , time clocks , etc.
We sell office supplies , make rubber stamps , business cards and
wedding invitations :
We have an incoming and outgoing fax service and also make copies .
R. B. HETTINGER, INC.
l
By: -c: ZZr�S
�2�/� RnBFRT B. HETTIN R, President