P.O. Box 700

Port Ewen, NY 12466

Zoning Board of Appeals


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                                   TOWN OF ESOPUS ZONING BOARD OF APPEALS

                                              Minutes of the November 15, 2011 Meeting





CALL TO ORDER:  Chairman, Don Cole, called the meeting to order at 7:25 pm.





Present:  Vic Barranca, Joe Guido, Rob Hare, Kathy Kiernan, Linda Smythe, Karl Wick, and Chairman, Don Cole



Karl pointed out two corrections (typos) to the October minutes and made a motion to accept the   minutes as corrected. Vic seconded the motion.    All in favor.



Kathy made a motion to approve the vouchers for secretarial work.  Seconded by Vic.   All in favor.



11-15-11-01                                     Raymond Wapner & Peter Courmont             Area Variances

                                                          135 River Road                                               64.01-2-6


Angela Garnier was present representing owners.  She is the tenant of this three bedroom home which she would like to convert to a Bed and Breakfast.  Ms. Garnier explained that each bedroom has a private bath and there is enough common space in the house – its looks as if it is set up to be a B&B.  There are doors for privacy separating spaces.  She has spoken to area residents and feels that there is a need for this type of accommodation. 


Karl asked if Ms. Garnier was aware of the issues with the site.  He stated that the operator of a B&B has to be the owner.  She replied that the property is owner-occupied.  The owners live in

Manhattan also and come up twice a month and spend a few days.  She stated that she was under

the misunderstanding that it had to be occupied full time.  Ms. Garnier will be the manager of the B&B.


Joe asked if there would be an addition to the size of the house.  Ms. Garnier replied that no construction is necessary.


Rob asked if there would be any additional parking or if she had a sufficient amount of spaces now.  She replied that she had sufficient spaces.


Karl asked if the owners had tried to purchase additional lands on the north or south sides.  One is a vacant lot between subject lot and the water treatment plant.  Ms. Garnier replied that Bill Benson is the owner of that property and she doesn’t know if the owners ever approached him about purchasing any more land.  Karl asked that Ms. Garnier bring documentation to the public hearing regarding a request by the owners to purchase this property and Mr. Benson’s reply to their request. 


Joe stated that Ms. Garnier is not the owner of the property, she is representing them.  He asked if the board had a letter allowing this.  This letter is part of the application.

He noted that the revised referral form from the Building Inspector asked for depth and setback variances only.   Joe asked if there was enough area.  Secretary replied that there is an exception to the area requirement if the structure has been a residence for three years prior to the conversion. 


Karl stated that, even with the exception, one acre would be needed and an area variance would also be required.  Secretary read 123 K (1):   . . . “except that residences which have been occupied as residences only for at least three years prior to becoming tourist homes may be converted to such use without lot size restrictions.”


Karl asked Ms. Garnier if she had proof that this has been a residence for the last three years.  Ms. Garnier asked what would be proof and Karl replied, “tax bills.”  Ms. Garnier stated that Mr. Wapner could supply that.  Ms. Garnier asked, “a residence vs. what?”  Karl replied, “commercial, industrial, vacant land.”


Joe added that electrical bills in the owners’ names would show that they are using the residence.  He stated that he has an issue with the building being owner-occupied and the owners living in Manhattan.  Ms. Garnier replied that they live in both places. 


Karl asked what the owners used as their primary residence for income tax purposes.  Ms. Garnier replied, “River Road.”  Joe noted that a copy of their income tax statements would answer that question.  Karl stated that the income sections should be redacted.


Karl repeated that he would also like to see documentation that owners approached neighboring

property owners with a request to purchase their properties.  He stated that they would probably say no, but it would help the applicants’ cause.  If they tried but could not get more land, the side setbacks could not be met.


Ms. Garnier asked if the board wanted to see a copy of a letter sent to each neighbor and their replies.  Karl answered that he would love to see their reply and if they choose not to reply, it is not applicants’ fault.  He said the letters should be sent with proof of delivery.  Karl added that if the neighbors come to the public hearing, the board would ask them (if they are interested in selling their land).


Kathy stated that she has a question about the change in the setbacks (on the referral form).   In the code it says 50 feet on all sides on a residential property, but the Planning Board’s comments say that both (adjoining) parcels are vacant so the larger setback would not apply.  Discussion followed concerning that issue and consensus was that the setbacks for this application are those of the R40 zoning district:  40/20/35.


Karl asked Ms. Garnier if she was planning to offer meals.  She replied, “Breakfast in the mornings.”  Discussion followed regarding Planning Board notes stating, “The definition of a ‘tourist home’ in 123-61 broadly encompasses both ‘bed and breakfast inns’ and other similar transient accommodations that do not offer meals.”   The Board agrees that it would be silly for a B&B not to serve breakfast.


Karl stated that the map provided shows the dock and the dock house extending past the high tide mark.  He asked Ms. Garnier to check the deed to see if the owners have riparian rights, i.e. underwater rights.   He said that would alleviate any concerns on the river side as far as the dock house being over the property line.  Ms. Garnier provided the deed the Karl reviewed it.  He noted that there were no underwater rights.  Karl said the deed contains language stating that there is an awareness that the garage and a walkway go over the property line and if there is ever  a case for adverse possession, owner will retain those rights; but it doesn’t say if this issue ever came to court.   He suggested that Ms. Garnier look for a title search and an adverse possession proceeding on the property.


Ms. Garnier asked, “What if there is not a title search?”  Karl stated that if there ever was a mortgage, there should have been a title search and any buyer with a clue, would have ordered a search even without a mortgage.   Ms. Garnier stated that she thought the owners bought the property in 1993. 


Ms. Garnier showed the board Kosco and Central Hudson bills in the owners’ names with the mailing address as their Manhattan address.  Karl stated that these prove ownership but not residence.


Chairman Cole told Ms.Garnier to return on December 20th for the public hearing.  Joe explained that the meeting will be posted in the paper.  Neighbors will be notified and, if they have any objections, they will be allowed to speak at the meeting.


Ms. Garnier asked if the board wanted the requested documents prior to the meeting and Chairman Cole replied that she could bring them to the meeting.  Ms. Garnier left the meeting.



Chairman Cole stated that Rob will be leaving the board at the end of this year and a replacement needs to be found.



Kathy asked, “How far can we stretch ‘owner-occupied’?  Karl stated that if he sees proof that they live here more than 183 days a year that is owner-occupied, but he needs substantial proof that they actually live here. 


Chairman Cole asked where that was in the law.  Kathy stated the law is “owner-occupied”. 

Karl, Joe and Rob agreed that Town Code is clear on this.  Chairman Cole stated that the owners of the property are entitled to have managing people (on the property).  Joe said, “They might just as well open up a rental place.”  Chairman Cole wondered if they should get a legal opinion on this.  Kathy noted that the issue of owner occupation is mentioned twice in the Planning Board notes.  Karl stated that he got the impression that the Planning Board does not think it is owner-occupied and Kathy agreed.  She said they call in a “major issue.”


Rob said that it would have been smarter for the owners to show up here, let the variances go through and then hire somebody to run it.  The board agreed.


Chairman Cole said that he would run it by Tim and see how he thinks we should approach this issue.  Karl asked if board should contact the Town attorney.  Chairman Cole said maybe a loophole could be found for applicants to use.   Joe stated that if it comes down to an interpretation, this board would be asked to interpret what is owner-occupied.  Karl noted that maybe the Association of Towns would be a better choice to contact. 


Vic said the utility bills are being sent to Manhattan.  Chairman Cole said, “But its on the property which shows that they own it.”   Consensus was that the board knows that they own it, the question is where do they live.  Chairman Cole said the only other way to change it is to have the Town Board change the zoning.  Kathy noted that this could not happen by next month.  Chairman Cole agreed but said the (variance process) could be delayed. 


Rob stated, “We’re setting up a situation where, if it’s not owner-occupied, it essentially becomes an apartment building.  That is the question-do we want an apartment building here?

It seems that we probably don’t.  However, a bed & breakfast that is owner-occupied and well run is a different issue.


Chairman Cole said that the board doesn’t know the connection between these two people and this woman, so the board can’t make a decision on that.  Kathy stated that the notes say that Ms. Garnier is the tenant.


Joe noted the history is that at first B&B’s were not allowed in R40 zones, but then they were with the owner-occupation stipulation.  If not, they are apartment buildings and apartment buildings are not allowed in R40.  He added, for a B&B owner occupation is key and how can the owner not be there and serve breakfast.


Chairman Cole said the board would have to run it by the “powers that be” so that the board doesn’t make a mistake.  Kathy said, “We are the powers that be.”


Vic made a motion to close the meeting.  Seconded by Karl.  All in favor.


Meeting adjourned at 7:52 pm.



Respectfully submitted,



Joan Boris, Secretary

Zoning Board of Appeals