Piqwon, Luc Vs Town BoardEDWARD F. BEANS to
DONNA E. FR05CO
DAVID GLASSER
LANCE H. KLEI N°
RONALD A. LONGO
RICHARD L. O'ROURKE
LAWRENCE PRAGA
JOEL H. SACHSD
STEVEN A. 5CHURKMANfl
JUOSON K. SIEB-ERT
'ALSO AOMITTED IN CA
—,LSD ADMITTED IN CT
tALSO ADMITTED IN PC
CALSO ADMITTED IN FL
ALSO ADMITTED IN NJ
KEANE 8 BEANS, PC'
ONE NORTH BROADWAY
WH1TE PLAINS, NEW YORK 10601
(914) 946-4777
TELEFAX (914) 946-6868
Chambers of the
ora e C
Suprem ourt, Dut hess County
Sup
Dutchess County Courthouse
10 Market Street
Poughkeepsie, New York 12601
Piqwon Inc. v. Town of W appinger, et al.
Index No.: 1999/4782
November 12, 1999
Re:
THOMAS F. KEANE. JR.
(1932-19911`
STEPHANIE L. BURNSo
ERIC L. GORDON'o
JONATHAN KORNBLAIT
57EPHANIE M. ORE vAN
PATRICK J, O'S -LL
FRANCES M. PANTALEO
NICHOLAS M. WARD-WILLIS".o
OF COUNSEL
PETER A. BORROKO
JOHN F. BURKHARDT
ERIC F. JENSEN
DONALD N, SILVERMAN
BEGIN
Nov Is 1999
ELAINE SNO
�n"Vk' CLQ ,
Dear Sir or Madam: 2 affidavits of service, one
final and two (2) copies of two ( )
Please find enclosed an orlg ion and Petition and RA
Of Wa ginger and one for defendanofTPe � Board of the Town o
for defendant Town o pfo Memorandum of
Wappinger. The affidavits f service aer 26, 1999 and the accompanying ort of
previously filed with the
an Qng. al and two (2) copies of the Memorandum of Law iri Supp
Law. Also enclosed is
Petition which was not filed with the Petition.
rrl 01
original affidavits of service and Memorandumdof Lawof t meean the, elf -
and Please file the orlg you have
stamped copy of each affidavit ofserviceThank You for °M°moa stance in the matter. If y
addressed stamped envelope provided.
any questions, please do not hesitate to call.
Respectfully yours,
✓Eric L. Gordon
ELGllfd
Enclosure
cc: Richard L. ROurke'Clerk Town of WappingeT (`Flout enclosure)
Deputy Town
22 1 310 111 1 97 85 V1 11/12/99
THE STATE OF NEW YORK
SUPREME COURT OF
COUNTY OF DUTCHESS -------------------------------------- x
--
---------- ------
----------------
In The Matter Of The Application Of
RECEIVED
Nov 0 8 1999
ELAINE SNOWDEN
TOWN CLVRX
pjQWON, INC-, petitioner, NOTICE OF PETITION
Pursuant To Article 78 Of The index No -
For A Judgment PUTS11 Mc V IL
Civil Practice Law Rules Assigned to:
-against-
TOWN BOARD OF THE TOWN OF
TNGER anal TOWN OF WAPPNGER'
WAPP-- T7
Respondents.
---------------- x
- - - - - - - - - - - - - - - - -
------------------------. 7
----------- - --
D RESPONDENTS:
To THE ABOVE -NAME
, uon the annexed petition of PqwOn, Inc., duly verified
PLEASE TAKE NOTICE thatp
g affirmation of Richard O'Rourke,
the 26th day of October, 1999' together with the supporting
and the
dated October 26, 1999 and supporting affidavit Of Peter Elder, dated October 26, rerne Court Of
e application to the Sup
exhibits awlexed thereto, petitioner Piqwon, Inc- will mak to be held at the Courthouse
the State of New York, County of Dutchess, at an AS part thereof, 14th day of December, 1999
1-3202, On the
NY 1260
Poughkeepsie, cated at 10 Market Street,
lo or as Soon thereafter as counsel can be heard, for an order and Judgment granting
at 9:30 cle 78 of the Civil Practice Law and Rules, as follows: (a) annulling and
relief under Art d on September 27, 1999 by respondent Town
rendering void the Resolution of Denial adopteqwon, Inc.�s applicatior, for a special use
"Board of the Town of Wappinger, which denied Pi
i aPPinger Zoning Law § 400-5.6 and rendered moot the application
permit pursuant to Town of W
2?13l011118684V1 10126199
for amended site plan approval relating to property known as Tax Lot 6258-02-7025207 which is
side of Myers Corners Road, across from the intersection of Myers
located on the southern sl
ill Road; (b} remanding the case to respondent Town Board of the
Corners Road and Degam1O H ended
ideration of the appli
Town of Wappinger for cons
cations for a special use permit and am
e with the law; and (c} awarding such other and further reliefas
site plan aPProval in accordant attorneys' fees and
the Court de
ems . just and reasonable, including an allowance of costs,
disbursements of this proceeding.
NOTICE that an Answer to the Petition and all annexed
PLEASE TAKE FURTHER s for
supporting affidavits and
affirmations, if any, must be served upon the undersigned attorney
s prior to the return date of the Petition, as set forth above,
petitioner no later than five (5) d a y p a cert
and that you must transcript of the record of the
serve and file with the Court
proceedings under consideration.
s County as the place of trial. The basis of venue is that
Petitioner designates butches complained of and
ituated within the County of Dutchess and the determination
respondents are of Dutchess is
'ts took place in the judicial district within which the County
the material even
located.
Dated: White Plains, New York
October 26, 1999
YXAN-E & BEANE, P.C.
Eric L. Gordon
Attorneys for Petitioner/Plaintiff
0",
ne North Broadway, Suite 700
White Plains, New York 10601
(914) 946-4777
221W011118684VI 10126199
-2-
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS -----------------------------------
11, ___
In The Matter Of The Application Of
PIQWON, INC.,
Petitioner,
For A Judgment Pursuant To Article 78 Of The
Civil Practice Law Rules
-against -
TOWN BOARD OF THE TOWN OF
WAppINGER and TOWN OF WAPPINGER,
Respondents.
x
VERIFIED PETITION
Index No.
Assigned to:
Petitioner; pIQWON, INC., by its attorneys, KEANE & BEANE, P.C., as and for zts
petition in the above -captioned proceeding, respectfully alleges as follows:
i. P_1
1. petitioner, Pigwon, Inc. ("Pigwon"} is and was, at all times relevant hereto, a
'on duly laws of the State of New York with its
corporation Y organized and existing pursuant to the
principal place of business located in the Town of WaPP'nger, County of Dutchess, and State of
New York.
in er
2. Upon information and belief, Respondent Town Board of the Town of WaPP g
is and was, at all times relevant hereto, the duly organized legislative and
("Town Board!')
governing body of the Town of Wappinger.
2-213101/119515 V2 10126M -1-
in "
3. Upon information and belief, Respondent Town of Wapp ger Town") is and
was, at
all times relevant hereto, a municipal corporation organized and existing under the laws
of the State of New York, situated in the County of Dutchess, State of New York.
II. NATURE OF PROCEEDING
This is a proceeding commenced pursuant to Article 78 of the New York Civil
4.
an Order and Judgment by this Court,
Practice
Law and Rules. Petitioner Pigwon seeks
d rendering void the Resolution of Denial adopted by the Town Board on or about
annulling an ernnit
September 27, 1999
the "Resolution') denying Piq-,Von's application for a special use p
roval relating to property
the lication for amended site plan app
of PP
and thereby rendering mo
as is located on the south
Tax Lot 6258-02-702520, which
ern side of Myers Corners
known
Road and Degarmo Hill Road (
Road, across
from the intersection of Myers Corners e
"Property")-
cial use permit under the Town of
5. Plgwon
filed its application for a spe
Wappinger's Zoning
Law the "Zoning Law") § 400.5.6 and application for amended site plan
approval on or about April 15, 1999.
6.
The Resolution
applicatio
issued by the Town Board denies the
ns for a special use
permit and site plan approval on several grounds=
e use is not a permitted use
(a) The proposed contractors storag smcts,
in either the R-40 nor the NB Zoning
The former non -conforming automotive salvage yard use
(b)The
to Section 400.5.2.3 is no longer entitled
has expired and, p
' to continuation;
(c) The proposed use is not a modification to an existing non-
conforming use; and
2213/011118515 V2 10126/99 -2-
(d) The Project will not achieve the objectives and
requirements of Section 400.5.6 of the Zoning Law since it will
not, as proposed, bring the property into greater conformity with
the Zoning Law and will not improve the external effects of the use
and property to the benefit of the surrounding area.
(A copy of the Resolution is attached as Exhibit "C" to the Affirmation of Richard O'Rourke,
dated October 26, 1999.)
7. Piqwon asserts that the Resolution (a) was entered into in contravention of lawful
procedure and in violation of Petitioner's due process rights; (b) is affected by errors of law; (c)
is contrary to law and violative of public policies; and (d) was arbitrary, capricious and an abuse
of discretion. Indeed, based on the wording of the Resolution, it is evident that the Town Board
was attempting to circumvent and eviscerate requirements mandated by law relating to
applications for special use permits.
8. Specifically, the Town Board acted arbitrarily and capriciously and abused its
discretion by finding that its determination relating to Piqwon's application for a special use
permit is a legislative act not requiring review in accordance with the State Environmental
Quality Review Act ("SEQRA"). Pursuant to New York law, however, the grant or denial of a
special use permit is an administrative function rather than legislative act. Therefore, the Town
Board was required to act in accordance with SEQRA.
9. The Town Board also violated Piqwon's due process rights and acted contrary to
law by failing to comply with State of New York Town Law § 274-b(6) which requires that a
public hearing must be held within sixty-two (62) days after the receipt of an application for a
special use permit.
Z213/011118515 V2 10/26/99
-3-
10. In addition, The Town Board's determinations that the former nonconforming
existing use had expired and that the application for a special use permit did not involve an
improvement or modification of a pre-existing non -conforming use but instead added a new
nonconforming use, were arbitrary and capricious and contrary to law because such
determinations are factual and/or require interpretation of applicable provisions of the Zoning
Law and may only be made by the Zoning Board of Appeals, . Moreover, the Town Board's
determination that the pre-existing nonconforming use had expired is arbitrary and capricious
because it is not support by substantial evidence.
t 11. Piqwon asserts that for these reasons, the Resolution should be annulled and
rendered void and the case remanded to the Town Board for processing of the applications for a
special permit and amended site plan approval in accordance with the law.
III. STATEMENT OF FACTS
A. THE PRIOR USE OF THE PROPERTY
12. Piqwon purchased the Property on or about June 5, 1998 from A&J Parsons, Inc.
13. Upon information and belief, A&J operated an automotive repair shop and
salvage yard with outside storage on the Property prior to the sale to Piqwon, with materials and
equipment from these uses present on the Property before and after Piqwon took title to the
Property.
22131011118515 V2 10/26/99
-4-
14. Upon information and belief, as part of the salvage yard use, A&J operated cranes
and other large equipment, maintained outdoor storage of materials, including lumber, pipe and
concrete blocks, and conducted various operations on the Property.
15. Upon information and belief, at the time Piqwon purchased the Property, and at
least since 1947, it was often used as a deposit area for waste materials and debris, including old
cars, and, upon information and belief, may have posed a potential hazard to the surrounding
community. At the very least, the Property was often in disarray and was an eyesore to the
surrounding community.
B. THE PRESENT CONDITION OF THE PROPERTY
16. Piqwon presently owns, operates and leases space on the Property.
17. Upon information and belief, the Property is presently split in an east -west
direction by the NB (Neighborhood Business) Zone on the northerly portion of the Property and
the R-40 (Single Family Residence) Zone on the southerly portion of the Property and contains
6.27 plus or minus acres. The sole access to the Property is from Myers Corners Road which
abuts that portion of the Property located in the NB (neighborhood business zone). The majority
of the Property is located within the NB Zoning District.
18, The Property presently contains three (3) existing buildings and several out-
buildings, which house the following businesses, uses or occupations:
Building 1: Piqwon, Inc., a used car dealership, an attorney's
office and a mortgage broker.
Building 2: A carpenter's shop, paint shop and storage for
building materials.
2213101/1185151/2 10126/99
-5-
Building 3: A mechanic's shop and warehouse for building
materials.
Sheds 1 and 2: Two wood and metal frame sheds for equipment
wl ar c.
The balance of the Property is used for used car parking, employee parking and the storage of
equipment and material.
19. Piqwon currently employs approximately twenty (20) people on the Property. Its
business hours are normally 6:30 a.m. to 6:00 p.m., Monday through Friday. All carpentry,
painting and mechanical work is performed within the confines of the existing building.
20. The mortgage broker is a one person operation with varied hours Monday through
Saturday. The used car dealer employs four (4) people on the Property and its hours of operation
are 8:00 a.m. to 7:00 p.m. Monday through Saturday. The attorney is a single man operation
with variable hours Monday through Saturday.
21. Piqwon has invested substantial sums of money to put the site in an orderly, neat
and safe condition. Piqwon has taken efforts to remove all waste materials and debris from the
site and create an organized and unobtrusive site.
22. Although Piqwon has taken vast efforts to improve the quality and condition of
the Property, Respondents Town and Town Board have taken the position that certain businesses
presently on the Property constitute a change in use and are not permitted under applicable
provisions of the Zoning Law.
225 310111 1 851 5 V2 10/26!99
ral
C. THE USE VARIANCE APPLICATION
23. On or about May 13, 1998, the Town Zoning Administrator forwarded a letter to
Pigwon's President, Mr. Peter Elder, stating that the uses to which Piqwon was going to put the
Property were prohibited.
24. The May 13, 1998 letter also recommended that Piqwon apply for a "use
variance" before the Zoning Board of Appeals.
25. On or about August 25, 1998, Piqwon proceeded to seek a use variance before the
Zoning Board of Appeals.
26. On or about October 1, 1998, after holding several meetings with town officials,
Piqwon withdrew its application for a use variance because it became apparent that any such
application was futile.
THE FIRST ORDER TO REMEDY VIOLATION
27. On or about October 7, 1998, shortly after Piqwon withdrew its application for a
use variance, the Town issued an Order to Remedy Violation (the "First OTR'. The First OTR
stated that Piqwon was violating Local Law by operating a contractor's business in the NB Zone.
28. Piqwon was given to October 30, 1998 to advise the Town Zoning Administrator
how it was going to remedy the alleged violation.
E. THE APPLICATIONS FOR SPECIAL USE PERMIT AND AMENDED SITE PLAN
APPROVAL
29, After the First OTR was issued, Piqwon hired new counsel, Keane & Beane, P.C.,
in order to develop a plan, in conjunction with Town officials, regarding remedying the alleged
2213!01/118515 V2 10/26/99
-7-
violation. At or about the same time Piqwon changed its attorneys, it was granted an extension
of time by Donald Close, the Town Zoning Administrator, to address the First OTR.
30. In or about November, 1998, the Town was notified by Piqwon's new counsel,
Keane & Beane, P.C., by Richard L. O'Rourke, Esq., that Piqwon intended to file an application
for amended site plan approval and an application for a special use permit pursuant to Zoning
Law § 400.5.6.
31. Mr. O'Rourke and Piqwon, by its President, Mr. Peter Elder, met with Town
officials, including the Town Board, Town Attorney and Town Engineer to discuss the feasibility
of the applications and the Town's receptivity to the applications. Based upon these discussions,
the applications for a special use permit and site development plan were filed and the First OTR
was not prosecuted.
32. In or about March 1999, Mr. O'Rourke had several discussions with the Town
Attorney, Mr. Albert P. Roberts, Esq., regarding the applications. It was agreed between Mr.
Roberts and Mr. O'Rourke that. Piqwon would submit its application for a special use permit and
proposed amended site plan to the Town Board. The Town Board would then refer the
application for amended site plan approval to the Town of Wappinger Planning Board. The
Town Board would then consider the application for a special use permit and if the special use
permit was granted, the Planning Board would consider and grant final site plan approval.
33. On or about April 15, 1999, Piqwon submitted its applications for a special use
permit pursuant to Zoning Law § 400.5.6, and amended site plan approval. As agreed, the
application for amended site plan approval was immediately referred to the Planning Board.
22131011118515 V2 10/26/99
_g_
34. The application for a special use permit is based upon Zoning Law § 400,5.6
which states that:
[I]n order that the `conforming uses' may gradually be brought into
greater conformity with this Zoning Law and the adverse external
effects of such internal `uses' may be reduced, upon application to
and approval of a special use permit by the Town Board and
approval of a site development plan by the Planning Board, the
owner of any land, `building' or `structure' so used, may be
permitted to make limited changes to such `building', `structure' or
`use' in conjunction with a plan whereby through the addition of
landscaped screening and buffer areas; control of noise, smoke or
odors, the improvement of lighting, architectural changes, redesign
of `parking area' and access drives, or by any other appropriate
means, these purposes may be achieved. The Town Board and the
Planning Board may grant approval, or approval with
modifications, provided said Boards find that the purposes of this
section would be furthered by such action.
35. As required for approval under Zoning Law § 400.5.6, the special use permit and
amended site plan address the improvement of the pre-existing nonconforming automotive sales
and repair, salvage yard and outside storage uses with the mix of office, retail and service,
automotive sales and vehicle repair, contractor and outside storage uses on the Property.
36. As- part of the application, Piqwon agreed to remove all remnants of the pre-
existing nonconforming use of the Property as a salvage yard thereby greatly improving the
appearance of the yard. In addition, Piqwon also agreed (1) to screen the neighboring properties
through the use of a berm with white and black pines and fencing, (2) provide buffer areas and
(3) generally make the Property more esthetically pleasing in an effort to bring the Property into
conformance with the Zoning Law and ameliorate any adverse external effects of such use.
37. The application and proposed site plan also depicts the location of a proposed
pole barn in order to address the Town's concerns regarding outdoor storage of materials and
2213/ol/] 18515 V2 10125!99
-9-
assist in consolidation of the site. The pole barn, however, was only a proposal and at a May 3,
1999 Town of Wappinger Planning Board meeting, Mr. O'Rourke advised the Planning Board
that more detailed architectural drawings would be provided if the Planning Board agreed that
the pole bam would help to improve the non -conforming use.
38. In order to prepare the applications for a special use permit and amended site
plan, Piqwon expended substantial sums of money to have its attorneys and engineers review the
Property and draft the necessary plans and applications. Following the submission of the
applications, Piqwon continued to expend funds relating to the application including making
payments to the Town engineers, Town Consulting Planners (Frederick P. Clark Associates, Inc.)
and other Town representatives who were reviewing the applications.
F. THE DENIAL OF THE SPECIAL USE PERMIT
39. Upon information and belief, from May 1999 to September 1999, the Planning
Board and its consultants continued to review and comment on the application for amended site
plan approval.
40. During this period, neither the Town Board nor the Planning Board either noticed
or held a public hearing regarding the application for special use permit or the application for
amended site plan approval.
41. . Upon information and belief, during this same period, the Town Board failed to
conduct any review or otherwise comply with SEQRA.
42. Nonetheless, at a Town Board meeting on September 27, 1999, the Town Board
approved the Resolution denying the application for a special use permit.
2213/011118515 VZ 1W6199
-10-
43. The Town Board made the following statements in its Resolution in support of its
denial of the special use permit which are pertinent to this Petition:
WHEREAS, the existing professional, service and business offices
uses are permitted principal uses in the NB zone; and
WHEREAS, the existing automotive sales use was granted site
plan approval by the Planning Board on June 16, 1980 but is no
longer a permitted use in the NB District and is therefore an
existing nonconforming use; and
WHEREAS, the contractors storage use and the automotive sales
are not permitted uses in either the Neighborhood Business or
Residential R-40 zoning districts; and
WHEREAS, the improvement of non -conforming uses is not a use
listed in the Schedule of Use Regulations as a permitted principal,
special permit or accessory use; and
WHEREAS, the authority to enable the improvement of a non-
conforming use is a special legislative act which requires the Town
Board to use its legislative discretion to determine whether there
are modifications to existing non -confirming uses or buildings
which may benefit the public health, welfare and safety; and
WHEREAS, because the Town Board determination as whether
the proposed modifications to a non -conforming use are in the best
interest of the public health, welfare and safety is a legislative act
which cannot be mandated by the Applicant, the decision not to
entertain the project is not subject to review in accordance with the
State Environmental Quality Review Act ("SEQRA"); and
WHEREAS, applications for special permit approval and site plan
approval were made by the Applicant to the Town Board and the
Planning Board, respectively, to Section 400.5.6; and
WHEREAS, according to the Applicant, a portion of the Property
was used as a automotive salvage yard since 1947 and the last state
permit to operate a salvage yard was issued to A & J Parsons and
expired May 31, 1997; and
2213/OV118515 V2 10/26/99
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WHEREAS, the Zoning Administrator noted to the ,Zoning Board
of Appeals by correspondence dated September 15, 1998 that the
Property had not been used for a salvage yard for more than two
and one-half (2 ) years; and
WHEREAS, therefore the status of the salvage yard as a pre-
existing legal non -conforming use has expired and the use cannot
be continued, and any future use of the property must be in
conformity with all the provisions of the Zoning Law; and
WHEREAS, it appears the Project would not reduce the adverse
external effects of the existing nonconforming uses, but rather
would add a new nonconforming use and would include the
construction of a large structure in support of such additional
nonconforming use; and
WHEREAS, there are other properties in the Town of Wappinger
which are available and appropriately zoned for such uses; and
WHEREAS, the rear portion of the Property could be subdivided
and developed in compliance with the requirements of the R-40
Residence District Separately from the front portion zoned NB,
ideally as part of or after the adjoining residential properties to the
east or west are similarly subdivided into smaller residential lots
and provide additional road access;
WHEREAS, although Section 400.5.6 permits the Town Board to
allow modification of nonconforming uses in effort to improve the
degree of conformity with the zoning law and to improve, mitigate
or eliminate the negative aspects of such uses, the Applicant has
not demonstrated how the proposed use will benefit the town; and
44. Following these and other recitals, the Town Board denied the application for a
special use permit for the reasons set forth in paragraph six (6) above.
45. Upon information and belief, the Town Board purportedly drafted the Resolution
in an attempt to avoid complying with SEQRA requirements. In addition, the Town Board has
2213/01/118515 V2 10/26199
-12-
not even attempted to address the requirements under Town Law § 274-b(6) and Zoning Law §
450.5 requiring a public hearing on applications for a special use permit and site plan approval.
46. The Town Board also mistakenly asserts in the Resolution that the pre-existing
nonconforming use of the Property as a salvage yard had expired under Zoning Law § 400.5.2.3
because it had not been used as a salvage yard for more than two (2) years. This determination is
arbitrary, capricious and not supported by any substantial evidence. The Property was still being
used as a salvage yard within two (2) years of the date the applications were filed. Moreover, the
Town Board's determination that the salvage yard use had expired required an interpretation of
the applicable Zoning Law provision and therefore should have been made by the Zoning Board
of Appeals, not the Town Board. Furthermore, no determination was ever made by any
Municipal official or board as to the pre-existing nature and use of the premises for automotive
sales and repair or outside storage, including lumber, pipes and concrete blocks.
47. Likewise, the determination that Piqwon's application for a special use permit
proposes to add a new nonconforming use, rather than improving or modifying an existing
nonconforming use is also a factual determination which must be made by the Zoning Board of
Appeals, not the Town Board.
s
48. Having failed to comply with various legal provisions, procedural requirements
and arbitrarily and capriciously making certain factual determinations without substantial
evidence, the Town Board's ultimate finding that the application for a special use permit does
not meet the requirements of section 400.5.6 is irrelevant because the Town Board must comply
with the appropriate procedural and legal requirements before making this ultimate
determination.
2213101/118515 V2 10/26/99
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AS AND FOR A FIRST CAUSE OF ACTION
(State Environmental Quality Review Act)
49. Piqwon repeats, realleges and reasserts each and every allegation set forth in
paragraphs "1" through "48" above as if fully set forth herein.
50. The State of New York Town Law § 274-b sets forth the procedures for
consideration of special use permits.
51. Town Law § 274-b(8) states that "[t]he authorized board shall comply with the
provisions of the state environmental quality review act [SEQRA] under article eight of the
environmental conservation law.
52. SEQRA sets forth the policy of the State of New York that all agencies within the
State "conduct their affairs with an awareness that they are stewards of the air, water, land and
living resources, and that they have an obligation to protect the environment for the use and
enjoyment of this and all future generations." (N.Y. Envir. Cons. Law § 8-0103(8).)
53. 109. Pursuant to the SEQRA regulations, "(n)o agency involved in an action
shall carry out, fund or approve the action until it has complied with the provisions of SEQRA."
(6 NYCRR §617.3(a).)
54. The present proceeding involves the denial of a special use permit by the Town
Board. Because the grant or denial of a special use permit is an administrative function, the
Town Board is required to comply with SEQRA.
55. The Town Board is an agency pursuant to SEQRA (6 NYCRR § 617.2(c)) and its
consideration of the special permit application is an action. (6 NYCRR § 617(b).)
2213/01/118515V-2 10/26/99
-14-
56. The Town Board's determination in the Resolution that the denial of the special
use permit was a legislative act and that, therefore, compliance with SEQRA is not required, is
arbitrary and capricious and not supported by law.
57. As a result of the Town Board's failure to comply with the environmental
procedures mandated under SEQRA, the denial of the application for a special use permit and
amended site plan approval was arbitrary, capricious and unlawful and the Resolution is
therefore null and void and of no force and effect.
58. Piqwon has been injured by the failure of respondent Town Board to comply with
the requirements of SEQRA.
AS AND FOR A SECOND CAUSE OF ACTION
(Failure To Hold Public Hearing Under State of New York Town Law § 274-b(6))
59. Piqwon repeats, realleges and reasserts each and every allegation set forth in
paragraphs "1" through "58" above as if fully set forth herein.
60. State of New York Town Law § 274-b(6) states that "[t]he authorized board shall
conduct a public hearing within sixty-two days from the day an application is received on any
matter referred to it under this section."
61. Section 274-b(6) is directly applicable to this matter because Piqwon was
applying for a special us permit under Zoning Law § 400.5.6.
62. The Town Board did not notice or hold a public hearing within sixty-two (62)
days of the date the application for a special use permit was filed and did not notice or hold a
public hearing at any time prior to denying Pigwon's application for a special use permit.
2213/011118515 V2 10/26/99
-15-
63. As a result of the Town Board's failure to hold a public hearing pursuant to Town
Law § 274-b(6), the denial of Piqwon's application for a special use permit constitutes a
violation of Piqwon's due process rights and is contrary to law and the Resolution is therefore
null and void and of no force and effect.
AS AND FOR A THIRD CAUSE OF ACTION
(improper Factual Determinations Relating To Pre -Existing Nonconforming Uses)
64. Piqwon repeats, realleges and reasserts each and every allegation set forth in
paragraphs "1" through "63" above as if fully set forth herein.
65. The Town Board issued the Resolution denying Piqwon's application for a special
use permit in part based on its finding that an existing nonconforming use on the site (the salvage
yard) had expired because the Property had not been used as a salvage yard for over two and
one-half (21/Z) years. The Town Board did not address the automotive sales and repair or outside
storage uses which also existed on the Property.
66. In, addition, the Town Board also issued the Resolution denying Piqwon's
application for a special use permit in part based on its finding that even if an pre-existing
nonconforming use was present on the Property, the application for a special use permit did not
seek to improve or modify that pre-existing nonconforming use, but rather, sought to change it to
a different nonconforming use.
67. These findings are factual determinations and/or require an interpretation of
pertinent Zoning Law provisions. By law, the Town Board is not permitted to interpret zoning
ordinances or make factual determinations regarding whether the essential character of a use Js
2213101/118515 V2 10!25199
-16-
being changed or whether the change is merely modifying or continuing a pre-existing
nonconforming use. Thus, the Town Board's determinations are contrary to law.
68. In addition, the Town Board's factual determination that the existing
nonconforming use had expired is arbitrary and capricious and not supported by substantial
evidence.
69. As a result of the Town Board's violations of the law and the arbitrary and
capricious factual findings, the Resolution is therefore null and void and of no force and effect.
WHEREFORE, petitioner, Pigwon, Inc. respectfully requests that this Court issue an Order:
(a) Annulling and rendering void the Resolution of Denial adopted on September 27,
1999 by Respondent Town Board, which denied Piqwon, Inc.'s application for a special use
permit pursuant to Town of Wappinger Zoning Law § 400.5.6 and rendered moot the application
for amended site plan approval relating to property known as Tax Lot 6258-02-702520, which is
located on the southern side of Myers Corners Road, across from the intersection of Myers
Corners Road and Degarmo Hill Road;
(b) Remanding the case to Respondent Town Board for consideration of the
applications for a special use permit and amended site plan approval in accordance with the law;
and
2213101/118515 V2 10/26/99
-17-
(c) Awarding such other and further relief as the Court deems is just and reasonable,
including an allowance of costs, attorneys' fees and disbursements of this proceeding.
Dated: White Plains, New York
October, 1999
MANE & BEANE, P.C.
By:
6qz4-----
ki'cd L. O'Rourke
Attorneys for Petitioner
Pigwon's, Inc.
One North Broadway, Suite 700
White Plains, New York 10601
(914) 946-4777
22131011118515 V2 10/26/44
-1g^
OCT. 2f3.1993 12: 23PM KERNE & BERME, P. C.
SUPREMB COURT OF THE STATE OF NEW YORK
COUNTY OF DUMMSS
----- -- x
In The utter Of The Application Of
PIQWOl'T, INC.,
Petitioner,
For A Judgment Pursuant To Article 78 Of The
Civil practice Law Rules
-against-
TOWN BOARD OF THE TOWN OF
WAPP3NG#IR and TOWN OF WAPPINGEI; ,
Respondcuta.
-- x
r STATE OF NBW 'Y'ORK j
)SS.:
COUNTY OF WBSTCHBSTER
Mr_ Mar Blderr, being duly sworn, deposes and says:
NO. 752 P.2/2e
VERMCATION
Index No.
Assigned to:.
1 am the President of the Petitioner herein. I have read tho foregoing Petition and know
the contorts thereof; sad the same are true to my own knowledge, except as to those matters
therein stated to be alleged upon information and belief and, as to those eve they
are true. 11
Sworn to More me this
Z4 'day of October, 1999
N tary Public
A. STIMART MAIPLM
FA -q Public, State of Mow YOrit
No.492Q762
Duallfied in Dutchess COWY
wmmissfon Expires Feb 16 dQI-11�'
2213/01/11851lS'i� IO/tW99
-19-
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
In The Matter Of The Application Of
PIQWON, INC.,
Petitioner,
For A Judgment Pursuant To Article 78 Of The
Civil Practice Law Rules
-against-
TOWN BOARD OF THE TOWN OF
WAPPINGER and TOWN OF WAPPINGER,
Respondents.
x
STATE OF NEW YORK )
)SS.:
COUNTY OF WESTCHESTER )
AFFIRMATION
Index No.
Assigned to:
RICHARD O'ROURKE, being duly sworn, deposes and says:
1. I am an attorney duly admitted to practice law in the State of New York and a
member of the law firm of Keane & Beane, P.C., attorneys for petitioner, Piqwon, Inc.
("Piqwon").
L Preliminary Statement
2. I represented Piqwon before respondent, the Town Board of the Town of
Wappinger (the "Town Board") and Town of Wappinger Planning Board, in connection with its
application for a special use permit under the Town of Wappinger Zoning Law (the "Zoning
Law") § 450.5.6 and application for amended site plan approval. These applications sought
authorization to modify and improve an existing use on certain property owned by Piqwon
situated within the Town of Wappinger.
22131011118585 V 1 10/26/99
3. I make and submit this affirmation in support of the Petition seeking an Order and
Judgment by this Court, annulling and rendering void the Resolution of Denial adopted by the
Town Board on or about September 27, 1999 (the "Resolution") denying Pigwon's application
for a special use permit and thereby rendering moot the application for amended site plan
approval relating to property known as Tax Lot 6258-02-702520, which is located on the
southern side of Myers Corners Road, across from the intersection of Myers Comers Road and
Degarmo Hill Road (the "Property"). The denial of the application for a special use permit
occurred without a public hearing and without compliance with the New York State
Environmental Quality Review Act ("SEQRA")
' 4. Piqwon asserts that the Resolution (a) was entered into in contravention of lawful
procedure and in violation of Petitioner's due process rights; (b) is affected by errors of law; (c)
is contrary to law and violates public policy; and (d) was arbitrary, capricious and an abuse of
discretion. Indeed, based on the wording of the Resolution, it is evident that the Town Board
was attempting to circumvent and eviscerate requirements mandated by law relating to
applications for special use permits.
5. Specifically, the Town Board acted arbitrarily and capriciously and abused its
discretion by finding that its determination relating to Pigwon's application for a special use
:,
permit is a legislative act not requiring review in accordance with SEQRA. Pursuant to New
York law, however, the grant or denial of a special use permit is an administrative function rather
than legislative act. Therefore, the Town Board was required to act in accordance with SEQRA.
6. The Town Board also violated Piqwon's due process rights and acted contrary to
law by failing to comply with State of New York Town Law § 274-b(6) which requires that a
public hearing must be held within sixty-two (62) days after the receipt of an application for a
2213/011118585 v1 10/26/99
-2-
special use permit. No public hearing was held prior to the Town Board's denial of the
application for a special use permit.
7. In addition, The Town Board's determinations that the former nonconforming
existing use had expired and that the application for a special use permit did not involve a
modification of a pre-existing non -conforming use but rather the addition of a new
nonconforming use, were arbitrary and capricious and contrary to law because such
determinations are factual and/or require interpretation of applicable provisions of the Zoning
Law and may only be made by the Zoning Board of Appeals. Moreover, the Town Board's
determination that the pre-existing nonconforming use had expired is arbitrary and capricious
J
because it is not supported by substantial evidence.
8. Piqwon asserts that for these reasons, the Resolution should be annulled and
rendered void and the case remanded to the Town Board for processing of the applications for a
special permit and amended site plan approval in accordance with the law.
H Facts
9. In ,or about October 1998, Piqwon hired my firm, Keane & Beane, P.C., as new
counsel in order to develop a plan, in conjunction with 'Town officials, regarding remedying
certain alleged violations relating to the operation of various businesses on the Property and to
represent Piqwon in relation to an Order To Remedy Violation which had been issued by the
Town of Wappinger Zoning Administrator, Donald Close (the "First OTR"). At or about the
same time I was hired, Mr. Close granted Piqwon an extension of time to respond to the First
•
10. In or about November, 1998, after consulting with Town of Wappinger officials
and private engineers, I notified the Town of Wappinger that Piqwon intended to file
2213/01/118585 V1 10/26/99
-3-
applications for amended site plan approval and for a special use permit pursuant to Zoning Law
§ 400.5.6.
11. Beginning in or about January 1999, 1 held meetings with Town of Wappinger
officials, including the Town Board, Town Attorney and Town Engineer, to discuss the
feasibility of the applications and the Town's receptivity to the applications. Based upon these
discussions, the First OTR was not prosecuted.
12. In or about March 1999, I had several discussions with the Town Attorney, Mr.
Albert P. Roberts, Esq., regarding the applications. (A copy of a letter dated March 16, 1999,
r
which I wrote at Mr. Close's request to the Honorable Constance Smith, Town of Wappinger
Supervisor, advising her of Pigwon's plans, is attached as Exhibit "A".) I agreed with Mr. Close
that Pigwon would submit its application for a special use permit and proposed site plan to the
Town Board. The Town Board would then refer the application for amended site plan approval
to the Town of Wappinger Planning Board. The Town Board would then consider the
application for a special use permit and if the special use permit was granted, the Planning Board
would consider and grant final site plan approval.
13. On or about April 15, 1999, Piqwon submitted its applications for a special use
permit pursuant to Zoning Law § 400.5.6. and amended site plan approval. (Copies of the
applications for a special use permit and amended site plan approval with supporting documents
are attached as Exhibit "B".) The application for amended site plan approval was immediately
referred to the Planning Board.
14. The application for a special use permit is based upon Zoning Law § 400.5.6
which states that:
[11n order that the `conforming uses' may gradually be brought into
greater conformity with this Zoning Law and the adverse external
2213/01/118585 vl 10/26/99
-4-
effects of such internal `uses' may be reduced, upon application to
and approval of a special use permit by the Town Board and
approval of a site development plan by the Planning Board, the
owner of any land, `building' or `structure' so used, may be
permitted to make limited changes to such `building', `structure' or
`use' in conjunction with a plan whereby through the addition of
landscaped screening and buffer areas, control of noise, smoke or
odors, the improvement of lighting, architectural changes, redesign
of `parking area' and access drives, or by any other appropriate
means, these purposes may be achieved. The Town Board and the
Planning Board may grant approval, or approval with
modifications, provided said Boards find that the purposes of this
section would be furthered by such action.
(A copy of Section 450.5.6 is attached as Exhibit "C".)
15. As required for approval under Zoning Law § 400.5.6, the special use permit and
amended site plan address the improvement of a pre-existing nonconforming automotive sales
and repair, salvage yard and outside storage uses with the mix of office, retail and service,
automotive sales and vehicle repair, contractor and outside storage uses on the Property. As part
of the application, Piqwon agreed to remove all remnants of the pre-existing nonconforming use
of the Property as a salvage yard thereby greatly improving the appearance of the yard. in
addition, Piqwon also agreed (1) to screen the neighboring properties through the use of a berm
with white and black pines and fencing, (2) provide buffer areas and (3) generally make the
i
Property more esthetically pleasing in an effort to bring the Property into conformance with the
Zoning Law and ameliorate any adverse external effects of such use.
16. The application and proposed site plan also depicts the location of a proposed
pole barn in order to address the Town's concerns regarding outdoor storage of materials and
assist .in consolidation of the site. The pole barn, however, was only a proposal and at a May 3,
1999 Town of Wappinger Planning Board meeting, I advised the Planning Board that more
2 21 310 111 1 85 8 5 V l 10/26/99
-5-
detailed architectural drawings would be provided if the Planning Board agreed that the pole
barn would help to improve the non -conforming use.
17. Upon information and belief, from May 1999 to September 1999, the Planning
Board and its consultants continued to review and comment on the application for amended site
plan approval. During this period, neither the Town Board nor the Planning Board either noticed
or held a public hearing regarding the application for special use permit or the application for
amended site plan approval.
18. Upon information and belief, during this same period, the Town Board failed to
conduct any review or otherwise comply with SEQRA.
19. Nonetheless, at a Town Board meeting on September 27, 1999, the Town Board
approved the Resolution denying the application for a special use permit. (A copy of the
September 27, 1999 Resolution of Denial is attached as Exhibit "C".)
20. Upon information and belief, the Town Board purportedly drafted the Resolution
in an attempt to avoid complying with the State Environmental Quality Review Act ("SEQRA")
requirements. In addition, the Town Board has not even attempted to address Town Law § 274-
b(6) which requires a public hearing on applications for a special use permit.
21. The Town Board also mistakenly asserts in the Resolution that the pre-existing
nonconforming use of the Property as a salvage yard had expired under Zoning Law § 400.5.2.3
because it had not been used as a salvage yard for more than two (2) years. This determination is
arbitrary, capricious and not supported by any substantial evidence. The Property was still being
used for salvage purposes including storage of materials within two (2) years of the date the
applications were filed. (See Affidavit of Peter Elder, dated October 26, 1999, at It 5-7.)
Moreover, the Town Board's determination that the salvage yard use had expired required an
22 1 310 111 1 8 5 85 VZ 10/26/99
-6-
interpretation of Zoning Law § 400.5.2.3 and therefore should have been made by the Zoning
Board of Appeals, not the Town Board.
22. Likewise, the determination that the application for a special use permit proposes
to add a new nonconforming use, rather than improving or modifying a pre-existing
nonconforming use, is also a factual determination which must be made by the Zoning Board of
Appeals, not the Town Board.
23. After summarily denying Piqwon's application for a special use permit, the Town
of Wappinger continued to pursue Piqwon for the alleged violations relating to the operation of
certain businesses on the Property. For example, on October 6, 1999 the Town of Wappinger
Acting Zoning Administrator, Mark J. Liebermann, issued another Order To Remedy Violation
giving Piqwon until October 27, 1999 to remedy the alleged violations.
24. It was arbitrary, capricious and contrary to law, however, for the Town Board to
refuse to follow appropriate procedural requirements and address the application for amended
site plan approval and for a special use permit on the merits.
25. The arbitrary, capricious and unfair nature of the Town Board's determination is
further demonstrated by the fact that Mr. Close, the Town of Wappinger Zoning Administrator at
the time, has disclosed that numerous other businesses in the Town of Wappinger are conducting
business operations in zones which do not permit this type of use. Upon information and belief,
these include:
Five Excavating Contractors
Two Plumbing Contractors
Two Electrical Contractors
Two Body Shops
One Detail Shop
One Tree Business
Two Landscaping Contractors
One "Riding Apparel" Operation
2213/01/118595 V1 10/26/99
-7-
Three Auto/Truck Repair shops
One Animal Grooming Shop
One Mini Trailer Park
(A copy of a memo dated November 30, 1998, from Mr. Close to the Honorable Constance A.
Smith, Town of Wappinger Supervisor setting forth this information, is attached as Exhibit "D".)
III. Conclusion
26. For the reasons set forth herein and in the accompanying Petition, memorandum
of law and affidavit of Peter Elder, the Petition should be granted and the Court should enter an
Order annulling and rendering void the Resolution of Denial adopted by respondent, the Town
Board of the Town of Wappinger on or about September 27, 1999 and remand the case to
respondent Town Board for consideration of the application for a special use permit in
accordance with the law.
Dated: White Plains, New York
October, 1999
/�IW i//<<`� =/
•�r•.�J.
2213/011118585 V1 10/26/99
ALI.-NrE®I,EGAIL g00.222_Ctl1C E_pft RECYCLED _
Exhibit A
KEANE 8 BEANE, P.C.
ONE NORTH B R O A D W A Y
wHITE PLAINS, NEW YORK 10601
19141 946-4777
TELEFAX 19141 946.6e66
March 16, 1999
Honorable Constance Smith
Supervisor
Town of Wappinger
20 Middle Bush Road
P.O. Box 324
Wappingers Falls, NY 12590
Re: PIQWON Corp., Myers Corners Road
Dear Ms. Smith:
Town Attorney Albert P. Roberts, Esq. requested that I write to you in regard to the
application of PIQWON Corp. with respect to its property located on Myers Corners Road in the
Town of Wappinger.
This morning I was informed by Jack Railing, P.E., engineering consultantLaw is
n this
application, that the application for special use permit pursuant to §400.5.6 of the Zoningff
near completion. It was necessary to resurvey the location of structures on the property so as to
the application. - Accordingly, I am advised that the
permit a comprehensive submittal as part of
application is anticipated to be filed by the end of this month (March 1999). Such filing will
enable this matter to be placed on the Planning Board Agenda of the second meeting in April.
Should you or any other members of the Board have further questions regarding this
application, please do not hesitate to contact me.
Many thanks for your continued cooperation.
Very truly
yours,
Richard L. O'Rourke
RLO/mq
cc: Albert P. Roberts, Esq.
Ver -111s, Stenger, Roberts and Pergament
1611 Route 9
Wappingers Falls, New York 1290
2213 /106?71V1 3116199
Honorable Constance Smith
March 16, 1999
Page 2
Mr. Peter Elder
PIQWON Corp.
228 Myers Corner Road
Wappingers Falls, NY 12590
Jack Railing, P.E.
1369 Route 9
Wappingers Falls, NY 12590-4453
AD-A'lE LEGAL BUD -2220510 FVII FrCvCLED �g
pp �t�
Exhibit B I
E
- JOHN E. RAILING, P.E., P.C. -
CONSLJUING ENGINEERS & LAND PLANNERS
1369 Route 9 • Wappingers Falks, `1,y, 12590-4453 • (914) 297-2165 297-2650
NARRATIVE REPORT
FOR
PIQWON, INC.
TOWN OF WAPPINGER
PREPARED FOR
PIQWON, INC.
228 MYERS CORNERS ROAD
WAPPINGERS FALLS, NEW YORK 12590
PREPARED BY:
JOHN E. RAILING, P.E., P.C_
1369 Route 9
Wappingers Falls, NY 12590
DATED:
MARCH 30, 1999
es
/0�053383)
it is a violation of Article 145 Title V111 of the State Education Law to alter this document except by a Professional
Engineer. if these specifications are to be altered, the altering Engineer shall affix hereon his/her seal and the notation
"altered by" followed by his/her signature and the date or such alteration. and specific descriptio of the alteration.
CONSULTING ENGINEERING • LAND PLANNING • MUNICIPAL FNGINEERING • ENVIRONMENTAL CONSULTING
INTRODUCTION: space on property located on the southerly
won, Inc. presently owns, operates aril leasesapproximately 2,500 feet east of the
The applicant Piq garmo Hill Road and app presently
side of Myers Corners Road across from Deb u, er, Stake of New York. The site of the site
intersection of All Angels Hill Road in the Town of WaP u gness) zone on the northerly contains
to 627 plus or
split in an east -west direction by the ce (Neighborhood oneontheso
e Family Residence) zone on the southerly portiondist�rictsite and contains
and the R-40 (Singl - of the site is located within the NB zoning
minus acres. The majority
EXISTING CONDITIONS: sand several outbuildings, which house the following
The site presently
contains three (3) existing building
ations: Broker.
.;. businesses, uses or Occup an Attorneys office and a Mortgage
Inc., Used Car Sales, Materials.
Building #1— pigwon, niers Shop, Paint Shop and Storage for Building
} Building #2 - A C for Building materials.
y' #3 - A Mechanics Shop and Warehousing used for equipment storage
Building d metal frame sheds are
Sheds #1 & 42 — The two wood an a sheds are used for materialTilstorage.
She
# 1 & #2 —e two WOE Elam and the storage of construction
0 The
balance of the site is used for used car Peng, employee parking
equipment and material storage•
PROPOSAL: "Special Use Permit" and
in er Town Board fora "SP f �s application
applicant has made application to the Town
ended Site Plan Approval>' • As Part
The app Board for "Am revious use of the property as a
the Town of Wappinger Planning is from the p the use of a berm
willing to remove all remnants Barg properties through
and approval, the applicant's.has proposed to screen neigh .fie plans depict the location of
salvage yard. Also, the applicant
Pines and fencing as shown and detailed on the p over the two longest
with white and black p to be 80 x 120' with a 14' overhang
a future pole barn, this structure is proposed
sides. business hours are normally 6:30 am to 6:00 pm —
le on site. Our 100. The carpeRtry, painting
�"= Piq)Non, Inc. currently employees 20 people
at times tori reach as many
Monday through Saturday. Our field pe es of the buildings,
and mechanical work is all done within the confines
sin operation who has gh Saturday
varied hours Monday through Saturday•
ie man
The Mortgage Broker is a g eration are Monday throu
The Used Car Dealer employees 4 people on site and his hours of op
8:00 am to 7:00 Pm. h Saturday -
The Attorney is a single man operation variable hours Monday through
Applicatioa No -
,6,p PLANNING BOAS Date Received:
TOWN OF WAP _R
SIX11
Fee Received:
EC(A1, USF Escrow Received:
PROVISIONS OF SECTION 430 OF ING TOWN �� TOWN BOARD,
GER
1N ACCORDANCE �', ETH .E E lE PLICATION TO THE PLANK ,
ZONING LAW, I HEREBY EvfAICE AP
THE ISSUANCE. OF A SPECIAL PERMIT FOR THE USE OF;
FOR Inc -
PROJECT NANIE: Amended
nc.PROJECTNAME'fAmended Site Plan - Pi won
ZONING DISTRICT 4 0
GRID NO. 6258-02-720520
PROPERTY LOCATI",)N .
piwon
Inc. ainCiers F II N w York
a:
APPLICANT: 228 mmrs corners R
' MAILING ADDRESS -29i
PHONE NUMBER APPLICANT;
ER'3 NA?.SIE AND ADDRESS, IF DIFFERENT THAN
PROPERTY 0 licant
same a
A& ALLOWED BY SI:CT1(- ;C 2
section 420.2 1996.
OF SAID O�INAN�' : AI �. TED NO
V. 26, 1990 AND AivIENDED THROUGH NOV. -5,
VE APPLICATION, AND IN
ACCORDANCE WITH THE
Ii. CONCURRENTL\' WE'E + t THE ABO ANCE, I HEREBY MAKE
APPLICATION POR
PROVISIONS OF ;[;C �'lON 45. OF SAID PLANS TO CONDUCT SUCH USE ON THE
� pRC,Va � : OF THE FOLLOWING
SITE PLAN Ap CCL.
AFORESAID PAR
Amei.de'd Site Plan
- pi��wf Inc:
AP TITLED: i P. EC.
wfw PREPARED BY - Mai chE 2 4Ra 1999 ATEMENT OF
DATED: USE LISTEE
III. I HAVE, AS PART 0(' TRE S
E CONCURRENT APPLICATIOMA��N��DOF SAID
USE WHICH FUI.I_Y DESCRIBES THE OPERATION AND
IN THE APPLICA E'IO N :
S ee attached h
(USE EXTRA SHEET IF NECESSARY)
SIGNAT 1—
ABLE) AND PLANS MUST ACCOMPANY THE
THE REQUIRED I� E1,' {NON -REFUND THE REQUIRED
APPLICATION.
OLVED IN PUBLISHING
APPLICANT IS Fk,S1't.�NSIBLAL NEWSPAPER. S T I5 REQUIRED
LEGAL APPLICANT IN
1, NOT THE OWNER, OWNERS CONSEN
IF THE APP
Application NO.
TOWN OF WAPl'� r'�''ER PLANNING BOAS`D Date Received:
Fee Received:
Escrow Received:
ATION FOR SITE PLAN APPROVAL '
APPLIC Inc.
pigwon,
Site Plan
TITLE OF pR03FCT: Amended Ync.
Pi9wOn' 29 7 -42
91
NAME g� ADDRESS OF APPLICANT: New York 1 2590
Road Wa ,in ers Falls phone No•
ers Corners State Zip
228 M Town
Street
NAME & ADD RE. � OF O�NI`iER: S Phone No•
..,
State Zip
Town
Street
^,==58-02--720520 ea devoted to each:
Grid No. 62and aunt of float area
Please specify use r uses of building
tin Use: See Attached Sheet
Exis g
NA
Proposed Use'.
Use:
Existing Sq. Fao;.tse: �—
USe:
Proposed Sq. f001.1 A
ers Corners Raad a e. 7t
Location of prof• y: Acrc $
Zoning District: NA
Na. c i<ilQloyees: r� Proposed No. of Parking Spaces:
Anticipated
Existing No of 1-,Ai lg Spaces'
Signe• App
Dated: March 25 1999
es onsiUle fur the cost in in publishing
thy: required legal notice
Note: *The appl14:�1 At �s r p lied for, please check
in the loco! nQwspaper;
* t Special'use Permit for the abavbel�se has been ap
if p refun
* Application FeeS are non-
SEGR
�tii7.20
Appendix C
t!tReview
EnvironmentalG"I"SHORT ENVIRONMENTAL ASSESSMENT FORM
FG( UNLISTED ACTIONS Only
o be completed by APPIICAnt or Proj
ect aponsarj
= pR01 .CT HAMS - Pi won "Inc .
PART 1 --PROJECT INFORMI►T10N R Amended Site Plan
1. APPUGATlI �SpOHgOR
tchesS
pigwon, Inc- M1ly �u Mao
I . PROJECrLO�`TIO Town of Wa in er feet east'
load Ints�sscllona. �anlnsnl !a"°"urti`''la. a �ovlds
M"'IciPalHy 2 , ' 0 0 armo
�. PRECI� �OCArtow tsu"t aaa�..+ •� goad approximately from Deg
Hill Road and across
side of Myers CorneAngels County, New York
South Dutchess
of intersectiohe ithTowAlf WaPPinger,
Hill goad i ---------
A,
ACTtoN:jrj�lodulcallailsll.f.IWn
b. is PROBED C3 E=P.nalas from the
❑N•w SLY: Use Permit
for and S Site Plan APPro`�al from
s. DEscwaE PFWga � obtain a pecial
is to apply. and a Amended
Proposal er Town Board a Board
Town of Wapping Inger Planning
the Town of wapP
LAVA AFFECTED: J111"lslY pUSTiNi1 LAJyO 115E REaTRiCTiO
7. Ja+oUNT 6 2 7 + " mil 1TiG Oit OYf1FA
Initially OpMpLY WITH �STiNa ZON
ACTtOTi
a<. WILL pROPOSEO� "Tia dow "wwaly from Town Board
DY+w lied for
Special use Permit applied ❑oilier
OF PRWEC79 ❑ ParkfFaaallOPsn sP+�s
T LAND USE tN Vj HITY Q �r{WNur" and NB
v, wruT Is PRESET . Q Induautsl ��� l e family residential
�C]R.a1a.„uat in the R-40 sins
D'"" is located
Site Zones
' hborhood Business GW OR ULTIhtA7EtY FROMANI OTHER GOVERNMi�TALAGENCY (F
�elgFUNOIHG, N
10. DOE' AO710N INVOLVE A PERµ1T APPROVAORL.
STATE OR LOCALIQ It Yµ 110a=� permllfapDroala
®Ya Permit royal
S ecial-Unite plan Ap�APPRovALT
Town Planning �oard
Town
VE ARpENTLY VALID PER:►
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OJECT HAVE AN IMPACT ON THE ENVIRONaAENTAL CHARACTERISTICS THAT CALISEa THE ESTABLISHMENT OF A CFA?
0. WILL THE PR My.
Yes
E LS THERE, OR IS THERE LIKELY TO BE, CONTROVERSY RELATED TO POTENTIAL AOvERSE ENVIRONMENTAL IMPACTS
❑ Yea II Yes, olizoaln brtelly .
Agency) o be completed by 4 octant of otherwise signiltcan
PART III -DETERMINATION OF SIGNIFICANCE CT b rabability al occurring; (cl duration; II
Connection with its (a) setting (I.e. urban or rural); O P orting materials. Ensure Ilu
tNSTRUCTlBNS: Far each adverse e((ecn"e entified abase, delermint: whether it Imenbstar rellerence supe ddressad.
Each ellecl should be assessed in con niluda tl necessary, add attach
sdope; and (t) mag acts have been identified and ad01 the la attic
irreversibility; (el geographic otanlial impact of the proposed
was checked yes, the determination and significance must evaluate the D
explanations contain sullicient detaii to snow that all relevant adverse imQ
question 0 of Part II
on the onvironmantal characteristics of tris CEA nificant adverse impacts which MAY
potentially large Or sig
y re are a positive decfaration. su ortlnq
❑ Cbeck this box it you. have identified ono or more acts
occur. Then proceed directl to the FULL EA andlor p information si nilicant adverse environmental lmp
tioit you have determined, based onjhesulln any gond analysis above and any P
❑ Check chis box y orling this determination:
ANO provide on attachments asposnecessary, the reasons
supe
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2
SEP -29-1999 11:44 l .7N OP 1JPPPINGER
914 297 4555 P. 021@1.7
AUTHO eYTOYM Bon
ON ��-2 lqq
COMMENTS j (z"J Amended DRAFT) 9-27-99
RESOLUTION
TOWN OF WAPPINGER TOWN BOARD
• •••• • •• r•• 5•
•► •► •11.0119 • •a •
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess
County, New York, held at Town Hall, 20 Middlebush Road, Wappingers .Falls, New York
on the 27' day of September 1999 at 7:00 P.M.
The meeting was tailed to order by Supervisor Constance 0. Srnith, and upon roll
being called, the following were:
PRESENT. Supervisor - CONSTANCE 0. SMITH
F Councilpersons - VhNCENT BETTINA
JOSEPH PAOLONI
JOSEPH RUGGIERO
ROBERT L. VALDATI
The following -resolution was moved by Councilperson
and seconded by Councilperson
WHEREAS, the Town Board has received the application of Peter Elder of the
Piqwon Corporation (the "Property Owner' and "Applicant ") for Special Use Permit and
Site Development Plan approval involving the irnprovement/replaeement of a
nonconforming and discontinued salvage yard use with a contractors storage use, in
addition to continuation of the mix of office, retail and service, automotive sales and
repair uses currently on the property, including the construcrion of a 13,000± square foot
pole barn on the 6.27 -acre property (the "Project"); and
WHEREAS, the property is known as Tax Lot 6258-02-702520 and is located on
the southern side of Myers Corners Road across from the intersection of Myers Corners
Road and Degarmo Hill Road in the NB Neighborhood Business and R-40 Residential
Districts (the "Property"); and
WHEREAS, the Applicant has submitted the following plans, prepared by John E.
Railing, P.E., P.C., Wappingers Falls,, New York:
1. "Map Depicting Lands of Piqwon, Inc.," dated 3124199; and
�, xt 914 297 4rJ5 J� - P. JZ/07
F
O
SEF-28-1993 11 45
PIQwON SPECIAL PERMIT
R F�j T ITION QF DENIAL.
WHEREAS, the plans indicate that 3.5 acres of the property is located in the NB
district while the remaining 2.76 acres is located in the R-40 district; and
WHEREAS, the majority of the proposed 13,000 square foot storage building is
proposed in the R-40 District; and
WHEREAS, the Owner has been removing old tires and other debris from the site
with the intent to use the Property for the storage, maintenance and repair of his large
scale construction vehicles and equipment; and
are
WHEREAS, the plans indicate that eight (9) o the
buildings
Property awhile seven {7}
located in the front 3.5 -acre NB zoned ports Q
construction office and storage trailers, four (4) flatbed trailers and one tanker are located
in the 2.76 -acre R-40 zoned portion of the Property; and
WHEREAS, the residentially zoned portion (the rear) of the Property has been used
in the past as an automotive salvage yard; and
WHEREAS, the existing professional, service and business offices uses are
permitted principal uses in the NB zone; and
WHEREASthe existing automotive repair shop is subject to special permit
approval by the Planning Board in accordance with Section 440.21; and
the cxistin automotive sales use was granted site plats approval by
e
WHEREAS, g
_:. the Planning Board on June 16, 1980 but is no longer a permitted use in the NB District
and is therefore an existing nonconforming use; and
WHEREAS, the contractors storage use and the automotive sales axe not permitted
uses in either the Neighborhood Business or the Residential R40 zoning districts; and
WHEREAS, the proposed use of the site would include the storage of large
construction vehicles and equipment in the residentially zoned portion of the property;
and
2
SEP -2,3-1999 11:45
11N OF WAFP I � EGER
914 257 455a-. F'. X4,,07
WHEREAS, Section 400.5, "Non -Conforming Uses and Structures", Subsection
400.5.6 of the Zoning Law, entitled Improvement of Nonconforming Uses, states:
"In order that non -conforming uses may gradually be brought into greater
conformity with the 76ning Law and the adverse external effects of such uses may
be reduced, upon application to and approval of a special use permit by the Town
Board and approval of a site development plan by the Planning Board, the owner
of any land, building or structure so used may be permitted to make limited
changes to such building, structure or use in conjunction with a plan whereby
through the addition of landscaped screening and buffer areas, control of noise,
smoke or odors, the improvement of lighting, architectural changes, redesign of
parking area and access drives, or by any other appropriate means, these
purposes may be achieved. The Town .Board and the Planning Board may grant
approval, or approval with modifications, provides said Boards find that the
purposes of this section would be furthered by such action. "; and
WHEREAS, the improvement of non -conforming uses is not a use listed in the
Schedule of Use Regulations as a permitted principal, special permit or accessory use;
and
WHEREAS, the authority to enable the improvement of a nor? -conforming use is a
special legislative,act which requires the Town Board to use its legislative discretion to
determine whether there are recodifications to existing non -conforming uses or buildings
which may benefit the public health, welfare and safety; and
WHEREAS, because the Town Board determination as to whether proposed
modifications to a exon -conforming use are in the best interest of the public health, welfare
and safety is a legislative act which cannot be mandated by the Applicant, the decision
not to entertain Project is not subject to review in accordance with the State
Environmental Quality Review Act ("SEQRA"); and
WHEREAS, such legislative determinations, if entertained by the Town Board, are
processed in accordance with the special use permit procedural requirements of the
Zoning Law and cannot be approved unless reviewed in accordance with SEQRA; and
3
5
y SEP -22-1999 11:45 i JN OF I.IPPF i NC EF
•ILYA I tole IN a 03 alac
914 297 455c'
WHEREAS, application9 for special permit approval and site plan approval were
made by the Applicant to the Town Board and the Planning Board, respectively, to
Section 400.5.6; and
WHEREAS, the Town Board referred the application to the Planning Board for its
site plan review and recommendation regarding the special permit and the merits of the
project with respect to the standards of Section 400.5,6; and
WHEREAS, according to the Applicant, a portion of the Property was used as a
automotive salvage yard since 1947 and the last state permit to operate a salvage yard was
issued to A & 3 Parsons and expired May 31, 1997; and
. WHEREAS, the last Town of Wappinger license to operate a salvage yard for the
Property was February 16, 1995, approved March 31 1995, and there is an undated
? license signed by the Town Clerk with an expiration date of December 31, 1995; and
WHEREAS, the Zoning Administrator noted to the Zoning Board of Appeals by
correspondence dated September 15, 1998 that the Property had not been used for a
salvage yard for more than two and one-half (2 'V%) years; and
.WHEREAS, therefore the status of the salvage yard as a pre-existing legal non-
conforming use has expired and the use cannot be continued, and any fixture use of the
property must be in conformity with all provisions of the Zoning Law; and
WHEREAS, although Section 400.5.6 permits the Town Board to allow
modification of nonconforming uses in effort to improve the degree of conformity with
the zoning law and to improve, mitigate or eliminate negative aspects of such uses, the
Applicant has not demonstrated how the proposed use will benefit the town; and
WHEREAS, it appears the Project would not reduce the adverse external effects of
the existing nonconforming uses, but rather would add a new nonconforming use and
would include construction of a large structure in support of such additional
nonconforming use; and
WHEREAS, such additional non -conforming use and structure would be located in
the residential portion of the property; and
SEF' -23-1595 11:45 IIiIA,J OF UJPFGlNGEF � 914 297 45 2 Fo9;,'�?
Pivos SPECIAL PERMIT
0.5.2.4, 'No non-conform'ng use of lard shall
WHEREAS, pursuant to Section 44
be changed to another non -conforming use."; and
construction of a large building would require a substantial capital
WHEREAS,
investment in a structure designed for a prohibited use in the R-40 I3zstnct, thereby
roves the continued use of the residential Portion of the property
y exacerbating and encouraging Law, the Town
in a maru1er which is inconsistent and in confli t 1ertie a and Zoning
M Cornprehensive Plan and the surrounding residential pr p
it a ears the Project would not change the existing buildings,
WHEREAS, PP
oke or odors emanating
Structures or uses
which would control noise, smfrom the
PToperry, and
. � the applicant has not shown how large vehicles will maneuver
WHEREAS im act the watercourse which runs through
througli the site and how such traffic rrught P
the property; and
WHEREAS, there are other prop
erties in the Town of Wappinge;r which are
available and appropriately zoned for such uses, and
WHEREAS, the Year portion of the Property could he subdivided and de
veloped in
with the requirements of the R-40 Residence D1strtesiseparately
t properties to
compliance art of or after the adjOiM r
front portion zoned NB, ideally asp rovidc
subdivided into smaller residential lots 'and P
`= the east or west are similarly
additional road access;
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
1 and incorporates the recitations and statements set
The Town Board hereby adopts
forth above as if fully set forth and resolved herein•
es the application for reuse of the subject ProP�' for
2, The Town Board hereby denies PP ect is defined herein on the grounds that.
. the contractors storage yard use as the Proj
5
SEP-28-1'?q9Ir,EF.
l 914 297 455=,
PIQWON SPECIAL PERMIT
A. The proposed contractors storage use is not a permitted use in neither the R-
40 nor the NB zoning districts;
B. The former non -conforming automotiVe salvage yard use has expired and,
pursuant to Section 400.5.2.3, is no longer entitled to continuation;
C. The proposed use is not a modification to an existing non -conforming use;
and
D. The Project will not achieve the objectives and requirements of Section
400.5.5 of the Zoning Law since it will not, as proposed, bring the property
into greater conformity with the Zoning Law and it will not improve the
external effects of the use and property to the benefit of the surrounding area.
The question of the adoption of the foregoing resolution was duly put to a roll call vote,
which resulted as follows:
CONSTANCE O. S.vSITH
voting
VINCENT BETTINA
voting
IOSEPH PAOLONI
voting
.JOSEPH RUGGIERO
voting
'ROBERT L. VALDATI
voting
The resolution is hereby duly declared adopted.
Dated: September 27, 1999
Wappingers Falls, New York
Constance O. Smith, Supervisor
Town of Wappinger Town Board
ti1Cpe21cys 1 dacsZ\SOOt�.opQin ger151 15.9.pigwo�.dkw.doe
a
f�
Date
0 I!q!yx3
�Town of Wappinber
ZONING DEPARTMENT
20 MIODLEBUSH ROAD
P.O. BOX 324
WAPPINGERS FALLS, NY 12590-0324
(9 14) 297.5257
To: Constance 0. Smith, Supervisor
Town Board Melllbers
From: Donald Close
Zoning Administrator
Re: Town Board Meeting of November 23, 1998
"Pigwon" Item
Date: November 30, 1998
CONSTANCE 0, SMITH
Supervisor
I feel it is important to inform you of the autllority of the Zoning Administrator and
options of persons violating our Town Ordinances. Your actions at the above Town Board
meetillg suggest you Islay not understand the "Ordinance", "Authority" Or "O1}tions" as
prescribed by our codes.
• Tlhe Zoning Administrator does not have the authority to issue a "Stop NVork Order" in
the Pigtivon case. A "Stop Work Order" is for infractions of the Building Codes.
• The Zoning Administrator can issue all "Order to Remedy", OTR. This states the
violation and allolvs some time to correct the violation.
• The violator has options provided by our Code, some which are:
A. He can disagree with tike Administrator's OTR and apply to the Zoning
Board of Appeals for an interpretation.
B. He can apply to the Zoning Board of Appeals for a "Use Variance".
C. He call apply to the Planning Board for a "Special Use Permit" to store
more than one vehicle on the property.
D. He can apply to the Town Board for a "Re -Zoning of the area. (Now NB)
• If these efforts fail the Zoning Administrator can then issue a Court appearance ticket
and continue to issue these tickets until the matter is resolved.
S �
In this case, the gentleman chose to apply for a "Use Variance" from the Zoning Board of
Appeals. After
Iris first llearirtg with the Board, I assume lie felt this vas going to be futile
as he witltds-cjv llis application. Ile hinted to me that he w-15 not satisfied with his Attorney
and possibly his Engineer. He submitted a letter requesting an extension of time to pursue
another avenue of correction. The first OTR was issued with a time limit to comply.
However, assuming a change of Attorney and Engineer �ti Is forth coming, l allowed extra
tonic for this selection and preparation.
The Board asked if there tivere other such cases. I did not feel this public meeting was a
1}lace to list these, (next door to Piq)von is a Plumbing Contractor). Throughout the Town
there are several businesses being conducted from zones not allowing this type 0Cusc.
These were operatillg Nvllcn I came on board in June of 1993. Among them are:
Five Excavating Contractors
Two Punlblllb Colltractol's
Two Electrical Contractol's
Two Body Shops
One Detail Sllop
One Tree Business
Two Landscaping Contractors
One "Riding Apparel" operation
Three Auto/Truck Repair Shops
One Animal Grooming Sllop
One Mini Trailer Park
The issue of this meeting might better have been served if all Executive Session was held so
1 could hate informed you of the above.
As Zoning Administrator, I walk a flue line, respecting the wishes of 17 Board members, a
Town Attorney, a Town Engineer, a Town Planner, a Town jIit, ay Supervisor, tlle Town
Supervisor and the 27,000 plus residents of our Town.
hoping this lielps to inform you of our procedures, I remain,
Respectfully
Donald Close
Zoning Administrator
cc: Albert Roberts, Town Attorney
Enc: Southern Dutclless NeWs article
nm
nvl
vm
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
x
In The Matter Of The Application Of
PIQWON, INC.,
Petitioner,
For A Judgment Pursuant To Article 78 Of The
Civil Practice Law Rules
-against-
TOWN BOARD OF THE TOWN OF
WAPPINGER and TOWN OF WAPPINGER,
Respondents.
X
STATE OF NEW YORK )
)SS..
COUNTY OF DUTCHESS )
PETER ELDER, being duly sworn, deposes and says,
L Preliminary Statement
1. I am the President of petitioner, Piqwon, Inc. ("Pigwon").
AFFIDAVIT
Index No.
Assigned to:
2. I make and submit this affidavit in support of the Petition seeking an Order and
Judgment by this Court, annulling and rendering void the Resolution of Denial adopted by
respondent, the Town Board of the Town of Wappinger (the "Town Board") on or about
September 27, 1999 (the "Resolution") denying Piqwon's application for a special use permit
and thereby rendering moot the application for amended site plan approval relating to property
known as Tax Lot 6258-02-702520, which is located on the southern side of Myers Corners
Road, across from the intersection of Myers Corners Road and Degarmo Hill Road (the
"Property„).
2213/011118584 VI 10/26/99
3, As set forth in the accompanying Petition, memorandum of law and the
affirmation of Richard O'Rourke, dated October 26, 1999, the Resolution should be annulled and
rendered void because it (a) was entered into in contravention of lawful procedure and in
violation of Petitioner's due process rights; (b) is affected by errors of law; (c) is contrary to law
and violates public policy; and (d) was arbitrary, capricious and an abuse of discretion. Indeed,
based on the wording of the Resolution, it is evident that the Town Board was attempting to
circumvent and eviscerate requirements mandated by law relating to applications for special use
permits.
II. Facts
4. Piqwon purchased the Property on or about June 5, 1998 from A&J Parsons, Inc.
("A&J").
5. Upon information and belief, A&J operated an automotive repair shop and
salvage yard with outside storage on the Property prior to the sale to Piqwon, with materials and
equipment from these uses present on the Property before and after Piqwon took title to the
Property.
6. Upon information and belief, as part of the salvage yard use, A&J operated cranes
and other large equipment, maintained outdoor storage of materials, including lumber, pipes and
concrete blocks and conducted various operations on the Property.
7. Upon information and belief, at the time Piqwon purchased the Property, and at
least since 1947, it was often used as a deposit area for waste materials and debris, including old
cars, and, upon information and belief, may have posed a potential hazard to the surrounding
2213/01/118584 V 110/26/99
-2-
community. At the very least, the Property was often in disarray and was an eyesore to the
surrounding community.
8. Piqwon presently owns, operates and leases space on the Property.
9. Upon information and belief, the Property is presently split in an east -west
direction by the NB (Neighborhood Business) Zone on the northerly portion of the Property and
the R-40 (Single Family Residence) Zone on the southerly portion of the site and contains 6.27
plus or minus acres. The sole access to the Property is from Myers Corners Road which abuts
that portion of the Property located in the NB (neighborhood business zone). The majority of the
Property is located within the NB Zoning District,
10. The Property presently contains three (3) existing buildings and several out-
buildings, which house the following businesses, uses or occupations:
Building 1: Piqwon, Inc., a used car dealership, an attorney's office and a mortgage
broker.
Building 2: A carpenter's shop, paint shop and storage for building materials.
Building 3: A mechanic's shop and warehouse for building materials.
Sheds 1 and 2: Two wood and metal frame sheds for equipment storage.
The balance of the Property is used for used car parking, employee parking and the storage of
equipment and material.
11. Piqwon currently employs approximately twenty (20) people on the Property. Its
business hours are normally 6:30 a.m. to 6:00 p.m., Monday through Friday. All carpentry,
painting and mechanical work is performed within the confines of the existing building
2 21 3/0 1 /1 1 8584 V 1 10/26/99
-3-
12. The mortgage broker is a one person operation with varied hours Monday through
Saturday. The used car dealer employs four (4) people on the Property and its hours of operation
are 8:40 a.m. to 7:00 p.m. Monday through Saturday. The attorney is a single man operation
with variable hours Monday through Saturday
13. Piqwon has invested substantial sums of money to put the site in an orderly, neat
and safe condition. Piqwon has taken efforts to remove all waste materials and debris from the
site and create an organized and unobtrusive site.
14. Although Piqwon has taken vast efforts to improve the quality and condition of
the Property, respondents, the Town of Wappinger and Town Board, have taken the position that
certain businesses presently on the Property constitute a change in use and are not permitted
under applicable provisions of the Zoning Law.
15. On or about August 25, 1998, several months after receiving a letter from the
Town of Wappinger Zoning Administrator regarding the alleged wrongful use of the Property,
Piqwon proceeded to seek a use variance before the Zoning Board of Appeals.
16. On or about October 1, 1998, after holding several meetings with town officials,
Piqwon withdrew its application for a use variance because it became apparent that any such
application was futile.
17. On or about October 7, 1998, shortly after Piqwon withdrew its application for a
use variance, the Town issued an Order to Remedy Violation (the "First OTR"). The First OTR
stated that Piqwon was violating Local Law by operating the contractor's business in the NB
zone.
2213/01/1 1 85 84 VI 10/26/99
-4-
18, Piqwon was given to October 30, 1998 to advise the Town Zoning Administrator
how it was going to remedy the alleged violation.
19. After the First OTR was issued, Piqwon hired new counsel, Keane & Beane, P.C.,
in order to develop a plan, in conjunction with Town officials, regarding remedying the alleged
violation. At or about the same time Piqwon changed its attorneys, it was granted an extension
of time by Donald Close, the Town Zoning Administrator, to address the First OTR.
20. Piqwon and its new counsel, after consultation with Town of Wappinger officials,
including meeting with the Town Board, determined that the most appropriate course of action
was to file an application for amended site plan approval and an application for a special use
permit pursuant to Zoning Law § 400.5.6 with the Town Board.
21. In or about March 1999, Pigwon's new attorneys met with the Town Attorney,
Mr. Albert P. Roberts, Esq., regarding these applications. T am advised that it was agreed
between Mr. Roberts and Mr. Richard O'Rourke that Piqwon would submit its application for a
special use permit and proposed site plan to the Town Board. The Town Board would then refer
the application for amended site plan approval to the Town of Wappinger Planning Board. The
Town Board would then consider the application for a special use permit and if the special use
permit was granted, the Planning Board would consider and grant final site plan approval.
22. On or about April 15, 1999, Piqwon submitted its applications for a special use
permit pursuant to Zoning Law 400.5.6. and for amended site plan approval.
23. The application for a special use permit and amended site plan addresses the
improvement of the pre-existing nonconforming automotive sales and repair, salvage yard and
2213/01/118584 V1 10/26/99
-S-
outside storage uses with the mix of office, retail and service, automotive sales and vehicle
repair, contractor and outside storage uses on the Property. For example, as part of the
application, Piqwon agreed to remove all remnants of the pre-existing nonconforming use of the
Property as a salvage yard thereby greatly improving the appearance of the yard. In addition,
Piqwon also agreed (1) to screen the neighboring properties through the use of a berm with white
and black pines and fencing, (2) provide buffer areas and (3) generally make the Property more
esthetically pleasing in an effort to bring the Property into conformance with the Zoning Law
and ameliorate any adverse external effects of such use.
24. The application and proposed site plan also depicts the location of a proposed
pole barn in order to address the Town's concerns regarding outdoor storage of materials and
assist in consolidation of the site. The pole barn, however, was only a proposal.
25. In order to prepare the applications for a special use permit and amended site
plan, Piqwon expended substantial sums of money to have its attorneys and engineers review the
Property and draft the necessary plans and applications. Following the submission of the
applications, Piqwon continued to expend funds relating to the application including making
payments to the Town of Wappinger, Town engineers, Town Consulting Planners (Frederick P.
Clark Associates, Inc.) and other Town representatives who were reviewing the applications.
(Copies of bills from Frederick P. Clark Associates, Inc. are attached as Exhibit "A".)
26. 1 am advised that although the Town Board failed to comply with a number of
procedural requirements in relation to the application for a special use permit, including noticing
and holding a public hearing, on September 27, 1999, the Town Board approved the Resolution
denying the application for a special use permit.
2213/01/118584 VI 10126199
-6-
27. Piqwon is attempting to comply with the Town of Wappinger's Zoning Laws by
modifying the condition and use of the Property so that it is in conformance with the Zoning
Law. It has expended substantial sums to achieve these goals. In fact, Piqwon has greatly
improved the condition of the Property and plans to continue to improve the Property by taking
the actions set forth in the application for a special use permit and amended site plan.
28. By failing to comply with certain procedural requirements relating to the approval
of the application for a special use permit, including failing to notice and hold a public hearing,
the Town Board has violated Piqwon's due process rights. In addition, I am advised that the
Town Board has failed to comply with certain requirements relating to the State Environmental
Quality Review Act ("SEQRA"), acted contrary to law, and wrongfully denied the application
for a special use permit as set forth in greater detail in the Petition, memorandum of law and the
affirmation of Richard O'Rourke.
29. Upon information and belief, the Town Board took these actions so that it could
summarily deny the application for a special use permit and so that it could continue its efforts to
remove Piqwon's'operations from the Property.
30. The Town of Wappinger is in fact continuing to take actions against Piqwon. On
October 6, 1999 it issued a second Order To Remedy Violations (the "Second OTR") which
required Piqwon to cure certain alleged violations by October 27, 1999. A copy of the Second
OTR is attached as Exhibit `B". Upon information and belief, if the Town Board had properly
considered the applications for a special use permit and for amended site plan approval, the use
of the Property complained about in the Second OTR would have been brought into conformance
with the appropriate Zoning Laws.
2213/01/119584 V1 10/26/99
-7-
OCT.26.1999 12:26M DANE & BEANE, P. C. N0.752 P.29"Es
( '
1
IIF. Condralon
31. For time reasons set forth herein, in the accompanying petition, memorandum Of
law and affidavit of Richard O'Rourke, dated October 26, 1999, and based upon the Town
Board's wrongU acts and violations of law, the Court sliouid enter an Order annulling and
rendering void the Resolution of Denial adopted by respondent, the Town Board of the Town of
Wappinger on or about September 27, 1999 and remand the case to respondent Town Board for
consideration of time appliontion for a spacial use permit in accordance with the 1
Swam to before me this
ZL `— day of October, 1999
Notary Public
A S CWAAT MALOOLM
"wary puhlic. State of New Yaa
No 4920162
Qualllm In utc�s 1Caunty('v
. jfM11t wW EXO
^=131011118384 Vl 101200
AI.L PMTEO LMAL 8GO 222 a61U EI71'I RR'CYOLEo
Exhibit A
-0-17--99 FR 112.47 FAX NO. 914462,4171 P, 02
TOWN OF WAPPINGER
20 Middiebush Road N° 002838
Wappingers Falls, N.Y. 12590
Received of --
/� 9j�ollars
ForpLl`"��
Code Amount
09L�
gy
Supervisor
:P-17-99 FRI 12:47 FAX N0, 9144624171 P,03
ZONING DEPARTMENT
20 MIDDLEBUSH ROAD
P-0. BOX 924
WAPPINGERS FALLS. NY 12590-0324
TELEPHONE: (914) 297-6257
FAX: (914) 207-4558
TOWN OF WAPP�NGER
CONSTANCE O. SWH
Supervisor
APPLICATION/ACCOUNT
FOR CONCEPTUAL REVIEW/SUP/SITE PLAN/SUBDIVISION FEES
TOWN OF WAPPINGER
DATE
APPLICATION/ACCOUNT NO. qq- 300-1 --
PROJECT NAME �Sl
LOCATiONIADDRESSCs `M u asp'}*
GRID NO. �a,�k-aa-iOa,oL�Zo
APPLICANT
ADDRESS
APPLICANT'S PHONE NO. aqq -.2 I
OWNER (If different from applicant}
OWNER'S ADDRESS
OWNER'S PHONE NO
CONCEPTUAL REVIEW
RECEIPT NO..
SUBDIVISION APP. FEE
RECEIPT NO..
SUBDIVISION ESCROW
RECEIPT NO. -
SITE PLAN APPLICATION FEE RECEIPT NO.
Z_&2J, RECEIPT NO.-PK3
SITE PLAN ESCROW
SPECIAL PERMIT APP. FEE _
_ RECEIPT NO.
SPECIAL PERMIT ESCROW
RECEIPT NO.
RECREATION FEE
RECEIPT NO.
ROAD INSPECTION FEE
RECEIPT NO.
If more escrow is needed during project,
a letter of notification will Be sent
when SO% of escrow is used requesting
additional monies,
CC; Town File, Supervisor, Zoning Administrator,
Controller, Applicant
5EP-17-99 FRI 12:48
I
12
FAX NO. 914462.4171
P, 05
Sir s. zs��
Prrpamd Dy
AFrwoce, 0,r
WILSON JONES COrAPAMY W.0; col.rMwifit. I M&DE im
SEP -17-99 FR1 12:50 FAX NO. 9144624171 P,06
PAGGI & MARTIN
54-56'Main Street
Poughkeepsie, NY 12601
Telephone 914/471-7898
Town of Wappinger
Subdivision Review
20 Middlebush Road
Wappinger Falls, NY 12590
Date Seq.#
Case PIQWON PIQWON
04/20 *** Principal - Joseph E. Paggi, Jr., P.E.
PIQWON - REVIEW/CORRESPONDENCE
04/21 ***** Clerical - Lisa Weiss
PIQWON-LTR: PLAN BRD-AMENDED SITE PLAN
Subtotal for Case PIQWON
05/01/99 T/14 -SR 21
Rate Qty Amount
i
5. CC
35.00 .50 17.5C
no
E EM,
MAY y�
70NING ADMINISTRATOR
92.5(
SEP -17-99 FRI 12,50
FREDERICK P. CLARK ASSOCIATES, INC.
Planning/Development/Environment/Transportation
Rye, New York and Southport, Connecticut
350 Theodore Fremd Avenue
Rye, New York 10580
(914) 967-6540
Town of Wappinger Town Board
wappinger Town Hall
20 Middlebush Road
Wappingers Falls, NY 12590
Attn: Spvr. Constance 0. Smith
RE: Pi.gwon (9-3004)
PREVYOUS BALANCE
FAX N0. 9144624171 P.07
INVOICE#
Da vid J. Portman, A1cP
Howard 1. Reynolds, PE
David H, Stolman, A1CP
Michael A. Galante
Joanne P. Meder, AIGP
Pager 1
05/19/99
Account No :�372M
MA's 2 6 lg99
tiA4 FQ ApP�N �R
jp�y 0
$336.00
Time Charges for Professional Services - April 1999: 774.50
Timekeeper
Senior Assoc/Ping - DKW
Assoc/Ping/Environ - DSK
TOTAL CURRENT CHARGES
L/05/99 Payment Thank You
1/12/99 Payment Thank You
Total Payments
TOTAL BALANCE DUE
Hours Hourly Rate Total
2.40 $105.00 $252.00
5.50 95.00 522.54
774.30
C�
-296.00
-40.00
Z����G p,D�ttfi11S�A�O� -336.00
$774.50
OA]C)NAL INVOICE • WW-
nEMMANCF. Cory • Ythe,
Exec Vice President CLIE.NTFILL -rlwk
David H. 5tvlman, AiCP, PP
SEP -17-99 FRI
12;51
FAX N0, 9144624.171 P.08
;Detail
Fee Transactim
File List ( Page: 13
r
a'REOERICK P, CLARK
ASSOCIATES, INC,
H T
•
9 R
I
Client Date
Tmkr Cat Sze
P X
C C Ted
Rake
)sours
Amount
570.372 04/13/99
9 1
U
29
105.D0
0.20
21.00 Telephone tall with Connie, review of applitatiOn
Town of Wappinger Town Board
570.372 04/1a/99
9 1
U
123
105.00
0.20
21.00 Discussion with DHS, review of application
Town of Aappinger Town Board
57D.372 04/15/99
12 1
d
25
95.00
2.00
190.00 Bite inepeecion
Town of Vappinger Town Board
510.372 04/15/99
12 1
U
91
95,00
1.50
142.50 Rwla,. of plan(-)
Town of Nappinger Town noord
.,570.372 04/16/99
12 1
U
21
95.00
2.00
190.00 Review of planta)
Town of Wappinger Town Board
510.372 04/29/99
9 1
U
111
105.00
2.00
210.00 neviev of correapondence, review of application ,
review of plan(3), preparation of merno:anium
Town of W-ppinger Town Board
Total for Client
ID 570.372
Billable
7.90
774.50 Town of Wappingcr Tonin Board
Total
7.90
774.50 R&: Pigwan (9-3004)
G3'�Gc L�C�C�D
JUN n'L 1999
ZomNG ADMINISTRATOR
SEP -17-99 FRI 12:51
i
PAGGI & MARTIN
54 -56 -Main Street
Poughkeepsie, NY 12601
Telephone 914/471-7898
Town of Wappinger
Subdivision Review
20 Middlebush Road
Wappinger Falls, NY 12590
Date Seq.#
FAX N0, 9144624171 P.09
05/29/99 T/W--SR-
:ase PIQWON PIQWDN
35/03 ***** principal - Joseph E. Paggi, Jr., P.E.
PIQWON-PREPARE/ATTEND PLAN BRD MTG
Subtotal for Case PIQWON
Rate ' Qty
JUN 02 1999
ZONING ADMINISTRATOR
13
Amount
75.00
75.00
SEP-17-99 FR1 12!51 FAX K 9144624171 P.10
(
Ju{i
ZONING ADMINISTRATOR
Page: 1
Town of Wappinger Dune 03, ,i 999
20 Middlebush Road Client No: 12949-0209OW
P.O. Bozo 324 INVOICZ NO. 1
Wappingers Falls, NY. 12590-0324
Attn: Constance O. Smith
Picpi4on, Inc. - Special Use Permit App. 99.3004
/03/99 Attend Planning Board meeting
/04/99 Receipt and Review Wery report of April
29th
/18/99 Receipt and Review misc. correspondence
/19/99 Receipt and Review report from Planning
Board
Albert P. Roberts
For Current Services Rendered
Recapitulation
Timekeeper Hours
Albert P. Roberts 1.40
Total Current Work
Balance Due
Interim Statement
Hours
O.BO
0.20
0.10
0.30
1.40
i
1.40\
175.00
Rate
I
Total
$125.00 $175.00
175.00
$175.00 1
SEP -17-99 FRI 12,51 FAX N0, 9144624171
R I INVOICE#
002571
FREDERICK P. CLARK ASSOCIATES, INC. David J_ Portman, AICP
Planning/Development/ Environment/Transportation Howarc#.� .,Reynolds„re
Rye, New York and Southport, Connecticut David H. Stolrnsri, ArcP
350 Theodore Fremd Avenue Michael A. Galanta
Rye, New York 10580 Joanne P, Meder, ,alcc
(914) 967-6540
Town of Wappinger Town Board
Wappinger Town Hall
20 Middlebush Road
Wappingers Falls, NY 12590
Attn: Spvr. Constance 0. Smith
RE: Pigwon (9-3004)
PREVIOUS BALANCE
Page: 1
06/21/99
Account No: 570--372M
RECEIVED
JEAN 3 0 1999
SUPEF4VISUIr.; S OFFICE
TOWN OF WAPPIIVCER
Time Charges for Professional Services - May 1999:
Timekeeper
Senior Assoc/Plug - DKW
TOTAL CURRENT CHARGES
;/04/99 Payment Thank You
TOTAL BALANCE DUE
Hours Hourl Rate
2.00 $105.00
AUG 0 S 7999
ZONING ADMINISTRATOR
Exec Vice President
David H. Stolman, AICP, PP
ORIGINAL INVOICE- %W11
REMMANCE COPY • Y[Q--
CL)EN7 FILE • MO
ti
$774.50
21.0.00
Total
$210.00
21.0.00
-774.50
SEF -17-99 FRI 12;52 �' FAX NO, 9144`"'^171
06/71/99 Detail Fce Trannaction File List
pREDERICI[ P. CLAmx ASSOCIATES, INC.
r
Amount
105.00 L\.ening meeting
To" of Wappinger Town Board
105.00 Evening meeting - TO
Town of Wsppinger Town Board
210.00 Town of 4appinger Toon Board
210.00 AE: Digwon (9-3004)
F6D) ECE0
AUG 0� 1999
ZONING AWINISTRATOR
P. 12
Pagc+ E
H T B R
Client Date
Tmkr Cat Src
P X C C
Tcd Rata
Hours
570.371 05/03/99
9 1
U
6 105.00
1.00
570.372 05/24/99
9 1
U
d 105.00
1.00
Total for Client
ID 570.372
Billable
2.00
To tel
2.00
r
Amount
105.00 L\.ening meeting
To" of Wappinger Town Board
105.00 Evening meeting - TO
Town of Wsppinger Town Board
210.00 Town of 4appinger Toon Board
210.00 AE: Digwon (9-3004)
F6D) ECE0
AUG 0� 1999
ZONING AWINISTRATOR
P. 12
Pagc+ E
ALL -STATE-LECAL — --Dbf0 EEII RECYULEE
�LeE
Exhibit 8
iTz,
OCT- 7-99 THU 12:33 FAX NO. J 1446241 ( 1 r, u�
ZONING DEPARTMENT
20 MIDDLEBLISH ROAD
PA, BOX 320
WAPPINGERS FALLS, NY 12590-0324
TELEPHONE: (914) 297-6257
FAX; (914) 297-4558
TOWN OF WAPPINGER
CONSTANCE O. SMITH
Supervisor
ORDER TO REMEDY VIOLATION
Date, 10/06/99
TO: Piqwon Inc.
' Peter Elder �A}5�� 99991.5
228 Myers Corners Road
Wappingers Falls, New York 12590
PL SE TAKE NOTICE that there exists violations of Section: 240.37
of The Code of the Town of Wappinger at premises hereinafter described as
follows:
you are operating a contractors yard at 228 Myers Corners Road in that you
a Barr ersg
back hoes, bulldozers, trucks, trailers, cranes, construction site trailers ,j
(which are used to separate traffic lanes during construction), and other vehicles which are
commonly used by contractors in the construction trade in addition to materials such as
stone, gravel, and dirt which are stockpiled and stored for use in construction work. The
property on which the vehicles and materials are stored upon is located partially in a
residential R40 district and a Neighborhood business district, which zoning districts do not
permit the aforementioned uses. You are hereby directed to discontinue the
aforementioned uses on the property located at 228 Myers Corners Road
YOU ARE THEREFORE PIR CTE D AND ORDS ED to cease using the premises
as a contractors yard and to cease storing contractors equipment as above stated
and to comply with the code and to remedy the conditions above mentioned
forthwith on or before the 27th day of October1999.
The premises to which this ORDER TO REMEDY VIOLATION refers are situated
at: 228 Myers Corners Road Town of Wappinger, County of Dutchess as shown on
TAX MAP NUMBER: 6258.02.702520
FAILURE TO REMEDY the conditions aforesaid and to comply with the applicable
provisions of law may constitute an offense punishable by fine or imprisonment or
both, and subject you to further legal proceedings to enforce compliance
BY:
ark ]. Liebermann
Acting Zoning Administrator
TABLE OF CONTENTS
I. Preliminary Statement.........................................................................................................
1
ILStatement of Facts...............................................................................................................
3
III. Argument .................................................. ...........
3
POINT I
THE TOWN BOARD'S DETERMINATION THAT THE DENIAL
OF THE SPECIAL USE PERMIT IS A LEGISLATIVE ACT
WHICH MAKES IT UNNECESSARY TO COMPLY WITH
SEQRA IS ARBITRARY AND CAPRICIOUS AND CONTRARY
TOLAW.........................................................................................................................................
3
A. The Grant of Denial of A Special Use Permit Is Administrative In Nature ...................
4
B. The Town Board Was Required To Comply With SEQRA...........................................
S
POINT II
PIQWON'S DUE PROCESS RIGHTS WERE VIOLATED WHEN
THE TOWN BOARD FAILED TO HOLD A PUBLIC HEARING
UNDERTOWN LAW § 274-b(6)..................................................................................................
7
POINT III
THE TOWN BOARD'S DETERMINATIONS THAT THE
EXISTING NONCONFORNINING USE HAD EXPIRED AND
THAT THE PROPOSED USE IS NOT A MODIFICATION TO
AN EXISTING NON -CONFORMING USE ARE ARBITRARY
AND CAPRICIOUS, NEEDED TO BE MADE BY THE ZONING
BOARD OF APPEALS AND/OR ARE NOT SUPPORTED BY
SUBSTANTIALEVIDENCE........................................................................................................
9
A. The Town Board's Finding In Regard To Whether The
Existing Use Had Expired Was Arbitrary And Capricious, Not
Permitted By Law And Not Supported By Substantial Evidence ............................................
10
B. The Finding That The Proposed Use Is Not A
Modification Of An Existing Nonconforming Use Was Arbitrary
And Capricious And Not Permitted By Law............................................................................
11
IV. Conclusion........................................................................................................................
12
TABLE OF AUTHORITIES
STATE CASES
Aboud v. Wallace, 94 A.D.2d 874, 463 N.Y.S.2d 572 (3d Dep't. 1983) ..........................12
H.O.M.E.S.y. New York State Urban Devel. Corp., 69 A.D.2d 222,418
N.Y.S.2d 827 (4th Dep't. 1979).....................................................................................6
Holmes v. Brookhaven Planning Board, 137 A.D.2d 601, 524 N.Y.S.2d 491 (2d Dep't)
appeal denied, 72 N.Y.2d 807, 533 N.Y.S.2d 56 (1988) ................................................7
11son v. Village of Ocean Beach, 79 A.D.2d 697, 434 N.Y.S.2d 272 (2d Dep't 1980).......9
Inland Valve Farm Co. v. Ster iano oulos, 104 A.D.2d 395, 478 N.Y.S.2d
926 (2d Dep't. 1984), affd., 65 N.Y.2d 718, 492 N.Y.S.2d 7 (1985) ...........................7
King v. Saratoga Ci . Board of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d
233 (1996).................................................................................................................7, 8
Lo Conti v. Utica Department of Buildings, 52 Misc.2d 815, 276 N.Y.S.2d
720(2d Dep't 1985).........................................................................................................9
Mialto Realt
y, Inc., 112 A.D.2d at 371, 491 N.Y.S.2d 825 (2d Dep't 1985) ....................13
Mobil Oil Corp.v. City of Syracuse, 52 A.D.2d 731, 381 N.Y.S.2d 924 (4th Dep't. 1976)
........................................................................................................................................5
Mobil Oil Corp.y. Oaks, 55 A.D.2d 809, 390 N.Y.S.2d 276 (4th Dep't. 1976)- ....... - ...... 5
Rattner v. Planning Commission, 103 A.D.2d 826, 478 N.Y.S.2d 63 (2d Dep't. 1984)...11
Schenectady Chemicals, Inc. v. Flacke, 83 A.D.2d 460, 446 N.Y.S.2d 418 (3d Dep't.
1981).............................................................................................................................7
Shefler v. Geneva, 1 Misc.2d 807,147 N.Y.S.2d 400 (S. Ct. Ontoario Cty. 1965) ............9
Soron Realty Co.y. Town of Geddes, 23 A.D.2d 165, 259 N.Y.S.2d 559 (4th Dep't.
1965) .............................................................................................................................9
Todd Mart, Inc. v. Town Board of Webster, 49 A.D.2d 12, 370 N.Y:S.2d
683 (4th Dep't. 1975).....................................................................................................5
Tri -County Taxpayers Association, Inc. v. Town Board of Queensbur�, 79
A.D.2d 337, 437 N.Y.S.2d 981, modified, 55 N.Y.2d 41, 447 N.Y.S.2d 699 (3d Dep't
1981).................................................................................................
.............................
22131011118573 VOA 1113199
Village of Williston Park v. Israel, 191 Misc, 6, 76 N.Y.S.2d 605, affd., 276
A.D.2d 968, 94 N.Y.S.2d 921 ((Sup. Ct. Nassau Cty. 1948), affd., 301 N.Y. 713, 95
N.E.2d 208 (1949)..........................................................................................................9
OTHER AUTHORITIES
6 NYCRR § 617.2(c)..........................................................................................................6
6 NYCRR § 617(b)................................................................. ... ..............................6
6 NYCRR Part 617............................................................... .....2
N.Y. Envir. Cons. Law § 8-0103 (McKinney's 1997).............................................:...........6
N.Y. Envir. Cons. Law § 8-0101 (McKinney's 1997).........................................................6
N.Y. Envir. Cons. Law § 8-4103(8) (McKinney's 1997) .....................................................6
N.Y. Envir. Cons. Law § 8-0109(1) (McKinney's 1997) .....................................................6
22131011118573 VOA 1113199
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------------------------------------------------------------------------x
In The Matter Of The Application Of
PIQWON, INC.,
Petitioner,
For A Judgment Pursuant To Article 78 Of The
Civil Practice Law Rules Index No. 1999/4782
-against- Assigned to:
TOWN BOARD OF THE TOWN OF
WAPPINGER and TOWN OF WAPPINGER,
Respondents.
x
MEMORANDUM OF LAW
IN SUPPORT OF PETITION
L Preliminary Statement
Petitioner, Piqwon, Inc. ("Piqwon"), submits this memorandum of law in support of the
Petition filed in this proceeding on October 26, 1999.
Piqwon, by way of this proceeding, challenges the Resolution of Denial adopted on about
September 27, 1999 (the "Resolution") by the Town Board of the Town of Wappinger (the
"Town Board"), denying Pigwon's application for a special use permit under Town of
Wappinger Zoning Law (the "Zoning Law") § 400.5.6 and thereby rendering moot the
application for amended site plan approval relating to property known as Tax Lot 6258-02-
702520, which is located on the southern side of Myers Corners Road, across from the
intersection of Myers Comers Road and Degarmo Hill Road (the "Property"). The Resolution
should be annulled and rendered void and the case remanded to the Town Board for processing
of the applications for a special permit and amended site plan approval in accordance with the
law.
2213/01/118573 V2 11/3/99
The Resolution should be annulled and rendered void because, as fully set forth in the
Petition, affirmation of Richard O'Rourke, dated October 26, 1999 and affidavit of Peter Elder,
dated October 26, 1999, it (a) was entered into in contravention of lawful procedure and in
violation of Petitioner's due process rights; (b) is affected by errors of law; (c) is contrary to law
and violates public policy; and (d) was arbitrary, capricious and an abuse of discretion Indeed,
based on the wording of the Resolution, it is evident that the Town Board was attempting to
circumvent and eviscerate requirements mandated by law relating to applications for special use
permits.
Specifically, the Town Board acted arbitrarily and capriciously and abused its discretion
by finding that its determination relating to Piqwon's application for a special use permit is a
legislative act not requiring review in accordance with the New York State Environmental
Quality Review Act ("SEQRA") (Envir. Cons. Law § 8-0101, et se . (McKinney's 1997 & Supp.
1998) and its implementing regulations. (6 N.Y.C.R.R. Part 617.) Pursuant to New York law,
however, the grant or denial of a special use permit is an administrative function rather than a
legislative act and therefore, the Town Board was required to act in accordance with SEQRA.
Because the Resolution was adopted without the Town Board complying with the environmental
review procedures mandated under SEQRA, it is should be annulled and rendered void.
The Town Board also violated Piqwon's due process rights and acted contrary to law by
failing to comply with State of New York Town Law § 274-b(6) (McKinney's Supp. 1999)
which requires that a public hearing must be held within sixty-two (62) days after the receipt of
an application for a special use permit.
In addition, The Town Board's determination that an existing nonconforming existing use
had expired and that the application for a special use permit did not involve a modification of an
existing nonconforming use, but rather the addition of a new nonconforming use, were arbitrary
22131011118573 V2 1113199
-2-
and capricious and contrary to law because such determinations are factual and/or require
interpretation of applicable provisions of the Zoning Law and may only be made by the Zoning
Board of Appeals. Moreover, the Town Board's determination that an existing nonconforming
use had expired is arbitrary and capricious because it is not support by substantial evidence.
The Town Board's erroneous and unsupported actions were evidently taken so that the
Town Board could avoid addressing the application for a special use permit on the merits. Such
wrongful action should not be permitted and the Court should grant the petition in all respects
and remand the case to the Town Board for processing of Piqwon's applications for a special
permit and amended site plan approval in accordance with the law.
II. Statement of Facts
The facts relating to this proceeding are fully set forth in the Petition, as well as the
affidavit of Peter Elder, dated October 26, 1999 (the "Elder Affd.") and affirmation of Richard
O'Rourke, Esq., dated October 26, 1999 (the "O'Rourke Affirm.") previously filed on October
26, 1999. The Court is respectfully referred to the Petition, the Elder Affid. and O'Rourke
Affirm. for a full recitation of the factual background relating to this proceeding.
III. Argument
POINT I
THE TOWN BOARD'S DETERMINATION THAT THE
DENIAL OF THE SPECIAL USE PERMIT IS A
LEGISLATIVE ACT WHICH MAKES IT UNNECESSARY
TO COMPLY WITH SEQRA IS ARBITRARY AND
CAPRICIOUS AND CONTRARY TO LAW
In the Resolution the Town Board explicitly stated, in part, that:
22131011118573 V2 1113199
-3-
683, 690 (4th Dep't. 1975)(application for special use permit involves administrative action even
though the local legislature reserves authority to make the determination).
B. The Town Board Was Required To Comply With SEQRA
Because the grant or denial of a special use permit is administrative rather than legislative
in nature, the Town Board was required to comply with the procedures mandated by SEQRA.
See State of New York Town Law § 274-b(8)(McKinney's Supp. 1999)(stating that "[t]he
authorized board shall comply with the provisions of the state environmental quality review act
[SEQRA] under article eight of the environmental conservation law.") In addition, SEQRA and
its implementing regulations (codified at 6 NYCRR Part 617) require all units of government to
undertake a reasoned evaluation of the environmental impacts likely to occur as a result of
legislative or administrative action before such action is taken. Tri -County Taxpayers Ass'n.,
Inc. v. Town Bd. of Queensbury, 79 A.D.2d 337, 437 N.Y.S.2d 981 (3d Dep't. 1981), modified,
55 N.Y.2d 41, 447 N.Y.S.2d 699 (1982). The Town Board is an agency pursuant to SEQRA (6
NYCRR § 617.2(c)) and its consideration of Piqwon's special permit application is an action. 6
NYCRR § 617(b). Thus, the requirements of SEQRA apply.
SEQRA's broad application is also codified as follows:
6. It is the intent of the legislature that to the fullest extent
possible the policies, statutes, regulations, and ordinances
of the state and its political subdivisions should be
interpreted and administered in accordance with the
policies set forth in this article [SEQRA]....
N.Y. Envir. Cons. Law § 8-0103 (McKinney's 1997). The legislative purposes giving rise to
SEQRA's adoption were:
to declare a state policy which will encourage productive and
enjoyable harmony between man and his environment; to promote
efforts which will prevent or eliminate damage to the environment
and enhance human and community resources; and to enrich the
22131011118573 V2 11/3199
-5-
understanding of the ecological systems, natural, human and
community resources important to the people of the state.
N.Y. Envir. Cons. Law § 8-0101 (McKinney's 1997). Consistent with these purposes, all
agencies are to "...conduct their affairs with an awareness that they are stewards of the air, water,
land and living resources, and that they have an obligation to protect the environment for the use
and enjoyment of this and all future generations." N.Y. Envir. Cons. Law § 8-0103(8)
(McKinney's 1997); N.Y. Envir. Cons. Law § 8-0109(1) (McKinney's 1997); see also,
H.O.M.E.S. v. New York State Urban Devel. Corp., 69 A.D.2d 222, 418 N.Y.S.2d 827 (4th
Dep't. 1979). SEQRA's purposes are achieved by the imposition of both procedural and
substantive requirements upon agency decision-making, including zoning and planning
determinations. Tehan v. Scrivani, 97 A.D.2d 769, 468 N.Y.S.2d 402 (2d Dep't. 1983).
Courts have uniformly required strict, literal compliance with SEQRA and its
implementing regulations. King v. Saratoga Cty. Bd. of Supervisors, 89 N.Y.2d 341, 653
N.Y.S.2d 233 (1996); Holmes v. Brookhaven Planning Bd., 137 A.D.2d 601, 524 N.Y.S.2d 491
(2d Dep't.), appeal denied, 72 N.Y.2d 807, 533 N.Y.S.2d 56 (1988); Inland Valve Farm Co. v.
Stergianopoulos, 104 A.D.2d 395, 478 N.Y.S.2d 926 (2d Dep't. 1984), affd., 65 N.Y.2d 718,
492 N.Y.S.2d 7 (1985); Schenectady Chemicals, Inc.y. Flacke, 83 A.D.2d 460, 446 N.Y.S.2d
418 (3d Dep't. 1981). Literal procedural compliance is necessary because "the substance of
SEQRA cannot be achieved without its procedures, and ... any attempt to deviate from its
provisions will undermine the law's express purposes." Schenectady Chemicals, Inc., 83 A.D.2d
at 463, 446 N.Y.S.2d at 420. Moreover, as aptly stated by the Court of Appeals:
.. The mandate that agencies implement SEQRA's procedural
mechanisms to the "fullest extent possible" reflects the
Legislature's view that the substance of SEQRA cannot be
achieved without its procedure, and that departures from SEQRA's
procedural mechanisms thwart the purposes of the statute. Thus it
is clear that strict, not substantial, compliance is required.
2213101/118573 V2 11/3199
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Nor is strict compliance with SEQRA a meaningless hurdle.
Rather, the requirement of strict compliance and attendant spectre
of de novo environmental review insure that agencies will err on
the side of meticulous care in their environmental review.
Anything less than strict compliance, moreover, offers an incentive
to cut comers and then cure defects only after protracted litigation,
all at the ultimate expense of the environment.
King, 89 N.Y.2d at 347-48, 653 N.Y.S.2d at 235-36.
Piqwon filed its application for a special use permit and for amended site plan approval
on April 15, 1999. (O'Rourke Affirm. at ¶ 13.) The Town Board adopted the resolution on
September 27, 1999. (Id. at 119.) At no time between April 15 and September 27 did the Town
Board conduct any review or otherwise comply with SEQRA. (Id. at ¶ 18.) Considering the
compelling and powerful authority requiring compliance with SEQRA, it was error for the Town
Board not to observe SEQRA's procedural requirements, even if the result was a denial of the
application for a special use permit.
In conclusion, the Town Board's determination that the denial of the application for a
special use permit was a legislative act is contrary to law, arbitrary and capricious and made
solely to avoid mandated procedures under SEQRA. Moreover, the failure of the Town Board to
comply with SEQRA requires that the Court annul and render void the Resolution and remand
the proceeding to the Town Board so that it can comply with SEQRA.
POINT II
PIQWON'S DUE PROCESS RIGHTS WERE VIOLATED
WHEN THE TOWN BOARD FAILED TO HOLD A PUBLIC
HEARING UNDER TOWN LAW § 274-b(6)
As stated above, Pigwon's application for a special use permit under Zoning Law §
400.5.6 was filed on April 15, 1999 and the Resolution was adopted by the Town Board on.
September 27, 1999. (O'Rourke Affirm. at T j 13 and 19.) At no time between April 15, 1999
2213/011118573 V2 11!3199
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and September 27, 1999 did the Town Board ever notice or hold a public hearing in relation to
the application for a special use permit. (Id. at ¶ 17.)
State of New York Town Law § 274-b(6)(McKinney's Supp. 1999) specifically states
that: "[t]he authorized board shall conduct a public hearing within sixty-two days from the day
an application is received on any matter referred to it under this section." Section 274-b(6) is
directly applicable to this matter because Piqwon was applying for a special us permit under
Zoning Law § 400.5.6. Section 274-b(6) is also mandatory in nature. Therefore, the Town
Board had no discretion not to hold a public hearing before adopting the Resolution.
Many courts have held that the failure to comply with mandatory procedural
requirements, such as Town Law § 274-b(6), makes a decision relating to a permit, amendment
or ordinance. null and void. See e.g., Lo Conti v. Utica. Dep't. of Bldgs., 52 Misc. 2d 815, 819-
20, 276 N.Y.S.2d 720, 725-26 (S. Ct. Oneida Cty. 1966)(failure to comply with notice
requirement of Second Class Cities Law invalidated amendment to Building Code); Soron Realty
Co. v. Town of Geddes, 23 A.D.2d 165, 166, 259 N.Y.S.2d 559, 560-61 (4th Dep't. 1965)
(failure to comply with statutory requirements for enactment of amendments resulted in court
finding amendments invalid); Shefler v. Geneva, 1 Misc. 2d 807, 809-10, 147 N.Y.S.2d 400,
402-03 (S. Ct. Ontario Cty. 1956)(holding that failure to comply with General City Law § 83
requiring formal notice of public hearing resulted in nullification of adopted ordinance); Village
of Williston Parky. Israel, 191 Misc. 6, 76 N.Y.S.2d 605 (Sup. Ct. Nassau Cty. 1948), aff d.,
276 A.D.2d 968, 94 N.Y.S.2d 921, aff d., 301 N.Y. 713, 95 N.E.2d 208 (1949).
The Legislature of the State of New York has determined that a public hearing is required
before an application for a special use permit can be granted or denied. Thus, the failure to
comply with the provision of Section 274-b(6) constitutes a denial of Piqwon's due process
rights and requires a remand of the application proceedings to the Town Board for a review de
2213/01/118573 V2 11/3/99
interpretation of Zoning Law § 400.5.6 regarding whether a use is actually an improvement or
modification of an existing use. The Zoning Board of Appeals is the only authority permitted to
make this interpretation. (See Mialto Realty, Inc., 112 A.D.2d at 371, 491 N.Y.S.2d at 826.)
Once again, because the Town Board wrongfully usurped factual determinations and
interpretations of the Zoning Law which only the Zoning Board of Appeals is permitted to make,
the denial of the application for a special permit is arbitrary and capricious and contrary to law
and the Resolution should be rendered null and void.
IV. Conclusion
For the reasons set forth above, as well as those set forth in the Petition and
accompanying affirmation of Richard O'Rourke and affirmation of Peter Elder, petitioner
Pigwon, Inc. respectfully assert that the Petition should be granted in all respects.
Dated: White Plains, New York
November 3, 1999
KEANE & BEANE, P.C.
By.
Eric L. Gordon, Esq.
Attorneys for Petitioner
Piqwon's, Inc.
One North Broadway, Suite 700
White Plains, New York 10601
(914) 946-4777
2213/011118573 V2 1113199
-12-
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
--------------------------------------------------------------------
In The Matter Of The Application Of
PIQWON, INC.,
Petitioner,
For A Juftnent Pursuant To Article 78, Of The
Civil Practice Law Rules
-against-
TOWN BOARD OF THE TOWN OF
i'41.1,0101i Nigi �'- fit
Respondents.
X
REQUEST FOR JUDICIAL
INTERVENTION
fi
IAS ENTRY DATE:
JUDGE ASSIGNED:
RE DATE:
Date issue joined:
X Bill of Particulars Served: No
NATURE OF JUDICIAL INTERVENTION (check ONE box only and enter information)
Request for preliminary conference
Note of Issue and/or Certificate of Readiness
Notice of Motion (return date) Relief sought
Order to Show Cause (clerk enter return date)
Relief sought:
Other ex parte application (specify
[X] Notice of petition (December 14, 1999) Relief sought: Order Under Article 78 of CLLR
Notice of medical or dental malpractice action (specify
Statement of net worth
Writ of Habeas Corpus
Other (specify )
2213/01/118719 V1 10/26199
NATURE OFACTION OR PROCEEDING (check ONE box only)
MATRIMONIAL TORTS
[ ] Contested - CM Malpractice:
[ ] Uncontested - UM [ ] Medical/Podiatric - MM
[ ] Dental - DM
[ ] * Other Professional - OPM
COMMERCIAL [ ] Motor Vehicle - MV
[ ] Contracts - CONT [ ]* Products Liability - PL
[ ] Corporate - CORP [ ] Environmental - EN
[ ] Insurance (where insurer is a party, [ ] Asbestos - ASB
except arbitration) - INS [ ] Breast Implant - BI
[ ] UCC (including sales, negotiable [ ]* Other Negligence - OTN
instruments) - UCC [ ]* Other Tort (including intentional)
[ ]* Other Commercial - OC - OT
REAL PROPERTY
[ ] Tax Certiorari - TAX
[ ] Foreclosure - FOR
[ ] Condemnation - COND
[ ] Landlord/Tenant LT
[ ]* Other Real Property - ORP
OTHER MATTERS
[ ]*
- OTH
*If asterisk used, please specify further:
SPECIAL PROCEEDINGS
[ ] Art. 75 (Arbitration) - ART 75
[ ] Art. 77 (Trusts) - ART 77
[X] Article 78 - ART 78
[ ] Election Law - ELEC
[ ] Guardianship (MHL Art 81)
- GUARD 81
[ ]* Other Mental Hygiene MHYG
[ ]* Other Special Proceeding - OSP
Check "YES" or "NO" for each of the following questions:
Is this action/proceeding against a
YES NO
[X] [ ] Municipality
(specify: Town of Wappinger)
YES NO
YES NO
[ ] [X] Public Authority
(specify )
[X] [ ] Does this action/proceeding seek equitable relief?
[ ] [X] Does this action/proceeding seek recovery for personal injury?
[ ] [X] Does this action/proceeding seek recovery for property damage?
2213101/118719 V1 10/26/99
-2-
All Cases Except Contested Matrimonials:
Estimated time period for case to be ready for trial (from filing of RJ1 to filing of Note of Issue):
[X] 0 -12 months [ ] 12 - 15 months
Contested Matrimonial Cases Only: (Check and give date)
Has summons been served? [ ] No [ ] Yes, Date
Was a Notice of No Necessity filed? [ ] No [ ] Yes, Date
ATTORNEY(S) FOR
PE TI TIO NER S/PLA INTI FF(S) :
ATTORNEYS) FOR
RESPONDENTS/DEFENDANT(S):
INSURANCE CARRIERS: N/A
RELATED CASES: NONE
KEANE & BEANE, P.C.
One North Broadway
Suite 700
White Plains, NY 10601
(914) 946-4777
Albert P. Roberts, Esq.
Attorney for Torun of Wappinger
Town of Wappinger
20 Middlebush Road
P.O. Box 324
Wappinger Falls, NY 12590
(914) 297-6257
2213/01/118719 V1 10/36/99
-3-
AFFIRMATION
I AFFIRM UNDER PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER
THAN AS NOTED ABOVE, THERE ARE AND HAVE BEEN NO RELATED ACTIONS
OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION
PREVIOUSLY BEEN FILED IN THIS ACTION OR PROCEEDING.
Dated: White Plains, New York
October 26, 1999
KEANE & BEANE, P.C.
By: a.,-, Gv�
Eric L. Gordon, Esq.
Attorneys for Petitioner
One North Broadway, Suite 700
White Plains, New York 10601
(914) 946-4777
2213/01/118719 V1 10/26/99
-4-