Posted by: Dawn Powell | March 2, 2009

ZBA – 2/26/09

Warex – the gas station on Bryant Pond Road.  This is a prohibited use according to our Town Code, but they want to expand 50%, but, according to their attorney, David Steinmetz,  it’s merely an enhancement of the customer’s experience.

Putnam County Savings Bank – Oregon Corners, pay attention to this one before the digging starts.  For now, it is held over.

 Incentive Zoning – The idea of throwing the zoning code out the window in return for gifts

 Zoning Board of Appeals

February 26, 2009

There were only four items on the agenda, and two were eliminated in the pre-meeting, but they still managed to make a night of it.  I want to distinguish between the Planning Board and the Zoning Board pre-meetings.  The Zoning Board agenda announces that they will be meeting at 6:30 before the 7:30 public hearing session. That means that there meeting is legally noticed.  Now if we can just get them out of the backroom.  The interpretation from the Committee on Open Government is that if there is a room where the public can be reasonably accommodated, such as the court room, it should be used.  The backroom is congested.

 The hot topic was Warex, the gas station at Bryant Pond Road, that wants to expand.  It is a 50% expansion, but it’s not an expansion. The applicant is seeking an interpretation from the zoning board.

  A gas station is a listed use in the base code, the old code that we are still using despite the new Comprehensive Plan, that new Plan that Mr. Zutt wants to amend.  Couldn’t we have given the new code a shot before we started to amend everything?  But the same obstructionists have obstructed for so very many years, they are quite adept.  So using the old code and the new Plan has left us with some confusion – the classic reason for a moratorium, the moratorium that was opposed by Mr. Tendy, Mr. Zutt, and Ms Keresey.  This is the mess that they have left us to deal with.

This business is a prohibited use in the ground and surface water protection district.  Its expansion is prohibited in this district.  The applicant argues that they are not expanding, they are enhancing the experience for the customer.  But the code says that dispensing petroleum products is prohibited, so expanding dispensing should be prohibited.*  Seems simple enough, doesn’t it?  The idea was to keep bad stuff out of our drinking water, and if you put more pumps in, you increase the likelihood of spilling bad stuff.

Well, the piping is already there, so I guess they were already for this expansion, this enhancement of the customer’s experience.  But still, the law says dispensing is prohibited.

Still seems clear to me.

 There is an interested member of the public who has done his utmost to protest.  There is the threat of a lawsuit with either decision.  Mr. Zutt refrained from expressing an opinion in the public part of the pre-meeting, but there was an abrupt change in the responses of a few officials present, so my guess is that he’d rather take on the attorneys representing the member of the public than Zarin and Steinmetz, attorneys for the applicant. If the advocate for the community uses the same counsel that he retained a few years ago, they seemed good to me.  And apparently that is the lawsuit we’ll have because three Board members seemed to believe that this isn’t a prohibited expansion.  One opined that it isn’t worth the Town’s trouble to fight.  I’d rather fight the good fight, and I don’t think that’s the applicant’s fight. 

 It was also expressed a couple of times that an old use that does not conform to zoning is constitutionally protected.  I seem to recall hearing that a Town Board can make the decision to eliminate a noxious pre-existing use.  I don’t remember where that is in the law. I guess I’ll have to do some research.

  Someone said that there is nothing that allows this as an as-of-right use. The Tartan Oil case is the much discussed precedent for allowing this expansion.  That case, however, was not a legal test of our overlay district concept.  There is a horse breeding case that acknowledges that there have to be some limits. I’ve reached mine.  I really think that the intent of the overlay district was clear, and there isn’t any interpretation of that needed.  The deliveries to the gas station are against the law, no matter what the zoning board says in this case, and that law should have prevented the expansion of a gas station.  Three property owners in the Town can legally challenge any non-enforcement.  Regardless of the song and dance, however, this is an expansion.

 The Putnam County Savings Bank has been pending for awhile, and that was held over.  This bank is proposed at the corner of Hollowbrook Road, and Oscawana Lake Road.  The applicant hasn’t been heard from for about 8 months. I thought we were told that this was a done deal.  Maybe they are wondering if Putnam Valley actually is “overbanked”.  In this economy, it doesn’t seem like the best place for a new branch, but then I never was partial to the idea.  With inadequate parking for the businesses and residences there, this just doesn’t seem like good planning.  More than one principal use on a lot is the issue.

The New Jersey planner’s rendering was mentioned as the latest plan for the corners, but that isn’t an approved plan by the DOT or anyone for that matter.  What a mess.

 Then there was Mr. Kisslinger.  His plan for access to the lake on a lot that is not attached to a house was held over.  The house on 1½ acres with no public road was the application discussed.  So is this the incentive zoning application?  They are talking about this house and these variances, but also mentioned was the donation of a parcel down the road to Lake Oscawana for a biofilter.  The concept of incentive zoning is distressing enough.  Throw out the zoning code for a ‘gift.’ But this gift would be specific to Lake Oscawana, and the effect of throwing out the zoning for one applicant would be a Townwide ‘gift.’  The rest of us would have to live with the consequences.  The Zoning Board has an entirely different demeanor when talking to Mr. Kisslinger or his attorney than does the Planning Board.  This was a far more comfortable experience for the observer.

There is a note on the bulletin board that applications are being taken for the conservation commission.  And there have been no announced resignations.  So officially, there is still one more member than the code allows.

 *Excerpted from Town Code


Prohibited uses. The following uses shall be prohibited within the Ground and Surface Water Protection (WP) District:


Oil, gasoline or hazardous material pipelines.


Automotive service and/or repair stations and garages.


Bulk storage of home heating oil in underground storage tanks. For new home construction, heating oil tanks should be installed above ground or in a basement with an impervious floor, such as concrete. Existing underground home heating oil tanks may remain in place but may be replaced only by aboveground installation or in a basement with an impervious floor, such as concrete.


The storage and/or dispensing of petroleum-based fuels in any form, as a commercial enterprise, including but not limited to motor vehicle fuels, and whether or not located in fixed tanks on site or mobile delivery vehicles for transfer and dispensing off site. Delivery of petroleum-based fuels to consumers within the Ground and Surface Water Protection District from locations outside the district is not prohibited.

[Added 6-1-2005 by L.L. No. 2-2005; amended 4-19-2006 by L.L. No. 2-2006]


Development approval criteria.


Applications for an environmental management district permit pursuant to this section shall include an assessment of the impact the proposed use or structure may have on ground- and surface water conditions. The purpose of this analysis is to demonstrate that no activities will be conducted upon the property that will result in surface water pollution or groundwater infiltration. The analysis shall be prepared by a professional hydrologist, geologist, licensed engineer or qualified professional and shall be paid for by the applicant.


Unless served by central water and sewer facilities, no subdivision or site plan approvals shall be granted without findings by the Putnam County Department of Health that, based upon sufficient information on soils, geology and hydrology, the installation of on-site well and/or septic disposal systems, if properly installed and maintained, would not be likely to have an adverse impact upon the surrounding ground- or surface water quality or supply and that there is sufficient area or suitable soils for future extension or replacement of initial septic disposal systems.



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