2008.04.16(Queensbury Zoning Board Meeting 04/16/08)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
APRIL 16, 2008
INDEX
Use Variance No. 10-2008 Lake George Campsites, LLC 2.
Tax Map No. 295.12-1-6
Area Variance No. 4-2008 Robert & Bonnie Napoli 4.
Tax Map No. 289.13-1-11
Area Variance No. 13-2008 Jane B. Lowell 8.
Tax Map No. 290.00-1-22.221
Area Variance No. 19-2008 Ronald Ball 14.
Tax Map No. 295.10-1-31.1
Notice of Appeal No. 1-2008 John Salvador 20.
Tax Map No. 252.00-1-75.2
Area Variance No. 14-2008 John Salvador 32.
Tax Map No. 252.00-1-75.2
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.
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QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
APRIL 16, 2008
7:00 P.M.
MEMBERS PRESENT
JIM UNDERWOOD, CHAIRMAN
ROY URRICO, SECRETARY
JOYCE HUNT
RICHARD GARRAND
GEORGE DRELLOS
JOAN JENKIN, ALTERNATE
BRIAN CLEMENTS, ALTERNATE
ZONING ADMINISTRATOR-CRAIG BROWN
LAND USE PLANNER-KEITH OBORNE
STENOGRAPHER-MARIA GAGLIARDI
MR. UNDERWOOD-I’ll call to order this meeting of the Town of Queensbury Zoning
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Board of Appeals, and our meeting date today is the 16 of April 2008. First off, let me
do a quick review of our procedures in general. For each case, I’ll call the application by
name and number. The Secretary will read the pertinent parts of the application,
including the Staff Notes and Warren County Planning Board decision if applicable. The
applicant then will be invited to the table and will be asked to provide any information that
they wish to add to their application. The Board, then, will ask questions of the applicant.
Following that we’ll open the public hearing, and I’d caution that the public hearing is not
a vote. It’s a way to gather and understand information about concerns, real or
perceived, and it’s a way for the Board to make a reasonable decision regarding the
project. As always, we’ll have a five minute limit on each speaker so that basically says
tell us everything you want us to know in that five minute period. A speaker may speak
again if, after listening to other speakers, the speaker believes that they have new
information to present. Following that we’ll read correspondence into the record, and
then the applicant will have an opportunity to react and respond to the public comment,
and the Board members will then discuss the variance request with the applicant.
Following that, the Board members will be polled to explain their positions on the
application, and then we’ll close the public hearing, unless there’s a reason to leave it
open again, if it looks like the application will be continued to another meeting. We’ll
have a motion either to approve, disapprove and table, and then, you know, essentially,
if we’re completed, then we’ll vote on that that evening. We do have some business to
take care of tonight, because we’ve had such a major changeover in the make up of the
Board. What I’m going to do is just have people make some recommendations on the
floor, immediately here, for both a Vice Chairman and a Secretary. So I think we’ll do the
Vice Chairman first of all. Does anybody want to make a nomination?
MR. URRICO-I’ll nominate Rich Garrand.
MRS. HUNT-I’ll second.
MR. UNDERWOOD-Anybody else want to make any nominations for anyone else?
Okay. Then I guess we’ll call the vote on it, then.
MOTION TO NOMINATE RICHARD GARRAND FOR VICE CHAIRMAN OF THE
QUEENSBURY ZONING BOARD OF APPEALS, Introduced by Roy Urrico who moved
for its adoption, seconded by Joyce Hunt:
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Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mrs. Hunt, Mr. Garrand, Mr. Urrico, Mrs. Jenkin, Mr. Clements, Mr. Drellos,
Mr. Underwood
NOES: NONE
MR. UNDERWOOD-Okay. Also we’re going to have to do for Secretary, and I would like
someone to nominate someone to be Secretary, since I can’t do it anymore.
MRS. HUNT-All right. I’ll nominate Roy Urrico to be Secretary.
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MR. DRELLOS-I’ll second it.
MR. UNDERWOOD-Okay.
MOTION TO NOMINATE ROY URRICO FOR SECRETARY OF THE QUEENSBURY
ZONING BOARD OF APPEALS, Introduced by Joyce Hunt who moved for its adoption,
seconded by George Drellos:
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Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mr. Drellos, Mrs. Hunt, Mr. Garrand, Mrs. Jenkin, Mr. Clements, Mr. Underwood
NOES: NONE
ABSTAINED: Mr. Urrico
MR. UNDERWOOD-Okay. We do have an Administrative Item tonight.
ADMINISTRATIVE ITEM:
USE VARIANCE NO. 10-2008 LAKE GEORGE CAMPSITES, LLC, 1053 STATE
ROUTE 9 THE ZONING BOARD OF APPEALS MAY CONSENT TO THE PLANNING
BOARD’S REQUEST FOR LEAD AGENCY STATUS
JOHN LEMERY, REPRESENTING APPLICANT, PRESENT
MR. UNDERWOOD-And Lake George Campsites, LLC has previously been on the
agenda, but they pulled off the agenda. This is a, if they could come up to the table here
for a moment, and I think what we’re going to do is, is there anybody here from the public
tonight that wanted us to address that this evening? I don’t see anybody, Mr. Lemery.
All right, I think what we’re going to do here is the following, then. Lake George
Campsites is proposing to expand their present facility up on Route 9 there. It’s a pre-
existing campsite and RV park. I don’t know if anybody is familiar with the project in the
public or not, but essentially the applicant is proposing a changeover from more of a
traditional campsite to a complete RV park, and at some point in time, I think due to the
fact that it’s going to be such a major changeover here, I think what happened last night
at the Planning Board was that the Planning Board decided that they were going to
assume the Lead Agency role here, as far as the review of this project, and I think that
probably what we’ll do is just, do you want to give us a brief, quickie on this.
MR. LEMERY-First of all, Mr. Chairman, with respect to the Zoning Board, this is not a
major change. This facility has been operated as an RV park for years. If you remember
when the cinemas were there, you could smell the smoke, and you’d go back in there,
it’s been an RV park. The former owner’s operated it for many, many years. So what
precipitated our coming to the Zoning Board of Appeals was that the Staff determined
that we had a need for a variance. We respectfully challenged that, but we agreed that
we would come here, but I just want to make sure we’re on the record with regard to
preserving our rights, and I just want to show you a sign that has been there for years,
and years and years, which is Lake George Campsites Tent and RV Park. So it’s been
an RV park for several years, going back many, many years. It’s a nonconforming use in
that zone, and it has been so. What precipitated this was the, we’ve agreed to sewer the
entire park. So what is required is that there will be sewer lines throughout the entire RV
park to each one of the sites. So, because we’re going on the Queensbury sewer, we
felt it would be a good time to upgrade it and clean it up, get it in shape, and we’re more
than happy to come to the Zoning Board, show you our plans, and hope that you’ll see
that this is a good, cleaned up use of this facility, and ultimately approve this. The
reason it’s been determined to be a Type I is because we’re, in effect, disturbing over 10
acres of land, and the reason for the disturbance, really, is because we’re putting the
sewer lines in throughout the entire park. So every site will be sewered. Every site will
have water. All the septics will be gone. So we think it’s a significant upgrade, and will
certainly provide additional revenues to the sewer district and those kinds of things. So I
just wanted to preserve our rights, Mr. Chairman, but we’re pleased to be here.
MR. UNDERWOOD-Sure. Yes. Craig, can I ask you a question? Should we read this in
now, at this point, or wait until the public?
MR. BROWN-If you want to read it in for purposes of explaining, you know, why you’re
going to consent, and I’m assuming that the Board’s going to consent to the Planning
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Board to be Lead Agency. I don’t think the project description’s a bad idea. There’s
been no public hearing advertised. So any public comment is probably inappropriate at
this point, and I guess just for, you know, complete purposes of the record, to date no
appeal of any determination that a Use Variance is required has been filed, and in my
opinion, that timeframe has long since run. So we just want you to get some of that stuff
on the record.
MR. UNDERWOOD-I would assume that when the Planning Board reviews this, there
may be some significant changes from what’s been given to us in our packets. I mean, I
don’t know what stage you’re at with the Planning Board, since we were not there last
evening.
MR. LEMERY-We haven’t been anywhere. The first thing that has to be done is the
determination, where the Lead Agency is, and assuming the Planning Board will be the
Lead Agency, this will be referred back to the Planning Board, and then the Planning
Board will then do nothing more than refer it back to you folks for a determination of
whether or not we’re entitled to a Use Variance, and then if the Use Variance is granted,
we go back to the Planning Board for Site Plan Review. Is that correct?
MR. BROWN-Yes, mostly. The big part that’s missing in there is what the Planning
Board’s going to do. They’re going to do the SEQRA review, and it’s a SEQRA review
on a Type I project, and what comes out of that is a determination of significance, either
there are significant adverse impacts or there aren’t, and then you’ll get that answer back
as to, what the environmental significance is of the project, then you can go ahead and
make a decision on the variance.
MR. UNDERWOOD-Okay.
MR. BROWN-And that’s a big step in the middle there. Yes.
MR. UNDERWOOD-Do you want to read anything in, Roy, then, or, I’m not sure what we
should be reading in at this point, other than the, your letters?
MR. BROWN-Well, I think a project description, and, did we do a prepared resolution for
you to consent to the Planning Board to be Lead Agency? And that’s really the only
action you need to take tonight.
MR. LEMERY-Right.
MR. URRICO-All right. The project description is Lake George Campsites, LLC. The
agent is Lemery Greisler, 1053 State Route 9. The project description: The applicant
proposes expansion to the pre-existing campsite and RV park. A change in use is
requested from a campground to an RV park. The campsite and RV park includes a
revised 375 space layout and site improvements.
MR. BROWN-And I think on one of those handouts I gave you at the beginning of the
meeting, there is an actual form that, yes, I think the second page in there is probably the
format of a resolution you could read in.
MR. UNDERWOOD-Okay. I can read it in if you want.
MR. BROWN-Yes.
MR. UNDERWOOD-All right. Today’s date is April 16, 2008, and essentially this is a
request for Lead Agency Status for Site Plan No. 13-2008, as well as Use Variance No.
10-2008, which is Lake George Campsites, LLC.
MOTION THAT THE QUEENSBURY ZONING BOARD OF APPEALS CONSENTS TO
THE DESIGNATION OF THE TOWN OF QUEENSBURY PLANNING BOARD AS LEAD
AGENCY FOR SITE PLAN NO. 13-2008 & AREA VARIANCE NO. 10-2008 LAKE
GEORGE CAMPSITES LLC, Introduced by James Underwood who moved for its
adoption, seconded by Roy Urrico:
1053 State Route 9.
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Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mrs. Jenkin, Mr. Drellos,
Mr. Underwood
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NOES: NONE
MR. UNDERWOOD-Okay. So I’m not sure how soon they’re going to get to you. I
mean, do we want to set a date or just simply whenever it comes back, as soon as?
MR. BROWN-As soon as the Planning Board’s done with SEQRA. We’re probably going
to put them in the mix again, probably next month, once the 30 day clock has run, we’ll
get you back on.
MR. LEMERY-Yes, we assumed we’d be back over there for the SEQRA determination
next month.
MR. BROWN-For May.
MR. LEMERY-That’s fine with us, Mr. Chairman.
MR. UNDERWOOD-Then I think we’ll just keep the date open for us, then, for whenever
we hear back.
MR. LEMERY-Thank you.
MR. UNDERWOOD-Thank you. Okay.
OLD BUSINESS:
AREA VARIANCE NO. 4-2008 SEQRA TYPE: II ROBERT & BONNIE NAPOLI
AGENT(S): N/A OWNER(S): ROBERT & BONNIE NAPOLI ZONING: WR-1A
LOCATION: 13 CHESTNUT ROAD APPLICANT PROPOSES TO REPLACE
EXISTING DOCK (DECK SURFACE CURRENTLY 78 SQ. FT.) WITH A NEW DOCK
SURFACE OF 240 SQ. FT.) RELIEF REQUESTED FROM MINIMUM SIDE SETBACK
REQUIREMENTS AS WELL AS MAXIMUM DOCK WIDTH LIMITATIONS. CROSS
REF.: BP 2008-003 DOCK WARREN COUNTY PLANNING: N/A LOT SIZE: 0.17
ACRES TAX MAP NO. 289.13-1-11 SECTION: 179-5-050
ROBERT NAPOLI, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 4-2008, Robert & Bonnie Napoli, Meeting Date:
April 16, 2008 “Project Location: 13 Chestnut Road Description of Proposed Project:
Applicant proposes construction of a 240 sf dock. Per discussions at the February 27,
2008 meeting, the applicant has reconfigured the proposed dock.
Relief Required:
Applicant requests relief from the 20 foot minimum side setback requirement on both
sides of the proposed dock. Specifically, 8.22 feet of relief on the south side (previously
6 ft ) and 2 feet of relief on the north side (previously 5.80 ft) is requested. Additionally,
relief is necessary for the 12 ft proposed width (previously 14 ft) as the maximum
allowable width is 8 feet.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
1. Benefit to the applicant:
Applicant would gain additional lakeside recreation area.
2. Feasible alternatives:
As the extension of the property lines creates a minimal area for a compliant dock, it
would appear that most proposals would require relief in some degree. It does appear
as though a narrower dock of the same length would not require as much relief as is
currently requested.
3. Is this relief substantial relative to the ordinance?:
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The revised request for over 8 feet of setback relief from the 20 foot requirement on the
south side of the proposed dock may be interpreted as moderate to substantial (40%)
while the revised request for 2 feet of relief on the north side may be interpreted as
minimal. Additionally, the oversized dock width may also be interpreted as significant
relief when viewed cumulatively.
4. Effects on the neighborhood or community:
No letters of support were submitted with the revised application materials.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
Parcel History (construction/site plan/variance, etc.):
None applicable
Staff comments:
The proposed dock has been reconfigured and reoriented to provide a larger setback for
the neighbor to the north, however, in doing so the setback to the southerly neighbor has
decreased by 2.22 ft. Additionally, the reconfigured dock shows a narrower main
walkway of 6 ft in width (previously 8 ft) however, the “sitting area” at the end of the dock
has increased to 120 sf (previously 112 sf). The overall square footage of the dock has
been decreased from 240 sf to 210 sf.
SEQR Status:
Type II”
MR. UNDERWOOD-Mr. Napoli.
MR. NAPOLI-Yes. I mean, you’ve received the new drawing, and the difference from
last month until now, I mean, I’m showing 18 feet off of that one side, where it was 14
feet previously. The neighbor to the other side of me, unfortunately they’re on vacation.
So I wasn’t able to have his wife e-mail her letter, but there is no problem with that. The
existing dock is 10.49 away from that line, and the way it’s configured now, I’m 11.8. So
I’m still further away from them than I was before, and they don’t have a problem with it.
They’ll be back this week and I can have a letter. I did change the size of the dock,
which you’re well aware of, and it seemed like the main concern last month was with
bringing a boat in to the neighbor’s docking area, that I was too close to them. At this
point in time, I reversed the sitting area at the end of that dock so that the boat will go
back over to the other side, and I don’t see where there’s a problem that I’m going to be
encroaching on them, as far as them coming in with their boat, like they claimed last
month.
MR. UNDERWOOD-Did you get any kind of feedback from the Batease, I think were the
ones that were?
MR. NAPOLI-No, they won’t speak to me.
MR. UNDERWOOD-Okay. I think that we recognize the fact that, you know, with these
very narrow lots, no matter what you did out there, you couldn’t make it compliant
anyway, and I think we’re, you know, the fact that you’re making an attempt here to make
things better than they were before, it’s about all you can do.
MR. NAPOLI-Well, when you look at the shoreline of my property, where it meets
Batease, it says wood wall. Now the previous owner of the property that I own, for some
reason, they wanted to park their boat over there, and that’s where they were parked,
and they were relatively close to the existing dock that’s there now, when they were
parking. I mean, I don’t understand what their thing was about rough water. I mean,
they’re not on Lake George. They’re on Glen Lake. There’s more than, you know
enough room to get in and out of there. I mean, when you’re approaching a dock, if the
wind is blowing, you know well in advance that you’re not going to get up to that dock. I
mean, you’re not right there. You’re already 50 feet out, you know you’re not going to
make it. So, I mean, why they were saying that, I have no idea, but my neighbor next
door, the way their dock is set up, we’re relatively close, and I mean, they’ve got college
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age daughters, and they don’t have a problem coming in with their boat, along my side,
so I really don’t see where I’m hurting them at all.
MR. UNDERWOOD-Does anybody have any questions at this time?
MRS. JENKIN-Well, I have a comment. The fact that you took the suggestions of the
Board and you made the adjustments and changed, flipped it over, which then there
should be no problem with the neighbor to the north now, because you won’t be going on
his side.
MR. NAPOLI-Correct.
MRS. JENKIN-I think that you really have been very, very flexible, and you’ve done a
good job of changing and thinking about neighbors and trying to consider everything. It’s
a good move. Good changes.
MR. NAPOLI-Thank you.
MR. CLEMENTS-Just to remind me, was the “L” going the other way?
MR. NAPOLI-The “L” was on the opposite side, last month, and that was their concerns,
and that was one of their main concerns because my boat would be parked on their side.
So I flipped it so the boat will be back on the other side.
MR. CLEMENTS-Okay.
MR. NAPOLI-And I’ve reduced that sitting area out there from 14 to 12, and the runway
from eight to six.
MRS. JENKIN-It’ll give you a little bit more sitting room, too, which is good. That’s an
advantage for you.
MR. NAPOLI-Correct.
MRS. HUNT-I do have a question. While the overall square footage of the dock has
decreased from 240 to 210 square feet, you did increase the sitting area from 112 to
120.
MR. NAPOLI-Well, what I did on the seating area, it’s still 12 foot wide, but I went back
another two feet.
MRS. HUNT-Towards your.
MR. NAPOLI-Towards my property. So that I could have some chairs out there. I mean,
to go through all that expense to have that landing out there, and to be two feet shorter
or what have you, before you know it you’re going to fall off the thing with your chair.
MR. UNDERWOOD-And you do have the bank, steep bank coming down there, too. So
I mean, it’s really not practical to put it on the shore, you know, any kind of a patio or
anything like that. It would make more sense to put it out there where you’re putting it.
MR. NAPOLI-Correct.
MR. UNDERWOOD-Yes.
MRS. HUNT-Thank you.
MR. NAPOLI-Thank you.
MR. UNDERWOOD-Okay. I guess I’ll open up the public hearing. Anybody from the
public wishing to speak on this subject tonight?
PUBLIC HEARING OPEN
MR. BROWN-Mr. Chairman, I did speak with Mr. Batease today. He actually called and
said that if the plan conformed to the discussions last time, the flip flop and the boat
would be on the south side of the dock, he said that that would answer all their concerns,
and as long as that’s a condition of the approval, that the boat be on the south side, they
were going to be happy with it.
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MR. UNDERWOOD-Okay. You can come back up. It looks like nobody’s here. All right.
I guess I’ll poll the Board members, then. I’ll start with you, Roy.
MR. URRICO-Yes. I think the applicant has shown, as has been stated earlier, shown
some interest in listening to the Board and made the suggestions a reality, and it seems
like the neighbors no longer have any concerns, or at least we haven’t heard of any. I
think the benefit to the applicant is feasible. I don’t see any undesirable change in the
neighborhood character as a result of this. The relief, I think, is not substantial. I think,
taken in small doses, I think it’s, we can swallow this, I think, pretty easily. I don’t see
any adverse physical or environmental effects, and while the difficulty is probably self-
created, because the alternative is not putting up a dock, I don’t see a problem. I would
be in favor of it.
MR. UNDERWOOD-Okay. Joyce?
MRS. HUNT-I have to agree. I think that Mr. Napoli has made a lot of adjustments and
gone along with what the Board suggested, and I think because of the constraint of the
size of the lot, he didn’t have much leeway, and so I would be in favor.
MR. UNDERWOOD-Rich?
MR. GARRAND-I also agree with Joyce. The size of the lot plays a big factor here, and
the only reason it’s noncompliant is the size of the lot. The applicant has bent over
backwards for both the neighbor, I think it’s to the south, the Bateases.
MR. UNDERWOOD-They’re north.
MR. NAPOLI-North.
MR. GARRAND-North, and I think he’s done a good job of trying to accommodate
everybody here. So I’d be in favor of it.
MR. UNDERWOOD-George?
MR. DRELLOS-I’ll excuse myself from this one.
MR. UNDERWOOD-Yes, okay. Brian?
MR. CLEMENTS-Yes, I’d also be in favor. I think that he’s done a nice job in
reconfiguring it, and since there are no negative comments from the neighbors to the
north or the south, I would be in favor of it.
MR. UNDERWOOD-Joan?
MRS. JENKIN-I’ll agree with the rest of the Board members. I think that he’s been very
accommodating to everyone. So I would be in favor.
MR. UNDERWOOD-I live on the other side of the lake from you, so I know right where
you are, and it’s my understanding, I could never understand why the neighbors were so
upset the last time when you came in, because everybody realizes with these narrow lots
that we all live on, that it is tight, but thank you for accommodating your neighbors, even
though it wasn’t a very fun process I’m sure for you.
MR. NAPOLI-Thank you. Things happen.
MR. UNDERWOOD-But in any case, I think that, at this point in time, does somebody
want to make a motion to approve this?
MRS. HUNT-I’ll make a motion.
MR. UNDERWOOD-Okay.
MOTION TO APPROVE AREA VARIANCE NO. 4-2008 ROBERT & BONNIE NAPOLI,
Introduced by Joyce Hunt who moved for its adoption, seconded by Richard Garrand:
13 Chestnut Road. The applicant proposes construction of a 240 square foot dock. Per
discussions at the February 26, 2008 meeting, the applicant has reconfigured the
proposed dock. The applicant requests relief from the 20 foot minimum side setback
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requirement on both sides of the proposed dock. Specifically, 8.22 feet of relief on the
south side, previously 6 feet, and 2 feet of relief on the north side, previously 5.8 feet is
requested. Additionally, relief is necessary for the 12 foot proposed width, previously 14
feet, as the maximum allowable width is 8 feet. Whether the benefit could be achieved
by other means feasible to the applicant? I think because of the width of the lot, he’s
really constrained about what he could do. There will be no undesirable change in the
neighborhood character or to nearby properties. Mr. Napoli went out of his way to
accommodate his neighbors who had a complaint. The request, I wouldn’t think it was
substantial because, as I say, because of the size of the property. The request will not
have any adverse physical or environmental effects, and the alleged difficulty is self-
created only because the Napoli’s want a new dock.
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Duly adopted this 16 day of April, 2008, by the following vote:
MS. GAGLIARDI-Did you close the public hearing?
MR. UNDERWOOD-I will close the public hearing at this point. Sorry about that.
PUBLIC HEARING CLOSED
AYES: Mr. Garrand, Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Underwood
NOES: NONE
ABSTAINED: Mr. Drellos
MR. UNDERWOOD-Okay. You’re approved.
MR. NAPOLI-Thank you.
NEW BUSINESS:
AREA VARIANCE NO. 13-2008 SEQRA TYPE: II JANE B. LOWELL AGENT(S):
MELISSA D. LESCAULT, ESQ. MC PHILLIPS, FITZGERALD & CULLUM, LLP
OWNER(S): JANE B. LOWELL ZONING: SR-1A LOCATION: CHESTNUT RIDGE
ROAD & COUNTY LINE ROAD APPLICANT PROPOSES TO FURTHER SUBDIVIDE
THE JANE LOWELL SUBDIVISION INTO 3 ADDITIONAL LOTS FOR CONSTRUCTION
OF SINGLE-FAMILY HOMES. RELIEF REQUESTED FROM LOT WIDTH
REQUIREMENTS FOR THE LOT FRONTING ON COUNTY LINE ROAD. CROSS
REF.: SUBDIVISION NO. 4-1996 WARREN COUNTY PLANNING: MARCH 12, 2008
LOT SIZE: 14.626 ACRES TAX MAP NO. 290.00-1-22.221 SECTION: 179-19-020 C
MELISSA LESCAULT, REPRESENTING APPLICANT, PRESENT
MR. UNDERWOOD-Okay. We tabled this application at our March 26, 2008 meeting
until tonight’s meeting.
STAFF INPUT
Notes from Staff, Area Variance No. 13-2008, Jane B. Lowell, Meeting Date: April 16,
2008 “Project Location: Chestnut Ridge Road & County Line Road Description of
Proposed Project: Applicant proposes a 3 lot subdivision of a 14.62 acre parcel.
Relief Required:
Applicant requests 99.95 feet of relief from section 179-19-020 which requires all lots
created that front on an arterial or collector road to have either double the minimum lot
width or a shared driveway. The proposed lot 1B does not meet the minimum 300 ft lot
width requirement nor does it share a driveway with an adjoining lot.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
1. Benefit to the applicant:
Applicant would be permitted to develop the property as desired.
2. Feasible alternatives:
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Feasible alternatives may include the acquisition of additional land from an adjoining
owner or securing an agreement with the property owner to the south for a shared
driveway, should that parcel (Tra-Tom) ever be developed.
3. Is this relief substantial relative to the ordinance?:
The requested relief of 99.95 feet is a request for 33% of relief from the requirement.
4. Effects on the neighborhood or community:
The neighborhood is made up of single family homes on similarly sized lots.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
Parcel History (construction/site plan/variance, etc.):
Subdivision 4-1996 Two lot subdivision
Subdivision 1-2004 Two lot subdivision approved 2/17/04
Staff comments:
Previous staff notes referenced a prior subdivision with no evidence in the Town
Records. Subsequently, the approved subdivision files have been located (Dickinson –
Sub 1-2004). Per NYS Town Law 277, subdivisions requiring variances must be referred
to the Planning Board for recommendation prior to deciding on the variance application.
SEQR Status:
Type II”
MR. UNDERWOOD-Go ahead.
MS. LESCAULT-Good evening. I know that was pretty extensive. I try not to duplicate
all the information that’s already in front of the Board on the record. As you know, the
property is 14.62 acres, and my client is looking to do a three lot subdivision. In order to
do so, we need to get a variance for the property that fronts on County Line Road, which
is a variance of 99.95 feet. The property is zoned for residential dwellings, and it’s zoned
with one acres. This particular lot has 200 feet of road frontage width. However, as you
know, because of the arterial road, it needs to have double that. It’s requiring the 300
feet. I just wanted to, again, go through the considerations that have basically been
discussed in the application, but there’s a few more things that I’d like to also present to
the Board, that we’ve done since the application’s been submitted. The first element of
consideration for the Board is whether a variance will cause an undesirable change in
the character of the neighborhood. The permitted use, and only permitted use, in this
area, zone, is for residential dwelling, which is what we’re obviously proposing. So there
will be no undesirable change in regards to the area or neighborhood. The second
element for the Board to consider, which wasn’t elaborated too much in the application,
is whether the benefit sought by the applicant can be achieved by some method feasible
for the applicant to pursue other than an Area Variance, and the purpose that we tabled
the meeting is based on Craig Brown’s note that I received a couple of days beforehand,
realizing that we should talk to the neighbors to the north and the south to see if there
were any other options that we could pursue so that we didn’t have to apply for a
variance. What we had done is we submitted a letter to both neighbors and offered them
to purchase the property for $55,000, basically by doing a boundary line adjustment so
that we didn’t have to actually do a subdivision. I have copies of that letter, which I’ll
th
provide to the Board in a minute. That was submitted on March 26, and I did not
receive a response from either party, and that was Tom Farone, who I believe owns the
property to the south, as Tra-Tom Development, Inc., and Mr. and Mrs. John Hesslin
own the property to the north of that County Line property, lot. I didn’t receive a
th
response from Tom Farone’s office. I called on April 11, to his office, just to follow up,
to see if maybe they didn’t receive the letter or if they’re interested or not, and again did
not receive a response. Also asked if he was willing to sell 100 feet of road frontage of
his property to our client so that they could comply with the road frontage requirement,
again, no response. I even went so far as to call his realtor to see if she could reach out
to him, and left a voice mail for her, and again, did not receive a response. In regards to
the Hesslin’s, Mrs. Hesslin and I actually left voice mails for each other, never spoke.
She was interested in what the public hearing was about, based on her voice mail to me,
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(Queensbury Zoning Board Meeting 04/16/08)
but never showed any interest in actually purchasing the property. We can’t buy any of
their land, because by doing so, it would create their lot as being substandard. Okay,
because they only had 350 feet, so they could only offer us 50 feet, which wouldn’t be
enough for us, in order to comply with the regulations. So basically my client has
exhausted all feasible alternatives in order to possibly selling the substandard lot or
buying land from them. The third element that the Board needs to consider is whether
this variance is substantial, and I just wanted to point out that my client’s project is only
seeking one variance, and the lot itself, without the double width requirement, is in
compliance. They have 200 feet. So they actually have 50 feet more, but because of
the arterial road purpose, we’re short 33% variance, and I also wanted to point out, which
is not in the application, that the property to the north is not vacant. There’s a house on
that lot that the Hesslin’s own, and their driveway, as you can see on the map, is
approximately over 100 feet from our line, so, you know, if it’s something that the Board
would consider, maybe we could even make it a condition that our client would have to
put a driveway to the furthest point south, so that, you know, they’re close to that 300
feet width. The fourth element that the Board has to consider is whether the proposed
variance will have an adverse effect or impact on the physical or environmental
conditions, and as stated in the application that we submitted, obviously the
neighborhood is single family dwelling with similar sized lots, so there will be no adverse
effect on the neighborhood. The fifth element is whether this alleged difficulty was self-
created. Right now the property is substandard, the lot, as it is, is substandard, because
obviously this piece of land that fronts on the arterial road is short 100 feet currently. In
2003 or ’04, I don’t remember exactly the year, when the prior subdivision was done, my
client actually didn’t do the application for the subdivision, which was why we couldn’t
find the map on file at the Town. It was the purchaser who bought the lands south of us.
That’s not to say that she’s not responsible for knowing that this lot being created would
be substandard. However, I also would like to point out, respectively, that the Planning
Board also should share and contributed in that creation of my applicant’s difficulties,
because of the fact that the property is now substandard. So, you know, the Town, also,
shares a little bit of responsibility in knowing this and helped create this difficulty for my
client. I know it’s not a point that has to be proven as a prerequisite for an Area
Variance, but I’d like to acknowledge the economic consideration. The applicant was
willing to sell that substandard lot to the neighbor to the north and the south for $55,000.
In that time, I actually spoke to a local realtor to find out what she thought the value of
that land would be, and, based on her comps, she gave it a value of at least a minimum,
as vacant lot, for $100,000. Basically she came up with that information. There was a
sale, about two properties north of there, for two acre property, with a house on it, for just
over $300,000, and there was also a vacant lot of one acre sold in Kingsbury for
$60,000. So my client risks losing between $55,000 and possibly $100,000 if the
variance isn’t granted. In conclusion, I’d just like to point out that the purpose of an
arterial road is to restrict the access onto a road, which can hinder the safe and efficient
movement of traffic. The road, on County Line Road, is not heavily traveled, as are most
arterial roads, they certainly go quicker than other roads, but, you know, I looked at the
list of arterial roads, and you have Glenwood Road. You have Lower Warren Street, and
Round Pond which have more commercial aspects. This area is residential, and, you
know, the property itself is flat, as said on the application. There are sight distances. It
may be half a mile north and south. I know in the application it said a mile, but it’s
between half a mile to a mile, depending on whether it’s dark or not. I traveled the road,
and I think one car, each time I’ve been on the road, passed me while I was on it. I don’t
believe that an additional driveway with two cars will hinder the safe and efficient
movement of traffic on the road, and I basically conclude that the benefit to Mrs. Lowell,
we clearly believe, outweighs the detriment to the health, safety and welfare of the
neighborhood, as our opinion there is no detriment to the neighborhood. That’s it.
MR. UNDERWOOD-Does anybody have any questions?
MR. URRICO-I have a question of Craig. Craig, have there been any recent traffic
studies done on County Line Road? Because the definition of a local arterial road is
dependent upon the number of cars that pass on a regular basis.
MR. BROWN-Yes. To answer your first question, not to my knowledge has there been a
traffic study out there, and how that list was generated, I’m not sure. It’s something that
was part of the 1988 Zoning Code. It is something we’ll probably review with the
revision, but I’m not sure what criteria they use to classify the roads, probably speed
limits and numbers of cars and distance to travel and that kind of thing.
MR. UNDERWOOD-Probably because there’s a limit to a number of those north/south
roads over on that side there, and, you know, that’s figuring a few people come in to
work in the morning.
10
(Queensbury Zoning Board Meeting 04/16/08)
MR. BROWN-Could be entirely the case, yes.
MR. URRICO-Now you said the nearest driveway to the south?
MS. LESCAULT-To the north, I’m sorry.
MR. URRICO-To the north. I’m sorry if I said south. To the north. It’s the Hesslin’s.
MR. URRICO-Okay. What about to the south?
MS. LESCAULT-It’s vacant. There’s nothing there. There’s nothing there at all. I don’t
know what they plan on doing, again, they never called me back.
MR. URRICO-Thank you.
MR. UNDERWOOD-Anybody else?
MR. GARRAND-Have you been before the Planning Board at all on this?
MS. LESCAULT-No.
MR. GARRAND-Because you’ve got to go to the Planning Board.
MS. LESCAULT-Yes, for Site Plan, right?
MR. GARRAND-Right.
MRS. JENKIN-When the property was first divided, there’s that jog in it that it gets wider
at the top, and then there’s the jog that gives only the 200 feet down. Was it, do you
have any idea if it was the people that were, Tra-Tom who purchased it, that they
requested more property, that they cut that back, or what?
MS. LESCAULT-I’m not exactly sure, obviously, because we didn’t represent the person,
and Tra-Tom actually was not the one that applied for this subdivision. Apparently the
person that my client sold the property to turned around and flipped it the same day to
Tra-Tom.
MRS. JENKIN-Okay.
MS. LESCAULT-So, and I’m not sure what happened because my client really was not
participant in the application. I don’t know, Craig, if even you know.
MR. BROWN-Yes. I do have a little recollection and I think the discussions at the time
were, you know, the building site’s going to be on Chestnut Ridge Road, but in the future
we want to keep the potential for some access down there, and I’m pretty sure, and I
think the record will support this, that there was some acknowledgment that you know
you might need a variance in the future if you ever want to do this because it’s under a
certain width, and don’t quote me on that, but that’s my recollection of why it was done
that way, and Attorney Lescault is correct, that the Planning Board obviously was
knowledgeable of that, and they did approve this subdivision, but again, my recollection
is that the planned building site was going to be on Chestnut Ridge Road, and that
frontage is adequate up there.
MR. UNDERWOOD-Anybody else?
MR. DRELLOS-Craig, is there any plans for a development to the property to the north?
MR. BROWN-To the north or to the south?
MR. DRELLOS-The south, I mean.
MR. BROWN-They have been in, three or four years ago, probably, with a Sketch Plan
subdivision. It kind of died on the vine. We haven’t seen anything on it for a while. So
there’s nothing current.
MR. UNDERWOOD-Anybody else?
MR. CLEMENTS-Is that one 54 acres, is that the one to the south?
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(Queensbury Zoning Board Meeting 04/16/08)
MR. BROWN-Correct.
MR. URRICO-So we’re talking about a potential driveway somewhere in the middle?
MS. LESCAULT-For Lot 1B, yes. There’d be a driveway on there, because what they
would like to do is sell that lot, so that someone could put a single family dwelling.
MRS. JENKIN-You had suggested that you position the driveway so that there’s the 300
feet, or 200 feet between, no, it would be 300.
MS. LESCAULT-It would be 300.
MRS. JENKIN-Well, it was two, but you don’t know what’s happening with the
subdivision, so.
MS. LESCAULT-No, I don’t have any idea. I don’t have any idea. I wish I did. I mean,
certainly we would have exhausted all options with them. In fact, I thought that they’d be
interested in buying an extra 200 feet of road frontage, but, and I thought we were giving
them a bargain, but no action.
MR. CLEMENTS-But you’re saying that it would be all right for you if we put a restriction
in to have that driveway at the southern part?
MS. LESCAULT-If that’s our only means of getting a variance tonight then, yes, that’s
certainly something we’d be interested in.
MR. UNDERWOOD-Any other questions at this time? All right. I guess I’ll open up the
public hearing. Anybody from the public wishing to speak on this proposal tonight?
Nobody here. Okay.
PUBLIC HEARING OPENED
MR. BROWN-Any correspondence in the file?
MR. URRICO-Yes, I’m looking. I don’t see any correspondence.
MS. LESCAULT-Mr. Chairman, would you like me to pass out the letter that I sent, so
you have it?
MR. UNDERWOOD-Sure. All right. One of the problems we’re going to run into this
evening is the fact that, per New York State Town Law 277, subdivisions requiring
variances must be referred to the Planning Board for recommendation prior to deciding
on the variance application. So it doesn’t look like we’re going to be able to give you our
decision tonight.
MS. LESCAULT-Okay.
MR. UNDERWOOD-So do you think we should just, is that your recollection, Craig?
MR. BROWN-Yes. Absolutely, and I think when you do that recommendation, or request
for a recommendation from the Planning Board, if you have a specific concern that you’d
like them to focus on, like, is it best to have the access to the southern portion of his
property, you can certainly make that comment to them and see if that jives with what
they think is going to work best.
MR. UNDERWOOD-Sure. Yes. I mean, do you anticipate that the Planning Board will
probably run through this pretty quickly or is this going to be a difficult one for them?
MR. BROWN-Yes, I don’t see it as a huge, you know, it’s a two lot subdivision.
MR. UNDERWOOD-Sure, and when you’re looking at the proposal, in regards to, it’s
actually a wider lot than most of those other lots on County Line Road there, you know, it
is a little bit wider lot. I don’t know if we should make the recommendation about where
the driveway goes. I mean, we could probably leave that up to the Planning Board for
them, because, I mean, obviously if you made it all the way to the side, it’s going to have
an effect on those neighbors to the south there, Tra-Tom.
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(Queensbury Zoning Board Meeting 04/16/08)
MR. BROWN-Yes, and I didn’t mean to suggest you should specify where, but if what
you’d like them to look at, you know, a recommendation on where the best driveway
placement would be, so when they sent that back to you they’d try and give you some
direction on that, you can ask them for whatever you want to.
MR. UNDERWOOD-Sure. Anybody want to ask anything else here? Do you want to
add anything?
MS. LESCAULT-No, that’s basically it.
MR. UNDERWOOD-Okay. Then I think what we’ll do is we’ll refer this to the Planning
Board for their perusal, and I think what we’ll do is I’ll make the recommendation that we
ask the Planning Board as to, we’ll leave it up to them where they think the best site for
the driveway would be on this parcel, and that’s the parcel on County Line Road, on that
side there, and then when they get back to us with that information, I think then we could
probably render our decision regarding your request this evening.
MS. LESCAULT-And then will we have to go back to the Planning Board again for the
subdivision approval, or at that moment, do you know, procedurally?
MR. BROWN-Procedurally, that’s correct.
MS. LESCAULT-Okay.
MR. BROWN-You’d get a recommendation, the variance, and then back to finish the
subdivision with the Planning Board, yes.
MS. LESCAULT-Okay.
MR. UNDERWOOD-Sorry to hold you up.
MS. LESCAULT-That’s okay. Thank you.
MR. UNDERWOOD-So I think we’ll table this until, would the Planning Board hear this
next month, Craig?
MR. BROWN-I don’t think it’ll be next month. I don’t think we have an application in, yet.
MS. LESCAULT-No, there’s nothing in.
MR. BROWN-But as soon as possible, yes.
MR. UNDERWOOD-Okay.
MR. BROWN-So I would.
MR. UNDERWOOD-Just leave it open?
MR. BROWN-Well, I would table it to a June Zoning Board date, as kind of a control
date, so we can see where we are, and if we need to table it further, we can do that then.
So maybe the first meeting in June.
MR. UNDERWOOD-All right.
MS. LESCAULT-Okay.
MR. UNDERWOOD-Okay.
MOTION TO TABLE AREA VARIANCE NO. 13-2008 JANE B. LOWELL, Introduced by
James Underwood who moved for its adoption, seconded by Richard Garrand:
Chestnut Ridge Road & County Line Road. Tabled to the first meeting in June, for a
response from the Planning Board regarding our concerns, and at that point in time we’ll
render our decision.
th
Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mr. Garrand, Mr. Clements, Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Drellos,
Mr. Underwood
13
(Queensbury Zoning Board Meeting 04/16/08)
NOES: NONE
MS. LESCAULT-Okay. Thank you.
AREA VARIANCE NO. 19-2008 SEQRA TYPE: II RONALD BALL AGENT(S):
CHARLES SCUDDER, SCUDDER ASSOCIATES OWNER(S): RONALD & LINDA
BALL ZONING: SFR-1A/RR-5A LOCATION: 1085 WEST MOUNTAIN ROAD
APPLICANT PROPOSES A 3-LOT RESIDENTIAL SUBDIVISION. RELIEF
REQUESTED FROM MINIMUM LOT WIDTH AND DENSITY REQUIREMENTS.
CROSS REF.: SUBD. NO. 3-2008 SKETCH PLAN WARREN COUNTY PLANNING:
APRIL 9, 2008 LOT SIZE: 8.59 ACRES TAX MAP NO. 295.10-1-31.1 SECTION: 179-
19-020C; 179-4-090; 179-4-030
CHARLIE SCUDDER, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 19-2008, Ronald Ball, Meeting Date: April 16, 2008
“Project Location: 1085 West Mountain Road Description of Proposed Project:
Applicant proposes development of a three lot subdivision.
Relief Required:
Applicant requests relief from the minimum lot width, road frontage
and density requirements for the proposed subdivision. Specifically, the proposed
subdivision does not meet the minimum density requirements for any additional lots after
subtracting the required “undevelopable” lands where slopes exceed 25%, as such relief
is needed for the two additional lots proposed. Also, as the road frontage for the
property is in West Mountain Road, a Local Arterial Road, the minimum required lot
width is 300 feet for all lots with their own, individual driveways, per 179-19-020, C.
Further, per 179-4-090, each newly created lot must have a minimum of 40 feet of
frontage on a public highway, which all proposed lots do, however, the key to having the
road frontage is that the physical access to the property must be provided within each
lots frontage. While Lot 3 has the necessary linear footage of frontage, access is
proposed across Lot 2, as such relief is required.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
1. Benefit to the applicant:
Applicant would be able to subdivide and develop two additional lots.
2. Feasible alternatives:
Feasible alternatives appear limited as any subdivision of this land will require some
level of relief.
3. Is this relief substantial relative to the ordinance?:
The cumulative requests for relief may be interpreted as moderate to substantial when
compared to the ordinance.
4. Effects on the neighborhood or community:
Minimal effects on the neighborhood are anticipated as a result of this action.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
Parcel History (construction/site plan/variance, etc.):
Sketch Plan Sub pending
Staff comments:
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(Queensbury Zoning Board Meeting 04/16/08)
Per NYS Town Law 277, subdivisions requiring variances must be referred to the
Planning Board for recommendation prior to deciding on the variance application.
SEQR Status:
Type II”
“Warren County Planning Board Project Review and Referral Form April 9, 2008 Project
Name: Ball, Ronald Owner(s): Ronald & Linda Ball ID Number: QBY-08-AV-19
County Project#: Apr08-AV-19 Current Zoning: SFR-1A/RR-5A Community:
Queensbury Project Description: Applicant proposes a 3-lot residential subdivision.
Relief requested from minimum lot width and density requirements. Site Location: 1085
West Mountain Road Tax Map Number(s): 295.10-1-31.1 Staff Notes: Area Variance:
The applicant proposes a 3-lot residential subdivision. the information submitted shows
the three lots where one has an existing house and the two other lots have proposed
houses. The drawing shows the driveway access, septic and well locations for the
homes. The plan shows a portion of the lands to be subdivided are within 2 zones
requiring relief from minimum lot width and density. Lot 1 requires relief from the
minimum lot width where there is no shared driveway proposed; Lot 3 requires relief from
not having direct access to the road the lot’s access is through a shared driveway; Lot 2
and 3 do not meet the required density of 5 acres when the steep slope area is removed
from the total area. The lot sizes proposed Lot 1 at 1.00 acre, Lot 2 at 3.35 acres, and
Lot 3 at 3.70 acres. According to the suggested review criteria of NYS General
Municipal Law Section 239L, applied to the proposed project, the staff recommends no
county impact based upon the information submitted. Warren County Planning Board
Recommendation: No County Impact” Signed by Tim Lawson, Warren County
Planning Board 4/11/08.
MR. UNDERWOOD-Okay. Mr. Scudder.
MR. SCUDDER-Thank you, Mr. Chairman. You have, I think, all of the exhibits that I
submitted, including a statement that I thought it would be well to include, which kind of
describes the project and describes out point of view with respect to the project. I don’t
know if there’s any need for me to elaborate on what’s been said or what the exhibits
show. So I’d be glad to take any questions the Board has.
MR. UNDERWOOD-My questions would be, you know, I realize that we’re dealing with
single family residential one acre down low at the base of the hill there, but once you get
up on the hill there, it’s five acre, and, you know, with the acreage that you have up
there, in totality, you know, you’re looking at 8.59 acres there. It seems to me it’s
indicative, if it were buildable up there, all that property, you might get one more house
up there. I’m just wondering why you’re asking for the two houses up there, if you could
elaborate on that.
MR. SCUDDER-Well, that’s, the reason is that my client feels that he’d like to have two
houses there, that there’s adequate room there, and the site lends itself to two houses,
but we do run afoul of the zoning. There’s no doubt about that. Unless we could
gerrymander the lot lines around somehow, but that would ruin it.
MR. UNDERWOOD-How about as far as the steepness of the grade going up there, the
driveways? I mean, I don’t know how they compare to those other ones where they’ve
done some houses further up the hill as you drive along West Mountain Road there.
MR. SCUDDER-Well, there are driveways around that are much steeper than what we’re
proposing. I don’t know what that land was used for over the past years. Maybe it was
farmed long enough ago before it was forested and so on, but somebody had a driveway
cut there to the north of the existing house, and the driveway went right straight up the
hill, perpendicular to the West Mountain Road, and originally my client wanted to put a
driveway in like that, just to improve it, right up to that first home site on Lot Two. Well,
that’s fine, but even though it’s been used like that for many years, it doesn’t comply with
the standard for a 10% maximum slope, which is for emergency vehicles and what not
obviously. Well, the only way we can overcome that is to lengthen the road, and so
that’s why the driveways are configured the way we show it, show them, and we’re
proposing a 16 foot wide driveway up to the point where the turnouts occur to the
respective two lots.
MR. UNDERWOOD-Would the applicant be amenable, I mean, I’m just throwing out
ideas here, as far as, you know, if it were only a single house allowed up there, would it
still be in his interest to develop that? I mean, blending the cost between two dwellings
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(Queensbury Zoning Board Meeting 04/16/08)
obviously would be cheaper than putting that big driveway all the way up the hill, but, you
know, I’m not sure what the Planning Board’s going to do when they look at this, but I
know, you know, in looking at the hillside over there, it is very steep, and, as Mr. Brown
has pointed out, you know, when you remove those unbuildable areas up there, you
know, the swale type low spots, the hashed line spots up there, that, you know, you
significantly cut back as to our formula that we use to determine what you can do up
there.
MR. SCUDDER-Understood, right.
MR. UNDERWOOD-Yes.
MR. SCUDDER-Well, the answer to your question is I presume that if he cannot proceed
with two lots, he’ll do one lot, but we’re here to ask for two.
MR. UNDERWOOD-Does anybody want to ask any questions?
MR. GARRAND-My concern is it’s an RR-5A zone. What you’re asking is for two
substandard lots in an RR-5A zone.
MR. SCUDDER-Well, it’s a split zone, as you understand, right?
MR. GARRAND-Yes. The Town saw fit to zone that RR-5A to maintain sort of the rural
nature of that area. I share Mr. Underwood’s concerns on that, that, you know, the area
might be more amenable to one residence than two.
MR. SCUDDER-I can’t dispute that.
MR. GARRAND-Okay. Thank you.
MR. UNDERWOOD-Anybody else have any questions? Okay. I guess I’ll open up the
public hearing. Is there anybody in the public wishing to speak? Would you come up,
please.
PUBLIC HEARING OPENED
MATT FULLER
MR. FULLER-Just some quick comments. Good evening. It’s good to see everybody
again, and thanks for your time. For the purpose of your record, Mr. Chairman, my
name’s Matt Fuller. I’m with the law firm of Fitzgerald, Morris, Baker, Firth, and I
represent the property owner to the south and the development immediately adjacent,
the Montesi property, Matt Montesi. I’m just going to kind of expand a little bit on a
couple of comments that you guys have already made, because they’re exact comments
that I’ve raised in here, and it deals even with the last application you had on, is, you
know, trying to justify a variance to get more of a return on your money. That’s the heart
of this. If you read the application, that’s the heart of where this application’s heading. I
couldn’t agree with you more on the five acres, and actually I won’t go right through
everything here because I know I’m on the clock, but, if you go up West Mountain Road
along there, all those lots are five acres. Believe it or not, the smallest one that’s up
there is Queensbury, the water tower right there. It’s 4.82 acres. So it’s just about five
acres. So you talk about the character of the neighborhood in that five acre zone, and,
you know, when you start making, or granting, particularly Area Variances, on purely
investment purposes then really I think zoning fails. You’ve got to have some kind of
hardship. That still remains. Along West Mountain Road, further down, I think probably
the Zoning Board is aware, there’s been stormwater issues along West Mountain, and it
naturally flows from upland development. This property, the southerly end of it, actually
there’s a stream right there, it runs year round. So a good part of the stormwater off this
lot is going to end up in that stream. Now that stream flows directly across the lot to the
south of the house, and just for the record, we’re not opposed to the house being carved
off, even if it, I know it’s on an arterial and it’ll have it’s own driveway without sufficient
frontage, that’s fine. We’re not even opposed to having one lot. If they just want to
subdivide the house off and build one house on the rest, you know, it’s 7.5 acres, just
over 5, when you really get to the heart of the usable part of the lot, you know, that
seems somewhat more reasonable and seems more in standing with, you know, the
minimum variance necessary to accommodate the applicant. Particularly when you start
adding cumulative upland development stormwater issues. It’s an issue out there, along
West Mountain, it’s small things that slowly add up, that add to that. Quickly, I just want
to get a couple of other things out here. Whether or not the variance is substantial, I
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(Queensbury Zoning Board Meeting 04/16/08)
think it is. You’re talking about variances of anywhere from 26% to 33%, but on a larger
scale. You’re talking about five acre lots. So certainly when you compare 26% on a 10
foot setback or a 20 foot setback is much different than 20 or 30% on five acre lot, and,
you know, as far as the hardship and things, you know, there’s no question that that’s a,
it’s a self-created hardship, I think. The reasonable alternative that we would support,
we wouldn’t have a problem with, because we think it can be done right, and even with
stormwater considerations, would be to carve off the lot. It seems like they’ve got a
willing buyer, the tenant that lives there. It sounds like they’ve already got a deal, and
then, you know, and then the one driveway that they’ve got, and they’ve already done
some clearing. If you’ve been up there, I went up there and looked earlier this week.
They’ve already done some clearing off generally in the area where a house might go.
So it seems like, you know, taking all that into account with the steep slopes and then
just the lots to the north along that side of West Mountain Road, that one lot of seven
plus or minus acres in the five acre zone and then one lot of around an acre, in the one
acre zone, would be a much more reasonable alternative to this. With that, I will rely on
the rest of my written comments that I’ve submitted and not take up too much more of
your time. Any questions for me?
MR. UNDERWOOD-Anybody have a question? All right. Craig, I had a question.
Further down the road there, there is, somebody did subdivide and put one lot up on top.
They haven’t built the house up there yet, but did that go through Planning Board in order
to achieve that, or was that just some old subdivision? I’m not familiar with it.
MR. BROWN-I would guess yes without knowing any specifics about the property, but
further to the north?
MR. UNDERWOOD-Yes, it’s further to the, I think it’s before you get here. It’s by the
water tower, in that area.
MR. BROWN-To the north, I don’t know off the top of my head. I can certainly look into it
if you’d like, but I would hope that, I’m sure that they did.
MR. UNDERWOOD-The Land Conservancy property is up there, and it kind of makes a
right angle turn and that’s where that proposed lot is, up on top there. It’s all cleared and
it’s all prepared for it.
MRS. JENKIN-Jim, where are you talking about, it’s above this property that they
cleared?
MR. UNDERWOOD-If you go up, the Land Conservancy owns that property over by 88
acres. You go straight up the hill and then it makes a big right angle turn, then it makes
another big right angle turn, and the second right angle turn way up on top of the hill
there, that’s where there’s a parcel cleared up there, which would be approximately the
same height as where this was.
MR. BROWN-Was this it here?
MR. UNDERWOOD-That’s it there. Yes.
MRS. JENKIN-Have they built a road to it?
MR. UNDERWOOD-There’s a road up to it, yes. That was done probably five years ago
I’m guessing now.
MR. FULLER-I think that’s the Walker parcel that you’re talking about.
MR. UNDERWOOD-Yes. He hasn’t put anything up there yet.
MRS. JENKIN-Where does the road go in, at 88 acres?
MR. UNDERWOOD-It comes off of West Mountain Road. It’s kind of like similar to what
they’re proposing here. It’s been done before, but. Okay. Do you want to come back
up, Mr. Scudder? Any comments you want to make?
MR. SCUDDER-Well, I think we all understand what the facts are. I guess before I leave
here, I wonder if I could get a sense of the Board as to how you feel about this, because I
don’t want to proceed if it’s not going to happen.
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(Queensbury Zoning Board Meeting 04/16/08)
MR. UNDERWOOD-All right. What I’ll do is, we’re in the same situation we’re in with the
last one here, you know, Per New York State Town Law 277, this variance has got to go
to the Planning Board before we can even make our recommendation on it. So I think
what we could do is we could send this to the Planning Board and ask them specifically
for the following things. Do you guys want to ask anymore questions or? I mean, as far
as polling the Board, I mean, I don’t want to speak for everybody, maybe we’ll just
quickly go through just to see.
MR. CLEMENTS-Well, there’s already been two people that have asked about putting
one house there rather than two. So I assume that’s what you’re going to have ask
about.
MR. UNDERWOOD-I mean, I think in a practical sense it would be illogical to assume
that we were going to give them two houses up there in the five acre zone when they
don’t have the necessary land to build and do it, and I think the comments that have
been made about steep slopes and the effect, lower down the hill, I mean, every time
you do something up the hill, it’s got to be done correctly. I would agree. I think that your
plan, with putting the driveway up the way you’ve proposed it, is a logical way to do it.
Not going straight up the fall line up the hill makes a lot of sense, you know, in the case
of that one further down West Mountain that you see over by the School when you’re
driving towards it.
MR. DRELLOS-I think that’s the Water Department, isn’t it, the one that’s like cut right
into the.
MR. UNDERWOOD-Well, yes, I mean, up to the tower, I mean, it’s like you need a snow
cat in the wintertime to get up there. So, I think what we’ll do is I’ll make a
recommendation that we send this to the Planning Board, but do you guys want to give
them any kind of indication as to your feelings besides what everybody’s said so far?
One or two houses up there? What do you think’s reasonable?
MR. URRICO-I’d rather wait until we hear from the Planning Board.
MR. UNDERWOOD-Do you guys want to wait?
MRS. JENKIN-Well, I just agree with both you and Rick, and the concerns that you have
about that property.
MR. UNDERWOOD-No, I’m just saying the Planning Board could very well tell them that,
you know, you don’t have enough land up there to even build one house, and if that’s
what they say, then that’s the way it is, you know.
MR. DRELLOS-But maybe they might listen to our recommendation, though, a little bit, I
mean, if we feel that way.
MR. UNDERWOOD-Sure. All right. Well, here’s what I’ll do, then.
MR. URRICO-I think we’re going in reverse order if we do that. I think we have to go per
the law.
MR. UNDERWOOD-All right. Based upon 277 law, then, I think what we’re going to do,
then, is what we’re going to do is we’re going to refer this to the Planning Board, and I’m
going to ask for some specific information from the Planning Board, and when they give
us their decision, in other words, our Board recognizes the fact that we’re building here,
propose to build on very steep slopes along West Mountain Road there, essentially the
two houses that have been proposed are in a Rural Residential Five Acre zone. Number
One, I think you’re going to have to prove the hardship issue of whether or not, you
know, you deserve to build one house, two houses or no houses up there with the
Planning Board, and that’s why we have a Planning Board, so you run it all by them and
they run it through their scrutiny to decide this. Secondly would be the issue of the steep
slopes and the driveway as proposed, if that’s a reasonable way to get up the hill, if
indeed you are going to allow a house up there. As far as the road frontage requirement,
because it is a busy connector road there, with West Mountain Road status, it doesn’t
look to me like you could share a driveway with the house down below if you cut off that
Lot Number One and separate that. So, I mean, it is going to be increasing by adding
one more single driveway on West Mountain Road, and I think it would be paramount
that the Planning Board issue their recommendation as to whether that’s reasonable or
in keeping with the neighborhood character down there. Anybody want to add anything
else to that?
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(Queensbury Zoning Board Meeting 04/16/08)
MRS. JENKIN-Well, the other one thing, when you look at the map, if you take into
consideration the steep slopes, and maybe I’m wrong on this, but if you take away that
area, you don’t have even seven acres.
MR. UNDERWOOD-Right, well, that’s in Craig’s notes about the undevelopable land up
there because of, you know, going down to the creek or going down to the low spots up
on the side of the hill there, but the Planning Board I think is the one who’s going to give
us the general idea as to what’s reasonable to do on this property, and until we get some
kind of response back from them, we’ll just wait.
MR. URRICO-Can I ask a question? If this has to go to the Planning Board first, why did
it come here? What is the purpose of bringing it here first, if it has to go to the Planning
Board?
MR. BROWN-Yes. I think it gives you guys the opportunity to request certain information
that may help in your decision on the variance.
MR. SCUDDER-The variances has to come from this Board.
MR. URRICO-Yes, but according to Town Law, if it involves a subdivision, it has to go to
the Planning Board first.
MR. DRELLOS-If it goes to a two lot subdivision, would they need a variance on it?
MR. UNDERWOOD-Yes, they still would because they’ve got to have the 300 feet of
frontage for the extra driveway added.
MR. SCUDDER-Well, I guess it seems to me that if you go to the Planning Board and
they could approve the Sketch Plan, and then it would come back here, with or without
their recommendation, let’s assume they make a recommendation. Then you’ve got to
decide on the variance.
MR. BROWN-Right.
MR. SCUDDER-And what I’m trying to figure out is, am I going to be any better off at the
next Zoning Board meeting, even with a recommendation from the Planning Board?
Better off in the sense that you’re going to form a different opinion? I think I get the idea
how you feel tonight.
MR. UNDERWOOD-Does somebody want to second that?
MR. GARRAND-Second.
MR. BROWN-I think you probably should actually do a resolution and it sounded like the
issues were access issues, and density. I’m not trying to paraphrase for you by any
means, but I know that Maria has to type these up.
MR. GARRAND-Much of what was outlined in the Staff Notes with regards to the density.
MR. BROWN-So you probably should do a formal, cleaned up, nice and tidy motion.
MR. UNDERWOOD-Okay.
MOTION TO TABLE AND TO RECOMMEND THAT THE QUEENSBURY ZONING
BOARD PASS AREA VARIANCE NO. 19-2008 RONALD BALL ON TO THE PLANNING
BOARD, Introduced by James Underwood who moved for its adoption, seconded by
Joyce Hunt:
1085 West Mountain Road. They’re asking us for relief from the minimum lot width road
frontage and density requirements for this proposed subdivision. We realize that they do
not meet the density requirements for additional lots, after subtracting the required
undevelopable lands where the slopes exceed 25%. As such, relief is going to be
needed for both of the lots that are proposed up the hill. What we would ask from the
Planning Board is, is it reasonable to assume that any building would be reasonable to
build up on those steep slopes up there, and as the proposed project, with its road
frontage being deficient significantly, is that going to have a negative effect on the
neighborhood or is it going to be something that’s going to be reasonable, based upon
the fact that most of the other lots are pretty small along that road there, too. The steep
19
(Queensbury Zoning Board Meeting 04/16/08)
slope issue, too, should address the concerns about runoff, etc., coming down off the
mountain to the lots lower down, whether that’s going to have any negative effects also.
Tabled to the first meeting in June.
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Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Drellos,
Mr. Underwood
NOES: NONE
MR. UNDERWOOD-Okay. When’s this going to go to Planning Board?
MR. BROWN-Well, they have an application in. It’ll be on the May Planning Board. So if
you put them off to a June meeting, you’ll have a chance to get the recommendation and
read it and consider it, and you can hear this again in June, if you want to.
MR. UNDERWOOD-Okay. So I guess we’ll hopefully get this worked in in the first
meeting in June, and it would be helpful to you.
MR. SCUDDER-Is the public hearing still open?
MR. UNDERWOOD-Yes, we’ll leave it open.
MR. FULLER-Just a thought. We’re not opposed to them accomplishing something out
there, and it would seem to me that, if this plays out the way it seems it may, they’ll get to
the Planning Board and have some sort of recommendation, get back here in June, and
if that is a denial of that one variance, then they’d have to re-submit and go back to the
Planning Board again for July, possibly get a recommendation in August, back here in
September, and I think your comment, which I was picking up on, might be a good one,
is if they’re going to reconsider that and possibly just have a two lot subdivision, that
would drastically cut down that process.
MR. UNDERWOOD-Sure.
MR. FULLER-So I think that’s where you were heading, and we would support you on
that, I think, as a simple two lot subdivision with a.
MR. SCUDDER-Well, I’m not interested in pursuing a futile effort here, and if this Board
is not going to grant the variance, then I’m not going forward with this project.
MR. FULLER-Well, they don’t also want to give you a vote tonight.
MR. SCUDDER-No, they don’t. I understand they don’t, and maybe they can’t, but.
MR. FULLER-That was just a suggestion.
MR. UNDERWOOD-No, I think you can depend upon the Board to make a reasonable
decision based upon the comments that we’ve made.
MR. SCUDDER-I’m sure I can.
MR. BROWN-Yes, and I think just for everybody, while everybody’s here for the record,
even if it goes to a two lot subdivision, which I know is, you know, Plan Z, it’s still going to
require a variance due to the density.
MR. UNDERWOOD-Sure.
MR. BROWN-The lot width and frontage variances go away, but it’s still the density
issue, that’s all. It’s not the minor one, but it’s the only one.
MR. FULLER-I think you would find us supporting that.
MR. SCUDDER-Okay. Thank you very much. Thank you, Mr. Chairman.
MR. UNDERWOOD-Okay.
NOTICE OF APPEAL NO. 1-2008 SEQRA TYPE: N/A JOHN SALVADOR
OWNER(S): JOHN SALVADOR ZONING: RR-3A LOCATION: 37 ALEXY LANE
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(Queensbury Zoning Board Meeting 04/16/08)
APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION OF
MARCH 3, 2008 THAT CONSTRUCTION OF A 3 SEASON PORCH WITH OPEN DECK
REQUIRES AN AREA VARIANCE FOR RELIEF FROM THE SIDE YARD SETBACK
REQUIREMENTS AND FOR THE EXPANSION OF A NONCONFORMING USE.
CROSS REF.: BP 2008-040 3 SEASON PORCH WITH OPEN DECK WARREN
COUNTY PLANNING: N/A LOT SIZE: 0.34 ACRES TAX MAP NO. 252.00-1-75.2
SECTION: 179-4-030; 179-16-050
JOHN SALVADOR, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 1-2008, John Salvador, Meeting Date: April 16,
2008 “Project Location: 37 Alexy Lane Description of Proposed Project: Appellant is
appealing to the Zoning Board of Appeals, apparently, relative to a March 3, 2008
decision made by the Zoning Administrator regarding the necessity for Area Variances
for the project at 37 Alexy Lane.
Staff comments:
Note:
The papers filed by Salvador were not presented on the current Zoning Board of Appeals
application for such an appeal. Additionally, no reference to the March 3, 2008 Zoning
Administrator letter is included in the filed papers. Clarification from the applicant as to
the specific determination being appealed is necessary.
First, Standing must be decided:
Was the appeal taken within the appropriate 60 day time frame and is the appealing
party aggrieved?
?
The appeal was, apparently, filed on March 11, 2008, however the papers are
dated March 12, 2008. To date, this office has only received one fax copy of the
papers that were originally sent to a previous ZBA member.
?
The appellant is the property owner.
Second, Merits of the argument:
It is the position of the appellant that the 2002 Area Variance granted to this property for
the construction of a single family dwelling created a new setback requirement for the
entire property along the northerly property line and that since the current proposal does
not exceed the previous relief, no variance is needed.
It is the position of the Zoning Administrator that the relief granted in 2002 was for a
specific project and that the variance did not create a new “North Side Yard setback of
6’.” No changes to the setback requirements of the zoning district have occurred since
the approval of the variance that might otherwise affect the setbacks for this property as
such the variance is needed.”
MR. UNDERWOOD-Mr. Salvador?
MR. SALVADOR-Good evening, ladies and gentlemen of the Zoning Board of Appeals.
For the record, my name is John Salvador, and I am the appellant in this matter, since
identified as Appeal No. 1-2008, appealing each of two determinations of the Zoning
Administrator which relate to Area Variance No. 14-2008, and to the expansion of my
single family dwelling where I currently reside with my wife Kathleen. I note, after careful
reading of Staff Notes supporting the Zoning Administrator’s position, the frequent use of
the qualifier word “apparently”. To quote the Zoning Administrator as to information
requested, “Appellant is appealing to the Zoning Board of Appeals, apparently, relative to
a March 3, 2008 decision made by the Zoning Administrator regarding the necessity for
Area Variances for the project at 37 Alexy Lane”, end of quote. Further along, under
Staff comments, once again, doubt is cast by the Zoning Administrator that the notice I
filed may be procedurally flawed, “The papers filed by Salvador were not presented on
the current Zoning Board of Appeals application for such an appeal. Additionally, no
reference to the March 3, 2008 Zoning Administrator letter is included in the filed papers.
Clarification from the applicant as to the specific determination being appealed is
necessary.”, end of quote. I would like to clarify this at this time. With respect to this
Appeal of the Zoning Administrator’s determination and his letter to me of March 3, 2008,
I understand that the Notice of Appeal which was distributed to the members of this
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Board for review tonight has been supplemented with Mr. Brown’s letter of March the 3
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by Mr. Brown, as he should have done. You have that letter before you, March 3?
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(Queensbury Zoning Board Meeting 04/16/08)
MR. UNDERWOOD-Right here.
MR. SALVADOR-You have it, I understand?
MR. UNDERWOOD-Yes.
MR. SALVADOR-Okay. As to my not adhering to the current ZBA application procedure,
I did follow procedures outlined in Town Law Article 16, Section 267-A, 5(B), which reads
in relevant part, an appeal shall be taken within 60 days after filing of any order,
requirement, decision, interpretation or determination of the administrative official by
filing with such administrative official and with the Board of Appeals a Notice of Appeal,
specifying the grounds thereof, and the relief sought. The administrative official from
whom the Appeal is taken shall forthwith transmit to the Board of Appeals all papers
containing the records upon which the action/appeal from was taken. I have met the
administrative requirements for my Appeal to be heard. Namely, I have filed my appeal
within 60 days of the Zoning Administrator’s determination. I feel the language of the
Appeal is clear and unambiguous. I have filed my Notice of Appeal with such
administrative official and the Board of Appeals. I did this by sending my Appeal, via fax
transmittal, to the Zoning Administrator, as well as via U.S. Mail to the Vice Chairman at
the time, Mr. Charles Abbate, in the absence of a sitting Chairman. The Notice of Appeal
contains five separate Whereas clauses, specifying the grounds for my Appeal. The
Notice of Appeal contains a Wherefore clause specifying the relief being requested. I
cannot attest to whether or not the Zoning Administrator has forwarded to the Board,
quote, all papers constituting the record of this Appeal, as is his responsibility. I would
ask at this time, has he done so?
MR. BROWN-Are you guys asking me the question?
MR. UNDERWOOD-Yes.
MR. BROWN-Okay. The only papers that we have, that make up the record, are what’s
been submitted by the applicant, and again, in those papers, there’s no reference to the
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March 3 determination, which you also have. So, those are the only papers that make
up the record so far, and you have all that information.
MR. SALVADOR-Okay. There should be no doubt as to the subject matter of this
Appeal No. 1-2008. If so, I can take your questions at this time.
MR. UNDERWOOD-Would you fill us in as to what, was this something that was
originally going to be on the, I don’t recall. I remember when we did your original
approvals when you built your new home out there, but at that time, were you proposing
a deck on the back with those drawings?
MR. SALVADOR-Well, that’s, I’ll get to that later, but I think we have to address this
issue, as Mr. Brown has said. Is this Appeal right to be heard? I think that’s what he’s
questioning, and I’m saying it is, and I think you have to make a determination as to
whether or not it is. If I could continue. Continuing with Staff’s comments, again, it is
taken that the Zoning Administrator is questioning that I have standing to bring forth this
Appeal. Further, that issue of standing must be settled before the merits can be
addressed. I do not agree that there should be any issue as to anyone’s standing before
this Board. Is it not enough that anyone files an Appeal according to Section 267-A(4),
has a right to be heard? If standing were an issue, then Section 267-A(4) should outline
the requisites for same. It does not. The Zoning Administrator presupposes that prior to
an applicant being heard before the Zoning Board of Appeals, the applicant must meet
essentially a three prong test, namely the form, content and filing of the Appeal Notice
must conform to the procedures outlined in the Town Code, even though those do not, in
all respects, conform to Town Law Section 267-A, and, Two, according to Town Law
Section 267-A(5)(b), the Appeal must be taken within 60 days of the Zoning
Administrator’s determination, and, Three, the Appeal is being taken by a party
considered to have been aggrieved by the Zoning Administrator’s actions. With respect
to One above, the procedures outlined in Town Code 179, Section 179-16-060 do not
conform entirely to Town Law Section 267-A. In particular, it is the responsibility of the
Appellant to put the Board of Appeals on notice, at the same time the administrative
official is notified. This is the procedure I followed. With respect to Two, I filed my
Appeal within 60 days of the Zoning Administrator’s determination of March 3, 2008.
With respect to Three, I am not required to substantiate that I am an aggrieved party,
even though I am the property owner. My submission of a Notice of Appeal to this
administrative board is consistent with the privileges of Town Law Section 267(2)(4),
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(Queensbury Zoning Board Meeting 04/16/08)
quote in part, such Appeal may be taken by any person aggrieved, or by an officer,
department, board or bureau of the Town. The phrase any person aggrieved, as used in
Town Law Section 267-A(4), is without boundaries. Any means any. Section 267-A(4)
does not establish any thresholds or criteria for a person to be qualified as aggrieved. As
suggested by the Zoning Administrator, the issue of my standing must be addressed
before the merits of my Appeal can be heard. In summary, I have a right of appeal to this
Board because my Notice of Appeal as served on the Zoning Administrator
simultaneously with the ZBA was timely.
rd
MR. UNDERWOOD-Can I just ask a question? Our start point is your letter of March 3,
essentially?
MR. BROWN-Well, that’s my exact question, in the beginning of the Staff Notes, and we
have to determine standing. Again, nowhere in the papers that have been filed by Mr.
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Salvador does it say, I want to appeal the March 3 decision of the Zoning Administrator.
If he wants to go on the record and tell you now that that’s the decision that he’s
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appealing, I think his filing of a March 11 Appeal is timely, and obviously the decision of,
is Mr. Salvador aggrieved can certainly be substantiated by the fact that he’s the
property owner. I would take exception to the comment that anybody can appeal to the
Zoning Administrator, and the very quote that Mr. Salvador offered you said any person
aggrieved, and you have to qualify yourself as an aggrieved party to be able to sit before
this Board on an Appeal. Again, I do think that since he’s the property owner here, he’s
clearly an aggrieved party here. So if, and if you’re asking me for my opinion, it’s this, if
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the decision that he’s Appealing is the March 3 decision letter that I wrote and not some
letter five years ago, I think he has standing, but that’s a decision you guys have to
make. That’s not a decision I can make.
MR. UNDERWOOD-Sure. Well, are you guys confused?
rd
MR. GARRAND-No. I can clearly see he’s appealing to the ZBA relative to the March 3
letter.
MR. BROWN-But that hasn’t been offered to you by the applicant yet.
MR. GARRAND-But a decision made by you basically gives him standing, should he
choose to appeal the decision.
MR. SALVADOR-I can confirm that I am appealing the Zoning Administrator’s
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determination of March 3.
MR. BROWN-Okay, and the reason we have to be so particular here, this is a very
particular item. This is an Appeal of a decision. There’s a certain process you have to
follow, and this is the process. Does the person before you have standing to appeal this
decision? If somebody from West Glens Falls or the other side of Town that doesn’t own
property up there, isn’t affected at all by this decision adversely, they’re not aggrieved.
They don’t have the legal, the right to sit before you and appeal this decision, if they don’t
have any interest in the outcome of the decision. So you have to make that standing
decision first, and then you move on to the merits. I’m not suggesting that he doesn’t
have standing. I just think we need to clear that up first.
MRS. JENKIN-And then what about the original copy that you said here, you received
the fax copy. You never received any original copy.
MR. BROWN-That’s correct.
MRS. JENKIN-Is that a?
MR. BROWN-We still don’t have the original filed copy for the file.
MR. UNDERWOOD-Was that the letter that you sent to Abbate?
MR. SALVADOR-I sent Mr. Abbate the original.
MR. UNDERWOOD-And I know the circumstances of that, because he was leaving and
going on a cruise or something, and he called me the day he was leaving and said I just
got a letter from Mr. Salvador, but I’m leaving town, and that was the last I heard of it
until I got the letter like after he had resigned, you know, which was weeks later.
MR. BROWN-So, where is the original? I don’t have the answer to that question.
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(Queensbury Zoning Board Meeting 04/16/08)
MRS. JENKIN-So does that make a difference?
MR. BROWN-That’s for you guys to decide. I think the letter, in essence, was a copy of
the same letter that was sent to Abbate, was it not?
MR. SALVADOR-I sent Mr. Abbate the original.
MR. UNDERWOOD-Right.
MR. URRICO-So this copy that’s in the file here.
MR. UNDERWOOD-Right, and I did eventually get the original to you guys.
MR. BROWN-Is a copy of the fax.
MR. URRICO-A copy of the fax.
MR. BROWN-Right, and the other question that I raised is, since we don’t know what the
original contained that was sent to Mr. Abbate, I’m assuming it’s the same thing that we
got fax, without the cover letter. There’s two pages. There’s a letter, two page letter
from Mr. Salvador. If that’s what was the original.
MR. SALVADOR-Addressed to Mr. Abbate.
MR. BROWN-If that was the original Appeal that was sent to Mr. Abbate, I think you have
all the papers that he’s filed, but we don’t know what that original is, or was.
MR. UNDERWOOD-Well, I assume it would be the same. Well, what do you guys want
to do?
MR. GARRAND-Vote on whether he has standing or not.
MR. UNDERWOOD-Okay. Do you want us to vote on whether you have standing?
MR. BROWN-I think that’s the first step you need to do.
MR. SALVADOR-Yes.
MR. UNDERWOOD-All right. Does somebody want to make a motion?
MRS. JENKIN-Yes, what do you say in the motion?
MOTION THAT MR. SALVADOR HAS STANDING TO APPEAL THIS DECISION
REGARDING NOTICE OF APPEAL NO. 1-2008 JOHN SALVADOR, Introduced by Roy
Urrico who moved for its adoption, seconded by Richard Garrand:
37 Alexy Lane. Based upon the letters that he sent in dated, whether it’s a fax, there is
an original copy here in the file dated March 12, 2008, and if the sequence follows, that
falls nine days after Mr. Brown’s letter to Mr. Salvador. If those are the ground rules, I
believe that Mr. Salvador has standing.
th
Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mr. Garrand, Mr. Clements, Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Drellos,
Mr. Underwood
NOES: NONE
MR. SALVADOR-Okay. As to the merits of this Appeal, the subject single family
dwelling was granted Area Variances by this Board in 2002 on a substandard subdivision
lot in the Three Acre Rural Residential zoning district, all within the Lake George Park
Commission Critical Environmental Area. You will recall that in 2002 the Zoning
Administrator was not yet convinced that the Town was obligated to recognize the
existence of the Lake George Park Commission designed CEA. The Zoning
Administrator’s recent determinations, as embodied in his letter of March 3, 2008
suggests, in the first instance, that a zoning permit cannot be issued until an Area
Variance is granted for two foot of relief to accommodate a 12 foot by 12 foot seasonal
porch, and a 12 foot by 8 foot open deck. Secondarily he has determined that the
24
(Queensbury Zoning Board Meeting 04/16/08)
existing single family residence is a nonconforming structure. This Appeal is taken
because I maintain that the addition of this three season porch and open deck I have
proposed does not require approval of anymore setback relief than was previously
granted by this Board on this parcel of land. I also maintain that the existing single family
residence presently conforms to the permits issued for its construction. This is
evidenced by the fact that a CO was issued on December 9, 2005, without first having
obtained a conditional Temporary CO as is so often the case. Before we jump into the
two determinations on appeal, I would draw the Board’s attention to what were my
lingering concerns that the Zoning Administrator might have found that the Area
Variance No. 14-2008, as submitted on March 5, 2008 was not complete, see the final
request on Notice of Appeal. Quote, such other relief as the Zoning Board may allow,
including the Zoning Administrator’s belated determination that the variance application
submitted on March 5, 2008 for the two foot side yard setback required is, for whatever
reason, determined to be incomplete. You’re probably wondering of what I speak.
Please refer to the unanswered question dealing with the Town Board of Health. I think
it’s question number three or four, about the fourth question down. I frankly don’t know
whether or not such a non-use or non-Area Variance, that is a septic variance, will be
required. This matter was not a topic for discussion during the pre-application
conference. Does this unanswered question constitute an incomplete application? This
is not to say that the question has no relevance to the addition of a three season porch to
an existing residential dwelling which relies on an on site wastewater treatment and
disposal system in a Critical Environmental Area. The wastewater disposal system was
designed to meet the design criteria of Town Code Chapter 136, without exception, that
is a standard wastewater system was constructed without any variances being required
from the local Board of Health. The principal reason why no variances were required is
that we were able to site a system to accommodate the wastewater generated from a
proposed three bedroom residential dwelling. Even though each of the Town Codes,
Chapter 179 and Chapter 136, On Site Sewage Disposal Ordinance, do not include a
definition of bedroom, the New York State Public Health Code recommends that
expansion attics, basements, sleeping porches, dens and recreation rooms which may
be converted to additional permanent bedrooms in the future, should be considered in
calculating design flow. The likelihood of this three season porch ever being converted
to a permanent bedroom is precluded by the fact that the current residence was
constructed to include a first level library/study room, and a full eight foot basement. The
basement area could easily converted to one or more bedrooms, since the area has
been finished with insulated walls, electric, telephone, cable t.v., Internet service.
Finally, the basement area is connected directly to the dwelling’s heating and air
conditioning systems. This likelihood of the basement and library being converted to one
or more bedrooms was not addressed during the approval process for the existing single
family dwelling. Why should these or even the three season porch be considered as
potential sleeping quarters at this time? In any case, the Zoning Administrator has not
determined the application to be incomplete, and providing there is no change in his
position, no relief is now requested. I prefer to appeal the first of the Zoning
Administrator’s determination that the existing single family dwelling, as has been built, is
a nonconforming structure, to quote the Zoning Administrator, because you did not build
the deck as shown in your 2002 project. What you have is a plot plan that was before
the Zoning Board in 2002, wherein we received the approval for front yard setback
variance and two side yard setback variances. These variances were granted without
conditions. Yes, the plot plan drawing does note a deck, but it is merely a depiction with
no length or width dimensions, and no definitive location denoted. In 2002, we did not
ask the Zoning Board to approve a deck, only area setback variances. Following the
ZBA approval on 4/24/02, we submitted a complete set of building construction drawings,
sufficient to obtain a building permit. The building permit was issued on August 23,
2002. At that time, we were still uncertain as to what we wanted for a deck, and because
the plans could not be certified without some means of safe egress down from the first
floor level to finished grade, we had the designer simply add a set of stairs. This allowed
a building permit to be issued. The ZBA did not have a hand in the stairway approval.
We did take the trouble to install a 12 foot long header board on the side of the building
to accommodate a deck or even this three season porch, and it’s securely fixed to the
building structure. Just over three years later, as the project neared completion, we were
not too anxious to put the stairs in that are shown on the construction drawings, this for
aesthetic and security reasons. At the suggestion of the Building and Code Department,
we were allowed to alter our construction drawings, thus securing the exit through the
sliding glass doors by installing an external railing. A CO was issued on September 9,
2005, which basically approved the project as built, that is original approvals plus
authorized changes. The ZBA did not have a hand in the external railing approval.
Contrary to the Zoning Administrator’s contention, my single family dwelling conforms to
all the criteria for which permits were granted. I have never been advised to the contrary
that my single family dwelling is other than a conforming structure. No changes or
25
(Queensbury Zoning Board Meeting 04/16/08)
additions have been made since the CO was granted. No zoning violations have been
issued, and if a violation were to have been issued, what sort of variance relief would
have been in order to correct it? Incidentally, I would like to have known that I had a
nonconforming structure at the time that I appealed my assessment. Imagine trying to
sell a house. What kind of a market value does it have if it’s a nonconforming structure?
So, maybe on the next round. The second determination that the administrator has
made, as of March 3, 2008, dealt with my need to obtain yet another Area Variance to
allow the three season porch and the open deck to be built 28 feet from the side
boundary, whereas 30 feet is required in the three acre zone. The Zoning
Administrator’s understanding of my position on this matter is fairly well articulated in his
Staff Notes statement, quote, it is the position of the applicant that the 2002 Area
Variance granted to this property for the construction of a single family dwelling created a
new setback requirement for the entire property along the northerly boundary line and
that since the current proposal does not exceed the previous relief, no variance is
needed. I do take exception to the use of the phrase new setback requirement. Instead,
I prefer to think that in fact I was allowed a new setback of 24 feet, as the relief granted
was six feet. The six feet of relief granted along the northerly side yard was without
limitation, that the six feet variance was not in any way confined to the area between the
extension of the front and rear lines of the dwelling being proposed. Also, if the
proposed dwelling layout changed during the design phase, to where the whole northerly
wall was to further encroach on the side yard boundary, but not more than six feet, would
a new variance have been required? I think not, as long as the permitted envelope was
maintained. How many times have we heard the phrase, variances run with the land?
rd
Anderson’s New York Zoning Law and Practice, 3 Edition, defines a variance is an
authorization for the construction or maintenance of a building or structure, or the
establishment or maintenance of a use of land, which is prohibited by the Zoning
Ordinance, that is the use of the land within 30 feet of the side boundary is prohibited,
but I got a variance to use the land, to use all of the land except within 24 feet of the
boundary. It is a right granted by the Zoning Board of Appeals pursuant to power vested
in such administrative body by statute or ordinance, and provides a form of
administrative relief from the literal import and straight application of zoning regulations.
The New York State courts have been unwavering in their repeated understanding and
declaration that, quote, variance is authorization to use property for a purpose prohibited
by the Zoning Ordinance, and use which is authorized by variance is not personal or
limited to particular owner of property, but rather runs with the land. I have a cite here
that I can give you on that. Notice that variance is the unconditional authorization for use
of property. It’s the unconditional authorization to use the property which does not attach
to a person, and it is the use of property is not limited to a particular owner, nor was a
variance limited to a particular structure, rather it runs with the land. A variance cannot
run with both the land and a structure. Variances that run with the land are a property
right and have no association with a particular structure as the Zoning Administrator
would imply. The unconditional six foot variance I received in 2002 allowed me to
encroach along the full length of the northerly property boundary because the variance
was not otherwise restricted. Otherwise, the longstanding rule, variances run with the
land, has no meaning. Accordingly, since this three season porch and open deck do not
encroach anymore than six feet on the northerly property line, it should not require a two
foot variance at this time. For this reason, the Zoning Administrator’s determination, with
respect to the two foot variance required for the three season porch and sundeck
proposed should be reversed. If you have any questions at this time, I’d be glad to
answer them.
MR. UNDERWOOD-Does anybody have any questions?
MRS. JENKIN-Craig, I have a question about the nonconforming. Is it because it was a
pre-existing lot?
MR. BROWN-No, it’s because the structure, as it sits right now, doesn’t meet the setback
requirements. It’s a nonconforming structure with a variance.
MRS. JENKIN-Okay, with a variance, okay, that makes it nonconforming because it has
a variance.
MR. BROWN-It doesn’t make it a conforming structure. It’s nonconforming, but it has a
variance.
MRS. JENKIN-For the structure.
MR. BROWN-Right.
26
(Queensbury Zoning Board Meeting 04/16/08)
MRS. JENKIN-Thank you.
MR. SALVADOR-If I may, isn’t the purpose of a variance to allow the structure to be
conforming?
MRS. JENKIN-No.
MR. GARRAND-No, sir I believe the purpose of a variance is to grant you relief in order,
grant you relief in this situation.
MR. SALVADOR-To have a conforming structure.
MR. GARRAND-Well, it’s still nonconforming, but it’s granting you relief from that
nonconformity.
MR. SALVADOR-It would be nonconforming if I didn’t get the relief. If I got the relief, it
conforms with the relief granted. It’s a conforming structure. How can you say it’s
nonconforming?
MRS. JENKIN-Because it has setbacks.
MR. GARRAND-Sir, the property lines didn’t change, and from there, that’s where your
setbacks are determined.
MR. SALVADOR-That’s my point, that in the granting of the six foot of relief, a new
setback requirement, requirement if you want to call it, or permit, is granted. That’s what
makes the building conforming. You’re not allowed to build a nonconforming structure.
MR. DRELLOS-So you’re saying the front, the north, and the south side is all set?
Because you got relief from the front, north and the south.
MR. SALVADOR-Yes.
MR. DRELLOS-So you’re saying they’re all set now at that, all of them?
MR. SALVADOR-Exactly.
MR. UNDERWOOD-We granted him relief from what was required.
MR. BROWN-Could I just have a minute to respond, unless you guys have questions for
Mr. Salvador?
MR. UNDERWOOD-No, go ahead.
MR. BROWN-I’d just like to respond to some of the comments that he made about the
requirements in New York State Town Law and his position that a variance, my position
is that a variance is not an unconditional granting of a use of the property. The variance
is very specific to the project that’s at hand. A comment was made that if the entirely
northerly wall was bumped out to meet that six foot setback, as opposed to I think it’s just
the fireplace addition that sticks out on that side, would another variance be required.
The answer to that is absolutely. When applications come before this Board, they’re for
the specific project at hand. If you use Mr. Salvador’s logic, if you grant someone a 40
foot setback relief for a portion of their deck from the shoreline Mr. Salvador would have
that deck now stretch from property line to property line, at 40 feet, rather than just the
small portion of the deck that they may be requesting relief for. So, while it’s an
interesting argument, I’ll bet you a nickel that you’re not going to go back and find any of
the thousands of variances that have been granted by this Town and throughout New
York State that uphold that position, that once you get the setback variance granted,
there’s carte blanch up to that setback line. That’s just not the way that it’s done. It’s
very specific to the project that’s requested at the time.
MR. URRICO-I have two comments. One that I interpret nonconforming to be that
there’s a Zoning Code for that specific area and that the property does not conform to the
zoning for that area, before any variances are asked for, it’s within, you know, within the
setback, it does not have what would be considered the allowable setback, but in looking
at this motion, I don’t see where it specifically mentions a deck, a three season deck
back in 2002. The language of the motion doesn’t refer to anything specifically. It may
have been discussed, but the motion itself, it just says six feet of relief from the thirty foot
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(Queensbury Zoning Board Meeting 04/16/08)
minimum side setback on the north side, four feet of relief from the thirty foot side
setback on the south side. It doesn’t say why, what it was granted for.
MR. BROWN-Yes, I think, and my position is going to be that the relief that’s requested
and the relief that’s granted is based on something, and that something is a plan that’s
submitted to you by the applicant, and the plan is specific for a project that shows this
portion is going to be too close. That portion’s going to be too close on the other side.
So, what was the relief, the six feet and four feet of relief, I think, were the numbers.
MR. URRICO-Yes.
MR. BROWN-What was the basis for the granting of that relief? The specific plan that
was submitted to you by the applicant.
MR. URRICO-Right.
MR. UNDERWOOD-The chimney was what, the chimney sticks the furthest out.
MR. BROWN-Is that what it was, the fireplace chimney on that side?
MR. SALVADOR-That specific plan you refer to was not very definitive, and the building
hadn’t been designed. The building just hadn’t been fully designed. This was a concept.
If we could get these variances, then we’re going to fill that box with this building.
MR. BROWN-And again, if that plan had come back for a building permit, and that plan
was different than the plan that was shown to this Board for a variance, Mr. Salvador
would have been directed to come back to this Board for a further variance, because,
again, the relief that was granted was specific to a plan that was presented to this Board,
not build to this line and put in as much as you want.
MR. SALVADOR-But I wasn’t asked to come back to this Board with regard to the deck.
MR. BROWN-You were?
MR. SALVADOR-I was not.
MR. CLEMENTS-Well, I have a question for you. I’m assuming because, this has come
up because you applied for a building permit. Is that correct?
MR. SALVADOR-Yes.
MR. CLEMENTS-Let me ask you this. Why did you apply for a building permit?
MR. SALVADOR-Because we wanted to put an addition on. That’s another application.
MR. CLEMENTS-Well, in your 2002 plan that you have right here, you have, and you
talked about this, a little sketch of your deck here.
MR. SALVADOR-Yes.
MR. CLEMENTS-And if that was approved at that time, then I don’t even know why
you’re back here asking for a building permit.
MR. SALVADOR-I’m saying it was not approved. The Zoning Board did not approve a
deck. That’s not your purview.
MR. DRELLOS-Do you have a deck, John? There’s not even one here, is there?
MR. BROWN-The deck was never constructed.
MR. DRELLOS-It was never constructed.
MR. SALVADOR-Never constructed. Only the header board, a header board was put on
the building.
MR. CLEMENTS-I think another point is that in this plan in 2002 there was a sketched in
deck here. Would you agree?
MR. SALVADOR-Right.
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(Queensbury Zoning Board Meeting 04/16/08)
MR. CLEMENTS-But it didn’t show a three season porch along with it. Would you agree
to that, too?
MR. SALVADOR-What is not shown there is what we’re building now is a three season
porch. That’s not shown, okay, and on the.
MR. CLEMENTS-With a deck.
MR. SALVADOR-With a deck.
MR. CLEMENTS-Okay.
MR. UNDERWOOD-Here’s a question, Craig, all right. During construction of this
house, if the three season porch addition and the deck addition had been proposed to
Dave Hatin at the time of construction, would they have had to come back to us for a
variance for that porch?
MR. BROWN-Yes, if it wasn’t shown on the plan that they showed you when they got the
variance.
MR. UNDERWOOD-Okay, because I don’t recall what was shown on the original plan?
MR. BROWN-I think a three-sided box that said deck in the middle of it.
MR. UNDERWOOD-That’s this one showing a deck.
MR. SALVADOR-Yes, the first one.
MR. UNDERWOOD-I mean, there is a deck on there. In this one it looks, you know, as
proposed, you know, it requires two feet of relief, I guess.
MR. SALVADOR-I might add, if, looking at that first, the plan, the plot plan that was
approved by the Zoning Board in 2002, there are other notations on this drawing that we
didn’t adhere to, and we were not asked to come back for another. For instance, the
septic tank is not located where it’s shown, presently located where it’s shown on that
Sketch. If you look on the as built.
MR. CLEMENTS-Yes, it’s off to the back instead of the side.
MR. SALVADOR-Yes, it’s not there. I wasn’t asked to come back here and get a
variance. The underground utility cable is shown coming in from the corner diagonally.
They’re not laid that way. I wasn’t asked to come in for a variance. The water well is not
located there. I wasn’t asked to come back for a variance. The pathways and all, they’re
not.
MR. DRELLOS-They’re not structures.
MR. BROWN-And none of those items are under the purview of this Board anyway.
MR. SALVADOR-Exactly. Neither is the deck.
MR. BROWN-Of course it is.
MRS. JENKIN-Mr. Salvador, the point is, it’s a moot point about the deck, because the
deck was at the back, and it didn’t require a rear variance. All you were asking for were
side and front variances. So that’s what the Board gave you. So it doesn’t matter
whether the deck was sketched in or not, because it really didn’t matter. What would
matter is if you went to, for your building permit, if you had, with the final plans, if you’d
shown the deck on it, then he would have had to consider a deck on it, but if you didn’t
do that, it doesn’t matter. It’s not a point at all. I don’t know why it’s a big discussion
issue because it doesn’t matter whether there’s a deck or not. The variances were for
the side setbacks and the front. The other thing you said here.
MR. SALVADOR-I didn’t need a rear setback at all.
MRS. JENKIN-Is a variance, and you repeated it several times, goes with the land.
MR. SALVADOR-Runs with the land.
29
(Queensbury Zoning Board Meeting 04/16/08)
MRS. JENKIN-Well, over the last year, I’ve heard that many, many times, and what it is,
it goes with the land, not the owner, not the project, it does not go with the owner. So if
you sell the land, then that variance would go with the next owner. It has nothing to do
with project itself. The project was approved. You asked for the project, the variances
for your project. I read the minutes of the 2002 meeting. It’s very specific that the
variance was approved for your project, but that does not mean that a variance goes with
the land, because the land, it goes with the land, not the owner. It doesn’t go with the
building itself. That’s the way I interpret it. Am I correct or not?
MR. BROWN-Well, yes and no. The variance definitely runs with the land, and it runs
with the land for the project that it was approved with at the time. If an applicant comes
in, next year, after Mr. Salvador sells them the property, wants to take that building down
and put up another building and come to that six foot setback line, that’s not the same
building this Board granted the variance for.
MRS. JENKIN-Correct.
MR. BROWN-They would need another variance to do that. It’s a new project.
MRS. JENKIN-Okay.
MR. SALVADOR-I agree, if they encroached more than six feet, on the boundary line,
yes, they’d need a variance.
MR. BROWN-Well, that’s where we disagree. My position is if they found a building
where they could find a little fireplace and stick it in that same spot that the variance was
granted for before, I would probably agree that they don’t need a variance. If they came
back with a six foot variance the entire length of their property line, they’re going to be in
the same position Mr. Salvador is right now.
MR. SALVADOR-By the way, you need setback relief for the location of the water well.
MR. BROWN-Not from this Board.
MR. SALVADOR-It’s in the Code that you can only.
MR. BROWN-It’s not a Zoning Board matter. That’s a Town Board of Health matter.
MR. SALVADOR-Okay.
MR. BROWN-It’s under the septic code.
MR. UNDERWOOD-Rich, do you want to comment?
MR. GARRAND-Are you polling us?
MR. UNDERWOOD-Well, yes.
MR. BROWN-Well, I think a public hearing has been noticed, and I see somebody in the
audience, I don’t know if they’re here for this, to speak.
MR. UNDERWOOD-Okay. I’ll open the public hearing, but, I mean, do we have public
hearing’s on Appeals of the Zoning Administrator?
PUBLIC HEARING OPENED
MR. BROWN-Yes. Sure.
MR. DRELLOS-Well, I’ll agree with Craig’s decision. I think this variance goes with this
structure only.
MR. URRICO-We’re discussing the Appeal, right, whether the Appeal has merit?
MR. UNDERWOOD-Yes, whether the Appeal has merit. Okay. Why don’t we just go
down through. Brian, do you want to go first?
MR. CLEMENTS-Sure. If can say it while I clarify it, I guess. I agree that he has
standing and can bring an Appeal. I don’t agree with the merits.
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(Queensbury Zoning Board Meeting 04/16/08)
MR. UNDERWOOD-Okay. Joan?
MRS. JENKIN-I don’t know whether I understand what you’re saying, but, anyway, I
would uphold the Zoning Administrator’s determination on this, for the Appeal. I think it’s
valid.
MR. UNDERWOOD-George?
MR. DRELLOS-I agree with Craig in his determination of the variance specifically for this
structure, and I don’t agree with Mr. Salvador. I don’t agree with his merit. Let’s put it
that way.
MR. UNDERWOOD-Okay. Roy?
MR. URRICO-Yes. I’m in agreement with the Zoning Administrator’s position on this,
and obviously Mr. Salvador was granted standing. So we’ve gotten that far already. So I
don’t agree with the merits of his position.
MR. UNDERWOOD-Okay. Joyce?
MRS. HUNT-I agree with the Zoning Administrator. I think that the variance goes with
the project that was presented.
MR. UNDERWOOD-Rich?
MR. GARRAND-Mr. Chairman, I’m looking at two things here. One is that they were
granted a variance in the very beginning, for setbacks for a nonconforming structure.
Basically, this is, as Mr. Salvador himself stated, this is an expansion, and we have a
nonconforming structure. So therefore I would agree with the Zoning Administrator.
MR. UNDERWOOD-And I guess I’ll throw in my hat with everybody else. I would agree
that it was implied that there was going to be a deck on the back here. It wasn’t done. I
mean, obviously with that sliding glass door, it points out to the fact that you were
intending to have something to walk out onto at some point in time, but I would agree
that, you know, like in the absence of completing that, that it is an addition that’s being
proposed at this time. So I would agree with the Zoning Administrator on that, but you do
have merit for continuance.
MR. GARRAND-Do you want me to make a motion?
MR. UNDERWOOD-Yes, go ahead.
MOTION THAT WE AFFIRM THE DECISION OF THE ZONING ADMINISTRATOR
RELATIVE TO NOTICE OF APPEAL NO. 1-2008 JOHN SALVADOR, Introduced by
Richard Garrand who moved for its adoption, seconded by Brian Clements:
37 Alexy Lane.
th
Duly adopted this 16 day of April, 2008, by the following vote:
MR. SALVADOR-I understand that it’s two part. One is the nonconforming structure,
okay, that I have a nonconforming structure, and I require an Area Variance for the two
feet of relief for the addition.
MR. GARRAND-Yes, you do need an Area Variance for this, and that’s part of.
MR. SALVADOR-And that I have, what I have now, is it the addition that’s
nonconforming or is it the existing structure that’s nonconforming?
MR. GARRAND-I believe both.
MR. URRICO-The application is for the porch, so that’s what the variance is needed.
MR. BROWN-This is a little unconventional here. You’ve got a motion, and we need,
and there’s really not discussion on the motion. It’s your motion, but.
MR. GARRAND-Yes, I’m making a motion to uphold your determination.
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(Queensbury Zoning Board Meeting 04/16/08)
MR. BROWN-Yes, you’d want to deal with that.
MRS. HUNT-I second it.
MS. GAGLIARDI-Did you open and close the public hearing?
MR. UNDERWOOD-I’ll close the public hearing.
PUBLIC HEARING CLOSED
MR. BROWN-It was definitely opened.
AYES: Mrs. Hunt, Mr. Clements, Mr. Garrand, Mr. Urrico, Mrs. Jenkin, Mr. Drellos,
Mr. Underwood
NOES: NONE
MR. UNDERWOOD-Okay. We’ll move on to the next Area Variance.
AREA VARIANCE NO. 14-2008 SEQRA TYPE: II JOHN SALVADOR OWNER(S):
JOHN SALVADOR ZONING: RR-3A LOCATION: 37 ALEXY LANE APPLICANT
PROPOSES CONSTRUCTION OF A 3-SEASON PORCH WITH OPEN DECK. RELIEF
REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS. CROSS REF.: BP
2008-040, B 2002-536 SFD, AV 21-2002 WARREN COUNTY PLANNING: APRIL 9,
2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.34 ACRES TAX MAP NO.
252.00-1-75.2 SECTION: 179-4-030
JOHN SALVADOR, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 14-2008, John Salvador, Meeting Date: April 16,
2008 “Project Location: 37 Alexy Lane Description of Proposed Project: Applicant
proposes construction of a 144 sf three season porch together with a 96 sf deck.
Relief Required:
Applicant requests 2 feet of relief from the 30 ft minimum side setback
requirement of the Rural Residential (RR-3A) district. Further, as the existing home on
the property does not meet the minimum required setbacks, relief for the expansion of a
non conforming structure is also required.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
1. Benefit to the applicant:
Applicant would be able create the additional leisure space for the residence.
2. Feasible alternatives:
Feasible alternatives may include a smaller addition or relocation to a compliant or more
compliant location.
3. Is this relief substantial relative to the ordinance?:
The request for 2 ft of relief may be interpreted as minimal (6%) when compared to the
ordinance.
4. Effects on the neighborhood or community:
Minimal effects on the neighborhood are anticipated as a result of this action.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
Parcel History (construction/site plan/variance, etc.):
Area Variance 21-2002 SFD side setback relief approved 4/24/02
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(Queensbury Zoning Board Meeting 04/16/08)
Building Permit 2002-536 SFD Certificate of Occupancy issued 9/9/05
Staff comments:
The proposed addition is planned for the back of the home and, as such, minimal if any
adverse impacts on the surrounding properties are anticipated as a result of this action.
SEQR Status:
Type II”
“Warren County Planning Board Project Review and Referral Form April 9, 2008
Project Name: Salvador, John Owner(s): John Salvador ID Number: QBY-08-AV-14
County Project#: Apr08-17 Current Zoning: RR-3A Community: Queensbury
Project Description: Applicant is proposing construction of a 3-season porch with open
deck. Relief requested from side yard setback requirements. Site Location: 37 Alexy
Lane Tax Map Number(s): 225.00-1-75.2 Staff Notes: Area Variance: The applicant is
proposing construction of a 3-season porch with open deck. Relief is requested from
side yard setback requirements. The information submitted shows the location of the
addition to the home. The required setback is 30 ft. where the applicant proposes the
porch be setback 28 ft. The elevation drawings indicates the porch is aligned with an
existing door. According to the suggested review criteria of NYS General Municipal Law
Section 239L applied to the proposed project, staff recommends no county impact based
on the information submitted. County Planning Board Recommendation: No County
Impact” Signed by Tim Lawson, Warren County Planning Board 4/11/08.
MR. UNDERWOOD-Okay. Mr. Salvador, would you relate to us what you’re hoping to
do here?
MR. SALVADOR-Well, you have the plans before you, okay, and you can see. The only
thing I’d like to comment on is benefit to the applicant. The reason for this is setback, the
two foot setback, is that we really can’t locate the addition anyplace else. If you’ll notice
on the plan, there’s a bow window off the side of the house there, and we wouldn’t want
to run this addition in the same line as the side of the building. Architecturally it would
have no appeal whatsoever. It’s just not the way to do things. So the feasible
alternatives are not there. This is where, you know, the sliding glass doors are there. It
was designed to have some kind of an access out there, and so I agree that it’s a
building addition. I agree that it’s an addition, but there are no feasible alternatives, and
to locate it right there, it’s not like you can put it someplace else on the property or set it
back further so that you don’t need the two feet of relief, and the rest speaks for itself. I
don’t see any comment to the contrary. The Zoning Administrator has agreed that it’s
minimal effects, six percent, those sort of things don’t make it a big deal. So, I would ask
that you approve the application.
MR. UNDERWOOD-I would assume nobody has any questions regarding this?
MR. DRELLOS-I think it’s in the perfect spot, John. I really do. I think it’s in the perfect
spot.
MR. UNDERWOOD-Okay. I’ll open up the public hearing. Anybody from the public
wishing to speak on this?
PUBLIC HEARING OPENED
MR. URRICO-I do have one letter.
MR. UNDERWOOD-You do have one letter? Okay. Sure.
MR. URRICO-This is addressed “To Whom It May Concern: Please be advised that
Dunham’s Bay Resort, Capital Region Properties and Alan Goldstein have no objection
to granting the relief on the side yard setback requirements to John Salvador for the
construction of a 3-season porch at 37 Alexy Lane. Sincerely, Allan Goldstein”
MR. UNDERWOOD-Okay. I’ll close the public hearing, then.
PUBLIC HEARING CLOSED
33
(Queensbury Zoning Board Meeting 04/16/08)
MR. UNDERWOOD-And do we want to poll each other, or does somebody just want to
make a motion? Do you want to poll? Does anybody have any comments? All right.
MR. GARRAND-I’ll make the motion.
MOTION TO APPROVE AREA VARIANCE NO. 14-2008 JOHN SALVADOR,
Introduced by Richard Garrand who moved for its adoption, seconded by George
Drellos:
37 Alexy Lane. The applicant proposes construction of a 144 square foot three season
porch together with a 96 square foot deck. The applicant requests two feet of relief from
the 30 foot minimum side setback requirement of the RR-3A district. Further, as the
existing home on the property does not meet the minimum required setback for relief, the
expansion of a nonconforming structure relief is also required. With the balancing test,
can the benefits be achieved by any other means feasible? Apparently not. Will this
cause any undesirable change in the neighborhood? No, it will not. Is this request
substantial? I would deem this request minimal. Will this have any adverse physical or
environmental impact on the neighborhood? None whatsoever. And this may be
interpreted as self-created. So I make a motion we approve Area Variance No. 14-2008.
th
Duly adopted this 16 day of April, 2008, by the following vote:
AYES: Mr. Drellos, Mrs. Jenkin, Mr. Urrico, Mr. Garrand, Mr. Clements, Mr. Underwood
NOES: NONE
ABSENT: Mrs. Hunt
MR. UNDERWOOD-Okay. You’re all set.
MR. SALVADOR-Any of those drawings or handouts that you’re going to throw in the
basket, I’ll take.
MR. UNDERWOOD-Anybody from the public wishing to speak? Did you want to speak?
You did want five minutes.
MR. SALVADOR-I was wanting to make this comment at several times while Mr. Abbate
was Chairman of the Board, but I just never got the opportunity, but now I’d like to, and
I’m referring to a publication of the Government Law Center, and in there, under Zoning
Board of Appeals, there’s this paragraph. Proceedings before the Zoning Board of
Appeals are quasi-legislative, quasi-administrative, and the hearings they conduct are
informal, not involving the receipt of sworn testimony or the taking of evidence pursuant
to CPLR 78034. Furthermore, while parties may have a right to be heard and to present
fact to support their position, the proceedings are not quasi-judicial. I didn’t want to prick
Mr. Abbate’s balloon.
MR. GARRAND-I want a copy of that.
MR. SALVADOR-It’s here.
MR. URRICO-You can mail it.
MR. SALVADOR-Okay. I’ll get you copies. The other thing, more serious. The Planning
Board has approved the Takundewide project, allowing it to move forward, and in the
minutes of the hearing, Mr. O’Connor made the comment that they have the Zoning
Board of Appeals permits. I have copies of your resolutions on those three projects, and
I would ask that you give careful consideration to the conditions on which you, this
Board, advanced that project to the Planning Board, and what the Planning Board was
supposed to address. I’m not convinced that they’ve done their job, or the job that you
asked them to do, but that’s where it is. It’s moving on. They’re going to form a
Transportation Corporation and that sort of thing. The disturbing thing about the whole
thing is that the minutes of these hearings are loaded with statements about existing
cess pools that have been on that property since the 1950’s. Nobody seems to be
concerned, and the only thing they’re doing is they’re addressing 11 of the 32 units,
putting them on a common sewer system and discharging it on site. Nobody has, the
Planning Board is just not concerned. They’re just looking at these 11 units.
MR. GARRAND-Have you been to the Board of Health about this?
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(Queensbury Zoning Board Meeting 04/16/08)
MR. SALVADOR-It’s got to go to the Board of Health. I’m not confident we’re going to
get any, I’ve mentioned it to the Town Board, but it’s, the first thing that happened, they
made a, I think it was the February meeting, they concluded that it was necessary to
have kind of a group discussion on this project, and it was going to involve the ZBA and
the Planning Board and the public Board of Health and the DEC and the LGA and the
Highway Department and all this stuff. Okay. It never happened. It never happened,
and it didn’t happen because I believe our Town Supervisor, together with our Ward
Supervisor, just got everybody to agree that the stormwater issue will be taken care of by
the Highway Department, separately. So all we’re looking at is the wastewater. Well,
anyway, that’s what was approved, and I just, I think you should go back and look at your
minutes of your meeting and your resolution. You were asking the Planning Board to, I
have them here, the Site Plan as reviewed, after careful review by the Planning Board, to
effectively determine the consistency with the Master Plan, and this is going to include
impacts and a thorough reassessment of the community wastewater system or a group
water system.
MR. GARRAND-And there’s a group water system going up there, as far as the units that
are being changed.
MR. UNDERWOOD-They’re included in that, I think, the units that we were reviewing.
MR. SALVADOR-Eleven units out of the thirty-two are being considered. Is that what
you?
MR. GARRAND-What was originally said by a member sitting here tonight I believe was
in regard to the entire, you know, hoping for a proposal with respect to the entire.
MR. UNDERWOOD-That included all.
MR. GARRAND-Yes.
MR. UNDERWOOD-I was the one that made the resolution, and I was implying that the
number, because it was the three that were being proposed, that that was enough to
trigger everybody having to go into a group system, not just the 11 that they evidently
have done, I guess. Yes, I don’t know what recourse we would have with that. I just
hope they make it big enough so that they can add on to it, because.
MR. SALVADOR-You’re not allowed to, Jim. You’re not allowed to design for anything
but your present needs. That’s the Code.
MR. UNDERWOOD-Then it doesn’t make sense that they’ve met the standards of the
plan, if we made them go to all the trouble of doing the plan for the whole project, it was
supposed to include everybody in that.
MRS. JENKIN-But it doesn’t?
MR. UNDERWOOD-Obviously not, short-cutted.
MR. SALVADOR-No one seems to want to appreciate that a cess pool is in a constant
state of failure.
MR. GARRAND-I have to see that all the time out there, especially in August.
MR. SALVADOR-What are we doing? I mean, you know, you take this lightly, okay, but
that lake is going to hell in a hand basket. It is so bad the regulatory agencies don’t want
to talk about it for fear of being tagged with the problem. It’s bad. Why do you think the
milfoil is proliferating? I’ll tell you.
MR. UNDERWOOD-Okay. I guess that’s it for tonight’s meeting, then. Thanks for
coming everybody.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
James Underwood, Chairman
35