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2006-07-26 (Queensbury ZBA Meeting 07/26/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JULY 26, 2006 INDEX Area Variance No. 38-2006 Adam & Katie Torchetti 1. Tax Map No. 301.14-1-38 Area Variance No. 41-2006 Robert W. Rohne 9. Tax Map No.296.9-1-60 Area Variance No. 43-2006 Jeffery Greene 13. Tax Map No. 297.9-1-3 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 07/26/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING JULY 26, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ALLAN BRYANT JOYCE HUNT CHARLES MC NULTY RICHARD GARRAND LAND USE PLANNER-SUSAN BARDEN TOWN ATTORNEY-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY NEW BUSINESS: AREA VARIANCE NO. 38-2006 SEQRA TYPE: II ADAM & KATIE TORCHETTI AGENT(S): GEORGE W. VIRGIL OWNER(S): ADAM & KATIE TORCHETTI ZONING: SR-1A LOCATION: 41 PEGGY ANN ROAD APPLICANT PROPOSES CONSTRUCTION OF A 576 SQ. FT. ATTACHED GARAGE. RELIEF REQUESTED FROM FRONT YARD SETBACK REQUIREMENTS OF THE SR ZONE. ADDITIONALLY, THE APPELLANT SEEKS RELIEF TO MAINTAIN A NONCONFORMING FENCE ON THE PROPERTY. WARREN COUNTY PLANNING: N/A LOT SIZE: 0.40 ACRES TAX MAP NO. 301.14-1-38 SECTION: 179-4-030; 179- 5-060 ADAM & KATIE TORCHETTI, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 38-2006, Adam & Katie Torchetti, Meeting Date: July 26, 2006 “Project Location: 41 Peggy Ann Road Description of Proposed Project: The applicant proposes a 576 sq. ft. attached garage and maintenance of an existing nonconforming stockade fence. Relief Required: The applicant requests 20-feet of front setback relief (McEchron Road), where 30-feet is the required minimum, per §179-4-030, for the SR-1A zone. Additional relief is requested to allow a stockade-type fence in the front yard, per §179-5- 060, fences in residential zones. Parcel History (construction/site plan/variance, etc.): BP 2003-258: Issued 5/13/03, septic alteration. Staff comments: The relief required for the proposed garage is due to the property having two front yards (corner lot), the architectural front is off of Peggy Ann Road and the “other” front is from McEchron Road. The relief requested is from the minimum required front setback from McEchron to the proposed garage. The relief requested amounts to 67%, which could be considered substantial. However, feasible alternatives to the proposed siting appear to be limited. The existing septic system is located in the rear (southwest) of the property as the submitted drawings indicate. The Board could inquire as to the possibility of locating the garage on the other side of the house (eastside). Additional relief for the existing nonconforming fence is required. This request could be considered substantial due to that stockade-type fences are not allowed in any front 1 (Queensbury ZBA Meeting 07/26/06) yard. However, this fence has purportedly been there since the beginning of the housing development with no neighborhood objections.” MR. ABBATE-Would the petitioners please be kind enough to come to the table, speak into the microphone and tell us your name and where you reside, please. MRS. TORCHETTI-I’m Katie Torchetti. MR. TORCHETTI-I’m Adam Torchetti. MR. ABBATE-Good evening. MRS. TORCHETTI-And we live at 41 Peggy Ann Road in Queensbury. MR. ABBATE-And here’s what we’d like you to do. You’re not represented by counsel. So I’ll explain to you what we do. We’re going through a procedure here, and the first thing you do is explain to us why you feel that your request for a variance should be approved, and then any time during the proceedings that we have here if there’s anything you don’t understand, stop us, raise your hand and ask us and we’ll be more than happy to explain it to you, and during the proceedings if there’s anything you feel that you may have forgotten to tell us that would support your case, stop us again and tell us. Fair enough? MRS. TORCHETTI-Okay. MR. ABBATE-Okay. So what I’d like you to do, folks, is explain to us in your own words why you feel we should approve this, please. MRS. TORCHETTI-Okay. The first thing is our home is on a corner lot. There’s a very large housing development behind us, beautiful landscaping, large homes, two and three car garages, and our little house that we bought, this is our first home we bought, and we bought it about a year ago. It just doesn’t quite fit in with the neighborhood. What we would like to do is, first of all, try to make our home kind of fit in with the neighborhood. We would like to re-side the whole thing, if we can get the garage put up as well. So that’s one thing, making our house fit in with the neighborhood. The second is just the benefits of having a garage. There is no structure to keep the snow off the cars or anything. We recently had a baby. Our daughter is about three months old. So in the wintertime, you know, taking the baby in and out in the winter is much easier with a garage, and just to help keep the maintenance of the cars, just much easier to have a garage, and that’s basically our two main benefits, for convenience and to make our home look like the rest of the community. MR. TORCHETTI-We’re going to also work on the actual landscaping of the back yard, the front yard, which was kind of not really taken care of for a while. MRS. TORCHETTI-Right. So we’d like to get the garage put up, so then we can start the landscaping once our building project is complete. MR. ABBATE-Okay. Is that is so far? Okay. Great. Do any members of the Board have any questions for the appellants, please? Okay. I don’t see any questions. You really require two types of relief. One is the 24 foot front setback, and also you need relief because you have what they call a nonconforming fence. So I suspect it’s probably grandfathered in there, just for the record type of thing. All right. Since we have no questions, let me open up the public hearing for Area Variance No. 38-2006, and do we have any folks in the audience who would like to comment on this particular variance? If so, would you be kind enough to raise your hand, please? PUBLIC HEARING OPENED MR. BRYANT-Mr. Chairman, I just want to question something you just said. Are you saying that the fence is not an issue? MR. ABBATE-No. I think it is an issue. I think what we have to do, we have to, for the record, we’re addressing here additional relief for the existing nonconforming fence. That’s also required. So in effect we have two. I’m not suggesting that it’s an enormous problem that we can’t resolve. I just want to make it for the record that we have two areas that we have to take a look at. Okay. MRS. TORCHETTI-Okay. 2 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-I don’t see any hands. Yes, sir, would you come forward, please, sir. RANDY CLARK MR. CLARK-My name is Randy Clark. I live on McEchron, on the other corner. So it really doesn’t impact me, but I sometimes come in that driveway. One thing, looking there, and I’ve walked around there for the last two years, what are they going to do with that fence, the green stockade fence, existing, or just remove enough for the garage, and second of all I think my other question’s probably been answered. The gentleman said that he’s going to start to initiate some landscaping, front and side, and the lady said that they’re going to try to be more in conformity with the neighborhood. I guess, what are we going to do with that fence, and another question is, but I don’t know if it’s their fence, there’s a little white picket fence that says The Grove, which is really not attractive, and that’s supposed to represent our neighborhood. Will that be taken down? Because it would probably be even more attractive if it wasn’t there, and it would open up the corner to their house and make it more attractive, unless they were going to maintain, you know, like on different neighborhoods I’ve watched, they have a nice entrance landscaping type thing, and ours is like embarrassing. Those are just a couple of questions. It’s not alarm, but I’m just curious. Thank you. MR. ABBATE-We’ll address it. Thank you very much, sir. Do we have any other folks in the audience? Mr. and Mrs. Torchetti, would you be kind enough to come back to the table, please, and would you do me a favor. Would you address some of those concerns from your neighbor please? MRS. TORCHETTI-Yes. The first thing, the fence was there when we purchased the home. MR. ABBATE-Now which fence are we talking about? MRS. TORCHETTI-We’re talking about the stockade fence, the full stockade fence. MR. ABBATE-Okay. MRS. TORCHETTI-And on the corner where he said there’s the sign for The Grove, that was also existing when we bought the home. So we didn’t realize that it was an illegal fence until we kind of got into all this proceeding. We weren’t even sure who was to maintain the fence, especially where that sign is. Because we agree it’s very unsightly, and the landscaping, but this kind of process is starting what do about the corner of this sign. If we have to maintain it, then we don’t want that fence or that sign there, especially in the corner. I mean, that’s in the corner of our property. We’d like to do our own thing with it, and especially with the fence on the side, whether we want to know, can we take it down if we want? Can we leave it up if we want? If we leave it up, can we maintain it, make it look a little bit nicer? The landscaping on the other side of the fence. So that is, we agree with this gentlemen. We want to figure how to maintain that. MR. ABBATE-Okay. Maybe I can help you out. You obviously were downstairs at Town Hall. You spoke to one of the planners downstairs. You did? MRS. TORCHETTI-Yes. MR. ABBATE-Okay. What you want to do is, to answer some of your questions, explain to them what you think you’d like to do and are you permitted to do it, and I’m sure they’ll answer your questions. So I would, for the record, you’re willing to go down and check that all out and whatever’s required you’ll take care of that? MR. TORCHETTI-Yes. MRS. TORCHETTI-Okay. MR. ABBATE-Then what you’re saying is one of your neighbors has expressed some concerns and you’re stating for the record that you certainly intend to address those issues? MRS. TORCHETTI-We’d like to address those issues. MR. ABBATE-Okay. That’s fine. Any other questions? 3 (Queensbury ZBA Meeting 07/26/06) MR. BRYANT-I have a question. As far as the stockade fence is concerned, would you be willing to take it down and put up a compliant fence? MRS. TORCHETTI-We would like to have some sort of fence there, whether, if it has to be a different fence besides the stockade fence, eventually that is a project that we would like to do. We have a couple of things that we need to kind of get taken care of before we would like to put money into re-doing the fence, but that is something that is possible. MR. ABBATE-Okay. All right. Any other questions? MRS. TORCHETTI-We are willing to take it down, though, too, if that is an issue. We are willing to take down the fence. MR. ABBATE-All right. That’s fine. MR. BRYANT-You’re entitled to have a fence, but it has to be a compliant fence. MRS. TORCHETTI-Correct. MR. BRYANT-Even though it’s unfair because you have two front yards, because you’re on the corner, that’s considered a front. You can’t have a stockade fence. MRS. TORCHETTI-Okay. MR. BRYANT-And my only concern is, as you go down Peggy Ann or Potter Road, all those roads are dotted with these stockade fences now all of a sudden. Now, this is an older one, but the popular ones were all plastic and white and they stick out like a sore thumb, and they’re totally illegal, and I think what I’d like to see is some of those fences start to disappear. MR. UNDERWOOD-I think part of that stems from the fact that Vasiliou’s development there came in after the fence was put up. That used to be a side yard there, prior to that road being put in. So that’s where it came from. MR. ABBATE-Okay. GEORGE VIRGIL MR. VIRGIL-Yes. The fence is actually on an easement. The builder has a 10 foot easement on their property, and he put the fence up, and I assume to hide the house from his development. MR. ABBATE-All right. MR. GARRAND-I just have one question. Is the back part of this fence over the property line? MR. VIRGIL-No, it’s on their side of the property line. MR. GARRAND-Okay. So it’s basically their fence, it says Lands of Vasiliou, Inc. MR. VIRGIL-Well, that’s his 10 foot easement, I guess. MR. GARRAND-Okay, on the back portion of the lot? MR. VIRGIL-Yes. He has a 10. MR. GARRAND-I know on the side it says there’s a 10 foot easement between McEchron Road. MRS. TORCHETTI-But on this back part here, that’s what he’s talking about. I’m not sure. MR. VIRGIL-Looking at the pins, if you go over and look at the pins, it looks like the fence is on their side of the lot, if the survey pins were right, I mean, they just had a new survey done, and it shows that it’s on the other side, which is fine with us. 4 (Queensbury ZBA Meeting 07/26/06) MRS. TORCHETTI-So it would be, right. The back portion of the fence is on the builder’s property. MR. GARRAND-Okay. There’s a new house going in there now. Is that property going to belong to these people building this new house? MRS. TORCHETTI-I don’t know. MR. UNDERWOOD-It’s Vasiliou’s subdivision. MR. TORCHETTI-We don’t know if they’re taking the trees out either behind us. It looked like they’ve been getting closer and closer. MRS. TORCHETTI-Yes. So we’re not quite sure what the plans are for that. MR. GARRAND-Okay. Thank you. MR. BRYANT-Just one more question. I know this is stamped survey. Basically that corner of that garage is going to go right up to the easement line, and we’re going to make sure that we’re not going to have conflicts, are we? You’re the builder. MR. VIRGIL-Conflicts how? MR. BRYANT-Well, we don’t want to go over the easement. If we give you 20 feet of relief, we don’t want to come back later on and find out it’s 20 foot 6. MR. VIRGIL-The size of it, no. Whatever the permit states, which is 24 by 24, is what we built. We’re not going to build it six inches bigger than the permit. MR. BRYANT-Are you a licensed general contractor? MR. VIRGIL-Well, in Indian Lake you don’t need licenses. I was a general contractor for 35 years in Indian Lake. MR. BRYANT-Okay. MR. VIRGIL-And I’ve dealt with the APA, and this is easy. MR. ABBATE-Okay. Any other questions? Okay. If not, I’m going to continue on, and I’m going to ask Board members to offer their comments. I’d like to inform the public that the comments that are going to be offered by members of this Board are directed to the Chairman, and comments expressed by Board members to the Chairman will not be open to debate. I’m going to ask, now, members if they would offer their comments on Area Variance No. 38-2006, Mr. and Mrs. Torchetti. MR. GARRAND-Basically it does seem like you’re asking for a lot of leeway on this. Although the neighbors haven’t really come forward to object to this. I think everybody, the place would look better vinyl sided with a garage. I don’t think it’s unreasonable for you to have a garage on this piece of property. I don’t think it’s an unreasonable request at all. I also think it would add to the safety of you all. Backing out on Peggy Ann Road can be quite hazardous, and there is little or no room there for you guys to turn around without doing that, and I think, you know, having that turn around there would definitely help you safety wise. I would like to see, you know, part of that fence moved at least back to the corner of the garage. I think it would add to the appearance and basically I’d be in support of this. MR. ABBATE-Okay. Good. Mr. McNulty, please. MR. MC NULTY-I can basically agree with what Mr. Garrand said. I think this is a good instance of why there is a variance process. I’ll agree with the applicant that there doesn’t seem to be another reasonable location for a garage on this property. I, too, am a little bothered with the fence. I’d like to see it at least fixed up, if not removed. I’m trying to figure out in my mind how we deal with that, because if it is on the easement, then it may be that the applicants aren’t going to have control over that fence. So, I don’t know whether we give them permission to keep it there, or whether we ignore it or just what we do to do it. I don’t want to put them in a bind, having them agree to remove it and then find they legally cannot because it’s on the easement. 5 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-Yes, you’re right, Chuck. We don’t want it as a condition, because then it complicates things. MR. MC NULTY-But, given that we can figure out how to solve that, I’d be in favor of granting the variance. MR. ABBATE-Okay. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. First of all, as far as the fence goes, I think it’s pretty clear that it’s on the applicant’s property. You can see the marks on the, and even though it’s on the easement, it’s still their property, okay. It just basically means, if they’ve given them an easement, they can’t build on it, but that’s their fence. So I disagree and I think it’s very easy to just say that fence has got to go, and if they want a compliant fence, that’s fine, but as far as the garage goes, I think I said it earlier. It’s unfortunate you have two front yards, and I think the builder who built your house in 1973 built my house, because it looks identical. It was built in 1973 also. So I have no rd problems, even though the relief that you’re requesting is substantial, 2/3’s is pretty substantial on the relief, but I think because your main entrance is on Peggy Ann that it alleviates that somewhat, but again, I want to reiterate that, in my view, part of the motion that’s made should include some removal of that fence. MR. ABBATE-Okay. Mrs. Hunt, please. MRS. HUNT-Thank you. I want to commend you for what you’re trying to do. I think that it’s wonderful, and as far as putting the garage on the east side, then you’d be backing into Peggy Ann Road, which would not be safe. So basically I’m in favor of it. MR. ABBATE-Okay. MRS. HUNT-With the fence, I think the fence issue, at least part of it. Okay. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-Yes. Even though this seems a substantial request here, I think it’s reflective of the fact that that road’s been put in since the building of the house. Had that road not been there, you would be getting your garage. You wouldn’t even have to be in before us. As far as the fence goes, it sounds like that’s something that can be resolved. I would get together with Mike Vasiliou and talk to him and see, you know, I don’t know what the reason for having the fence at this point would be anyway, but I would have to echo everybody else’s sentiments that it probably doesn’t belong in the front yard. Since it’s now, you know, blocking your vision of traffic when you’re coming out of McEchron anyway, too, but as far as the garage goes, it’s a logical place for the garage, and although it’s going to be almost a zero setback from the property line, it’s not any big deal, and it’s much safer for you guys, getting out of your property. So I’d be all for it. MR. ABBATE-Great. Thank you, and I also would support the application. I think you folks, this your first home, and I think you’re doing everything you possibly can, within budget limitations, to do what you possibly can at this particular time. I have no problems with the garage at all. The fence I would suggest, it may not be a bad idea, some of the Board members mentioned it, that you touch base with the folks downstairs in Town Hall, Staff, and see what you can possibly do with that fence, and work out some sort of reasonable solution, if you will, a viable alternative, if you will. Having said that, I’m going to close the public hearing on Area Variance No. 38-2006. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant a variance, and when you introduce the motion, please it with clarity. In the event a member does not understand the motion as stated, please advise me and we’ll go over it again. Those individuals who mentioned the fact that they’d like to see something done with the fence, I would respectfully request that you mention that in the motion to whatever you’re going to do, approve, disapprove, whatever the case may be. Based upon the straw pole that I’ve taken, it appears that your application is going to be approved. So I think I’m safe by saying in your approval motion, please mention something with the fence. 6 (Queensbury ZBA Meeting 07/26/06) MR. MC NULTY-Mr. Chairman, one suggestion we could do is just totally ignore the fence. MR. ABBATE-Not a bad idea. MR. MC NULTY-If we just grant the variance for the garage, that leaves the fence basically for Staff to enforce if they want to see it removed. MR. ABBATE-Okay. MR. MC NULTY-As long as the applicants have indicated they’re willing to remove it. MR. ABBATE-Okay. Then I’m going to say, before I ask for the motion, I’m going to ask for Staff’s attention, Planning Staff, and request that you bring this to the attention of the Planning Staff tomorrow and I’ll be there at ten o’clock. MR. UNDERWOOD-Chuck, I don’t think that we can imply that the fence has to be removed. I mean, it can be removed at some future date. It’s your decision to remove it. MR. ABBATE-I agree. MR. UNDERWOOD-It’s nothing enforceable because it’s grandfathered in, at this point. MR. ABBATE-I agree. MRS. TORCHETTI-Can I speak, or am I out of order to speak? I didn’t know the rules. MR. ABBATE-Sure, by all means. MRS. TORCHETTI-That was my only question. So exactly what are you saying about the fence? MR. UNDERWOOD-I’m just saying it will be up to you what to do with the fence. MRS. TORCHETTI-Okay. MR. UNDERWOOD-It’s on your property, it’s pre-existing, but it sounds to me like you intend to do something about it at some point, but there’s no statute of limitations. We’re not going to set a date or anything like that. MR. MC NULTY-I’m not sure we can totally say that, though, because Staff indicated that they felt that, for the fence to stay, a variance was required. MR. VIRGIL-When Craig Brown, we were going through this process, and we looked up the septic system permit and all of that, and he said, you know, I just found out, he said, that fence never had a permit, and he said it is nonconforming, and I said that doesn’t surprise me, and the way I feel, and the way I feel doesn’t matter a lot of times in a legal fight, but if the man put the fence up illegally, yes, he has a 10 foot easement, but it was illegally put there. They pretty much can do what they want with the fence, which their desire is to make it look nicer because it’s ugly. MR. ABBATE-And I would have a very difficult time arguing against that position, quite frankly. MR. BRYANT-I have a question for Staff. MR. ABBATE-Go ahead. MR. BRYANT-Because of the way this is worded, okay, the fact that they’re seeking relief to build the garage, and then it says additional relief is requested. If we don’t act on the fence, that does not negate the fact that it’s an illegal fence, does it, or does it? MR. UNDERWOOD-But we don’t know who built the fence or when it was put up. MR. BRYANT-That’s immaterial. The fact is they’re coming now for a variance, and now they look at the entire property, it would be the same thing if you came for a variance for an accessory building and you already had accessory buildings, you know, and maybe three, and you’re only allowed one. They would address the other two in the, you know what I mean? 7 (Queensbury ZBA Meeting 07/26/06) MR. UNDERWOOD-I would think Staff could resolve it by looking at the subdivision plan for what was done there because it would appear to me that the fence wasn’t put up by the previous owners of your house. It was put up by the builders. MRS. TORCHETTI-I don’t believe so. I believe it was put up by the builders. MR. UNDERWOOD-So if it was put up by the builder, that may be an illegal fence, as far as that goes, but then it goes away because the builder has to take it down tomorrow. MRS. BARDEN-It’ll remain nonconforming until you grant a variance. MR. UNDERWOOD-Sure. MR. BRYANT-So if we don’t act on that aspect, even though the way it’s worded it’s saying additional relief, you know, it’s part of the package. If we don’t act on it, we’re not negating the fact that it is nonconforming. MRS. BARDEN-That’s right. MR. ABBATE-These are only comments from Staff. We’re not obligated to follow these. MR. UNDERWOOD-I think the applicant could ask the Town to figure out who put the fence up when, and whether it’s illegal, and then it would be up to you, if it’s illegal and you wanted the fence taken down, say next week or next year, then you could ask for that to happen, and then it would become an enforcement action. MR. BRYANT-But we’re not obligated to act on the Staff comments. MR. ABBATE-No, we’re not. We have absolutely no obligation. MR. BRYANT-However, in the text of the relief required, okay, this is the published text of the relief required, it says additional relief is requested as part of the initial relief. Okay. I don’t want us to do something here where then Staff is then impotent to act on nonconforming. MR. ABBATE-Did you folks actually request relief for the stockade fence or was that just a conversation between you and Craig? MR. VIRGIL-It was a conversation between Craig and I when we were getting the whole package together. He said, you know, it’s a nonconforming fence and it was put there illegally because there are no permits on file, and he said you better ask if you can, since it’s going to be so close to the garage, you better ask if you can keep it, and I said, well, I have no idea what we’re going to do with it. We’re going to do something with it because it needs, if nothing else, a coat of paint, but we’d like to get rid of the stuff on the corner, as this gentleman said, so he said, you better put in to do. So I didn’t know. MR. ABBATE-Here’s what I would suggest to the Board, and certainly I yield to the majority, that we ignore that and just stay with the garage, and if there’s a problem, it’s Staff’s problem and your problem to resolve, and not this Board’s problem. So I’m going to ask, then, if there’s a motion for Area Variance No. 38-2006 for the garage. Is there a motion? MR. BRYANT-Just one more thing. As I saw, there is a memo in our package concerning the stockade fence, and I guess you must have wrote this. Is that correct, this memo, where it says we would like to stain the fence and level it, but are waiting to see if the fence can stay. Okay. So, it’s giving me the impression, based on the documentation, that they want the fence to stay ultimately anyway. MR. ABBATE-Well, let’s clear it up right now. Let me ask you this question. Do you wish that fence to stay up ultimately? MRS. TORCHETTI-Not necessarily. Right now, it’s kind of a thing of, we have so many projects to do, I would rather not have to deal with that fence, just for financial reasons, at this point in time. I would like to get the garage up, get the house re-sided, you know, start some landscaping things and then decide on, okay, now let’s get some nicer fence, get rid of the stockade fence. I’m talking about this is all going to take place within the next year, year and a half, not forever. 8 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-That’s my point. My point is that, that’s absolutely right, and that’s why I go back to what I said initially. I think we should stay with the garage because it seems to me that it’s an enforcement problem, rather than one of the Zoning Board of Appeals, quite frankly. That’s my opinion. So I’m going to continue on and ask for a motion. Is there a motion for Area Variance No. 38-2006? , MOTION TO APPROVE AREA VARIANCE NO. 38-2006 ADAM & KATIE TORCHETTI Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 41 Peggy Ann Road. They’re proposing a 576 square foot attached garage, and currently to maintain a fence and probably to modify that fence at some point during the next year. The applicants are requesting 20 feet of front setback relief from McEchron Road where 30 feet is required. Staff notes specifically identified the fact that they’re on a corner lot and that new road, McEchron Road, was created after the building of this house. This seems to be the logical solution to putting up a garage and putting it on the other side of the house as a feasible alternative does not seem to be palatable to any of the Board members either because of Peggy Ann Road’s busy nature. The relief required is substantial, but it’s understandable why they would want a garage and most people in this climate do prefer one in the wintertime. As far as effect on the neighborhood, it would tend to enhance the neighborhood, as has been suggested. They’re also planning on re-siding the house to better match and do some modifications to the current lack of vegetation on site. It would also be a recommendation, as far as the fence goes, that probably some vegetative plantings in front of it if it’s going to remain for a while might not hurt, some flowers or things like that, but we’ll leave it up to them to deal with the fence. Not knowing who really has ownership of the fence, it’s not our domain to tell them where and when to take it down. Other than that, I guess I would move to approve. To a degree I guess it would be self-created, but it’s a logical solution here. I don’t think that anybody would be against this project. There was no neighborhood opposition to it. Duly adopted this 26 day of July, 2006, by the following vote: th AYES: Mr. McNulty, Mr. Garrand, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 38-2006 is five yes, one no. Area Variance No. 38-2006 is approved. Thank you, ladies and gentlemen. MRS. TORCHETTI-Thank you. AREA VARIANCE NO. 41-2006 SEQRA TYPE: II ROBERT W. ROHNE OWNER(S): ROBERT W. & DANA L. ROHNE ZONING: SFR-1A LOCATION: 8 CEDARWOOD DRIVE APPLICANT PROPOSES A 266 SQ. FT. COLD STORAGE AREA AND A 350 SQ. FT. BAY ADDITION TO AN EXISTING ATTACHED GARAGE. RELIEF REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS. WARREN COUNTY PLANNING: N/A LOT SIZE: 0.38 ACRES TAX MAP NO. 296.9-1-10 SECTION: 179- 4-030 ROBERT ROHNE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 41-2006, Robert W. Rohne, Meeting Date: July 26, 2006 “Project Location: 8 Cedarwood Drive Description of Proposed Project: The applicant proposes a 616 sq. ft. garage addition, consisting of a 350 sq. ft. garage bay and a 266 sq. ft. cold storage area. Relief Required: The applicant requests 3.78-feet of side setback relief, where 20-feet is the minimum, per § 179-4-030, for the SFR-1A zone. 9 (Queensbury ZBA Meeting 07/26/06) Parcel History (construction/site plan/variance, etc.): None Staff comments: The proposed addition will be located at the rear of the existing 550 sq. ft. 2-car attached garage on the property. The setback to the existing garage will be maintained. The total size of the garage will be 900 sq. ft. and 266 sq. ft. of cold storage, therefore the garage will not exceed the maximum allowable size of a garage (per §179-5-020). The request is for 19% of relief, which may be deemed moderate. The existing and proposed side setback is the same. Feasible alternatives appear to be limited for alternate siting of the proposed.” MR. ABBATE-Okay. Thank you. Would the petitioner of Area Variance No. 41-2006 please come to the table, speak into the microphone, and identify yourself, please. MR. MC NULTY-Mr. Chairman, I’m going to recuse myself. MR. ABBATE-Yes, by all means, Mr. McNulty. MR. ABBATE-Proceed, sir. MR. ROHNE-My name is Robert Rohne. I own the house at 8 Cedarwood Drive. MR. ABBATE-Okay. Again, you’re not represented by counsel. MR. ROHNE-No, I’m not. MR. ABBATE-So you heard what I said to the folks before you. MR. ROHNE-Yes. MR. ABBATE-So the same thing applies to you. So would you be kind enough to explain to us why you feel we should approve your request for a variance. MR. ROHNE-Well, I want an extra bay to be able to conform to the three car garage in Queensbury. I’ve got a collectible car that I want to kind of entomb in some little spot, and to do that, the only really feasible option was to go behind and to square up the building to look properly, I added the cold storage which would take care of the rakes, the shovels and stuff so I could drive through there to get it into the back garage because it would be one car in front of the other. I don’t believe that the three feet, three and a half feet is really substantial because the house was there originally. It’s following the same footprint. Whether there was a Code or the Code was 15 feet, nobody can really tell me that. So I just wanted to fit into the property properly. So that’s basically the project in hand. MR. ABBATE-Okay, and again, as I said to the folks before you, if, during the course of this hearing, there’s anything else you think you would like to present to us, please feel free to do it. All right. Now do any of the members of the Board have any questions for Mr. Rohne for Area Variance No. 41-2006? MR. BRYANT-Mr. Chairman, could you tell me when this survey was done? MR. ROHNE-Last Fall. MR. BRYANT-Because there’s no stamp. MR. ROHNE-I gave, you guys should have a copy of the stamped survey. I brought one with me. MR. BRYANT-I have a copy of the stamped survey. There’s no date on it. MR. UNDERWOOD-It says August 22, 2005. MR. BRYANT-Where do you see that? MR. UNDERWOOD-Right here. 10 (Queensbury ZBA Meeting 07/26/06) MR. ROHNE-I have an original, if you’d like. MR. BRYANT-Yes, but that’s not the survey. MR. UNDERWOOD-It says licensed land surveyor, Broadway, Whitehall, New York. MR. ABBATE-Right. Everybody should have received a copy of this, right, Susan? MRS. BARDEN-You have a smaller version. MR. BRYANT-I don’t have the date on it. There is no date. MR. UNDERWOOD-It’s on the big one right here. MR. ABBATE-It’s on the big one right here. We have it. Everybody has it. MR. UNDERWOOD-It is. MR. BRYANT-I did not get that. MR. ABBATE-Well, you’ve got it now. MR. UNDERWOOD-We got shrunk down sizes of the whole thing instead of a full size. MR. ABBATE-In the future, Planning Staff, would you be kind enough to include the key in the corner, please. MRS. BARDEN-I didn’t make these copies. The applicant provided these. MR. ABBATE-The applicant provided them. All right. So do we have a question from Staff, or rather question from the ZBA members? MRS. HUNT-Am I to understand that the exiting from this garage you’re adding will be through the other garages? MR. ROHNE-Yes. It will not be another door. It’ll be behind. So one car behind the other. MRS. HUNT-Okay. MR. ROHNE-That’s why I kind of need the utility room, because you can move all the stuff that’s in front of the garage to be able to go through there. MRS. HUNT-Right. I’ve got it. Thank you. MR. ABBATE-Any other questions from the ZBA members? No other questions? Okay. Then what I’m going to do is open up the public hearing for Area Variance No. 41-2006, and if any members of the public would like to comment on this, would they be kind enough to raise their hand so I can recognize them? Yes, sir. Would you come to the table. Sir, would you recuse yourself? And speak into the microphone and tell us who you are and where you reside, please. PUBLIC HEARING OPENED JAMES FARLEY MR. FARLEY-My name is James Farley. I reside at 10 Cedarwood Drive. It’s the property that abuts Mr. Rohne’s property on the side. I just want to go on record that I have no objections to the request for the variance. He’s a good neighbor. He maintains his property well, and so I have no problem with it whatsoever. MR. ABBATE-Thank you, sir. Do we have anyone else in the audience who would like to address Area Variance No. 41-2006? I see no other hands, so we’re going to proceed from there. Again, before I ask members to offer their comments, I’d like to inform the public that the comments offered by members of this Board are directed to the Chairman, and the comments expressed by Board members to the Chairman are not open to debate. Now, I’m going to respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our 11 (Queensbury ZBA Meeting 07/26/06) conclusions. And the evidence relied upon should be specifically stated. This is necessary for an intelligent Judicial review. Additionally, any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project, and due process guarantees that government ensure a fair and open process, and Board members make decisions on reliable evidence contained in the record of the Board deliberations. Now, do we have a volunteer to address Area Variance No. 41-2006? Mr. Bryant, thank you very much. MR. BRYANT-Thank you, Mr. Chairman. I think this is a reasonable application. The relief that’s being requested is minimal, and actually it’ll probably be beneficial to the neighborhood, the new structure, the added structure. So I’d be in favor of it. It’s a good application. MR. ABBATE-Thank you very much. It’s a good application. MR. BRYANT-But I do have a question about the survey which will be answered tonight at the workshop. MR. ABBATE-Yes, that’ll be fine. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree with Mr. Bryant. I think it’s a modest request, and I do think it will improve the neighborhood, make your house look better. Thank you. MR. ABBATE-Okay. Mr. Garrand, would you be kind enough to comment next, please. MR. GARRAND-Certainly. I also agree with Mr. Bryant. I don’t think, we’re not granting anymore relief than is already there, and it’ll definitely be a nice addition. So I’d be in support of this project. MR. ABBATE-Okay, and Mr. Underwood, please. MR. UNDERWOOD-Yes. The Code provides for a much bigger garage than what’s presently there on site, and as long as you’re not going to trigger going into some mega garage or a third bay on there, which would intrude towards the neighbor more, I don’t have a problem with this either. MR. ABBATE-Okay. I, too, agree with my fellow Board members. I think it’s a worthwhile project. I don’t believe you’re asking for an excessive amount of relief required. I think what you’re requesting is reasonable, what an average individual would request, if you will, and I have no problems with it, and as such, I will also support the application. As such, I’m going to close the public hearing for Area Variance No. 41- 2006. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an area variance. Please introduce your motion with clarity. Do we have a motion for Area Variance No. 41-2006? MOTION TO APPROVE AREA VARIANCE NO. 41-2006 ROBERT W. ROHNE, Introduced by Richard Garrand who moved for its adoption, seconded by Allan Bryant: 8 Cedarwood Drive. The applicant proposes a 616 square foot garage addition consisting of a 350 square foot garage bay and a 266 square foot cold storage area. The applicant is requesting 3.78 feet of side setback relief where 20 feet is the minimum per Section 179-4-030. The proposed addition will be located at the rear of the existing 550 square foot two car attached garage on the property. The setback to the existing garage will be maintained. The total garage will be a 900 square foot, and the 266 square foot cold storage area. Therefore the garage will not exceed the maximum allowable size of a garage per Section 179-5-020. I do not believe that the homeowner can achieve benefits by any other means. This seems like the most logical way to increase the size of a garage and the space that is needed. There doesn’t appear to be any undesirable change in the neighborhood or the character of the nearby properties. The request is moderate. Will the request have adverse physical or environmental effects? I believe it will not. The difficulty is not self-created in that the homeowner is requesting more area for storage of his classic car. He’s limited by the fact of just the way the house was built. I do not believe it is self-created. 12 (Queensbury ZBA Meeting 07/26/06) th Duly adopted this 26 day of July, 2006, by the following vote: AYES: Mrs. Hunt, Mr. Underwood, Mr. Garrand, Mr. Bryant, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 41-2006 is six yes, zero no. Area Variance No. 41-2006 is approved. MR. ROHNE-Thank you. AREA VARIANCE NO. 43-2006 SEQRA TYPE: II JEFFERY GREENE AGENT(S): JONATHAN C. LAPPER, ESQ. OWNER(S): JEFFERY GREENE ZONING: SR-1A LOCATION: 270 MEADOWBROOK ROAD APPLICANT HAS CONSTRUCTED A 408 SQ. FT. SHED. RELIEF REQUESTED FROM NUMBER OF ALLOWABLE ACCESSORY STRUCTURES ON THE PROPERTY. THERE IS AN EXISTING BARN ON THE PROPERTY. CROSS REF: BP 2005-95; NOA 2-2006 WARREN COUNTY PLANNING: N/A LOT SIZE: 2 ACRES TAX MAP NO. 297.9-1-3 SECTION: 19-5- 20(d) STEFANIE BITTER, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 43-2006, Jeffery Greene, Meeting Date: July 26, 2006 “Project Location: 270 Meadowbrook Road Description of Proposed Project: The applicant proposes to maintain a 398 sq. ft. storage shed on the property. Relief Required: The applicant requests relief from §179-5-020, which states, “Only one storage shed and one garage is permitted per lot.” Parcel History (construction/site plan/variance, etc.): NOA 2-2006: Denied 4/19/06, ZA determination that only one accessory structure is allowed on the property, whereby the existing barn is considered the accessory structure. BP 2005-951: Pending, proposed 408 sq. ft. storage shed. BP 2003-082: Issued 3/31/03, 900 sq. ft. 3-car detached garage. BP 2003-081: Issued 3/27/03, demolition of garage. Staff comments: As you will recall, on April 19, this Board supported the Zoning Administrator’s determination that an area variance was required to maintain the storage shed (see meeting minutes). The site plan identifies a garage, barn, and three sheds on the property, these are all accessory to the principal structure (house). The request for relief is 100% (a second accessory structure where only one is allowed). The applicant’s agent argues that the request should not be deemed substantial due to the size of the parcel and the fact that he uses the parcel for both a residential and agricultural use.” MR. ABBATE-All right, and I see that we have some folks at the table, and would you be kind enough to provide us with your name and your relationship with the case. Good evening, Counselor. MS. BITTER-Good evening. Stefanie Dilallo Bitter, attorney for the applicant. I’m here this evening with Jeffery Greene, the applicant. MR. ABBATE-Okay. MRS. HUNT-Mr. Chairman, may I make a statement? 13 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-Of course you may. MRS. HUNT-I met with Mr. and Mrs. Greene today, when I was looking at the property, and they showed me around, but I did advise them that I could not discuss the project. MR. ABBATE-Thank you very much. I appreciate that. Before we begin, Staff, I’m assuming Planning Staff, it’s your position that you’ve identified a garage, a barn, and three sheds on this property. Is this correct? MRS. BARDEN-That’s correct. MR. ABBATE-That is correct, and you haven’t wavered from the decision that we made last time, or the decision of the Zoning Administrator? MRS. BARDEN-That was a Zoning Administrator determination. MR. ABBATE-Zoning Administrator. Okay. MRS. BARDEN-Yes. MR. ABBATE-Thank you very much. MR. BRYANT-Before we start, I want to know, on this shed here, okay, I looked at it the other day when I got my package. Why aren’t they considering it a garage, just out of curiosity? MRS. BARDEN-An additional garage? They have a garage. MR. BRYANT-I understand that, but isn’t that a second garage? It’s got the overhead door. You could fit a car in there. Albeit not a Lincoln Continental Town Car, but you could fit a car in there, and we had this discussion in one other place, where it was a normal shed that had an overhead door, and they had to, they asked if they could have, it was a second garage, counting it as a second garage, and what they did was they changed the door so that this way you couldn’t drive a car in there, and therefore it wasn’t a garage but an accessory shed. MR. ABBATE-Yes, unfortunately, Staff wasn’t here at that particular time. Are you satisfied? MR. BRYANT-Well, they didn’t answer. MR. ABBATE-I think she’s the wrong person to ask. I think Mr. Brown should answer that. Counselor, you are represented by counsel, so counsel knows what the routine is. So I don’t have to advise you accordingly. MS. BITTER-That’s correct. MR. ABBATE-Counsel, would you proceed, please. MS. BITTER-Absolutely. As was discussed in the April proceedings, this property maintains both the single family residence as well as the agricultural use. Jeffery Greene can go into more details as to the use that is agricultural on this property, but just to kind of give you an overview, on this parcel he raises pigs, cows and poultry, which his family has utilized this parcel as a farm for many, many years. At this time, or in this particular time of the season, the cows are out grazing. However, when the months get cooler, they’re obviously going to be sheltered in the barn that’s identified in that picture to the left. In addition, the chickens and pigs, which are not presented at the property at this time will return, for lack of a better word, they’ve been processed at this point. In the cooler months, the poultry is going to take shelter in the sheds that are located adjacent to the pond that is on the survey that you have, just so that you understand the uses of all the structures that are located on the map. The proposed shed that is currently, or at least mostly vacant at this time, until the resolution of this matter, Mr. Greene would like to utilize in the winter months for storing his farming equipment, because like I originally mentioned, the cows are going to take shelter in the barn, which now, in the winter months, will not provide the area that it’s providing now for the farming equipment. These two shelters that are located in the back, these poultry areas, are not under 100 square feet in size, and unfortunately under the Code, that makes them structures, which is under your definition in the Town of Queensbury, but in discussing this with Craig Brown and in reviewing the minutes from the last meeting, these are deemed 14 (Queensbury ZBA Meeting 07/26/06) grandfathered because they’ve been there for many, many years. However, I just wanted to make mention that they are portable. When you’re reviewing the balancing test, it appears to me, or at least it’s in our opinion that the benefit that the applicant will achieve with this variance outweighs any detriment that could be deemed to exist for the community. Specifically, with this variance, the applicant will then be able to store his farming equipment in the winter and they won’t be weathered, which the alternative would be that they would be left out, and obviously that would depreciate the equipment. In addition, the storage that he’s presenting in this shed in the location that he’s presenting it in is due to the fact that he would like the equipment to be close by because unfortunately he has had a problem with burglarizing, as well as vandalism, and this way it’s under light and it’s right near by his house. So he feels that that would obviously be a benefit as well to have it right near the house. As to the benefit to the community. This will allow the site to be more buttoned up or to look more aesthetically pleasing because the equipment won’t just be left out, which would be the alternative. When I was at the site today, I know that it was mentioned at the last meeting, whether or not this structure is going to block views for the adjacent neighbors. When I was standing there, it appears to me that this structure is directly north of the adjacent parcel. The mountains are located more northwest. So this actually isn’t going to block any of the views to the mountains, and in actuality there’s actually a vegetation buffer that’s exists on the other side of the fence that the neighbor maintains. So the neighbor is really not able to see the entire structure due to that buffer. We also feel that this is a benefit to the community, or at least the adjacent parcels, because it kind of provides a buffer to both the applicant as well as the neighbor, for purposes of privacy as well as noise. As to feasible alternatives, due to the fact that we’re here because we need it for storage, we feel that a feasible alternative shouldn’t be deemed to exist since we need the barn, which is deemed the accessory structure, to shelter the animals as well as the food for the animals in the winter months. As to being substantial, I understand that we’re asking for a essentially 100% of a variance, but when you’re considering the fact that this is a farm as well as a residence, you can understand the need for the accessory structure, as well as the fact that you’re doing it to shelter animals in a barn, so that it’s not sharing a barn with equipment, which we really can’t do. We feel like this is only going to have a positive effect on the neighborhood, and it shouldn’t be deemed self-created because it’s a grandfathered farm, and it does maintain the required setback. So that all should be deemed to have a positive effect. MR. ABBATE-Let me ask you a question, because sometimes I get confused. So I’m going to ask you to help me out, Counselor. MS. BITTER-I’ll try my best. MR. ABBATE-What is the difference in the status between when you first appeared th before us April the 19 of this year, and today? What has changed? MS. BITTER-In what respect? MR. ABBATE-In anything, the garage, the barn, the three sheds, they were all there at th the time you came before us April the 19. Were they not? MS. BITTER-Right. Other than the fact that I wasn’t before you and neither was Mr. Greene. MR. ABBATE-So that’s what’s changed. He now has competent counsel. MS. BITTER-No, no, no. Not at all. I would not say that for the record, but I think you’re asking me what changed, and I’m not Karla. MR. ABBATE-Okay. Do any members of the Board have any questions for Mr. Greene or counsel? MRS. HUNT-Yes, I have a question. MR. ABBATE-Please do. MRS. HUNT-The Assessor’s records, 270 Meadowbrook is a single family dwelling, and you keep talking about farm. MS. BITTER-Yes. Unfortunately, I don’t think it’s the first time that the Assessor hasn’t incorporated all the uses, but it’s clearly obvious that this parcel, together with the 15 (Queensbury ZBA Meeting 07/26/06) adjacent parcels that Mr. Greene owns, has been utilized for a farm for many, many years, and his father is actually here and can testify to that as well. MR. UNDERWOOD-I had a question on the structure that’s before us this evening. Is that one of those Amish sheds that just got dropped off or did you actually build it? JEFFREY GREENE MR. GREENE-No, they dropped it off. MR. UNDERWOOD-It is a drop off. So one of the questions I would put to you is if its present location is offensive to the nearest neighbor, if it does become a feasible alternative to move the shed elsewhere, that could be done? I would assume that wouldn’t be that big of a deal to do it. MR. GREENE-No. MR. UNDERWOOD-All right. MR. ABBATE-Okay. Any other comments or questions? Yes, Mr. Bryant, please. MR. BRYANT-I have a comment, Mr. Chairman. I was in this room a couple of weeks ago and the Town Historian, they had visitors from other towns, and she indicated that, at the turn of the century, Queensbury was an agrarian agricultural kind of place, but there are no working farms in the Town of Queensbury. So I want you to clarify, you keep on saying that this is a farm. I want to know how many cows are we talking about, how many chickens? Is this the applicant’s main venue of support? MS. BITTER-I can actually let the applicant answer that. MR. ABBATE-Please do. MR. GREENE-Right now I’ve got five cows there. I have 15 all together. I’ve got a donkey that I usually raise, my pigs. My chickens are gone now because I’ve put them in the freezer, in the Fall of the year, I usually get more back. MR. BRYANT-Is this your main source of revenue? MR. GREENE-I do a wood business. I’m in the logging business, plus I sell beef. MR. BRYANT-When I was there the first time, for the first hearing, I actually looked in the barn. It looks like you’ve only got one a half stalls there. MR. GREENE-I have stanchions in there. Then I have stalls, too, box stalls. MR. BRYANT-So you say you’ve got five cows and a bunch of chickens and pigs and a donkey. MR. GREENE-Yes. MR. ABBATE-Okay. Any other questions from members of the Board? If there are no other questions from members of the Board, I’m going to open up the public hearing for Area Variance No. 43-2006, and if we have any folks in the audience who wish to comment on 43-2006, would you be kind enough to raise your hand. Yes, sir. PUBLIC HEARING OPENED BRIAN GRANGER MR. GRANGER-My name is Brian Granger. I reside at 63 Wincoma Lane in Queensbury and I’ve known Mr. Greene for several years. It just makes sense to me that if someone’s trying to put their equipment inside and keep it under cover so the neighbors don’t have to look at it, it’s more aesthetically pleasing. I total, I believe Mr. Greene has 30 plus acres, and you don’t maintain 30 acres with a push lawnmower. Therefore he has some equipment, and I’ve been over there. My four year old son’s been over there to see the cows and the chickens and the pigs. He enjoys that. In fact, every time when he goes to his grandmother’s house in Waverly, he wants to stop at Jeff’s house first, but it just makes sense to me that the equipment should be stored inside, so the neighbors don’t have to look at it. Mr. Greene has always kept a neat yard, 16 (Queensbury ZBA Meeting 07/26/06) and I think he’s trying to attempt to keep it even neater than that, and I’ve seen the cows in the barn in the winter. So I know that’s what he uses the barn for in the winter months, and it just makes sense that he has this relief granted to him. Thank you. MR. ABBATE-Thank you very much. Do we have anyone else in the audience who’d like to comment. Would you please come forward to the table, have a chair, speak into the microphone and identify yourselves, folks, please. SELENA & HARRY DORISKI MRS. DORISKI-We live next door. Selena and Harry Doriski, and there is only five cows. There’s a few pet ducks. There’s no donkey. As far as breaking in and burglary, I’ve been there six years. I’ve never seen anything wrong there, as far as the whole street is included. Basically I think the thing is ugly, I think the building is ugly, unsightly to look at, and I’m wondering if we’re going to set a precedent here on Meadowbrook Road. If he’s allowed, maybe someone else will get the idea. Maybe myself. Do we need more buildings than we’re looking at? I could use a building myself for my two cars. They sit out in the baking sun and all winter long and I have to shovel off the snow and brush it off. Come in handy, but this is what I’m pointing out here. I wouldn’t want to see a precedent, because he’s allowed, it’ll open it up for others to open up, too, and basically the cows, I’ve been there six years, and I’ve never seen them in the barn. They’re always in these little huts that he’s scattered all over the place, and they get out of the sun or out of the weather or the rain, and this is where I always see them, as being there six years, and I wouldn’t call it a farm. That’s it. MR. ABBATE-Okay. MR. DORISKI-My name is Harry Doriski, and I live at the same residence, and as long as I’ve been there, I’ve seen him put in a duck pond. Did he ever get a permit for that? No. If he doesn’t get a permit for that and doesn’t get a permit for this, why do they need a Board? MRS. DORISKI-If I was to follow him, in his footsteps identically to why we’re here now, is it possible for me to also put a shed that same size alongside his? Is that going to be allowed? If this passes. MR. ABBATE-That’s a good question, but I would suggest you don’t direct it to us, but rather talk to the Zoning Administrator. His name is Craig Brown, and he’s located in the dungeon downstairs. MRS. DORISKI-Right. Okay. We spoke to him at least six times. MR. ABBATE-Okay. He would give you the answer. MRS. DORISKI-Yes. MR. ABBATE-All right, do you have anything else you wish to say? MRS. DORISKI-No, that’s all. MR. ABBATE-All right. Thank you, ladies and gentlemen. I appreciate that. Anyone else in the audience that would like to comment on 43-2006? If there are none, counsel, would you and your client please come forward to the table, and is there anything else you’d like to add before I proceed? MS. BITTER-I think that the comments that Mr. Greene made beforehand identify that he is operating a farm because of the fact that the animals that he does have that exist on that parcel, and unfortunately he has been a victim of burglaries. I’m glad that his neighbors haven’t, but that’s the situation that exists. MR. ABBATE-Okay. All right. Let me continue, then. I’m going to ask members for their comments, and again, I’d like to inform the public that any of the comments that are going to be made by the members of this Board are directed to the Chairman, and they will not be open to debate, and again, I remind the members of the precedence which I mentioned earlier, the other cases, that we concern ourselves with the evidence which appears on the record, and that we must not base our decisions on liking or not liking a project. We have to comply with the laws, and we also have to guarantee due process, etc., and I’ve stated this earlier. Having said that, I’m going to also add one other thing, that, Board members, we must make our decisions on reliable evidence contained in the 17 (Queensbury ZBA Meeting 07/26/06) record of the Board’s deliberations. Having said that, do I have a volunteer for Area Variance No. 43-2006? Who would like to start? We’ll start with Jim Underwood. MR. UNDERWOOD-I used to live down on the Meadowbrook neighborhood there, and as far as I can recall, I used to run that road, and there’ve always been cows out there, various assorted animals. I never kept track of the numbers, because it was a short, quick pass by, but in this instance here, I think that last time here I think that we need to recognize that if someone has a farm, even if it’s not a working farm, if it’s a hobby type farm, that structures are necessary for equipment and things like that. I think, as a feasible alternative here, the sticking point, to me, seems to be the fact that it is granting extra relief for an extra structure, but there are numerous structures on most farms, as you can see as you pass around the Washington County, or in parts of Warren County. This structure, where it has been placed, because it’s near the neighbor, seems to have struck a hard point for the next door neighbors who are most affected by having to view it, and I would have to agree, last time we agreed with the Zoning Administrator that it was an extra structure and whether or not it should be permitted to stay there. I think that, in this instance, I would like to see the shed moved if possible. I think you can move it over on the other side of the garage, so your neighbors wouldn’t have to look at it, out of sight, out of mind, and I don’t think it would be a burden. As far as the size of the property, I think you pretty much substantiated that you’ve got about 30 acres there, and as has been suggested by some of the public comment, it’s necessary to have the equipment to maintain your property, even if it’s going to be just a hobby farm, but I can understand the need for the shed. I think if the shed were moved to the north side of the garage there, that would probably not be a massive undertaking for you to do with your equipment, and I think that it could be allowed in this instance. MR. ABBATE-Okay. Before I continue, Counselor, one of the Board members has suggested, as a feasible alternative, the shed be moved to the north side of the garage. Would you folks have a problem with that? MS. BITTER-No, I think Mr. Greene identified he would be willing to make that compromise. MR. ABBATE-So if we included that as a condition in our motion? MS. BITTER-Yes. The only question I had, are we talking about the north side of the barn or the north side of the garage? MR. UNDERWOOD-I’d go the north side of the barn. MS. BITTER-That’s what I thought, okay. MR. UNDERWOOD-Then the neighbors aren’t even going to see it. MR. ABBATE-Okay. All right. Thank you. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I just want to say, the neighbors pointed out that they don’t like the structure. Actually it’s the nicest structure on the property, and I do like the appearance, but I’m troubled, because I think that it’s based on a false premise that this thing is a farm, and a couple of animals does not make a working farm. I mean, I have a couple of dogs. It doesn’t make a kennel, and therefore, you know, maybe I should have a running gate and extra buildings and so forth and so on. It’s not logical. I have to agree with the neighbors. I mean, are we setting a precedent? You’re asking for 100% relief, but in reality, you’ve already got three other accessory structures. So you’re actually asking for 300% relief. So it’s massively substantial, and I understand the need to put the equipment somewhere. Is there a way to do some renovation to the barn, for example, to put the equipment in the barn rather than have this shed? Is it possible to use one of the existing sheds for the equipment? I mean, these are questions that I’m just throwing out here. They’re rhetorical, but herein lies my problem. We’re not only asking really for 100%, that’s what the paperwork says, but in reality you’ve already got three accessory structures. So now you’re asking for a fourth, which is three more than you should have. So I really have a problem with the project. I think it is excessive, and I think something else should be worked out. So I’d be opposed. MS. BITTER-I’m going based on the definition of a farm from the agricultural use defined in your Code, which doesn’t specify the number of animals that are necessary. It just says the keeping of cows, horses, pigs, poultry and other livestock. That’s my first response. The second is, and I had talked to the applicant about this, the structures that are located in the back, these two sheds by the pond, and unfortunately we don’t have a 18 (Queensbury ZBA Meeting 07/26/06) picture of it. Right now they maintain, I believe it’s 124 square feet and 135. Pursuant to your Code, they wouldn’t be deemed structures if they’re under 100 square feet, and this is what I’m looking under Structures under the definition, and we would be willing, if this would appease your concerns, to modify those sheds so that they are 100 square feet, so then, and move the shed that’s identified right there to the north of the barn, so that really we’re only asking for one additional accessory structure. MR. BRYANT-Just a question for Staff, an eight by ten shed is not an accessory structure? MRS. BARDEN-That’s correct, if it’s less than 120 square feet. MR. BRYANT-So it’s not an accessory structure. So that means I can put up 20 sheds on my 25,000 square foot lot that are eight by ten. MS. BITTER-I’m citing the Structure definition, which identifies that if it’s less than 100 square feet, and it’s an animal shelter, then it’s deemed exempt. MR. BRYANT-Yes, but it is still an accessory building. MS. BITTER-I don’t think it’s included as a structure or building. MR. BRYANT-I think that that’s not logical. MS. RADNER-Unfortunately, that’s what our definition says, so that is the rule that you are bound to apply. If they put 20 dog houses out there, that would not be 20 structures. MR. BRYANT-So I can put, again, again, I just want to clarify because I’ve got my concrete mixer all ready. I can put 10 eight by ten sheds on my back yard and nobody can say anything to me, without a permit. MR. UNDERWOOD-As long as they’re for animals. MS. BITTER-Right, or children’s tree houses. MS. RADNER-If you read the definition it’s any object constructed or installed or permanently placed on land, to facilitate land use and development or subdivision of land, including but not limited to building sheds, single family dwellings, mobile homes, signs, service station pumps, drive-ins and drive thru islands with or without canopies, amusement park rides, all above ground tanks and any fixtures, additions and alterations thereto, but excluding animal shelters less than 100 square feet and children’s tree houses and playhouses less than 100 square feet. So since your definition has specifically excluded tree houses, playhouses and animal shelters, less than 100 square feet, yes, they have to be excluded. MR. BRYANT-Okay. Then the answer to the Counsel’s question, if they would alter those buildings to be animal shelters less than 100 square feet, they’d still only be asking for 100% relief, but I would reluctantly vote in favor of it. MR. UNDERWOOD-And they would not need any relief. This would become the single structure on the property. MR. ABBATE-Right. MS. BITTER-No, no. We’d still need a variance. MRS. BARDEN-Because of the barn. MR. BRYANT-So it’s still 100% relief, but we’d eliminate the two sheds. MS. BITTER-We’d modify them to be 100 square feet. MR. BRYANT-Whatever. MS. BITTER-Thank you. MR. ABBATE-Any other members wish to comment on this? Okay. No other comments on this? So far then we have, make sure that we have this straight. Mr. Underwood 19 (Queensbury ZBA Meeting 07/26/06) basically supports the application, but he would recommend that that shed be moved to the north side of the garage. Is that correct, Mr. Underwood? MR. UNDERWOOD-Yes. MR. ABBATE-And Mr. Bryant basically has stated that if the modifications were made as described on the record by Counsel, which would be less than 100 square feet, that he would have no problems with that at all, as well. Okay. Any other comments? Mr. Garrand, please. MR. GARRAND-Last time the applicant was before us, I don’t think it was adequately demonstrated what was actually being done here, agriculturally. I think that now, you know, our definition of what a farm is, and X amount of animals is pretty sketchy, but I do think it just about fits the definition of at least a part time farm here, and I also like the idea of moving the shed out of sight to appease the neighbors. So I’d be in favor of this. MR. ABBATE-Okay, and Mr. McNulty, please. MR. MC NULTY-Okay. I can basically agree with what’s been said. On the one hand, this is a farm, small farm, maybe it’s a hobby, but it’s still a farm, and it has been a farm for many, many years on this thing, and civilization is catching up to the property, I guess is what you would say. So it’s becoming residential, but this has been there. The Town of Queensbury talks about preserving its rural character. So it strikes me we shouldn’t be kicking out a small farm. So on the one hand, I’d be inclined to approve on this. On the other hand, I will agree that where the structure is now it looks like it was just dropped there where the guy happened to stop, haphazard, and I think it does affect the nature of the neighborhood, character of the neighborhood the way it is now. So if it were moved to the other side of the barn, maybe lined up a little better, whatnot, I wouldn’t have any problem, whether or not they reduced the chicken sheds to smaller size. MR. ABBATE-Okay. Thank you, Mr. McNulty. Mrs. Hunt, please. MRS. HUNT-I have to agree. I would be in favor, as long as the shed were moved to the other side, to the north side. MR. ABBATE-All right, and I, too, with those stipulations, Counselor, that we’ve discussed on the record the fact that it be moved to the north side of the garage, and then the sheds be less than 100 square feet, I don’t have a problem with it, but let me temporarily ask that you remove yourselves, because a member of the public, since I have not closed the hearing, a member of the public would like to respond to a question. I believe that lady in the back of the room. Am I correct, did you want to be heard, madam, or no? MRS. DORISKI-Selena Doriski. I’m glad with moving it. I’m satisfied and maybe some day down the road I’ll have another building myself. MR. ABBATE-We’ll look forward to seeing you. Thank you, madam. MRS. DORISKI-Thank you. MR. ABBATE-Counselor, would you and your client come back to the table, please. Thank you. I’m going to now close the public hearing for Area Variance No. 43-2006, and again, I reminded the members earlier we have the task of balancing the benefit of the variance against the impact on the area and the five statutory criteria and so on. For Area Variance No. 41-2006, is there a motion? MOTION TO APPROVE AREA VARIANCE NO. 43-2006 JEFFREY GREENE, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 270 Meadowbrook Road. He’s proposing to maintain a 398 square foot storage shed on the property. Specifically he’s requesting relief of 100% for more than one storage shed because the present barn and garage are considered as structures for those purposes. In this instance here, the only modification that we’re asking is that we did back up the Zoning Administrator’s decision in our last meeting regarding this project, that he had an extra building on site. We’re proposing tonight that he be able to maintain that shed, but in order to maintain that shed, he’s going to have to move it to the north side of the barn to be at least lined up with the barn back there and I guess he’s also agreed to modify those sheds in the back to lower the size down to 100 square feet, which didn’t seem to 20 (Queensbury ZBA Meeting 07/26/06) be a great burden for him either. This compromise seems to be amenable to the nearest affected neighbors, and they seem to be happy with this. So even though we’re granting a substantial relief by allowing an extra building, we balance that with the fact that it is a hobby farm and the accessory structures are necessary for maintenance of that property there. Whether the benefit could be achieved by other means feasible to the applicant, I don’t really feel they could. I guess he could modify the inside of the barn structure, but it doesn’t appear that that’s a possibility. As far as an undesirable change in the neighborhood, I think he’s going to do what’s desired by the nearest affected neighbors and that is move the shed to the north side so that doesn’t seem to be substantial, having done that. The request is substantial because it’s 100% relief because it’s an extra building allowed over what is necessary and allowed by the Code, and whether the request would have adverse physical or environmental effects? We do not feel that the structure has any. Whether the alleged difficulty is self-created. Yes, we would all agree it is self-created because he wants the extra structure. th Duly adopted this 26 day of July, 2006, by the following vote: AYES: Mr. McNulty, Mr. Garrand, Mr. Bryant, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 43-2006 is six yes, zero no. Area Variance No. 43-2006 is approved. MS. BITTER-Thank you so much. MR. ABBATE-Thank you, Counselor. We’re going to go into Executive Session at the present time, and the purpose of the Executive Session is to discuss current litigation. MS. RADNER-Mr. Kinnery is staying here at your invitation? BILL KINNERY MR. KINNERY-Or do you want me out first? MR. ABBATE-Well, I would suggest that you give us about five or ten minutes, please. MS. RADNER-You should also make a formal motion to go into Executive Session and take a vote on it. MOTION TO GO INTO EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 26 day of July, 2006, by the following vote: AYES: Mr. McNulty, Mr. Garrand, Mr. Bryant, Mr. Underwood, Mrs. Hunt, Mr. Abbate NOES: NONE MR. ABBATE-And effective this time, 8:25, the Town of Queensbury Zoning Board of Appeals is in Executive Session. The vote is six for an Executive Session and zero no. The Executive Session is in effect. Thank you very much. MS. RADNER-I know you don’t know that many Executive Sessions, so I’d just sort of remind you what the rules of the road are. Typically we’re covered by the Open Meetings Law, which means that we’re supposed to do things in the light of day, and not have secret meetings. One of the exceptions, one of the stated purposes for which we can have an Executive Session, is to discuss litigation, which is what we want to do tonight. You are allowed, though, to include anybody you wish in an Executive Session, and Mr. Abbate had indicated a desire to have Mr. Kinnery here and present, and I believe Ms. Hoffman is going to be here and present tonight as well in case you have questions of her. My understanding of the purpose for this Executive Session is to see if there is anything we can come up with that would resolve the pending litigation. As you know, we had a re-hearing and we’ve reconsidered the last application. It got a little bit confusing from my point of view on the record, because the application that was before us last time was the application to push the rail back and have a smaller deck or sundeck on top of the boathouse, but when the applicant was making his pitch, it sure sounded like he wanted to keep the rail where it was, and that may have affected some of your decision making because it wasn’t clear just what they were asking and what they were 21 (Queensbury ZBA Meeting 07/26/06) willing to give up. As you know, when we have a re-hearing, it has to pass unanimously and it didn’t pass unanimously. So now we’re in the position where we can’t re-hear it again. Options that are open to the applicant would be to come up with a new application of some sort, a different kind of relief, a different alternative, that might be accessible to them. Another option is that we just decide that we can’t come to an agreement here and we’re going to let the judge decide and live with whatever the judge decides. The third possibility is that there may be something that you feel could be done in the context of settling the lawsuit that you could agree to, other than a re-hearing, that perhaps with some other conditions, something outside the usual pattern, there’s some way we could resolve this, and so if any of you have thoughts on that, this is a good time to have a dialogue about what you would like to see in order to resolve the lawsuit and to discuss with Mr. Kinnery what reasonable alternatives are, and at Mr. Abbate’s instruction, I told Mr. Kinnery that that was what you were looking for from him, feasible alternatives. What can we do. MR. ABBATE-I have a comment, Counselor. MS. RADNER-Certainly. MR. ABBATE-You were on vacation. Friday we were issued another 78 from Mr. Kinnery. MS. RADNER-I am aware that that was issued. I have not yet seen it, but I did see the request for judicial intervention, and why I’ve seen the request for judicial intervention and not the suit itself, I don’t know, but I would assume that it would make its way to me. The request for judicial intervention did mention, though, that there were other lawsuits. It’s the same issues. It’s the same structure. So all he’s doing is he’s preserving his rights. He’s making sure that that door doesn’t get closed, but to my knowledge, and again, I haven’t read the suit yet, it does not raise additional new issues. MR. ABBATE-No. I would, I particularly like your third recommendation, suggestion, and I was one of the ones who voted no, and I would be more than happy to change my vote, if, in fact, I believe there’s a feasible alternative, and that is if the litigant would be willing to move the fence, the railings, I said fence, I mean the railings, back 50%, and I would be more than happy to vote yes. MR. BRYANT-Can I just touch on something that you said, Counselor? MS. RADNER-Certainly. MR. BRYANT-I agree with you wholeheartedly that the presentation can muddy the waters and confuse the issues, and I can give you two points specifically that would be to our detriment if this did go forward, you know, in the legal arena. One of them, I wasn’t clear on what Mr. Abbate was saying, and I asked him to clarify would he, in fact, vote in favor of it if the railing were back because that discussion entered later into the presentation, and he said, oh, he’d vote in favor of it, and he said that on the record, and then when they made, I think Underwood might have made the motion, he voted against it, even though the railing was set back in the motion. So, I don’t think Mr. Abbate was clear. MR. UNDERWOOD-That was my point, because when you voted no, I was saying, well, they moved it back to where you wanted it. I think maybe you were confused. MR. ABBATE-Yes, I’ll be honest. I think I was confused. Yes. MRS. HUNT-I was confused, too, because I didn’t think it had been moved back. I thought it was the original. MR. ABBATE-Well, that’s what I thought, too. So there was some confusion. MR. UNDERWOOD-I think under the resolution, we had all agreed that it should be moved back to where it had been proposed, as was on the table that night. MS. RADNER-The six of you sit here tonight, with it moved back as they had proposed to move it back, would you be in favor of it? That’s not an official vote. That’s just a throw it out there. MR. BRYANT-Relative to this thing, and the other negative vote was Mr. McNulty. Mr. McNulty, when it was his turn to talk, and I’ve got to say, it was totally uncharacteristic of 22 (Queensbury ZBA Meeting 07/26/06) Mr. McNulty, because he’s generally articulate and he covers his bases, and he says why he’s in favor of it and why he’s against it, but if you read the minutes, he simply says he’s opposed to it and then that’s it, he’s going to vote against it. There was no real explanation, and I don’t know if you were confused, but it was totally uncharacteristic of you, okay. MR. MC NULTY-I would have voted no anyway. It was, and it’s my position, that we offered them a compromise, and that was take the sundeck off. The structure, even without the sundeck, exceeds the height limit, and the variance that we granted them back, way back when, was a compromise. It’s too bad that the height is over the limit, but that happened. It’s not our fault. It’s not up to the Town to solve that problem, and the compromise which struck me as being the minimum necessary and a reasonable compromise, was keep the boathouse. We’ll give you the foot or foot and a half or whatever it was that’s required to keep the boathouse, and take the railing off and not use the sundeck, and that’s also what the Planning Board agreed to, and my feeling is, that’s where it’s at, and what they’re asking for now is not a compromise, it’s give us everything we want, but that’s where I would be. MR. ABBATE-Counselor, help me out. What do you recommend? MS. RADNER-I don’t recommend anything. MR. UNDERWOOD-I’m going to make the suggestion that we’ve already reiterated this enough, and that if people are, we’re not going to resolve it as a Board because we’re always going to come up with at least one no vote, it seems to me, no matter what, unless we tell them, and I don’t think that they’re in a position where the applicant is going to want to not have any railing up there whatsoever, and not be able to use that deck up there. So I think it probably, at this juncture, we either have to decide that the Town wants to spend X amount of dollars to fight this thing, ad infinitum, because they have unlimited funds to continue with this suit or more suits, or we can send it back to the judge, you know, and I think at this point we may as well just send it back to the judge and live with his decision. If you don’t like it, lump it. I don’t think it’s our position to tell the Town, you’re going to have to fight this one until kingdom come, because there’s more serious issues that we deal with in the community than this. MR. ABBATE-I suspect that Counsel will, well, I not only suspect, I know for a fact, that Counsel will provide a very strong defense. There are a number of issues that she and I both discussed, and I don’t have a problem with that at all. What I would like to do, if it’s at all possible, I would like to have both parties walk away winners, if that is possible. That, then, would terminate the litigation. The Town spends no more money, the litigant spends no more money, and everybody walks away happy, if we can achieve that, I would go along with that. Is there anything that we could, Mr. McNulty, perhaps to change your mind? MR. MC NULTY-I don’t think so. MR. ABBATE-Okay. MR. MC NULTY-That’s where I’m at. If there’s some way that you can consider the decision where it doesn’t have to be everybody saying yes. MR. ABBATE-Well, it’s got to be a unanimous decision. MR. MC NULTY-But if it’s got to be everybody. MS. RADNER-I’m not sure that it does, actually, and to be honest I’m a little confused about how this whole process works. If, instead of having a Board voted, because at this point, we can’t re-hear it again. MR. ABBATE-Correct. MS. RADNER-We’ve already done that, and the record only allows us to do it once, but if the majority of the Board voted to approve, authorize me, as your counsel, to go to court and settle this case, I don’t believe that has to be unanimous, but where that might be an advantage to you is you might be able to then add additional conditions that would appease some members of this Board. For example, the court ordered stipulation could provide things like this shall not be precedent that may be relied upon by any other member of the Town. It could say things like, and the applicant will pay a fine of X number of dollars. I mean, it’s a little unorthodox and a little un-kosher in some ways, but 23 (Queensbury ZBA Meeting 07/26/06) those possibilities are out there, and if that’s what it takes to make all of you happy and end up with something you can live with, think outside the box. MR. ABBATE-And counsel is right, and I spoke out of turn. It does not require a unanimous decision, not in Executive Session. By a majority of vote we can come to some sort of a conclusion. You’re absolutely correct, and I have it right here, and I forgot to mention it. So this does not, whatever we discuss in Executive Session, is not, does not have to be based on a unanimous vote, but rather based on a majority vote, and then we present our position to the Town Counsel and then Town Counsel takes it from there. MR. UNDERWOOD-Well, why don’t we throw out to this guy the point that we would like to see the thing shrunk back to what was originally proposed, and I think that’s something that the majority of us could live with. MS. RADNER-Why don’t we present it as what is the smallest deck you could live with, and see if we can get further concessions. MR. BRYANT-I want to ask a question. At one time, early on when this first started happening, refresh my memory, wasn’t there a time where there was some kind of negotiation to exchange a fine for part of the railing or something? MS. RADNER-That was what Judge Aulisi had suggested. He had suggested that they pay something like $1,000 fine that they’d then be allowed to keep the railing, and everybody here, I think properly, said, no, that’s not what we’re for as a Board. We don’t collect fines. We give approvals, and if we were going to have a fine, we wanted it to be more like $10,000 not $1,000. MR. ABBATE-I’m the one who said that, you can blame me. I said, not, $1,000. If it’s going to be a fine, it’s going to be $10,000. MS. RADNER-Yes. MR. ABBATE-Right. MS. RADNER-I don’t think fining really gets you the purpose that the Zoning Ordinance is there for. MR. ABBATE-No. MR. MC NULTY-No, it’s selling your approval. MR. ABBATE-I agree. MR. UNDERWOOD-Then anybody can come in and get anything they want for writing a check. MR. ABBATE-Let me have that statement you made earlier. I’m going to ask him what would be the smallest reduction he’d feel comfortable, talking about the railing. MS. RADNER-That’s what I said. What is the smallest sized sundeck that they feel they could live with. MR. UNDERWOOD-That’s fine. MR. ABBATE-You know what, that’s a question that I will definitely ask, then. Okay. MR. UNDERWOOD-And then I think if there’s going to be no compromise at all. MR. ABBATE-Well, in that case there I would say let’s pursue litigation. If that’s going to be the case. We’d just have to dig in our heels, and that’s it. MS. RADNER-Yes. MR. ABBATE-But I think right now the majority of the Board is willing to negotiate, fairly. MS. RADNER-Should I invite them in? MR. UNDERWOOD-Sure. 24 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-Yes, would you mind, please. MS. RADNER-All right. MR. ABBATE-Counselor, would you be kind enough to have a seat. You know the routine. Just tell us who you are and we’ll go from there. BILL KINNERY MR. KINNERY-Good evening, Mr. Chairman, Members of the Zoning Board of Appeals, Bill Kinnery, on behalf of the applicant, Mrs. Hoffman tonight. MS. RADNER-Bill, before we go any further. One question that was raised, and I believe I know the answer, but I think we’d like to hear it from your mouth, is why did you go ahead and file another Article 78 that we’re trying to resolve? MR. KINNERY-I am constrained by the law. There’s a very short period of time, as you probably all know. To some extent you may have a sense that applicants are really adversarial, but the answer is the statute is such that we’ve got to do it within 30 days. So the simple answer is, purely and simply, to preserve our rights, because we had no additional time. Logistically, I had talked to Cathi before she went away, to try to coordinate, and so that’s how it developed. MR. ABBATE-Yes, well, I must confess, when I was down there Friday and saw that, I went somewhat bananas, but then I realized, I looked at the calendar and I said, wait a st minute, I think his statute of limitations expires on the 21 of June and I said, perhaps he’s trying to preserve his rights. MR. KINNERY-And I must admit that I do pay attention to details, and I thought to myself, knowing that I had to file, that I was going to be here, and I thought I’d get abused for it, to be very frank, but there’s nothing that I could do, and I’m sorry. MR. ABBATE-Well, basically it’s as simple as this. Hopefully, we’re attempting to settle this litigation. It benefits all parties, and hopefully we can come to some sort of a mutual agreement that’s fair to all parties as well. One of the questions, the first question I’d like to ask you is this. What would be the smallest sized deck that you and your client would be comfortable with? MR. KINNERY-I take it you mean in terms of the useable area of square footage? I can tell you very flatly and very plainly that in the first instance, and I will be candid to some extent in that I’m going to approach it with the spirit that you’ve directed. So let me preface my remarks first by saying that we do have some sense of, and I don’t mean to overstate our position, but some degree of confidence in terms of our position that we obviously believe differently than the Board, in terms of our lack of a unanimous vote, that our proof was pretty good, qualitatively, in terms of the proceedings that we’ve been through. So to that extent as an advocate, obviously, from our perspective, our approach is one of, we’d like to have the project stand on its own original independent merit as we originally had presented it, but the other side of it is this, and I want to be very clear. Mrs. Hoffman is not with me tonight for a family reason involving her daughter and her family potentially extending, growing, but with that said, we had met with, and I think to some extent it may have developed with some misunderstanding, and I don’t mean it in a bad faith way, but in a good faith way. If you recall, we had been here, and I believe we were denied and subsequent to the denial, we were directed to have some meetings, and we did have those meetings, and I’ll never forget it, because I think, and I can’t tell you what member, I think it may have been Mr. Bryant, but I’m not sure, it may have been Mr. Stone, had made a comment when we returned, to the effect that, and I do very much appreciate this and respect it, that Staff is not the Board. We had a meeting where we developed what we believed was first and foremost a plan that was acceptable to you all, and that was the one, as you recall, where we moved the railing back, if you will, from the water. That was the product of a couple of people who maybe are somewhat bright, but are not engineers, and we were trying to, at that time, address, and I know my words are in your minutes, ameliorate what we believe to be the offensive characteristics or qualities of the sundeck. I can’t tell you the dimension that that pears back, Mr. Chairman, as I sit here right now. I’m sure that that is in the minutes. I have a generalized recollection that it may move back approximately 800 feet, but. MR. UNDERWOOD-It was 780 or something. I remember 780, I think, as the number. 25 (Queensbury ZBA Meeting 07/26/06) MR. KINNERY-There’s a 7 or an 8, 780, I mean, that is not an absolute figure. That was obviously acceptable to us at that time. Do you want me to continue, or should I stop? I mean, the point was that we thought that by proposing that compromised plan, that that was specifically addressing what you all had a fundamental issue with, and we had perceived the issue to be one of the height of the railing, particularly in relation to the water side, if you will. Can I commit to that right here and right now? No. Certainly can I talk to her about it, certainly are we willing to talk to you in any way, so that we can end all of the proceedings? Yes. Absolutely. So, I mean, that is my best answer to you. Do I have that authority as I sit with you right at this moment? No. Is it something that I can certainly talk to her about? Sure. The other side of it, to be very candid, I mean, our preferred result would not be to do that, and one of the reasons why, and I think you may want to think a little bit about this, when I characterized the group of bright people who came up with it. If you think about the results that were discussed by the landscape architect in particular, with the ultimate removal of the railing, at the end of the day, if that ends up as the result, I think to some extent aesthetically, and I know aesthetics are a matter of a person’s own personal opinions, but that’s worse, in terms of it leaving you with this non crowned, if you will, structure, and aesthetically I think that, again, I recognize aesthetics are a matter of personal opinion, but aesthetically it may look better to have it be uniformly railed. MR. ABBATE-Okay, Counselor, based on what you have just said, then, let me go back to my original question, talk about uniformity. What then, based upon what you have just said, would your client consider to be a reasonable size for the deck and the railing, from what it is, what you proposed? MR. KINNERY-Well, I mean, initially, as we originally proposed, I think in our first application for the variance, when it all started, I think the suggested approach at that time, and it remains today, is to simply grant the relief based upon the measurements that have been accomplished by Staff. MR. ABBATE-Which were? MR. UNDERWOOD-No change. MR. KINNERY-That there would be no change. MS. RADNER-Don’t you have any alternatives for the Board to consider, anything else that’s been considered or discussed with the engineer? MR. KINNERY-I do in the sense that I’d like to know what is it that you want? I mean, in all seriousness, I mean, and the reason why I ask is this. We went to that meeting and admittedly, perhaps there was a misunderstanding, but we thought that that was what you wanted. When we came back with that plan, we were under the impression that we were presenting a plan, and I understand that maybe that’s an erroneous belief on our part, but I have to tell you, in all sincerity, I personally participated in the meeting. When I came here to that public hearing and put that up, I thought that I was showing you a depiction that you wanted, and I thought that that was what you all had directed and that you all had a sense, ameliorated or lessened what you believed to be the adverse circumstances, and I must say, as I sit here tonight, I don’t know that there’s anything there in the record at all of some negative, and I say that not in an argumentative way, but in a balancing test way, because remember, when it’s all said and done, and I can’t remember which member, Mr. Urrico, I think had made the point that, you know, when you consider the factors, the prevailing consideration is the application of the balancing test, and it is. That’s how the structure, the Statute starts out, where you balance the benefit to the applicant and the detriment to the health, safety and welfare of anyone else, and I don’t know that there’s any harm or detriment. I’ve always understood it, and I took it very sincerely the first time I was here, that Mr. Stone was, and I think other members, was particularly concerned, perhaps Mrs. Hunt was also concerned, about precedent, and that you’ll end up in a situation where someone else who’s in here railing and saying, well, you did it there, so you’ve got to do it here, and I must admit, because I thought that was paramount on your minds, I have an advisory memo that’s prepared for you on the rules that says precisely the opposite, that you don’t have to worry about that, and I think Cathi has some background on that, too. MR. ABBATE-Let me answer your question from my point of view. You said what do you really want. Well as you know, I’m one of the ones who voted no, and I’ll be more than happy to explain to you what I would like, and if you agree with what I would like, I would be more than happy to change my vote to a yes, and this is what I would like. I’d like to see the railing reduced by 50%. 26 (Queensbury ZBA Meeting 07/26/06) MR. KINNERY-I’m not sure I understand that. When you say you’d like to see it reduced by 50%. MR. ABBATE-The railing as it is currently proposed goes around the complete deck. Is this not correct? MR. KINNERY-Correct. MR. ABBATE-Okay. I’d like to see that railing moved back 50% from the water, from the edge. MR. KINNERY-I see what you’re saying. MR. ABBATE-And, Counselor, we could resolve this tonight, as far as I’m concerned. MRS. HUNT-I was going to say, I agree with you. I mean, you want the whole deck. We want none, and I would think a 50% compromise would be very good, and I abstained, and I would vote yes. MR. ABBATE-Thank you, and, Counselor, what I said earlier, you weren’t present, what I truly believe is this. I would like to see both you and us, we, walk away winners. MR. KINNERY-Contrary to my training. No. MR. ABBATE-Contrary to your training. MR. KINNERY-I do, too. I mean, Cathi will tell you that I spend some evenings on your side. So I understand completely, and I think you have a sense, too. MR. ABBATE-And you may or may not understand. So let me make it quite clear. This evening, this is not a re-hearing. So consequently a unanimous vote is not required. It’s just a majority vote. MR. KINNERY-No, I understand that. MR. ABBATE-So we could end this in 10 minutes and end the litigation as well. MR. KINNERY-You’re very effective, Mr. Chairman, in applying the pressure. MS. RADNER-What might be a better thought, though, if that’s the way you’re leaning, that you’d like 50%, we’ve never had an application before us for 50% relief. What might behoove everybody would be to let Mr. Kinnery take that back to his engineer and see if there’s a way it could be engineered at 50% and still look good. MR. ABBATE-Sure. MR. KINNERY-But can I ask you a very sincere question, and that is, what is that based on? What’s the basis for your arriving at? MR. ABBATE-Sure, you have the right to know that. At the present time, if I’m not mistaken, I think the initial application was something like 900 square foot, something like that, and it currently will be able to house, I think, three boats, is that correct, three stalls with three boats, something like that. MR. KINNERY-There are three slips. MR. ABBATE-Whatever it’s called. Right, and in addition to that, when it was constructed, it was constructed, to the best of my memory, above the height requirements, Number One. It was constructed above the height requirements without any permit, Number One. Number Two, the railing as it’s currently proposed runs completely around that deck, and it would seem to me that by compromising on the size of those railings, we could resolve this thing this evening. I think, basically, that this is an issue where both sides are going to have to win. Otherwise, you know, we go before a judge, one party’s going to win, and one party’s going to lose. MR. UNDERWOOD-Can I interject? Mr. Kinnery has made it apparent, it’s very apparent to me that the 780 figure was something that Mrs. Hoffman had essentially agreed to when you came in that time before, and I think that the majority of us who 27 (Queensbury ZBA Meeting 07/26/06) voted yes in the past hearing, the last one that we had here, were under the impression that we were voting for that 780 square feet and that we can live with that. Our hang up, as a Board, is that I think that there’s always going to be at least one of us who is in disagreement with that 780 number there, but the majority of us do agree to that 780 number. So I would think at this point in time we could give him the option to go back to Mrs. Hoffman and see if the 780 number works because, as far as I know, only one of us does not agree with that 780 number. You agree with that essentially. MR. ABBATE-Yes, I agree with that. MR. KINNERY-Let me just ask you this, then. As a practical matter, should I go back to her and talk to her about what I describe as the revised proposal, and that is the one where we showed the depiction moving the railing back off the water to 780 plus or minus feet? MR. ABBATE-Yes, to answer your question, yes. MR. UNDERWOOD-I think that’s something that we could live with, and if Mrs. Hoffman could live with that, it would resolve the differences. MR. ABBATE-Okay, and, Joyce, please. MRS. HUNT-Yes, I mean, I’m against the 100% relief. I’m against the railing entirely, but I would be willing to compromise with the, I thought we were voting on the larger size. MR. ABBATE-Well, I got confused as well, I’ll be honest with you. I did as well, and that’s one of the reasons I voted no. MS. RADNER-Confusion is also a grounds for re-opening a hearing, rather than re- hearing it, and if there was, in fact, confusion, and you thought you were voting on two different applications, you certainly could re-open the last vote and vote again, but the danger in doing that would be that we would then need unanimity. You might be better off reaching an agreement in Executive Session. MR. ABBATE-Yes. I would prefer, Counsel, that we could resolve this, legally resolve this, in Executive Session. MR. UNDERWOOD-At 780. MR. ABBATE-Yes, at 780 square feet. Yes, and you would get a majority vote. MR. KINNERY-I think, and I don’t mean to speak out of school, so if I am, you just shut me down, but to some extent, as a matter of procedure, the resolution within this context may afford two benefits to the Board. First, in that there is some certainty to it, and that’s obviously beneficial to us. So we’re interested in that as well, but the other side of it is, if you settle it within that context of the courts, and I certainly defer to your own counsel’s opinion, but you may find that that also has some beneficial effect in terms of avoiding the next applicant who comes in and then says, well, you did it there, so you’ve got to do it here. MS. RADNER-And that was going to be one of my next suggestions was that, as another concession, we add to it that it not have precedential value, that that be included in the order submitted to the court, and we might also want to ask that an additional concession be made in that the applicant will not return and ask for any or different relief in the future in regards to this deck and boathouse. MR. KINNERY-That’s also why I’ve been so very careful because I fully expect to be here at some point on something else. MS. RADNER-Having to do with the boathouse and deck? MR. KINNERY-No. I hope it’s not. I spent the better part of five years, now, working on this. MS. RADNER-I wouldn’t expect that for the whole property, but as to the boathouse. MR. ABBATE-You would concede to that? MR. KINNERY-I think so. 28 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-Great. MR. KINNERY-I mean, I don’t think that she has, I mean, I can certainly represent to you, in working with her, we have no intention of coming in to file some additional application as it pertains to the boathouse. The only thing, just again, to be clear, obviously, you know, we also have some additional hurdles because we’ve got a challenge with respect to the Planning Board as well, but I think that, and I don’t prejudge anyone’s vote by any means. I think, to some extent, we had adjourned deliberately the Planning Board’s last scheduled meeting. My recollection was that the Chairman was sensitive to the fact that the Zoning Board’s action was a pre-condition to the Planning Board acting, so that as it stands now, the last Planning Board meeting just simply stands adjourned, procedurally. MS. RADNER-Yes, I believe that’s correct. MR. KINNERY-So, with that, I should probably let you go home. MR. ABBATE-Well, we’re in no rush. I want to make it clear that we’re all reading off the same sheet of music and you’re going to touch base with your client. MR. KINNERY-I will speak to her. MR. ABBATE-And make the proposal that we discussed this evening, specifically 780 square feet, and then I would request, since I don’t want any ex parte communications, that you touch base with our counsel, please. MR. KINNERY-I will. MS. RADNER-What we would then do, procedurally, let’s assume that we can reach a meeting of the minds and we can hammer out what we could live with as a stipulated court order, what we would need to do then is we could discuss it again in Executive Session, but we would have to vote outside of Executive Session, in the light of day, so that any member of the public could be hear to here it. MR. ABBATE-Right. We have to open up the hearing on that as well. MS. RADNER-Well, you don’t have to have a hearing, but you have to go out of Executive Session to conduct our vote, make a resolution and conduct our vote. MR. ABBATE-Yes. I understand. MR. KINNERY-Right, but the distinction also then becomes one of you end up voting on the terms of your settlement of the litigation, procedurally. MS. RADNER-Correct. It’s not a re-hearing. MR. ABBATE-It’s not a re-hearing. MR. KINNERY-That’s right. MR. ABBATE-Exactly. MR. KINNERY-Okay. MR. ABBATE-And since it’s not a re-hearing, the unanimous decision is not required. MR. KINNERY-That’s right. MR. BRYANT-I just want to just say one thing, Counselor. This is all your fault. Because, you know, Number One, if you started a couple of years ago and you brought that landscape architect in here, or the planner or whatever she is, I would have been sold early on and this thing would have flew the first time around, but you saved her for the very end when it was too late, and frankly the last meeting was very, very confusing. So I think next time you bring her and you’ll be all set. She changed my mind. If you remember, my initial vote was negative. MR. KINNERY-I’ve got to tell you, I mean, you, personally, were a person that, in terms of the voting, I was paying attention to, because I do see it, sincerely, as my job to 29 (Queensbury ZBA Meeting 07/26/06) present the proof to you, and I’ve taken every single member’s comments. I think you have a, I hope you have a sense of it, to heart, and I prepare, and so when I engaged her for the assignment, I engaged her specifically thinking about certain members and their approach, and I know, because at the last meeting you made that comment, and you said, and I know, you, on one evening, in a friendly way, went up one side of me and down the other, and I said, well, I guess I’m not going to convince Mr. Bryant. I’m going to have to get somebody else who can do it. MR. ABBATE-Someone that he could relate to. MR. BRYANT-She was very good. MR. KINNERY-Well, the other side of it is the analysis that’s done, and you may have dealt with it, and I don’t mean to take your time. If you want me out, cell towers, and that’s where, typically, you see the view shed analysis done, because you know what ends up happening is the people in the community come out in droves, but in the end if you’ve got a good view shed analysis that’s done, you can demonstrate that, and that’s true in this instance, I think, as you sense the proof that the reality is, yes, we’re talking about 3.5 feet, and, boy, if I say 3.5 lineal feet, you look at my arms and you say, that’s a lot, but when you look at an analysis like that and you realize, that’s nothing. MR. ABBATE-So anyway, so far, you know what we’re headed for. MR. KINNERY-Yes. I think we’re perfectly fine. MR. ABBATE-Okay. MR. KINNERY-I will communicate with her, within the next couple of days here and I’ll be back to Cathi. MR. ABBATE-Wonderful. Touch base with our counselor and then we’ll go from there. MR. KINNERY-Fine. Thank you very much. MR. ABBATE-Thank you very much for coming this evening. MS. RADNER-You need to vote to come out of Executive Session. MR. ABBATE-Yes. MOTION TO COME OUT OF EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Richard Garrand: th Duly adopted this 26 day of July, 2006, by the following vote: AYES: Mr. McNulty, Mrs. Hunt, Mr. Bryant, Mr. Underwood, Mr. Garrand, Mr. Abbate NOES: NONE MR. ABBATE-And there is a unanimous vote to come out of Executive Session. Executive Session is now closed. Thank you, Counselor. Thank you very much. MR. KINNERY-Good night, and thank you. MR. ABBATE-We’re next going to be moved to Counsel. Counsel has something that she wishes to. MS. RADNER-Well, I was asked to speak with you briefly, and I promise to keep it brief, about what some of the terms mean that we throw about and what it means to be a quasi-judicial Board and what we can do to prevent the Hoffman situations, and so that when we do end up in a litigation situation, we’re in a better position to win, and to win easily, and so I’m going to just real quickly review some of the sort of ground rules for what a ZBA is and what the parameters are and what some of the terms mean, and then if you folks have questions for me, I would be happy to answer them for you, and most of this you guys have probably heard before. So I apologize in advance for repeating, but quite often when you’re getting information, you’re getting some of it thrown at you at once, that we realize it’s hard to digest and sometimes hard to understand and it’s not always in a forum where you can ask questions and have things explained and you’re not always saying to the attorney presenting (lost words) can you explain to me in 30 (Queensbury ZBA Meeting 07/26/06) English what that means, and so I hope that all of you feel comfortable enough to as me those sorts of questions, and I certainly won’t take offense if you say, Cathi, shut up and tell me what you mean in English. Okay. Quasi-judicial means that, when all of you sit, you are almost a judge. You are here to hear evidence, accept evidence, and make a decision, much as a judge or jury would do. When we say it’s quasi-judicial, you’re in that fact finding role of a judge, but you’re not bound by all the legal rules of evidence. So you’ve heard us in the past sometimes discuss hearsay, and I will say you’re allowed to hear hearsay, you’ve heard, we’ve had discussions back and forth. What hearsay is, in a court of law, is any statement made by somebody who can’t be cross examined by it in some other forum. So if somebody comes here and says that none of my neighbors like it either. Well that’s hearsay. The neighbors aren’t here to testify to it, but in this forum, you’re allowed to consider that. Yes, it’s hearsay, but here they’ve got a petition with 72 people’s names on it. No, those 72 people aren’t here, but this person’s expressing a view that’s not theirs alone. You don’t need to worry about some of the other rules of evidence that you’re probably not even aware of, rules about how copies are made and how records are authenticated, things like that. You don’t have to worry about all that Perry Mason garbage that you see on LA Law. You are allowed to accept evidence, if somebody stands here and says to you, I don’t like this and nobody else likes it either, and if you walk down my block and you knock on 72 doors, nobody’s going to like it, you can accept that, and then you take it for what it’s worth, and if you don’t believe it and don’t believe it’s credible, that’s the decision you can make, but you can accept it and you can listen to it. As a quasi-judicial Board, you can even accept statements of counsel as evidence. Normally in a court of law you couldn’t do that, but if Stefanie wants to tell you these structures house pigs, and you want to believe her, you can do that. You can accept that from the counsel, even though you couldn’t do that in a court of law. You’re allowed to administer oaths. You’re not required to administer oaths, and there’s some difference of opinion whether it’s a good thing or a bad thing to administer oaths, but you’re certainly allowed to require that oaths be administered. Cross examination is not typical in a Zoning Board of Appeals, but there are situations where, to a certain extent, cross examination occurs, but you’re certainly not required to allow it. So that if five members of the public come up and say that, you know, they never saw robberies at this site, you don’t have to allow Ms. Bitter to question all them about what robberies and when and where and how they might know that. In a court of law that would occur, but it doesn’t in this forum. Nonetheless, though, as a quasi- judicial Board, you are required to make findings of fact, and those findings of fact have to be based on things that you can point to, things that are in the record, or things that are in your own mind but that you explain on the record. So if you drive past the site every day for 12 year and you always see two horses and a pig, you’re allowed to say, and I know, from driving past the site since I was 9 years old, that there are always at least two horses and a pig, you’ve just revealed, on the record, the source of that knowledge. So you are allowed to consider that when you’re making your decision. If you go to the library and you read a report about how pigs can’t live in the Town of Queensbury because the soil is deadly to pigs, you’re allowed to say, and I don’t believe Ms. Bitter’s testimony that there’ve always been pigs at this site because I know, based on such and such a book, that the soil’s deadly to pigs, and you can reference where you got that information, what that information is. If you don’t believe that the applicant owns a piece of property, and so you go down and you check the Assessor’s records, and you find out, yes, they do, you’re allowed to say, and I reviewed the Assessor’s records, and this is what they revealed to me. Any time, though, that you refer to something that isn’t already in the record here that the Staff maintains, you need to identify where it is and how you came to that knowledge. You also have to be extremely aware of due process. Both sides of any issue have the right to fairness, and that’s what due process really is, fairness. So you’re not allowed to allow the applicant to make a three hour presentation and present 72 witnesses, but then tell the members of the public that are against it, you’re each limited to one minute and we’re not accepting any record. You have to be fair. You have to give everybody a full opportunity to be heard. You don’t have to give them a ridiculous opportunity to be heard. You don’t have to allow somebody who might have another piece of property on the water that’s miles away and has a similar use to give you a three hour dissertation of the history of private property and lands underwater in the Town of Queensbury. You are allowed to limit the extent of testimony, as long as it’s reasonable and it’s not arbitrary. You have to be fair. You have to give both sides the opportunity to reasonably respond to things that the others have submitted. So you cannot close the public hearing and then accept information from one side or the other. You cannot accept additional information from the applicant, once you close the public hearing. You cannot accept additional information from the opposition once you close the public hearing. MR. ABBATE-Cathi, can’t we use standing as a pre-requisite for the public? 31 (Queensbury ZBA Meeting 07/26/06) MS. RADNER-You can’t use standing as a pre-requisite to hear somebody. Any member of the public has the right to be heard in this forum. Where standing comes up is when it gets to the point of filing an Article 78, or to bring an application, you can’t bring an application if you don’t have standing, if you don’t, if you’re not impacted by it. So if that hypothetical individual who lives across the lake and happens to own another piece of waterfront property, wants to challenge the Zoning Board of Appeal’s determination that the Johnson boat dock is under 14 feet, he can’t, he doesn’t have standing. He doesn’t have any interest in the property that’s any different than the community at large. He’s not a neighbor to the property. He can’t see the property from his house, and even if he’s going to tell you, yes, I’m impacted because it could effect property values in the Town of Queensbury, baloney. That’s not the kind of interest that the law is there to protect. So in order to bring a challenge to a Zoning Administrator determination, the person has to have standing. In order to bring an application for a Use Variance or an Area Variance, they have to either be the property owner or the contract vendee or the person who’s authorized by the property owner to bring the application. I can’t bring an application to construct the Hoffman garage on the Johnson property, when I don’t own either piece of property and it’s not mine to bring an application. The rule about, after you close the record, that doesn’t apply to getting a signoff from the Town’s engineer or something like that. You’re still allowed to get those sort of impartial, you can say the public hearing’s closed. We’re going to wait for the engineer’s signoff, if there’s that little dangling piece out there or something. That’s allowed. That’s not the kind of thing that you have to give both sides the opportunity to respond to, but you can’t, on the night of the public hearing, accept two volumes this thick from the applicant and then not let the public respond to that. So if that happens, you need to leave your public hearing open to give people a reasonable opportunity to read it and to submit rebuttal. When you make your findings of fact, you need to have a factual basis for the determination, and there’s nothing wrong with saying, I find, as a matter of fact, that this driveway which is going to serve these four people is going to have visibility problems, and I’m basing that finding on driving by the site, on the topography of the land, and on, blah, blah, blah, blah, blah. That’s a reasonable way to make your finding. You can also say, while the applicant had said that this is not going to impact his neighborhood, his neighbors, I don’t find that testimony credible because, again, I visited the site and where he plans to build it, there’s only one place that’s dry, and where he’s saying he’s going to build it, I can see it now, in the flat land, and so I don’t believe his testimony that it won’t be visible, and I haven’t seen anything from an engineer or an architect or a landscape designer to convince me otherwise. Those sorts of comments back up your findings of fact and your determinations. You do need to have a majority of the vote, of the full Board, vote in favor of a grant of an application, unless you’re in one of those situations where you’re required to either have a supermajority or, as in a re-hearing, a unanimous decision. There are some exceptions, but for a regular old run of the mill decision, whether it’s to support or reverse a determination of the Zoning Administrator or to grant some relief, you have to have a majority of the full Board. There is, of course, this concept that if you have less than the majority, you end up with a denial, and in terms of a grant of a variance, that is the rule, but bear in mind, that if you’ve done that, you have a harder decision to then defend. If one of you has just made the motion, setting forth all the reasons to vote for this, doesn’t garner the majority vote necessary in order to pass, yes, you’ve got a defacto denial, but it certainly doesn’t hurt to say, well, as long as we didn’t pass, would somebody now like to make the motion to deny, and then you’ve got that second bite of the apple to set forth with detail all the reasons that support the denial. One thing you want to be careful of is giving the arguments to the other side, and I say this, you know, it’s another balancing test. You’re trying to be fair. You’re trying to show that you’ve applied all the factors, and yet every word that you say can be used against you, and will, so, when you say, kind of musing out loud, boy, it’s really pretty, I can really see where it adds to the neighborhood, I really don’t understand why so many neighbors are opposed to it, but I’m going to have to vote against it because I think it’s going to negatively impact wildlife. Well, you just gave them all the reasons to say that your decision was arbitrary and unreasonable. You’ve just told them it’s pretty. You’ve just told them that you considered public opposition. You’ve just told them your reasons. So by all means ask the applicant questions. Say I don’t understand why you can’t build this in the more southerly location. Can you explain to me what feasible alternatives you considered. Is there any way you could restructure this so that less relief is required? Have you considered a sale of property that would obviate the need for a variance? Have you considered any feasible alternatives? Ask dollars and cents questions. How much would it cost you to build that road? Don’t say things like, I would be against it unless I saw evidence that it’s not feasible to build a road. Because you haven’t demanded the evidence, but you’ve said, you know, I’d be against it if, if you now vote for it, they’re going to point to that, you know, you were against it, and they’re going to twist that. Lawyers love to do that. So think of what you’re saying. Chuck always sort of jokingly says, Mrs. Hunt, did I just hear you volunteer. When someone is reading the 32 (Queensbury ZBA Meeting 07/26/06) record, they’re going to think that Joyce volunteered because it doesn’t come through as sarcasm in the record. Keep in mind how the record’s going to look when you’re reading it later. Keep in mind how your comments are going to look. There was a former member of a Board in this Town, and it wasn’t a member of the Zoning Board of Appeals, but used to love to say things like, gee, it’s after twelve o’clock, I’m not even thinking straight anymore. Well, you know, guess what they’re going to point to when their permit’s been denied. Don’t say it, think it by all means, but don’t say it. There’s been a lot of discussion, lately, about the concepts of precedent and res judicata and consistency, and I don’t expect you to understand what res judicata means because it’s a legal term, but basically what it comes down to is what did you decide in the past? And there are arguments on both sides having to do with precedent and consistency. So explain yourself. If this application is similar to another one where you granted the relief, but in this case you’re going to deny it, reference it and say why it’s different. I know that on the surface this reminds us of the Johnson application, but in my mind it’s really two different things because Johnson’s on a really busy road and this is a really agricultural area where my concerns just don’t apply, or say, I know that in Johnson we granted it, and in that case I was really on the fence, but because of the peculiar circumstances of that case, I voted for it, but I really think it was a bad decision and we shouldn’t repeat that mistake. Now don’t say it unless more than 30 days have gone by since you made that decision. MR. BRYANT-What you’re saying is valid. However, you’ve got to look at it from the applicant’s standpoint. Even though we don’t take precedence as part of the evidence because we look at every case separately, the applicant is thinking this shmuck down the road has got a dock that reaches the sky and why can’t I, okay. MS. RADNER-And that is a valid concern. What you do, if that’s the concern, though, is you express it in terms of the character of the community. I’m concerned that this overbuilt dock is going to negatively impact the character of the community because we’ve already got a very crowded situation. If we allow this overbuilt dock, other people are going to come forth and they’re going to request it and little by little we’re going to erode this already overcrowded community further, and I don’t think it should be granted. So you’ve considered it on the application. You’ve framed it in terms of why that precedent is dangerous to this community, and you’ve made a defensible statement. Do you understand what I’m saying? MR. BRYANT-Sure. Good point. MS. RADNER-It’s particularly important in terms of consistency when you’re treating the same applicant, and there’s some case law out there that basically says the neighbor shouldn’t be affected to keep coming back over and over again on the same application. So Mr. Johnson, I keep using the name Johnson, and I’m really just making hypotheticals. I know we have had some Johnsons, but, you know, Mr. Johnson wants a two car garage that’s, you know, 100 feet by 99 feet. You deny it. He comes back a week later, it’s 100 feet by 98 feet. Well, it’s the same damn application and you all know it. So you can deny it and say, this is the same application, it’s already been denied. It may not even have to get to the point of hearing it. If you’ve got a similar application, though, for the same piece of property, and it is in some way different, maybe the dimensions are similar, but something’s changed, point out that change, so that somebody can’t, in opposition to the application, now, say, you know, three times Mr. Johnson was here over a seven year period. Each time he wanted to build that same 100 square foot garage and you denied it, and this time you’re granting it. That’s not fair. I have the right to expect that you’re not going to grant an application that’s already been denied three times. In that case, you need to set forth what’s changed. You know the last four times you were before us, we denied your application for this garage, but in the meantime you’ve acquired some additional land from your property holder, so the relief isn’t as great. The zoning has changed, and now the setback is less than it used to be. So we’re not granting the same percent of relief, and the character of the community has changed quite a bit in the last ten years, so that now it no longer seems to be out of character. Express those changed circumstances, so that even though it’s 100 foot, there’s a reason why now you can say yes when you had to say no before. Get it on the record. Does all that make sense? MR. ABBATE-Yes. What you’re saying is that basically we’ve got to dot the I’s and cross the T’s. MS. RADNER-Dot the I’s and cross the T’s. Be aware of sort of the hot areas, where the challenges are going to come up, and dot the I’s and cross the T’s. The other one that they love to point to, the people bringing the Article 78’s, is public opposition. She didn’t 33 (Queensbury ZBA Meeting 07/26/06) rely on the evidence. She was swayed by public opposition. They always refer to that. Make it a point of saying, you know, I’ve heard the arguments for it and against it, and I think that good arguments are made on both sides, but my job is to come down on the benefits of this application, and based on what’s before me and what’s in the record, and it’s particularly important that the person who’s making the motion do that, and Chuck will keep rotating who he volunteers to do that, but whatever one of you it is, keep it in mind, and be doubly vigilant when you’ve had an application that has had some controversy. If you’ve got somebody you know is litigation happy, they always sue, regardless of whether they got what they wanted or not, they sue. Be a little extra careful. Take a little extra time. If you’ve got an application that you think looks really good, but there’s one neighbor that just, they’re not going to take no for an answer, they’re going to file an Article 78, dot your I’s and cross your T’s, you know, refer to the comments they made, but then refer to the evidence that you feel rebuts it, and cover yourself. Make that resolution crystal clear, so that everybody knows what they’re voting on and why. MR. BRYANT-Can I ask a question? MS. RADNER-Of course. MR. BRYANT-Something that comes to mind tonight. A couple of months ago, this Board passed a resolution requiring surveys by licensed engineers on all these applications, okay. Tonight now we have two different surveys, one which didn’t have the date stamp on it because it was a reduction, and then we find out that the date is over a year old. Okay, and then another one, which is done by a licensed surveyor, but he didn’t put his seal on it, which means it’s not a legal document, okay. So my question is. th MR. ABBATE-No, because that doesn’t go into effect until the 15 of this month, the seal and the signature and the date. What we passed, the resolution we passed was the acceptance of a survey without a signature, without a stamp, and without a date. However, we modified that, and I don’t think you were here. We modified that, effective th the 15 of this month, every survey that comes before the Board, every variance that th comes before the Board must not only have a survey as of the 15, but now it must be th sealed, must be dated and must be signed by a competent engineer, as of the 15 of this month. These applications were submitted prior to that date. MR. BRYANT-Okay. Well, that answers my question, thank you. MS. RADNER-Otherwise the answer to the question would be back to where we started out. You’ve got relaxed rules of evidence. You can accept things that might not be admissible in a court of law, but you have to make the credibility determination. So if you have two surveys that are before you, the applicant’s which has bee signed, sealed, delivered, and the neighbor’s, which is before you because they’ve submitted it, but it hasn’t been signed, you can say, while I have Mr. Jones’ survey, I’m going to have to go with Mr. Johnson’s survey because he’s got the engineer’s seal on it and I can tell when it was done, and it’s a more reliable survey. th MR. ABBATE-Well, that’s resolved as of the 15 of this month. MS. RADNER-But you’re still going to end up with situations where the opposing parties submit other surveys and other things that don’t have that little seal that you want. MR. BRYANT-Is there any timeframe on these surveys? In other words, somebody does an application, can they take a survey that’s two or three years old? MR. UNDERWOOD-Sure. MR. ABBATE-I don’t see why not. I think it has to be realistic. We have to take a reasonable approach. I wouldn’t accept a survey that was done in 1930. MR. UNDERWOOD-We already determined, too, that the Chairman can make the call as to if it was some minor variance. MR. BRYANT-Okay. MR. ABBATE-Yes, as a matter of fact, to answer your question, that’s what I do when I do. MRS. BARDEN-The pre-application, completeness review. 34 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-Right, I do that and I go through there looking for this stuff. As a matter of fact, if you’ll notice, I rejected three because I said there were no surveys, and I requested the surveys. So I try and do that, as a matter of fact tomorrow morning at ten o’clock. MR. BRYANT-Those are all my questions. MS. RADNER-Okay. I remember what it was I was going to say before. Particularly when you’re dealing with the guy on the lake who you know files lawsuits once a month, there is nothing wrong with taking a recess to put together your resolution and getting back on the record, and particularly where you’ve got a lot of controversy or you’ve got a really big project you know it’s the, you know, Disney is going to be building a new facility at the opposite end of Town from The Great Escape and you’ve now got this huge application that requires 72 variances, you could ask counsel to draft a resolution for you in advance. You could even ask for two, draft us two resolutions, one for it and one against it, and as long as you have those, and you can consider them in time before the meeting, have reviewed them, understand them and act reasonably in reliance upon them, that’s perfectly fine. MR. ABBATE-I like that idea, particularly on the more difficult ones. We’ve got a couple of them coming up, the miniature golf and what have you, and so on. Yes, I may do that, Cathi. MR. BRYANT-The framework, there’s a provision that allows us to come back with a determination in 62 days. How does that really work? MR. ABBATE-What we basically will say is that we are going to take, the Statutes allow us to take 62 days to make a decision, and we are going to, I’ll recess the thing and we’ll wait the 62 days and we’ll make a decision. MS. RADNER-The public hearing is closed. You don’t accept any further applications, but you issue your decision at some other later date in the 62 days. MR. BRYANT-Okay, and then basically, at that time, whoever makes the resolution, can make a detailed resolution covering all the bases. MR. ABBATE-Yes, and I really truly believe that on these more difficult ones, I really think that we rush sometimes. I really think we should take more time, to be very frank with you, really and truly. MS. RADNER-And you could make the public wait five minutes while you put together a motion. MR. ABBATE-That’s the way I look at it, too. They can wait. I agree, but I like to have the consensus of the Board to do this. I don’t want them to think that I’m a dictator and this kind of thing, but the Board, if they support me on this thing, I’ll be more than delighted to do it. I think sometimes we act too fast, really, on the motions. I think we have to take a little more time, with the more difficult ones. Not the simple ones, the more difficult ones. MS. RADNER-Yes, if it’s a minor, you know, I want three feet of relief from the side yard for my garage. MR. ABBATE-That’s not a problem. MS. RADNER-The reality is nobody’s going to challenge any, if you put one together quickly, nothing’s going to happen. MR. ABBATE-But what I did, what we did, and what I did prior to that, I think Susan was there, we heard three cases last week, and I already told the Zoning Administrator and I think Susan, the Planner, that we’re going to hear this thing but we’re not going to settle it because I’m going to send that to the Planning Board for recommendations because we’re not quite sure of any type of environmental impact that it may have. I’ve never done that before, but I think that was a good idea to do that. MS. RADNER-And did you close the public hearing and then refer it to the Planning Board? 35 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-No, no, no. I kept it open. MS. RADNER-Okay. MR. ABBATE-I kept it open, on both cases. One was a miniature golf course, and I don’t know what the other one was, Susan. Do you remember? So anyway, as Chairman, I’ve never done that before, but that was an instance when I said to myself, wait a minute, you’ve got to take a break on this. It’s too delicate. Let’s see what the Planning Board has to say, and by the way, guys, I wasn’t being sarcastic. We don’t have to go along with any recommendations from Staff, from the Planning Board, or even counsel. That’s a fact. MS. RADNER-Absolutely. MR. ABBATE-So that everybody knows that. I’m not being nasty about it, but that’s a fact. MR. BRYANT-What’s the purpose of paying her if we don’t listen to what she has to say? MR. ABBATE-Well, do you want to know why? I’m going to tell you why, and I don’t know whether Cathi would agree with me. Cathi’s in a difficult position. She’s wearing two hats. She can’t support the Town, and she can’t support us at the same time. She’s an advocate for the Town. We are not advocates for the Town, nor are we advocates for the applicant. MS. RADNER-To a degree I can’t disagree with that. I think it’s a fact that the Town Board has its agendas. When I’m here before you guys, I try to give you the best, soundest legal advice I can. I hope you realize that, but there’s no doubt that there’s times when what this Board does and what the Town Board does might not always agree. MR. ABBATE-Correct. MS. RADNER-And I represent both. MR. ABBATE-Right, and it’s nothing personal, nothing personal. MS. RADNER-No offense taken. MR. UNDERWOOD-Here’s a question for you. Why is it that whenever there’s something controversial coming up, there’s this pre-emptive article in the newspaper two days our meeting regarding the grandiose project that’s being proposed? I mean, I don’t understand whether it’s politically motivated or is it just happenstance? To a degree it seems to usurp the decision making process, because it already points in a certain direction, especially when I hear the Warren County Planning Board unanimously decide that this was a great idea. MR. ABBATE-Well, let’s be more specific, Cathi. One of the cases we referred back to the Planning Board was that golf course. MR. UNDERWOOD-If it is being motivated from Town government, to a degree, I think that’s wrong because it’s throwing a wrench in the works right off the bat, not that it has any bearing on our decision making process anyway, but I just think that it’s, you know, it’s fine if you want to inform the public, but, you know, it seems a little bit obtuse to me. MS. RADNER-Well, I think it’s exactly what you’re suggesting it is. In some cases it’s the applicant who’s trying to sway the public to show up either for or against an application. Sometimes it’s just happenstance, a reporter happens to, I mean, all our agendas are on the Internet. People can go through and they can see what’s coming up, and they, you know, are looking for things to fill up pages, and quite often it’s one of those five members of the Town Board, because they have their agendas, too, and it’s not the same agenda for the Town Board. They’re against each other. MR. BRYANT-We’re not on the record. MR. ABBATE-No, we’re not on the record. MRS. BARDEN-Yes, you are. 36 (Queensbury ZBA Meeting 07/26/06) MR. ABBATE-We are on the record. That’s right. We’re no longer in Executive Session. MS. HEMINGWAY-You’re in a workshop. You wanted all of that taped. MR. ABBATE-I want that redacted, please. MS. RADNER-Just as you don’t have to accept the advice of counsel, you don’t have to accept the advice of Staff. You don’t have to accept the advice of the Post Star, either, and you don’t have to accept everything that’s in the Post Star as fact, and you’re going to have members of the public who come forward and say, well, this is what I saw in the Post Star, and you can say to them, well, I’m not sure that everything in the Post Star was accurate or, well, I’m required to rely upon the record before me and you’re going to have times when people actually give you that article to put in to the record, in which case you can refer to it, but you make the credibility determinations, not the Post Star. Don’t fall into the trap of relying on the Post Star article that was written two days after your public hearing was closed, because that will be absolute grounds for them kicking out your decision, by whichever side wants to raise that fact. MR. GARRAND-It still seems like an effort to exert undue influence on the Board. MS. RADNER-And it may very well be, and I can tell you with all honesty, I’ve never heard any member of the Town Board say that they’re going to do that, and that that’s their plan and that’s their agenda, and I can pretty much guarantee that it’s never been a situation where it’s a concerted decision by the Town Board to, you know, let’s issue a statement to the press so that the Zoning Board of Appeals will know in advance what they’re supposed to do. There may be times that one individual Town Board members give information to the press. I would be lying if I said that had never happened before, but I think more often it’s probably either the applicant or the opposition to the applicant, and quite often it’s timed in such a way that it’s going to be a one time story. They will submit the information and they will do it Friday afternoon so that there’s, then that little column, counsel could not be reached for comment, or the applicant could not be reached for comment. It’s Saturday afternoon at nine o’clock when they were calling whatever office, nobody answered the phone. Amazing that. MR. ABBATE-Cathi, let me give you advanced notice, if you don’t know about this. Do you remember originally I was asking for a workshop specifically for the Zoning Board of Appeals to go into a little more of the legal aspect of it, at our last Staff meeting, I think both you folks were there, what Marilyn is going to do now, she’s going to expand that. So the workshop is going to include Town Board members, Zoning Board of Appeals members, and Planning Board members. So just to give you a heads up ahead of time. MS. RADNER-Okay. I’m going to guess that Mark Schachner is going to want to do that himself. He likes doing those workshops. MR. ABBATE-Am I right on that, Susan, didn’t Marilyn say she was going to do that? MRS. BARDEN-Yes. MR. ABBATE-Yes, and I asked her to make sure she touched base with Cathi so that we know. Well, tomorrow I’ll raise the issue again. Okay. MS. RADNER-I’ll talk to Mark as well. He does like to do those workshops. I would guess that it’s Mark, but I would be more than happy to do it as well. MR. ABBATE-Okay. Sounds good. MS. RADNER-And the same would apply to Mark. You’re allowed to tell him, that didn’t make sense, I didn’t understand. He won’t take offense. MR. ABBATE-So does anybody have any questions for our Town Counsel? Thanks much, Cathi, really, that was fantastic. It’s good. You know what, we need this. MS. RADNER-My pleasure. I know you guys have heard it all before. MR. ABBATE-Yes, but it helps to hear it again. Thanks again. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, 37 (Queensbury ZBA Meeting 07/26/06) Charles Abbate, Chairman 38