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1998-02-18 (Queensbury ZBA Meeting 2/18/98) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 18, 1998 7:00 P.M. MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN BONNIE LAPHAM, SECRETARY PAUL HAYES ROBERT MC NALLY BRIAN CUSTER MEMBERS ABSENT LEWIS STONE NEW BUSINESS: AREA VARIANCE NO. 3-1998 TYPE II SR-1A CHARLES R. NORMAN OWNER: SAME AS ABOVE 112 FOURTH STREET APPLICANT PROPOSES CONSTRUCTION OF A 24 FT. ABOVE GROUND SWIMMING POOL WHICH CANNOT MEET THE REQUIRED SIDE AND REAR YARD SETBACKS. TAX MAP NO. 131-7-17 & 18 LOT SIZE: 0.17 ACRES, 0.08 ACRES SECTION 179-67 CHARLES NORMAN, PRESENT Project Location:Description of Proposed Project: “ 112 Fourth Street, Applicant proposes Relief Required: construction of a 24 foot diameter above ground swimming pool. Applicant proposes a 6 foot side yard setback and an 8 foot rear yard setback Section 179-67 requires a 10 Criteria for considering an Area Variance foot side yard and 20 foot rear yard setback. according to Chapter 267 of Town Law:1. Benefit to the applicant: Applicant would be 2. Feasible alternatives: permitted to erect a pool. Feasible alternatives are limited due to code and site constraints. Pools are required to be located in the rear yard per the ordinance. An on site 3. Is this relief substantial relative to the septic system restricts alternative locations. Ordinance?:4. Effects on the neighborhood or The request may be interpreted as minimal. community:5. Is this difficulty self-created? Minimal negative effects are anticipated. The Parcel History (construction/site plan/variance, difficulty is not interpreted as self created. etc.):Staff comments:SEQR Status: None applicable. None. Type II” MR. THOMAS-Is Mr. Norman here? Do you want to come up? Is there anything else you’d like to say, add to the application? MR. NORMAN-No, sir. MR. THOMAS-All right. The first obvious question I always ask on these, why can’t you put a smaller one in? MR. NORMAN-We’ve already gone down from one size. MR. THOMAS-You’ve already gone down a size? MR. NORMAN-Well, we wanted a 27. We just went down one size. MR. THOMAS-Okay, and I see by the plot plan, there’s really no place else you could put it, unless you went over on the far side of the house. How far do those radials out of the septic system go? MR. NORMAN-I have no idea. I mean, by where the, when we bought the house, where there was no grass, I’m going to say it probably, within 10 or 15 feet of the opposite end of the, just from where the grass was, the sand was when we bought the house. MR. THOMAS-Okay. Any other questions for the applicant? MR. MC NALLY-Do you actually know where your septic tank is? 1 (Queensbury ZBA Meeting 2/18/98) MR. NORMAN-Yes. MR. MC NALLY-I see on the drawing that you submitted, there’s a distance between the septic tank and the pool. How far is that distance? MR. NORMAN-Off the top of my head, I would say it’s probably approximately eight feet. MR. MC NALLY-Is there any reason you can’t scoot it over to the left a bit? That would result in less of an impact on your neighbor’s side yard. MR. NORMAN-I was just going by the pool company’s drawing. They made the drawing for me where the pool would best be situated. There’s a slope in the yard also, which would require fill brought in, if I was to go over too far to the left. MR. THOMAS-If you moved it over four feet, that would give you your side yard setback. MR. NORMAN-But then I run into the. MR. THOMAS-You run into the slope problem. MR. NORMAN-Right. It was more cost effective to leave it where it was, where they made the drawing, rather than I would have had to bring in like three or four truckloads of fill to extend that level area out further. MR. THOMAS-Okay. Any more questions for the applicant? MRS. LAPHAM-Have you spoken with your neighbors? MR. NORMAN-Just those immediately adjacent to the property. MRS. LAPHAM-How do they feel? MR. NORMAN-No problem. MR. THOMAS-I’ll open the public hearing. Anyone wishing to speak in favor of this variance, in favor of? Anyone wishing to speak opposed to this variance, opposed? PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Okay. I’ll close the public hearing. Lady and gentlemen, lets talk about this. I’ll start down there on the far end with Bob. MR. MC NALLY-I think it’s a relatively minimal variance that the applicant’s looking for. I would like to see the pool moved over, so it doesn’t have to have an impact on the side yard, but overall, I don’t see how it’s going to be a major impact on the neighborhood, and that’s about it. MR. THOMAS-Brian? MR. CUSTER-I agree with Bob. I see it as being fairly minimal relief. I, too, would like to see it moved over, but not hearing any voices from the neighbors against or anything like that, I really have no problem. MR. THOMAS-All right. Jamie? MR. HAYES-I agree. I mean, these are public hearings, and they certainly have the opportunity to come if they have a problem with the pool. It seems like a family neighborhood, and pools are a family neighborhood. So I don’t have any problem with the project. MR. THOMAS-Bonnie? 2 (Queensbury ZBA Meeting 2/18/98) MRS. LAPHAM-I think it’s fine. I mean, the impact would be very minimal. MR. THOMAS-I have no problem. If Mr. Norman could move that over to the, back toward the center of the house a little more, I’d appreciate it, but, if he moved it over four feet, it would be nice, but seeing that he’s said that he’d have to pull in three or four truckloads of dirt just to get it level in there, I think that could effect his septic system, and it could effect the runoff onto the neighbors, too, if you start screwing around with the contour of the land. So I have no problem with it, either. Having said that, I would ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 1-1998 CHARLES R. NORMAN , Introduced by Paul Hayes who moved for its adoption, seconded by Brian Custer: 112 Fourth Street. The applicant is proposing to construct a 24 ft. diameter above ground swimming pool. The applicant proposes to construct that pool six feet from the side yard setback and eight feet from the rear yard property line. Section 179-67 requires a 10 foot side yard setback and a 20 foot rear yard setback, which means that the applicant is requesting a 12 foot rear yard setback, 12 feet of rear yard setback relief and 4 feet of side yard setback relief from Section 179- 67. The benefit to the applicant would be to allow him to erect the pool as described. The feasible alternatives are limited based on the nature of the property and how the house is situated on the lot. Is the relief substantial relative to the Ordinance? I don’t think that it is. I think the relief is minimal, and I don’t believe there’s any negative impacts on the neighborhood, to speak of. So I move for its approval. I think the difficulty is not self-created based on the nature of the lot, the small size of the lot. th Duly adopted this 18 day of February, 1998, by the following vote: AYES: Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Hayes, Mr. Thomas NOES: NONE ABSENT: Mr. Stone MR. THOMAS-There you go. Everybody in the pool. MR. CUSTER-It’s tradition to invite us over when the pool is ready. MR. NORMAN-I could arrange that. Thank you. NOTICE OF APPEAL NO. 2-98 WESTWOOD HOMEOWNER’S ASSOC., INC. c/o LOTHAR BACHEM APPLICANT IS APPEALING ZONING ADMINISTRATOR’S DETERMINATION THAT A 50 FT. BUFFER ZONE IS NOT REQUIRED BETWEEN THE HC-1A AND MR-5 ZONES ON THE BASIS THE PROPOSED USE; PROFESSIONAL OFFICES ARE ALLOWED IN EITHER ZONE. LOCATION: WEST SIDE OF BAY ROAD, 100 YARDS NORTH OF GLENWOOD AVENUE INTERSECTION TAX MAP NO. 61-1-37.3 BERNARD MC CANN, REPRESENTING APPLICANTS, PRESENT MRS. LAPHAM-“Gentlemen: We, the Board of Directors of the Westwood Homeowners Association, wish to appeal a ruling of the Planning Board rendered Tuesday, January 20, 1998. The present plans for this property in the 179-23 Highway Commercial zone call for a 25 foot setback required by Code with 29 and 9/10ths feet provided at the rear or west side of the property. This is in direct violation of the Code, as Section 179.72 entitled “Buffer Zones”, Paragraph A states ‘where any commercial use, as defined in this Chapter, with the exception of farm operations, abuts any residential zone at the lot line or at a street, said commercial or industrial use shall provide at least 50 feet, 100 feet for heavy industry, as the buffer zone from the adjoining lot line of the residential zone or right-of-way. Section 179-23, Highway Commercial zones, reiterates in a footnote, a 50 foot buffer shall be required adjoining residential and industrial use. In a conversation between Mssrs. L. Bachem and T. Young of Westwood, and Mr. John Goralski on nd January 22, Mr. Goralski stated that he had made the decision that only a 25 foot buffer was required. His reasoning was that the professional offices are permitted in both Highway Commercial and Multifamily Residential zones. Therefore, the 50 foot buffer requirement was not applied. We believe this reasoning to be specious, as nowhere in the Code does this appear. The zones are not mutually exclusive in as much as that many uses are permitted in two or more zones. As an example, residential apartments are permitted in Highway Commercial zones. We wish 3 (Queensbury ZBA Meeting 2/18/98) formally to appeal this decision to the Zoning Board of Appeals, but would prefer to settle the matter more informally if possible. Your prompt review of this matter and your counsel would be appreciated. Very truly yours, Lothar Bachem, President” MR. THOMAS-Mr. Bachem, this is your appeal. You get to be first, or whoever you want to send up. MR. MC CANN-My name is Bernard McCann. I’m going to be representing the Westwood Homeowners Association. Before we get into talking about the Code, I’d like to give you a little history of this particular lot that is proposed for development. When Westwood was first developed in the late 80’s, most of the lots were sold late 80’s, early 90’s. At that time, the Woodbury’s were planning a use of the subject lot. They had a proposed office complex which they showed to each of the prospective buyers in the Westwood development. That office complex had a distance from the Westwood properties sufficient that nobody buying had any problem with that development. As it turned out, that development never got off the ground. Then about 1995 a subsequent development by a third party was proposed. When they proposed it to the Town, they did so with the request for a variance from the buffer zone that we’re talking about tonight. Through informal discussions with the Homeowners Association, that developer changed his plans to include the buffer zone that we’re talking about tonight, and that plan was then approved. Again, that development never got off the ground for financial reasons or otherwise. We come to today, where Westwood Homeowners are located in a zone that is an MR-5, Multifamily Residential. The proposed project is actually in two zones. Part of it is in an HC-1A, the Highway Commercial, and a small part of it on the very western end is located in an MR-5. Now, your Code, Town of Queensbury, defines the buffer zone in 179-72, and it says, and I’m paraphrasing, ‘Any commercial use shall provide a 50 foot buffer zone from adjacent lot line of a residential zone’. Now, unfortunately, the lot line and the zone lines are not the same. The zone line extends into this proposed development. Now the zone line actually goes through one of their proposed buildings, the western most building. Now if you read 179-72C, it gives the opposite. It requires residential zones to likewise, and that’s the word used in the Code, to provide a 50 foot between a residential and a commercial zone. Now if you use the zone line, there is exactly 50 foot between the Westwood and that zone line, Westwood lot line and the zone line. Now if you read these together, it looks to me as if there’s a 100 foot requirement, 50 feet on each side when you have a residential and commercial abutting. Now the letter, your minutes, your agenda rather, talks about professional use being allowed in both zones. That’s true, professional offices. I raised the question, how do we know these are going to be professional offices? It’s an office building, three office buildings. One may have some tenants already. The other two certainly do not. So this may or may not be a professional office complex. The plan that was presented by the proposed developer contains nothing more than a 29 foot setback which is different than a buffer. A setback is merely from a building line to a lot line. A buffer zone should contain, by definition of your Code, no man made objects or improvements. A close look at that map will show that they’ve got a parking lot proposed to be a few feet from the lot line of the Westwood Homeowners development. That certainly does not qualify as a buffer. All we’re asking is that the provisions be made that this development follow the Code. There have been no requests for variances by this developer. We believe that there was an error made by the zoning officer or the code officer who granted the approval. We would hope that you would right that wrong. Thank you. MR. THOMAS-Okay. Is there anything else you’d like to say from the Homeowner’s Association? If not, I’d like to hear from the Zoning Administrator, Acting Zoning Administrator. Who did this? Did you or John do this? MR. ROUND-I provided you with a memorandum, if you want to read that into the record. I think it’s been spelled out a couple of different ways. I know the determination was based on both uses, both professional offices are allowable in the MR-5 and the HC-1A zones, and therefore, the language, it’s based on the language, if you read closely the definitions of buffer and the buffer requirement that’s contained in each of the zones, and they base its use from the lot line, and I think our decision, as stands, and I think it’s to the Board to entertain alternative views, I guess. MR. THOMAS-Is that it? MR. ROUND-Yes. MR. THOMAS-Go ahead and read Chris’ memorandum in there, just to cover the bases. MRS. LAPHAM-Okay. 4 (Queensbury ZBA Meeting 2/18/98) MEMBER OFAUDIENCE-Could you speak into the mic, we couldn’t hear you, and repeat what you just said. MR. ROUND-Sure. The determination was made, by John Goralski, at the time the application was made, that the buffer zone was not required for this particular application, and that professional offices are both allowed in the MR-5 district and the HC-1A district. The buffer zone, my reading of the buffer zone is that it’s to protect conflicts in land use, okay. If you have a commercial use adjacent to a residential use, you’re to structure a buffer to mitigate the conflicts that necessarily detract from common enjoyment of your property. In this case, it is a professional office. There’s some questions out there, that, is professional office a commercial use? That’s open for debate. Also open for debate is the buffer regulation in the MR-5 district reads, “A 50 foot buffer shall be required when adjoining industrial zones”, okay. That’s in the MR-5 regulation. In the Highway Commercial regulation, it indicates a 50 foot buffer shall be required by joining residential and industrial zones”, okay. Is the MR-5 a residential zone? It is. Is professional use a commercial use? Open for debate under the Buffer regulation that I gave you, a copy of the definition, it says “where any commercial use, as defined in this Chapter, with the exception of farm operations,” etc. etc., and I’ll read you the appropriate portion of the Section, “said commercial or industrial use shall provide at least fifty (50) feet…as a buffer from the adjoining lot line of a residential zone or street right-of-way”. Then it again says use adjacent to zones. The MR-5 district allows both professional offices and residential uses without the separation between those same uses, okay. So in an MR-5 district you could have a professional office in a residential structure and meet the setback requirements. This is a professional office. This portion of the professional office is located in the MR-5 zone. So it was the Zoning Administrator’s determination that there’s not a buffer requirement within the same zone. It’s very difficult to put this to words, I guess. You have a copy of the map. You have a copy of the Definitions. I think the Westwood Homeowner’s Association is here to represent themselves as far as, or, excuse me, the Bay West applicants are here to provide clarification, if you want some additional clarification. MR. THOMAS-Were you at the Planning Board meeting? MR. ROUND-No, I was not. MR. THOMAS-Okay. That does it for you? MR. ROUND-Yes, unless I can, you know, if you ask me a specific point, I can give you an answer to it as you go along. I’m here for you. MRS. LAPHAM-Do you want me to read this? MR. THOMAS-Yes, read the memorandum in. MRS. LAPHAM-“MEMORANDUM February 13, 1998, Zoning Board of Appeals, from Chris Round, Community Development Department, RE: Appeal 1-1998 The appeal considers the Zoning Administrator’s decision regarding the Bay West Associates project located on Bay Road (tax map ID 61-1-37.3). The Administrator determined the buffer requirements contained in Section 179-72 “Buffer Zones” and Section 179-23 (HC-1A) were not applicable to the referenced project. The project, granted subdivision and site plan approval for the first of three buildings, proposes location of an office building approximately 30 feet from the rear/west property line adjoining the Westwood Development. The buffer requirements require a 50 foot setback. I have included copies of the referenced code section and pertinent definitions for your review.” Chris Round. MR. THOMAS-Okay. Does anybody from the Westwood Homeowner’s Association at the table here want to add anything, say anything else? MR. MC CANN-Well, I have a real hard time with the question that was raised as to whether or not a professional or office building is a commercial use. They’re renting space. To me, that’s a commercial use by anyone’s definition. I think to bring that argument is a rather faulty logic, and your definition in 179-7 I think is quite clear, sale or rental or distribution of goods, services, commodities. Well, their commodity is office space, and services are whatever services they provide to the tenants of the office space. That’s a commercial use. That’s certainly not a residential. We’re not talking about a house that’s being turned into a doctor’s office. We’re talking about an office building that may or may not include professional offices. So I have a real hard time understanding where anyone is coming from with that argument. 5 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-Is there anything else? Okay. Do you have anything right now? If not, I’ll open the public hearing. MR. ROUND-Go right ahead. MR. THOMAS-I’ll open the public hearing to those wishing to speak in favor, or along with the Westwood Homeowner’s Association. Would anyone like to speak in favor of or with the Westwood Homeowner’s Association? PUBLIC HEARING OPENED DOUGLAS WRIGLEY MR. WRIGLEY-My name is Douglas Wrigley. I live at 29 Marcy Lane in the Westwood Homes. I’d like to repeat what Bernie said earlier, that when we purchased our homes, this area was pointed out to us, and a buffer zone was defined orally by the developers. We knew what it was in terms of size, but it was pointed out that this would remain as a buffer zone, and up until this point, it has. The second point I’d like to make is that we are residential. All of the 48 homes in 12 buildings are residential. They are solely residential. There is no other, there are no offices in Westwood. So we are truly a residential zone. MR. THOMAS-Okay. Thank you. Would anyone else like to speak in favor of? DAVE SCHEWNKER DR. SCHWENKER-Hi. I’m Dave Schwenker. I live at 6 St. Andrews Drive, and I’m the owner of 25 Marcy Lane, along with my wife, in Westwood, where my son resides. We were one of the first owners, and bought this back in 1988. At that time, the issue of adjacent property use was clearly represented that there would be a buffer zone. There were maps and diagrams of how the buildings would be laid out, and I personally looked at the zoning map to look, that was one of the purposes of that 50 foot separation between the lot line and the, again, MR-5, whatever this is, the two different Codes, was in order to really preserve that definition of a buffer zone. That was one of the issues that was raised, as to where the zoning line was at that time, and so we’ve always gone on the assumption, over the last 10 years, that that was a very much protected area, that you wouldn’t have a parking lot right at the end of the road, and all those kinds of things, that there was going to be a buffer between, and having professional office space myself, I would just strongly support the idea that professional offices are distinctly different from a residential use, and that professional offices are a commercial use. Thank you. MR. THOMAS-Thank you. Would anyone else like to speak with the Westwood Homeowners Association? Okay. Would anyone like to speak opposed to the Westwood Homeowners Association? JON LAPPER MR. LAPPER-Good evening. For the record, my name is Jon Lapper, and I represent Mike and Skeets Woodbury, who are the property owners, individually, and also Bay West, L.L.C., Bay West Associates, L.L.C., which is Matt Steves and Jim Miller and Tom Nace, who’s not with us tonight, who have received approval for the subdivision and site plan for three buildings. I want to hand you a letter that I wrote to you, to set forth the issues which there’s a lot of interpreting sections, so it gets a little wordy, so I wanted to just set everything down in writing, and I’d like to just read through it with you and then talk about the issues. “Dear Board Members and Neighbors: I represent Michael and Ralph Woodbury with regard to this Appeal. In January 1998, the Woodbury’s received site plan and subdivision approval from the Town of Queensbury (Planning Board) for a three building project on their property which is located on the west side of Bay Road and adjacent to the Westwood Homeowner’s Association property. The Woodbury’s were the developers of Westwood and have always planned to construct a professional office or commercial project on their remaining parcel of property adjacent to Westwood. In fact, page 5 of the Westwood Homeowner’s Association Offering Plan, a copy of which I have attached hereto as Exhibit “A”, provides as follows: Adjacent to the south and east boundaries of the property is vacant land owned by the principals of the sponsor which is zoned commercial and may be developed into an office park or small shopping plaza.” So that was always the plan. “A copy of the offering plan was given to each homeowner before they signed a purchase agreement. The Westwood HOA has now appealed the determination of the former Zoning Administrator, John 6 (Queensbury ZBA Meeting 2/18/98) Goralski, that the buffer zone discussed in section 179-72 of the Town Zoning Code does not apply to this project. On behalf of the Woodburys and for the reasons set forth below, I respectfully request that the ZBA affirm the Zoning Administrator’s decision. Section 179-72A of the Zoning Code provides as follows: Where any commercial use, as defined in this chapter, with the exception of the farm operations, abuts any residential zone at the lot line or at a street, said commercial or industrial use shall provide at least fifty feet [one hundred feet for heavy industry] as a buffer zone from the adjoining lot line of the residential zone or street right-of-way. The Woodburys’ parcel lies partially in the MR-5 zone, (immediately adjacent to Westwood)” and that’s actually, the zone goes 65 feet. Bernie had said that he thought that it was 50 feet, but the zone line is actually 65 feet from the property line. What’s up on the Board is the approved subdivision and site plan. Matt, if you could just put your hand where the property line where Westwood is, and the yellow line that he just drew is the zone line So the Woodburys property, as Bernie mentioned, is partly MR-5, “and partially in the HC-1A zone (along Bay Road). A copy of the portion of the site plan adjacent to Westwood is attached hereto as Exhibit “B”. Under section 179-18 of the Zoning Code entitled “Multifamily Residential Zones, MR-5”, both multi-family dwellings, including town homes (i.e. Westwood HOA) and professional offices (i.e. building 3 in the new project) are permitted uses. Section 179-18B provides that the purpose of the multi-family residential zone is “to provide for an anticipated increasing demand for high-density multi-family housing and professional office buildings in areas located near commercial services, subject to intense development pressure”. There is no requirement under section 179-18 that when multi- family residences and professional offices are adjacent in the same MR-5 zone, a fifty foot buffer is required. Rather, a ten foot rear yard setback and a ten foot side yard setback is required. An analysis of the language in section 179-72A supports the Zoning Administrator’s conclusion. This section applies to a “commercial use” however, the permitted use in the MR-5 Zone and the approved use for the building shown on the current site plan which is located in the MR-5 Zone is “professional office” which is separately defined from “commercial use” in the definition section of the Zoning Code. So this Section talks about commercial use, but there’s a separate definition in the Code for professional office. “A professional office is defined as “an office used to conduct professional services, including but not limited to all members of the field of medicine, a lawyer, architect, engineer, surveyor, licensed beautician or barber, real estate broker or accountant”. Additionally, section 179-72A applies only where a commercial use “abuts any residential zone at the lot line or at a street…” I want to just stop there and go back to that definition. “Where any commercial use as defined in this Chapter ‘abuts any residential zone at the lot line or at a street’. In our case, we don’t believe there’s a commercial zone, there’s a commercial use, excuse me, because it’s professional office, which is a separate definition. In order for this Section to apply, it has to abut a residential zone at the lot line or at a street, and in this case, it doesn’t abut the residential zone at the lot line or at the street because the zone line is in the middle of the Woodburys property. So there’s no requirement, in my opinion under this Section, that you have to have a buffer from yourself. If you own the property on both sides of the line, you don’t have to provide a buffer for yourself from your own property. “However, in our case the professional office use is located in the residential zone (MR-5) and does not abut the residential zone at the lot line (the zoning line is sixty-five feet in from the Wooburys’ lot line). Most persuasively, the fifty foot buffer zone requirement has not been applied to Westwood property in the past. If section 179-72A applies to require a fifty foot buffer zone on the Woodburys’ current project, then section 179-72C would also have to apply. Subsection C of the Zoning Code provides that “likewise, where any residential use….abuts any commercial…zone at the lot line or at a street, said residential zone shall provide at least fifty feet as a buffer zone from the adjoining lot line of the commercial or industrial zone or street right-of-way”.” The Westwood Townhouses there on the other side of the line are, I measured, and it was less than 30 feet. So that when Westwood was approved, this Section wasn’t interpreted on the other side to require 50 feet on the other side of the MR-5 zone and just in terms of continuity, if you were going to apply it on one, it would have to be applied on the other. “However, the Westwood town homes are not set back fifty feet from the property line. Moreover, in 1995 Anthony Ricciardelli received site plan approval for a professional office building at the corner of Westwood Drive and Glenwood Avenue. A copy of the site plan resolution and the site plan are attached hereto as Exhibit “C”. The fifty foot buffer zone provided for under 179-72 was not applied to the Ricciardelli project which also abuts the Westwood HOA property. So this is exactly analogous, two years ago. This is right at the front entrance to Westwood. That’s the accounting offices, which is a professional office, for the Edwards/Williams accounting firm, and I’ve attached the site plan which shows that they have a 28 foot setback that they’ve provided. So those are two examples where, in the past, it’s always been interpreted the way the former Zoning Administrator applied it in this case, that when you’ve got professional use next to residential use, it’s not treated as commercial under the Code, and the 50 foot buffer’s not required. I’m not aware whether or not the Westwood Homeowners appeared or appealed at the time in 1995, when Tony Ricciardelli had his site plan approved. That’s absolutely analogous, right at their front door, that they’ve got a professional office, which is just what’s 7 (Queensbury ZBA Meeting 2/18/98) planned here. ”Nevertheless, as a result of the concerns raised by Westwood, the current site plan has now been modified to remove a number of parking spaces along the boundary of the projects and to add significant vegetative buffering. The Woodburys believe that although neither of these modifications are required under the Zoning Code, they are happy to provide this additional buffer in order to address the concerns of their neighbors.” Matt, if you could show. MATT STEVES MR. STEVES-For the record, my name is Matt Steves, with Van Dusen and Steves Land Surveyors. There are four parking spots with a little turnaround on the very end of it against the Westwood property. We’ve taken that turnaround and four adjacent parking spaces and away, so that the basically now, instead of having the asphalt, blacktop within about 10 feet of the property. It is now back behind the line of the building, which would put it around 32 feet back from the property line. MR. LAPPER-So that’s 23 feet of pavement that’s just been eliminated. MR. STEVES-Probably a little bit more than that. DR SCHWENKER-Where is that line? MR. STEVES-Here is the original outline of the asphalt, and here’s the new line of the asphalt. DR. SCHWENKER-So it comes to this which is the 29 feet? MR. STEVES-That’s correct, and in addition to pulling that back, we’ve provided plantings of (lost words) all throughout the back of that, in addition to what’s already there. MR. LAPPER-What’s important, most of all, is correctly interpreting the Code, and the reason why John and then Chris are talking about professional and professional is that the professional office of that back building, and in the MR-5 zone, commercial, general commercial is not permitted. It’s permitted in the Highway Commercial. So this project includes three buildings. The front two buildings can be any use that’s permitted in Highway Commercial, which are much broader, but in the back building, because it incorporates the MR-5 zone, the only office use that’s permitted in that building, in that zone, is professional office. So that to build that building, that’s all they can do. They can have the list that I read of doctors, architects, surveyors, engineers, etc., but they can’t have general commercial use, and that’s a permitted use. MR. HAYES-And that’s enforceable by Code? MR. ROUND-They’d be in violation of site plan approvals if they weren’t in conformance with that portion of the Code. MR. LAPPER-Like any other use in Town, if you didn’t comply. Just for the record, this is what we’re talking about, just for an elevation. MR. THOMAS-Just a one story? MR. LAPPER-One story. MR. CUSTER-Is that the front, Jon, or the back? MR. HAYES-It’s all brick, you said? MR. LAPPER-All brick all the way around. MR. STEVES-All brick, that’s correct. MR. THOMAS-What’s the height of the peak? JIM MILLER MR. MILLER-It’s probably around 20 feet, 18 to 20 feet, single story (lost words) style. MR. CUSTER-That vegetation up there is the screening that you’re? 8 (Queensbury ZBA Meeting 2/18/98) MR. LAPPER-Yes. That’s been augmented from what they had originally provided for the Planning Board. So now it’s along the whole back. MR. CUSTER-I mean, not that that should sway my decision. MR. LAPPER-No, but we’re also trying to be good neighbors, and professional office is an allowed use in the MR-5 zone. They also eliminated a light on a pole, as well, that could be annoying to somebody that lived there, but the real issue comes down to just interpreting 179-72. I think that the fact that “C” was never, Section C was never applied on the other side of the line to Westwood is important. The fact that this wasn’t applied to the Edwards/Williams building is important, and the fact that it’s professional office, of course, that’s a permitted use in both zones, and permitted use in MR-5 MR. CUSTER-Wouldn’t they have 50 feet, though, from the zone, if they were doing it in reverse, under Section C? Because there’s 50 feet from the zone line to the lot line, and then to the Westwood Homeowners. MR. ROUND-If I might interject, nowhere in the definition does it say zone line, that the distance is to the zone line. It’s to the lot line. MR. CUSTER-Lot line, okay. MR. LAPPER-Yes. Let me just read that. This is important. “Said commercial or industrial use shall provide at least 50 feet as a buffer zone from the adjoining lot line of the residential zone or street right-of-way.” So under no circumstances would you be measuring it from the zone line. MR. CUSTER-How far is the Westwood homes from that lot line? MR. STEVES-About 27 feet. MR. CUSTER-Thank you. At the lot line. MR. ROUND-I guess maybe, if I may, to simplify the exercise is that if a proposal was before me, and there was not an HC-1A zone here, okay, you’ve got two adjoining properties, both zoned MR- 5, all right. There’s a residential use on one lot, and there’s a professional office on the adjacent MR-5 lot. Is a 50 foot buffer required at the lot line in that case, and that’s what we’re looking at. It’s the simplest definition. MR. CUSTER-Well, I’m just making sure I understand it so I give a fair hearing to both sides of the argument. MR. ROUND-No. Right, because there’s all these other things out there. Is a 50 foot buffer required from a lot line between a professional office in the MR-5 district and a residential use in the same district. MR. MC NALLY-Can I ask, do you, Jon, or Chris, know if in the Ricciardelli case this issue was ever raised or a decision ever made? MR. LAPPER-I’m not aware if it ever was raised, but it would be the Westwood Homeowners if they had an issue then, because it’s on their boundary as well. MR. THOMAS-The only thing I remember is that since it was already in the MR-5 zone, that it was an allowed use, and all he needed was setback. MR. LAPPER-But that’s what we’re saying here that it’s in the MR-5 zone and it’s an allowed use, because professional office is allowed in the MR-5 zone. MR. THOMAS-I’ll have my little speech in a few minutes, but I differ on that point. MR. LAPPER-But isn’t this exactly the same case as the Edwards/Williams? MR. THOMAS-No. Is there anything else you want to add so we can get this thing moving along? MR. LAPPER-Yes. We’d probably like to respond after Bernie gives his comments. 9 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-It’s not your appeal. MR. LAPPER-Well, we’re the real party in interest. MR. THOMAS-The only parties interested in this are Westwood Homeowners Association and the Town of Queensbury. MR. LAPPER-That’s not true. As an applicant who is holding the permit, we’re the real party in interest, and we’re allowed. MR. THOMAS-Well, you’re a party in interest to the Planning Board, not to the Zoning Board of Appeals. MR. LAPPER-No, we’re allowed to appear as a party. MR. THOMAS-You’re not a party to this appeal application. Your name does not appear on it. MR. LAPPER-I beg to disagree, under New York Law. MR. THOMAS-It’s your property, but the appeal’s going to the Westwood Homeowners Association against a Zoning Administrator’s decision, and this isn’t a variance hearing. It’s an appeal from a decision made by the Zoning Administrator. MR. LAPPER-But just on that point of procedure, and obviously I can’t quote you anything tonight, but if a party has received an approval, a permit, that permit is a property right, and this is just settled case law in New York that in a zoning matter, that that party is allowed to appear as a party, and given party status to defend and protect that approval. MR. THOMAS-I couldn’t tell you that because our lawyer isn’t sitting here, and I wouldn’t dare respond to that, because you’re a lawyer and I’m not. MR. LAPPER-I wouldn’t expect you to, but that’s just something that comes up frequently. MR. THOMAS-I could put this thing on hold and get our lawyer here next month, but I don’t think anybody wants to do that. MR. MC NALLY-Is the point simply that you might want to make some rebuttal? MR. LAPPER-Yes. MR. MC NALLY-I think if that’s the only thing that they need, maybe that’s a simply enough matter not to have to deal with some of the legalities. MR. HAYES-That’s the Chairman’s decision, though. MR. THOMAS-Yes. Well, is there any more you want to say, because we want to get this meeting rolling. MR. LAPPER-We just think that it’s the exact same treatment that should be granted, that was granted to the Ricciardelli project. MR. THOMAS-Okay. Is there anyone else who’d like to speak in opposition to the Westwood Homeowners Association application from the Administrator’s decision? No one else would like to speak against that? Is there any correspondence? MRS. LAPHAM-I don’t think so. No. MR. THOMAS-Okay. Mr. McCann, is there anything you want to add? MR. MC CANN-I just wanted to answer the question on Mr. Ricciardelli’s property. The property that the accounting office is now located on is in the MR-5 zone. So it was a permitted use. No need for a variance at all. They met the setback requirements, but in addition, Mr. Ricciardelli met with the homeowners and made a concession that his building would be an exact duplication of the other buildings in the Westwood Homeowners development. As you drive in off 10 (Queensbury ZBA Meeting 2/18/98) of Glenwood, you would be hard-pressed to tell that that building was anything other than part of Westwood. The color is the same. The roof line is the same. The material building the outside of the building is exactly the same. In fact, when I went in there just the other day, I was saying, gee, I didn’t know they had a central area where people could meet. I was unaware that it was an office building. So those concessions were made, and the homeowners were more than willing to have Mr. Ricciardelli build as he did. The other point, we’re talking about where there’s a lot line and a zone line. At some point in time, those two lines were the same. I don’t have the information as to when they switched, but at some point, Mr. Woodburys moved the lot line from the zone line west toward the Westwood. It would be my guess that the buffer zone was met initially, and then at some time later, the lot lines were changed. That’s speculation on my part. I do not know that for a fact. I do know it was changed, but when it was changed, I do not know. I think it might be of interest to this petition. The other thing, the proposed development is only partially in the MR-5. The line runs right through the middle of the building. So you’re putting a half a building in a residential zone, and the other half in a commercial zone. It has to be an animal of a different color. I don’t know what you’re going to classify that as, even though the use is allowed in both zones. To measure from the lot line, Jonathan’s correct. The distances are something under 30 feet from the lot line to the first building in Westwood, and it is similar on the other side of the line. Our point is that there was a buffer proposed with the Westwood development initially. We would like to see that buffer continue, and the definition of commercial, at least when I took commercial law, 30, 40 years ago, was if you’re buying and selling something, it becomes commercial, and whether you’re a doctor, a lawyer or an Indian chief, if you’re buying and selling your services, which commercial definition in the Code states, services, that becomes commercial, and to hide behind the word “professional”, I think is very, very inappropriate for this particular problem tonight. MR. THOMAS-Anything that the Zoning Administrator would like to say? MR. ROUND-I think it’s all in front of you. MR. THOMAS-Okay. Have you got something you want to say, Jon, really quick, before I close the public hearing? MR. LAPPER-I want to just point out that we’re providing a 30 foot buffer from the property line, and now that we’ve moved the parking, it’s 30 feet for everything, for any manmade improvements as Bernie was talking about. The difference between commercial and professional is that commercial use is absolutely not allowed in the MR-5 zone, and professional is a permitted use in the MR-5 zone, and that’s the difference, that this is as of right. If we moved the building back to the 65 foot line, we could use it for a commercial building, for a store, but we’re not. What we’re talking about, and that would be providing the 50 foot buffer. What we’re talking about is using it for professional, which is less of an impact on a neighbor. Professional Offices usually aren’t used at night. In terms of being more compatible with residential use than a store that might be open until 9:30 at night, and that could be done 65 feet from their property line. We’re going 30 feet, and the MR-5 zone only requires a 10 foot buffer. So we’re going 30 feet back rather than the 10 foot buffer, providing trees, and we think are completely in accordance with the Zoning Ordinance and the way it’s been treated for the front, for the Edwards/Williams project. Their parking lot is 28 feet. Thanks. MR. THOMAS-Is there anything that the Westwood Homeowners Association wants to say? Anything more? Anything more from the Town? MR. ROUND-Just that if you require a 50 foot buffer in this case, it’s going to have impacts on other MR-5 residential developments, professional office spaces in that development, and to take that into consideration, and the reverse is true as well. MR. THOMAS-Okay. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-I’m going to veer a little bit from tradition, here, and I would like to go first, before we talk about this, due to the fact that I sat through a few of these. To begin with, there’s a flaw in the wording of the buffer zone law, okay. It says “lot line”. Everything is “lot line”. In the past, it has been determined by this Board that we’ve always gone from the zoning line. As Mr. McCann once pointed out, I pointed out that at one time the lot line was the buffer zone line, and I could give you four examples that I sat on the Board, and Mr. Lapper was here for one of them, and that’s Taco Bell on Route 9. That right there, they had to have a relief from the buffer zone, 11 (Queensbury ZBA Meeting 2/18/98) and there, the lot line, this, again, was a split lot. It was two different zones going through the lot. Then we gave relief from the buffer zone from the lot line, not from the property line. The next one was Double A Provisions was something you have sat here on, on Main Street in West Glens Falls. There, again, the setbacks were given from the, or the buffer line, the buffer setback was given from the zone line, not the lot line. Car Essentials, when they came in for a variance on Quaker Road, they were going to put a new building up. There again, they had a zone line go through the property, and here again we gave a setback from the zone line, not the property line, and the fourth one was this case right here, when a guy named Perry Noun was here to build elderly housing, and he was going to put an apartment building up there, with like 62 or 64 apartments, and here again, he needed a buffer, and we gave him a relief from the zone line, not the property line. This is something that this Board has done, as far back as I can remember, and I don’t know, Mr. Turner could probably tell you that we’ve done more, but it’s always been the determination that when it’s a split zone like this, the buffer goes from the zone line, not the property line, that they are different, and that’s clear and simple, and that’s what this is all about. It’s not about shrubbery along the property line. This isn’t a Use Variance. It isn’t an Area Variance. It’s a determination as to whether who’s right and who’s not right. In this case, I think the applicant is right. Having said that, Brian? MR. CUSTER-You’re saying the applicant being Westwood? MR. THOMAS-Yes, Westwood Homeowners Association. MR. CUSTER-I, too, tend to agree, but on a little bit of a different footing. I reviewed the definitions of professional, it doesn’t say professional use in our book, it says professional occupation, which starts out “One who is engaged in professional services, and then turning to the definition of commercial use, it says “Any use involving the sale, rental distribution of goods/services”, and when you do read that and determination, (lost word) that out a little bit, I have to agree, also, with the applicant, that we need to move that building forward and provide more of a buffer space. MR. THOMAS-Okay. Jamie? MR. HAYES-Well, I think, you know, the arguments here really do center around Section 179-72, and words, as in any Code, are words, and I think they have to be interpreted with the precedent that we’ve set on the Board in the past. If, as you have pointed out, that’s the precedent and the definition that we’ve set to that thing, and I’m obliged to, not obliged, but I feel the applicant’s argument is more persuasive, and I would probably affirm the appeal. MR. THOMAS-Bonnie? MRS. LAPHAM-Well, I tend to agree with the rest of the Board members because I really feel a buffer zone is essential between residential and commercial development, and as you have pointed out, Chris, the Board has set the zone line as where the buffer should go, and so I would remain in favor of going with the Westwood Homeowners in this instance. MR. THOMAS-Yes, as I’ve stated, and I don’t know if I’ve made it clear or not, that the buffer is measured from the zone line, not the property line. Okay. Bob? MR. MC NALLY-The fact that this was always planned commercial I really don’t think carries much weight because maybe the Offering Plan said it would be commercial, but I don’t know if it necessarily provided any buffer, or whether it would conform with the existing Town Ordinance then existing as to buffers. While the proposal is partially in an MR-5 zone, I really don’t think, as Brian said, that there’s any doubt that this is commercial use. I view Town definition of commercial usage as being a broader category, which includes professional services in their distribution or use, and clearly, in this case, they’re going to use these structures for commercial purposes, even if it’s white collar, in the sense of an accountant or a lawyer or an insurance person, they will be selling services, providing services, and engaging in commerce. So it’s got to be a commercial use. I agree with Chris, that the precedent that this Board has established in other years is very important, and we should try to conform to it. I was a little bit troubled with the Ricciardelli property, but I can see that maybe this issue was never really raised before, or as Mr. McCann has said, if it was even discussed privately amongst the participants, it seems it was never substantively raised as an issue before the Town or before this Board. If I look at 179-72A, it says that there should be a buffer where a commercial use abuts a residential zone. I know that the proposed use is commercial, and I know it does go up against a residential zone. I see the need for a buffer. So I would have to agree with the rest of the Board members. 12 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-Okay. Having said that, is there anything else anybody on the Board would like to say? MR. LAPPER-Can I ask a point of clarification? MR. THOMAS-Yes. Go ahead. Maybe you’ll get an answer. Maybe you won’t. MR. LAPPER-Okay. We heard loudly what you’re saying, but the, going forward from here, the question is whether not this site can be developed or whether this is going to have to be treated as a taking, because if you’re saying, even though the language says that the buffer runs from the property line, if you’re saying that the buffer runs from the zone line, that would mean that we’d have to count 50 feet from the 65 feet in, which would mean that 115 feet of the property couldn’t be used for development. MR. THOMAS-That’s the way we’ve done it in the past. We’ve always measured from the zone line. MR. LAPPER-But lets say you had a zone line that was right in the center of the property, I mean, that’s not what the Ordinance says. I mean, that’s not even a gray area. That says, from the adjoining lot line. The language in here. MR. THOMAS-Because the law assumes that the zoning line is also on the property line, that it does not cut through properties, but as Mr. McCann pointed out, at some point in time, the Woodburys had moved that property line back 65 feet. MR. LAPPER-Subdivisions are done all over the place, and there are many. MR. THOMAS-Yes, they are, but the zone lines aren’t changed except the Town Board. MR. LAPPER-But there are many parcels in Town where the zone line is not on a lot line. MR. THOMAS-Yes, and I named four of them, Taco Bell, Double A Provisions, Car Essentials, and this lot right here, that have been before the Zoning Board of Appeals. MR. LAPPER-So is the Board saying that the buffer has to be 115 feet from the property line, that you have to start? MR. THOMAS-I’m saying that the buffer has to be 50 feet from the zone line. I don’t talk about property lines. I talk about zone lines. You see in this 172, we’re talking zone versus zone. So it’s always been this Board’s, as long as I’ve been here, and maybe back as far as Mr. Turner, that if the zone line is not the property line, then we’re talking the zone line, because we’re talking zone versus zone, not. MR. LAPPER-Can you apply that to these facts here? Where would the 50 foot buffer have to be on this map? MR. THOMAS-From the zone line, 50 feet to the east, would be the buffer. MR. LAPPER-So you’re saying 115 feet. MR. THOMAS-From the property line, to this property right here, to have a professional buildings or commercial development. MR. LAPPER-I don’t know what the Board’s done in the past on different cases, but that’s not what this says. MR. THOMAS-Well, I gave you an example of four of them. If you want to go back and read the minutes, you’re more than welcome to. MR. LAPPER-But even so, a property owner that buys property in the Town, like the Woodburys, has a right to rely on the language that’s in the Ordinance, and the language says that you measure from the lot line. I mean, that’s clear. 13 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-Well, the only thing I can tell you is make an appeal to the Town Board to have the zone line moved back to the property line, then you’d be all right. MR. MC NALLY-I don’t know, from my own perspective where, hypothetically, that buffer zone might be. As I see us today, we’re being asked by the applicant whether the decision that a buffer requirement is not necessary was an appropriate decision. MR. LAPPER-That’s right. MR. MC NALLY-And my interpretation of what we’re here for is to put our thumbs up or thumbs down as to that interpretation. I don’t think we’ve necessarily been asked as to how many feet that buffer is, but from where it should start, just whether or not there should be a buffer. MR. LAPPER-Okay. I think that’s fair. MR. MC NALLY-If you look at this Ordinance, as Chris said, with the buffer zones, I agree there should be a buffer. There’s no doubt in my mind that the proposed use is commercial, and it does abut a residential property, and you’re required to do a buffer. Now whether it’s 50 feet to the residential line or 50 feet from the zone line, that’s something some other applicant is going to have to talk to us about. MR. LAPPER-Okay. I understand. MR. MC NALLY-But it’s my understanding from the interpretation of this Ordinance, though, that a buffer is required, and I think that’s my decision. MR. LAPPER-That’s a narrower decision than what the Chairman’s talking about. MR. THOMAS-No, we’re not going to get into this. If the applicant, or if the owner of this property here wants to come in and make an application for a variance from the buffer zone between the MR-5 and the HC-1A, he’s more than welcome to. Other than that, I would ask for a motion. MOTION TO FIND IN FAVOR OF THE WESTWOOD HOMEOWNER’S ASSOCIATION IN THEIR APPEAL NO. 2-1998 AGAINST THE ZONING ADMINISTRATOR FOR THE TOWN OF QUEENSBURY , Introduced by Chris Thomas who moved for its adoption, seconded by Brian Custer: th Duly adopted this 18 day of February, 1998, by the following vote: AYES: Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Hayes, Mr. Thomas MR. THOMAS-We either affirm or deny the applicant’s appeal, and we’re affirming their appeal. So, it’s very simple. MR. MC NALLY-Wait a minute. I’m confused. MR. CUSTER-We’re affirming the appeal, but denying the interpretation. MR. MC NALLY-The applicant is appealing the Zoning Administrator’s determination that it is not required. So we’re agreeing with the applicant that it is required. MR. THOMAS-That it is required yes, right. MRS. LAPHAM-We’re upholding the appeal. MR. THOMAS-Yes. We’re upholding the appeal. There’s a 1,000 different ways to talk about it. MR. MC NALLY-That’s fine. I just wanted to make sure I understood, that’s all. NOES: NONE ABSENT: Mr. Stone MR. THOMAS-So we find in favor of the Westwood Homeowner’s Association. 14 (Queensbury ZBA Meeting 2/18/98) SIGN VARIANCE NO. 4-1998 TYPE: UNLISTED HC-1A LOWE’S COMPANIES, INC. OWNER: QUAKER VILLAGE DEV. CORP. LARRY ZEMENCK & MARIANNE DICKINSON NORTHEAST CORNER OF QUAKER & BAY ROADS APPLICANT PROPOSES CONSTRUCTION OF 2 WALL SIGNS AND 1 FREESTANDING SIGN. REQUESTING RELIEF FROM SIGN ORDINANCE REQUIRING WALL SIGNS TO FRONT ON SEPARATE PUBLIC RIGHTS-OF-WAY (PROPOSES 2 WALL SIGNS ON QUAKER ROAD), AND SIZE RESTRICTION FOR FREESTANDING SIGNS. WARREN COUNTY PLANNING 2/11/98 TAX MAP NO. 59-1-5.5, 14, 16, 17 TAX MAP NO. 59-1-18, 19.1, 19.2 LOT SIZE: 25.4 ACRES SECTION 140 SIGN ORDINANCE JON LAPPER, REPRESENTING APPLICANT, PRESENT MRS. LAPHAM-Lemery & Reid, P.C., Attorneys and Counselors at Law, January 28, 1998, VIA Hand Delivery, Mr. Christian C. Thomas, Chairman, Town of Queensbury, Zoning Board of Appeals RE: Lowe’s Companies, Inc., Sign Variance Application “Dear Chris: On behalf of Lowe’s Companies, Inc., I hereby submit an application for the following sign variances for three proposed signs: (1.) a free-standing sign at the corner of Bay Road and Quaker Road, (2.) a facade sign over the main entrance, and (3.) a “Garden Center” sign which will also be on the Quaker Road facade. Each of the signs requires a variance pursuant to Section 140-6(B) of the Sign Ordinance. Under Section 140-6(B)(3)c a building on a street corner lot shall be allowed two building signs and one free standing sign with one wall sign allowed on each side of the building facing a public street. Pursuant to Section 140-6B((2)(B)[1], since the front setback on Quaker Road is approximately 650 feet, a facade sign is allowed to include 300 square feet. The proposed “Lowe’s Home Improvement Warehouse” sign over the main entrance is 322.3 square feet. This is a minor increase over the 300 feet permitted and will be virtually unnoticeable due to the extreme distance from the travel corridor. A variance is also required because the “Garden Center” sign is also proposed to be located on the Quaker Road facade rather than locating one sign on the Bay Road facade and one sign on the Quaker Road facade as specified in the sign ordinance. Applying the area calculations under Section 140-6(B)(2)(b)[1], the garden center sign can include up to 212 square feet if it were on the Bay Road facade or 300 square feet on the Quaker Road facade. However, the garden center sign is only proposed to be 40 square feet. The sign is proposed over the garden center entrance. There is no entrance to the garden center along Bay Road. Again, at a setback of 650 feet from Quaker Road, the 40 square foot garden center sign will be essentially undetectable from the travel corridor. Additionally, we are requesting a variance for the free- standing sign to be located at the corner of Bay and Quaker Roads. Section 140-6(B)(2)(a) permits a freestanding sign of 64 square feet at a 25 foot setback. This sign will have a 25 foot setback. The sign proposed is 88.2 square feet. The sign lettering is within the 64 square foot requirement and it is only the background which increases the size to 88.2 square feet. The size of this sign is justified by the fact that the facade signs are located approximately 650 feet from Quaker Road. Moreover, the garden center sign is between 175 and 260 square feet smaller than what would be permitted under the sign ordinance. For all of the reasons discussed above, I believe that the signage which Lowes is proposing is very reasonable given the significant setback of the building and the fact that the total square footage is significantly smaller than what is permitted. Please place this application on the agenda for one of the February meetings. Very truly yours, Jonathan C. Lapper” STAFF INPUT Notes from Staff, Sign Variance No. 4-1998, Lowe’s Companies, Inc., Meeting Date: February Project Location:Description of Proposed Project: 18, 1998 “ Quaker & Bay The applicant proposes construction of 2 wall signs and 1 freestanding sign. The applicant proposes two (2) wall 22 signs on the Quaker Road facade; an 80 ft. “Garden Center” sign and a 322.3 ft. “Lowe’s Home 2 Improvement Warehouse” sign. The applicant also proposes an 88.2 ft free standing sign at the Relief Required: Quaker & Bay intersection. The applicant is seeking to place both wall signs on the same facade, the ordinance requires the signs to be placed on separate facades. The applicant 2 requires relief from the size restriction for wall signs, the ordinance permits a maximum of 300 ft.; 2 and requires relief from the size restriction for free standing signs, the ordinance permits 64 ft. at a Criteria for considering an Area Variance according to Chapter 267 of Town 25 ft. setback. Law: 1. Benefit to the applicant: The applicant would be allowed signs at a desired location 2. Feasible alternatives: and size. Feasible alternatives are limited to compliance with the 3. Is this relief substantial relative to the Ordinance?: ordinance. Relief is interpreted as 4. Effects on the neighborhood or community: minimal. Minimal impacts are anticipated as a 5. Is this difficulty self-created? result of this activity. The difficulty may be interpreted as self Parcel History (construction/site plan/variance, etc.): created. Site plan approvals for the 15 (Queensbury ZBA Meeting 2/18/98) Staff comments: project were issued in December. Relief from the placement and size restrictions for the facade signs is interpreted as minimal relief. Based on the setback and scale of the building, negligible aesthetic impacts are anticipated. Relief from the size restrictions for the free standing sign may be interpreted as more substantial than the other requests, and should be reviewed for SEQR Status: consistency with previous requests. Unlisted - requires review of the short EAF” MR. THOMAS-All right. Mr. Lapper, is there anything you’d like to add? MR. LAPPER-Not too much. What’s significant here is that this is approximately 200 square feet less than what the Ordinance provides. Because this is a corner parcel, Lowe’s can have two very large signs on the facade, as long as one faces Bay and one faces Quaker. It is less of an impact for them both to face Quaker because Quaker is 650 feet from the building. Whereas, Bay is 270, approximately. In exchange for significantly reducing the size of these three signs in total, Lowe’s is asking for 322 square feet on their main facade sign, because that’s their standard size, but also because you’re really not going to see the difference from Quaker Road, and the 88 square feet, if you look at that sign that I’ve provided, the lettering on the Lowe’s is within the 64 square feet, and it’s just the background that brings it out to 88 square feet, which makes it also just a minimal change, but what is being offered here to the Board to justify this is that we could have a signage package with 200 square feet more than what’s proposed, and that’s very significant. So when you look at this building, there’s going to be far less signage than what a K-Mart or a Wal-Mart would propose, and this is going to look good. MR. THOMAS-Okay. Lets talk about one sign at a time. We’ll start with the freestanding one. MR. LAPPER-Okay. MR. THOMAS-You say that one’s got to be, it can only be 64, but you want 88.2? MR. LAPPER-Right. MR. THOMAS-Does that include that little, this little part of this dark part here? MR. LAPPER-No, that’s not part of it. MR. THOMAS-That’s not part of it? It’s just this right here? MR. LAPPER-Yes. MR. THOMAS-If you say that Lowe’s will fit in that 64 square feet, why can’t you make it the 64? MR. LAPPER-Because it just wouldn’t look good to not have the background around it, so it’ll stand out. MR. THOMAS-Is this standard Lowe’s sign? MR. LAPPER-No, it’s much smaller than the standard Lowe’s sign. They wanted something like three times the size of that. That’s a Queensbury Lowe’s sign. The other justification, because you’re not going to hardly even see the building sign from the road because it’s so far back. That’s why they want that slightly larger, and that’s just related to the location. MR. THOMAS-I don’t see a location on the map. MR. LAPPER-I may not have provided that. It’s right at the corner of Quaker and Bay. MR. MC NALLY-Twenty-five feet from both Bay and Quaker? MR. LAPPER-Yes, absolutely. MR. MC NALLY-So it’s kitty corner, right in the corner? MR. LAPPER-Yes, and the reason for that is because where the stream comes in, underneath Bay Road, there’s not a lot of land up there, and then you have the NiMo right-of-way, which it’s not a right-of-way. NiMo owns it in fee, which is where the whole power corridor is. So there’s a little 16 (Queensbury ZBA Meeting 2/18/98) piece of property which, fortunately, is 25 feet from both parcels, from both highways, for a sign that’s right up there. MR. THOMAS-How far back is the Niagara Mohawk right-of-way? MR. LAPPER-It’s in front of the NiMo right-of-way. MR. THOMAS-Is it at least 15 feet away from it? MR. LAPPER-Yes. MR. THOMAS-Because that’s what the setback is for a sign from a property line. MR. LAPPER-Yes. I don’t have that with me, but it’s a little chunk of property that’s decent size, basically just there for a sign. MR. MC NALLY-What’s the total area of the sign, including the non communicative roofing and that portion? MR. LAPPER-The roofing isn’t, that’s just the structure that holds it up. MR. CUSTER-I’m talking about the freestanding one, Jon. MR. LAPPER-Yes. Above the Lowe’s, that’s just the metal that supports it. That’s just the super structure on top of it. That’s not a sign panel. It’s not illuminated. Like if you think about the Queensbury Plaza, the new sign that we did there, the top of it that just supports it. MR. CUSTER-We’re doing the actual measurements, we don’t take that into consideration, Chris? MR. ROUND-Right. That’s historical interpretation, that it’s just the facade of that rectangle. MR. CUSTER-That rectangle. Okay. That makes it a little easier for me to grasp a hold of. MR. ROUND-Hopefully we’ll clarify that, in the future sign ordinance, how to measure. MR. LAPPER-What I hope you’ll think here is that this is a small, tasteful, appropriate package compared to what the Ordinance allowed. It’s significantly smaller than what we could otherwise walk in and apply for a sign permit without coming before the Board. By giving us the 20 some odd feet up front, you’re saving 200 square feet. There could be a huge sign facing Bay Road that would be 270 square feet, facing Bay Road, without any, that would say “Lowe’s” on that side, without any variances, just walk in and get a permit, and that, I think, is the justification why this is good for the neighborhood, tasteful, minimal, and the reason why it’s not self imposed, in my opinion, is because we have this stream corridor and the NiMo Power right-of-way, which is why the building is set back so far from the road. MR. CUSTER-So you’re holding us hostage for that 200 and some odd? MR. LAPPER-I’m hoping you’ll see how reasonable this is. MR. THOMAS-All right. Any more questions on the free standing sign? Okay. Lets go down to the, lets see, we’ve got the garden sign there. Proposed to be 40 square feet, but it happens to be on the same facade as the main sign, I guess you’d call it. You say it will be virtually undetectable from the travel corridor? MR. LAPPER-I don’t think you can see a 40 foot sign very well from 650 feet away. MR. THOMAS-Then why do you need it at all? MR. LAPPER-So when you’re in the parking lot, you know where to go. If you don’t want to go to the main entrance, you want to get your fertilizer and shrubbery’s. MR. MC NALLY-And that’s at the one end of the building, too. MR. LAPPER-Yes. 17 (Queensbury ZBA Meeting 2/18/98) MR. HAYES-Which end is that? MR. LAPPER-Toward the Bay side. MR. HAYES-Toward Bay. MR. LAPPER-Side. I think that’s on the big drawing that I gave you. MR. HAYES-Yes. MR. LAPPER-It’s just so small, it’s hard to see. MR. THOMAS-Okay. Are there any questions on the garden sign for the applicant? Okay. Lets go to the big sign. The Ordinance says that the applicant can have 300 square feet, and the applicant is asking for 322.3 square feet. So he’s asking for 22.3 square feet of relief. Now, how about the main sign here that we’re talking about. Is that a standard Lowe’s sign? MR. LAPPER-Yes, because that is made to fit the entrance, architecturally, to fit over the doorway, but if you didn’t count, I mean, we’re talking also about how you count the space, and in terms of the sign itself, this sign is not on, it’s just attached to the wall, to the facade of the building. The letters are attached to the wall of the building, and if you didn’t count the space between “Lowe’s” and “Home Improvement Warehouse”, which is just part of the building, it would be 300 square feet, but Chris said that the way that you draw the rectangle, but I mean, this is not, in terms of the letters themselves. I think if you just look at the whole thing as a package, it’s hard to get worked up about it. MR. THOMAS-What’s the space between the “Lowes”, and the, the bottom of the “Lowes” sign and the top of the “Home Improvement Warehouse”? MR. LAPPER-I had that, because I figured it out that way the first time. MR. THOMAS-Is that what we were talking about on the application? MR. LAPPER-No, that was the last two letters of “house”, because it just comes out farther. That’s what I had to add. MR. THOMAS-Okay. MR. LAPPER-No. If you took that out, that would be like 30 feet by like 10 or 12 inches or something, and that makes up all the difference right there, if you weren’t going to count that, but for consistency, I counted it. MR. THOMAS-That reminds me of another one there, Christopher. MR. ROUND-You’ve got about a foot in between the letters there, a little over a foot. MR. THOMAS-A little over a foot. There’s no way you can squash that down to 300? MR. LAPPER-The only, the Queensbury Ordinance, excuse me, is fairly arbitrary, and just to do that, just to comply for the sake of complying, would make it hard to read, because they would just be touching. So you would have technical compliance with what I would say is somewhat an arbitrary ordinance. MR. THOMAS-Could you make the letters a little smaller? MR. LAPPER-They think that to do that it just isn’t going to look as nice over the door, because of the way it’s all centered, but again, I think all of these, these are minor increases, and there’s just a major decrease. Instead of putting a second large “Lowe’s” sign on the Bay Road side, we’re just asking for a tiny 40 square foot garden center sign, and that makes all the difference. MR. THOMAS-In other words, we’re past the garden sign. We’re at the main sign now. Can’t knock that down to 300? MR. LAPPER-Can’t. 18 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-Not like, the last time you were here you had a whole bunch of. MR. LAPPER-No, because I beat these guys up before I got here, and there’s nothing that I can do. This is important to Lowes. MR. THOMAS-All right. Well, that takes care of the three of them. Are there any questions for the applicant before I open the public hearing? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Any more questions for the applicant? MRS. LAPHAM-I just have one quick one. I don’t know where I’ve been all this time, but which way is Lowes going to face, Quaker Road, or is it going to? Are you going to enter from Quaker or Bay, or is it going to be a circle? MR. LAPPER-Those are two different questions. The building’s going to face Quaker, but the main entrance is going to be absolutely adjacent from Glenwood, and there’s going to be a signalized intersection. So Glenwood and Bay is now going to be a four way intersection, which is going to clean up existing traffic problems, because Glenwood already needs a traffic light, if you try and make a left out of Glenwood any time during the day. So now there’ll be a four way intersection, and that’ll be the main entrance. Onto Quaker Road, it’s only going to be right turn in, right turn out. MRS. LAPHAM-Okay. MR. THOMAS-Are there any more questions for the applicant? If not, lets talk about it. Jamie? MR. HAYES-Well, I guess, you know, the balancing test that we’re required to apply to Area Variances, you know, the benefit to the applicant is that he’s going to construct the sign that they’d like to construct, at least in this main sign, and I personally think that Mr. Lapper’s arguments are persuasive in that the compromise that’s involved makes sense, and that I would much rather see that smaller garden sign than another huge “Lowes” on the other side that I think that we’ve protected our Sign Ordinance in this Town very well in the past, and I think in this case we’re actually doing it again, even by granting the variance. So again, I think that the magnitude of the project has to be interpreted, you know, has to be included in our analysis of what it means to protect the integrity of our Sign Ordinance as well, and I think this is a very unique and rare circumstance, and I think that I do believe Mr. Lapper when he says that he has already persuaded Lowes to do less than they would normally do. So I would be in favor of the variance. MR. THOMAS-All right. Bonnie? MRS. LAPHAM-I tend to agree with Jamie, without having to elaborate anymore, for all the same reasons. MR. THOMAS-Okay. Bob? MR. MC NALLY-I don’t have a problem with signs on the building. Mr. Lapper’s comments regarding the distance from the street are quite clear. I don’t have a problem with two signs being on a single facade, given the size of the building. I think it’s appropriate. There is a reduction in sign with respect to one that could be on Bay Road. That’s neither here nor there, in my opinion. The additional increase in the 322.3 square foot sign is nominal. I don’t necessarily care, though, for signs close to the road which are larger than otherwise permitted by the Ordinance. I know it’s a nominal increase. Or you would consider it a nominal increase, but that’s the one that people are going to notice. That’s the one that traffic is going to be directed by. That’s the one that, if it’s painted differently, is going to be garish in color. That’s the one which would be compared with other sites along the road that might be smaller because they do comply with the Ordinance. That’s the only one I have trouble with, and I don’t see how a difference in that square footage 19 (Queensbury ZBA Meeting 2/18/98) would really affect their business. If you want to comply with the Ordinance, it would be straight forward. MR. THOMAS-Okay. Brian? MR. CUSTER-I, too, am in agreement on the signs that are placed or sited on the building itself. I equate this to the same application we had when we did Hollywood Video where we have a corner parcel that lends itself to having signs on both sides of the thing like that, and I think there seems to be some flexibility in allowing the applicant to do that, but I too would also agree with Mr. McNally on the freestanding sign, and I’m not entirely opposed to it, but I would like to see the applicant if maybe they can’t, there appears to be, looking at this thing, some room, Jon, maybe to squeeze a little bit more here and there, and that would make the adjustment even more minimal. It still would probably need some relief I think, but it appears maybe you could squeeze a feet square feet out of that, by lowering it. I don’t know. MR. LAPPER-Well, because I knew that that sign would probably be the issue, what I can offer, which is not changing the size of that sign, because that is something that Lowes feels very strongly about, but we also have a 12,000 square foot out parcel building that was approved for the far east corner of the site along, it’s not actually along Quaker Road. It’s on the other side of the stream, and under the Ordinance, that building can have it’s own 64 square foot freestanding sign, and what the developer is willing to do, if you would grant the 88, is to agree that the sign for that out parcel, which could either be, they had originally proposed a tire, battery, accessories, but they haven’t signed that lease, but that’s what it may be or it may not be. Instead of having a second freestanding sign somewhere in the property, either in front of that out parcel or at the corner here, we could put the sign in between the pylons, and if we agreed that the two of these together would only equal 128 square feet, meaning that the other sign could only be 40 some odd, so that it wouldn’t be that the two together would be no bigger than what they, than the 64 plus the 64. Is that something that you could live with? They would be willing to give that up, because this is the important tenant. MR. THOMAS-The out parcel, is that a separate lot? MR. LAPPER-No. MR. THOMAS-Then you can’t have another freestanding sign. How can you have two freestanding signs on one lot? MR. ROUND-I don’t have my Sign Ordinance with me tonight. MR. LAPPER-I do. MR. THOMAS-He has two facade signs and one freestanding sign. MR. LAPPER-The reason is because it’s not a Plaza. Because it’s two, it’s under the other Section of the Code. Each business gets a freestanding and a facade sign, or if you’re on a corner, a freestanding and two facade signs. MR. THOMAS-Yes. Well, this is on a corner. It’s not a separate lot. It’s the same parcel, right? It’s a separate business owned, well. MR. MC NALLY-A separate business on the same parcel, is that what you’re saying? MR. LAPPER-Let me just find the Section. It’s under 140-6(3)c, placement and number. “A business located on a parcel of property shall be granted a permit for two signs, one freestanding, double faced sign, and one attached to the building and wall, or two signs attached to a building. A building on a street corner lot or contiguous to two streets shall be allowed two building signs and one freestanding sign”. MR. THOMAS-Okay. There you go. One freestanding sign, that’s the same lot. MR. LAPPER-A business located, each business. MR. THOMAS-No, it says “a business”, not two separate businesses. It’s owned by the same company, isn’t it? 20 (Queensbury ZBA Meeting 2/18/98) MR. LAPPER-But one’s going to be a Lowes, and one’s going to be something else. MR. THOMAS-Who is the something else owned by? MR. LAPPER-They’re tenants. It’s the business that gets the sign, not the property owner. The difference is. MR. HAYES-So it could be like a Meinke Muffler on the Lowes, like that? MR. LAPPER-Right. MR. THOMAS-Okay. MR. LAPPER-Yes, and that’s how, the Ordinance treats a business complex, which is three or more stores, completely separate from one or two. MR. MC NALLY-You read that as “each business”. MR. LAPPER-Yes, and that’s how it’s always been interpreted. MR. ROUND-How does that apply. MR. LAPPER-This is just gospel, the way it’s always been in Queensbury. I mean, there’s a whole different Section that talks about Plazas from businesses, and every business gets business signs. MR. ROUND-It does say “business”, so business I know we’ve interpreted it as a separate IRS taxpayer ID number, in the case of. MR. LAPPER-Yes, this is going to be a separate tenant completely. MR. HAYES-So it’s not going to be Lowes car center? MR. LAPPER-No. It was Sears car center that was originally talking to them, which is NW, National NTB, something like that, but they haven’t signed that, and they’re looking at other tenants, because that hasn’t materialized. So it may absolutely not be a tire and battery place, but it’s going to be a separate retail or service facility. MR. THOMAS-Well, I come up with a different, 146-, I don’t know, it’s on Page 14014. It says “Placement of a sign within a business complex”, and that’s what you’re saying this is. MR. LAPPER-This is not, the definition of business complex. MR. ROUND-It’s not a complex. MR. THOMAS-Okay. MR. LAPPER-See, I’m frequently dealing with that, because like across the street, the CVS, that was a business complex, and that’s more restrictive, and there we had to deal with that. MR. MC NALLY-It’s three or more businesses for a business complex? MR. ROUND-Correct. MR. LAPPER-Yes. MR. THOMAS-So you’re just talking two businesses. MR. LAPPER-It’s a tough Code. What I’m offering is that for those two, that we would, that right now, that whoever comes in, they can only have the difference between the 128 square feet. Lowes is the primary tenant, and Lowes feels really strongly because the building’s so far back, that they need this sign at the road. So I’m saying that the sign, the whole sign that you see there would be exactly the same. It’s just that the other one will be smaller, plus it’ll be on the same pylons, which is better than having two separate signs. 21 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-So you want to take this Lowes sign and move it back east on Quaker Road? MR. HAYES-Cumulatively, those two signs would be less. MR. LAPPER-Yes, but just because. MR. CUSTER-They’re going to be the same site, but on those two pylons. MR. LAPPER-Right underneath it. MR. CUSTER-The other business that goes in there is going to have hardly any space. MR. HAYES-It could be 64 and 80 for 144, and this is going to be totally. MR. ROUND-128. MR. LAPPER-128. MR. CUSTER-It could be 128. MR. HAYES-Right, total. MR. LAPPER-So it would be 40. So the other sign could only be 40 square feet. MR. CUSTER-Right. MR. LAPPER-To make up the difference. MR. CUSTER-That, I’d be comfortable with that. MRS. LAPHAM-Underneath this. MR. MC NALLY-Visually, the visual impact of the sign is going to be on the road. If they want your regular sized signs on the building, you’re not going to, it’s not going to be a problem from that distance. The one that’s on the road will. MR. CUSTER-You’re saying you’d be entitled to a pylon sign for the separate business out by the road? MR. LAPPER-Yes. Bob, what I’m saying is. MR. MC NALLY-I understand what you’re offering. MR. LAPPER-Because otherwise we could have 64 and 64, which equals the same. MR. MC NALLY-Right. MR. LAPPER-But when you have a primary tenant, you’ve got to. MR. MC NALLY-But I’m looking at this from 88.2 square feet? MR. LAPPER-Yes. MR. MC NALLY-So what have you got, like a 33% increase in size? MR. LAPPER-Yes, but you have to look at the whole sign package, and take into account the garden center. MR. MC NALLY-Okay. I don’t take into account the garden center as much as I do the one on the road. I think that the signs on the building, even if they were the regular sign, size under the Ordinance, like the garden center, 200 square feet, I wouldn’t necessarily have a problem with that because it is so far set back. My only real issue is this one on the road. MR. LAPPER-But I’m just asking you to give the developer the flexibility, with the two tenants, to get the exact same size sign that Queensbury allows right there on the road, and to say that one can 22 (Queensbury ZBA Meeting 2/18/98) be a little bit bigger and one could be a little smaller, which wouldn’t have any impact on the neighbors, because it’s all just 128 square feet of sign. MR. MC NALLY-But don’t you agree, though, that the visual impact of a larger sign is going to be that much greater? You’re going to go down Quaker Road. You’re going to see 64, 64, 64, 64, and 88, and it’s going to be right at the corner. MR. CUSTER-You’re going to see 128. MR. MC NALLY-Yes, but you see only one sign at a time. MR. CUSTER-That’s what I’m saying. Now you’re going to see one that’s 128, not 88. The next guy that comes in is going to want to put his 40 some odd square feet on there. MR. LAPPER-We can have both signs on the same pylon. MR. THOMAS-With 64 square feet each. MRS. LAPHAM-So that’s better than two signs. MR. LAPPER-It’s better than two signs, Bob, to have one sign rather than two pylons. I mean, that’s just less of an impact just to have one sign board, rather than to have two separate freestandings. I mean, the owner of the business, the new business, the other one, is going to want to probably have their sign over in front of their store, rather than at the corner, or over by the bridge, where they are, to have a pylon over there, and what I’m saying that I have authority from Newman, the developer, to restrict them so they have to put it on this pylon, and it can only be 40 square feet. I think that that’s less of an impact from the road than to have two separate pylons. MR. CUSTER-It’s a personal preference. MR. LAPPER-And the reason why I’m always here for Sign Variances is because the Ordinance is so restrictive, and retailers each have their own sign package, but, I mean, I’ve learned, and thereby my clients have learned, that there’s not that much you can do in Queensbury. So we’re not asking for more. We’re asking for less, but just a little flexibility to meet each of the retailer’s standards. MR. THOMAS-He can really have 128 square feet on that one pylon? MR. ROUND-That’s the way I read it, that they’re allowed a freestanding sign per business. It doesn’t say per property or per lot. It says per business, and this is not a business complex. It’s two business. So that a business coming in would be allowed a pylon sign for their business. MR. ROUND-Ted, have you heard any other interpretations, I’d ask Mr. Turner? I think that’s the way it’s been interpreted previously. MR. THOMAS-I don’t remember ever doing one with two businesses. MR. ROUND-I don’t know what they have at the location, but Garvey, you see it with auto dealerships. You’ll see two signs at, two freestanding pylon signs at a lot of auto dealerships, because there’s multiple businesses, because they have separate corporate identities. You see it at, I think Garvey comes in again because it was PSM Autobody, and they also have another business, KIA. They’ve got two businesses in the same, it’s not a complex. It’s considered two separate businesses. Not two separate structures, but two businesses in the same structure. MR. MC NALLY-Where do you see that, though, in the Ordinance? Where do you interpret that from in the Ordinance? MR. LAPPER-I have it right here. It’s on 14012(3)c. That is how it’s always been interpreted. MR. MC NALLY-14012? MR. LAPPER-Yes. MR. ROUND-That’s the bottom page number. That’s Section 6C, is it? MR. LAPPER-3c, or Sub 3c. 23 (Queensbury ZBA Meeting 2/18/98) MR. MC NALLY-Okay. I agree with that. I’m saying, where do you interpret that they can place two separate signs on a single freestanding? MR. ROUND-Two signs on the same pylon? MR. MC NALLY-Yes. MR. ROUND-I don’t see anything that addresses it either way, to the single sign per pylon. There’s nothing in the Ordinance that says, that gives you direction on that. MR. LAPPER-You don’t want, I mean, generally, you don’t want two pylons instead of one. Just visually it’s more of an impact two have two separate pylons standing there. MR. MC NALLY-The very Ordinance you were talking about, though, each business entitled to one freestanding, double faced sign, and one side attached to a building, or different if it’s on a street corner. MR. LAPPER-Right. MR. MC NALLY-If you look at the general standard for a sign, it says, one sign, 64 square feet on a pylon. That’s it. It doesn’t define a freestanding sign as anything like one pylon with several 64 square foot signs. MR. LAPPER-But I’m saying we have the right to put both pylons, both signs on the same pylon, rather than to have separate pylons. MR. ROUND-In that regard, just to provide clarification, you see it in gas stations. They have multiple signs on a single pylon. You might have pricing information, and that could be interpreted as separate signs, or multiple signs on a pylon structure. Then you might have corporate logo, pricing information, other advertising, and it’s a total of 64 square feet on that. So, if you’re going, it would provide 64 square feet is the size restriction, and there’s no restriction as to number of signs on a single pylon. MR. MC NALLY-That I do agree. MR. ROUND-Okay. I don’t know. I would maybe agree with Mr. McNally that you’re going to see a larger mass sign on a single pylon if you were going to site them both on a pylon. If you’re going to have a total of 128 square feet on a single pylon, that’s going to be a larger structure because it’s going to be in total, but you’ve got to look at it and balance that between what’s allowed on the total site. Now would we be, now could I restrict them from placing 128 square feet on a single pylon? I don’t think I can, under the Ordinance. MR. THOMAS-I think you can. Where it says. MR. ROUND-No, if you read it, he could place two 64 square foot signs on this property, because he has two businesses. Correct? Do you follow me on that one? MR. MC NALLY-Correct. MR. THOMAS-It says, size, freestanding signs, the surface area of one side shall not exceed 50 square feet at a 15 foot setback or 64 square feet at a 25 foot setback. MR. ROUND-Right. MR. THOMAS-So there’s no sign allowed over 64 square feet without a variance. So if he puts two 64 square foot signs on there, he needs a variance. Or if he puts one on 88 and the other one 40, he needs a variance. No more than 64 square feet freestanding sign. MR. ROUND-I think I’d agree with your reasoning on that. MR. THOMAS-That’s what it says right there. MR. LAPPER-Where are you reading? 24 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-14011. MR. MC NALLY-The Town may have decided, at the Town Board level, that every business should have 64 square feet and one freestanding sign. That’s the Town’s decision. MR. ROUND-Right. MR. MC NALLY-The question, then, is can you combine the (lost word) and is this important to the argument as to why we should grant this application? I think a sign next to the road is important, a lot more important than anything on the building. I think it would be a great benefit to the applicants, in so far as commercial visibility, but I think that there are feasible alternatives by conforming with the existing Sign Ordinance, because it’s still going to be quite visible. It’s going to be in conformity with the intent of the Code. Everyone else in the Town has to comply with the Ordinance, and I don’t see why Lowes shouldn’t. I still think that the size of the building, that structure itself is going to be a commercial advertisement. I don’t have a problem with increasing the size of the signs on the building itself. Not too many people are going to dismiss this building or miss it. The relief, I think, is substantial. If you take it as percentage of the total allowable sign area, I think it is large. The effects on the community may not be maximum, but it’s a visual impact. You’re on Quaker Road and Bay, it’s a very busy intersection, and I think that there’s going to be further development. I can see a lot of signs along the road. We’ve already seen some on the opposite corner, and you’re going to see these signs repeatedly asking for applicants to have increase in size or variances from the size. Uniformity is important, and I think on balance, I’d have to say that we should not approve that street sign. I don’t have a problem with the building. MR. LAPPER-I’m not going to continue to argue, because I understand what you’re saying, and we’ll have to go back to Lowes and tell them they can do 64 square feet, and if they really have a problem with that, then I’ll come back and try and formally apply for the 40 square foot, for the other one, but I just want to say, in terms of signage, because, as a resident, I agree with Bob. I don’t like to see too many signs either, but the fact that on a 25 acre parcel, we only have two businesses, so therefore we only have two signs, in terms of signage, that’s pretty good. Quaker Road, the rest of Quaker Road, you’ve got signs all over the place, and the fact that we’re just looking for signs on one pylon right at the corner there, and the whole rest of that 1,000 or 1200 foot frontage is going to be all open. That’s open space. You’re going to see the stream corridor, and that’s better than it could be, but under the circumstances, I hear what you’re saying. So I’ll go back to Lowes and take what you’re offering. MR. THOMAS-Taking Bob’s argument just one step farther, I think that if we allowed this sign at 88.2 square feet, I think we’d be flooded with sign applications to increase people’s, that wanted bigger signs, along that whole Quaker Road corridor. MR. LAPPER-But I’m giving up 200 square feet. I mean, nobody else comes to you and says, I’m giving up 200 square feet that I could just put up another big Lowes sign on the building. That’s real. MR. THOMAS-If you’re allowed to do that, there’s nothing we can say, but as a concession, you can use it. We can’t stop you from going back later and saying, well, I can put this 270 square foot sign up. MR. LAPPER-I could withdraw my application and put it up tomorrow. MR. THOMAS-Put it up tomorrow. There’s nothing we can do about it, but we can do something about the one on the road. MR. LAPPER-Well, I hear what you’re saying. So it looks like 64 feet is as good as I’m going to get. MR. THOMAS-Sixty-four feet looks like it’s going to be it. I don’t have a problem with the other two signs on the building, as proposed, but I do foresee, if we granted this 88.2 square feet, everybody along Quaker Road coming in looking for a bigger sign because they just want to keep up with the competition, not that Lowes Home Center has any competition, but there are other signs, such as car dealerships and food markets and drug stores and everything else up and down the road that would want a larger sign. MR. LAPPER-I disagree, but we can disagree. 25 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-We can disagree, but that’s my thought, and that’s what they. MR. LAPPER-But you wouldn’t even be talking to me if I didn’t have 200 square feet to give back, along the building. I mean, I’m not asking for more square footage than the Ordinance allows, and that’s what, and your car dealerships in the area, that’s what you’d be talking about. MR. THOMAS-That’s right. MR. LAPPER-So that’s not analogous. MR. THOMAS-If anybody else comes in here, we’d probably tell them the same thing, 64 square feet, that’s it. Because, like Bob says, the building in itself is a huge sign. I mean, how many square feet is that building going to be? 127,000 square feet? MR. LAPPER-Approximately. MR. THOMAS-That’s a huge building, and it sits on a vacant lot. I don’t know what the vegetation around it’s going to look like, but I don’t think there’s going to be much around the road front. MR. LAPPER-It’s going to look a lot nicer than it does now. MR. MC NALLY-I agree. MR. THOMAS-It’s like K-Mart. We had the same argument there. K-Mart, that huge building, that’s an advertisement in itself. They don’t even need that pylon sign out front. MR. LAPPER-Just for the record, nothing to do with the variance, this parking lot is about one third less than K-Mart, and much more trees and vegetation. It’s going to look totally different. K-Mart looks desolate, and this is going to look very nice after a very detailed environmental review. I think you’ll be happy. MR. MC NALLY-Good. MR. THOMAS-Like I said, I’ll go along with the two signs on the building, but the one on the road, I’d like to see back the 64 square feet. What would you like to do, put it on hold? MR. LAPPER-No. MR. THOMAS-Do you want to get the two approved on the building and disapprove the one on the road? MR. LAPPER-And if I have to do anything else, I’ll come back and modify my application enough so that it’s a different application, but I hope I can talk them into living with that. MR. THOMAS-Okay. Has everybody asked all the questions they want? Made all the comments they want? If so, I’ll ask for a motion. MR. MC NALLY-Do we have to do that EAF thing? MR. THOMAS-Yes, we have to. MR. LAPPER-I didn’t submit a Short Form EAF because SEQRA’s already been done on the whole project, and even though this is a minor modification of what we did, this is not a significant change. You only do one SEQRA for an action, and the action is building the Lowes, and this has been a Full EIS. MR. MC NALLY-You did that at another level before another Board? MR. THOMAS-The Planning Board level. MR. LAPPER-The Planning Board was the lead agent with all these other involved agencies, and that’s all done. MR. MC NALLY-You did that for this application? 26 (Queensbury ZBA Meeting 2/18/98) MR. LAPPER-No, for the construction of the. MR. MC NALLY-Just this complex overall? MR. LAPPER-Right, and that SEQRA was broad enough. Even though this wasn’t an action that was contemplated at the time, because this is the tenant that’s asking for this, it doesn’t require a new SEQRA just on this. It’s the same action. MR. MC NALLY-Okay. MR. THOMAS-Can’t argue. MOTION TO APPROVE SIGN VARIANCE NO. 4-1998 LOWE’S COMPANIES, INC. , Introduced by Brian Custer who moved for its adoption, seconded by Bonnie Lapham: Quaker & Bay. To encompass the following changes to the original application. The application proposes construction of two wall signs and one freestanding sign. This motion would allow the applicant to proceed with the two wall signs, and the relief they will need, but we’ll strike the one freestanding sign portion of the application. The two wall signs on the Quaker Road facade will encompass an eighty square foot garden center sign, and a 322.3 square foot Lowe’s Home Improvement Warehouse sign. The applicant proposes to amend the 88.2 square foot freestanding sign to the Ordinance regulation size of 64 square feet. Relief that is required on sign number one referenced as the eighty square foot garden center sign is to just allow two wall signs on one facade, and 22.3 square feet of relief on the sign that is referenced as Lowe’s Home Improvement Warehouse sign. The benefit to the applicant would be it would allow the applicant to erect the signs that are outlined. Feasible alternatives have been discussed, but relative to the applicant’s compromise in reducing the signs that he is allowed to use both facades, I don’t feel that is an issue. Relief can be said that it is minimal due to the distance from the road setbacks and the size of the sign relief being granted. Effects on the neighborhood and community appear to be minimal and not hearing any objections from the public, we’ll move forward on that, and the difficulty can be interpreted as being self-created, but I still feel that it’s minimal also. th Duly adopted this 18 day of February, 1998, by the following vote: MR. MC NALLY-Should there be a condition that there be no sign on Bay Road, to make it clear? MR. THOMAS-Well, you could say as pictured on the accompanying. MR. CUSTER-We get ourselves in trouble when we say that. MR. THOMAS-Yes. MR. ROUND-No. I think the Ordinance, you’re granting relief for two signs. He’d have to come in for a variance for a third facia sign or facade sign. MR. CUSTER-Right. So we’re okay. MR. THOMAS-All right. Yes. We’re okay. AYES: Mr. McNally, Mr. Custer, Mr. Hayes, Mrs. Lapham, Mr. Thomas NOES: NONE ABSENT: Mr. Stone MR. LAPPER-Thanks very much. MR. THOMAS-There you go. MR. CUSTER-Thanks, Jon. AREA VARIANCE NO. 5-1998 TYPE II WR-1A STEPHEN S. EVANUSA OWNER: NANCY & JOE POLONSKY ASSEMBLY POINT APPLICANT PROPOSES RELIEF FROM SIDE YARD SETBACK REQUIREMENT, SHORELINE SETBACK, AND 27 (Queensbury ZBA Meeting 2/18/98) FLOOR AREA RATIO REQUIREMENTS. TAX MAP NO. 9-1-19 LOT SIZE: 10,200 SQ. FT. SECTION 179-16, 179-60 STEVE EVANUSA, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 5-1998, Stephen S. Evanusa, Meeting Date: February 18, Project Location: Description of Proposed Project: 1998 “Assembly Point Applicant 2 Relief Required: proposes construction of a 2,670 ft. residence in a WR-1A zone. The proposed project requires relief from the setback requirements of §179-16(WR-1A) and §179-60 (shoreline) and relief from the Floor Area Ratio (FAR) requirements of §179-16. The required shoreline setback is 50 feet, a lake side elevated deck/balcony will be located 45 feet from shore. The west side of the structure will be located 14 feet from the side property line, a 20 foot setback is 2 required. The proposed structure is 430 ft. in excess of the 22 percent FAR requirement. The Criteria for considering an Area Variance according to proposed FAR equals 26 percent. Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be able allowed 2. Feasible alternatives: to construct a lakefront home at a desired location. Feasible alternatives include conformance with the ordinance: elimination of the deck and a reduction of the requested 3. Is this relief substantial relative to the ordinance?: floor area. Relief is interpreted as 4. Effects on the neighborhood or community: insubstantial. Minimal impacts are anticipated. 5. Is this difficulty self-created?Parcel History (construction/site plan/variance, etc.): Yes. The applicant requested an extension, from the ZBA, for a variance granted in 1995. The ZBA Staff comments: denied the extension on August of 1997. The proposal is similar to a previous proposal presented by the applicant and approved by the ZBA. The proposed structure is simiilar SEQR Status: in size and location as the existing structure. Type II” MR. THOMAS-All right. Yes, sir. th MR. EVANUSA-Good evening. My name is Steve Evanusa. I actually reside at 350 West 55 Street in New York City, and I also reside in Bolton, actually Diamond Point. I have a question. When you read that statement, it said that the relief I was seeking was for a 25 foot side yard? MR. THOMAS-No, 20 foot. MRS. LAPHAM-Twenty foot. MR. EVANUSA-Because it should be 20 foot side yard. I may have just mis heard you. MRS. LAPHAM-A 20 foot setback is required. MR. THOMAS-Yes. MR. EVANUSA-Okay. I’m sorry. MR. THOMAS-She did say 25, and I circled it. MR. EVANUSA-Okay. So this application, I suppose, it’s almost, it feels like I was here just yesterday getting an application. It’s hard to believe it’s been so much time, but in effect, nothing in the design has changed. I was not present at the denial of the extension, but my understanding was that there was, in reading the notes, was that primarily the application got fairly long in the tooth, and being the primary reason. The secondary reason being that the zoning had changed substantially enough that I think that you all wanted to bounce off of the, what the exact changes and the ramifications of the new zoning were reference to the design as we’ve seen it. In general, I can say that we are in greater conformance today with this same project under the new zoning, in that the lake front setback has been changed from 75 feet to 50 feet. We’re also in a somewhat better situation on the side yards, but if you’re familiar with the way that the side yard structure is set up, it’s a graduated scale, and I made mention of that in my notes there. Depending on your lot width, your side yard requirements change. If we were up to 60 foot width, we could have had two 15 foot side yards and been in conformance, and we probably could have done that. We happen to be 70 feet. So we’re 10 feet larger than that. So we fall into the category of 60 to 150 feet, which requires to 20 foot side yards. So we only have 14 feet on one side. So we’re asking for six feet of relief. So basically we’re in between these two sections of the sliding scale. If we were slightly larger, we’d be okay, and if we were slightly smaller we’d be okay. So that’s where we stand there. The other thing that’s occurred since the original application, as you’ve changed from a lot 28 (Queensbury ZBA Meeting 2/18/98) area ratio requirement, in terms of the size of the structure, to a floor to area ratio, and although we conform just fine under the old lot area coverage, we don’t technically fall under the FAR requirement because the Floor Area Ratio is 22.22, and that’s, you know, again, it’s set up for a one acre lot, and we’re much less than an acre lot. We’re a quarter acre lot. So if you do the calculations, we’re adding the garage, which is the existing garage, and the house area. We’re about 25%, as opposed to 22. So that about runs through the changes in the zoning. Height wise, we’re the same, you know, we’ll be within the 28 foot height restriction. The design hasn’t changed much. I think we’ve got a pretty got shot at starting it this spring. MR. THOMAS-The reasons, the same reasons you mentioned why we denied it back in August. (Lost words) everything has changed. I do remember giving the setback from 75 feet, and the side line setback, I think it was within the side line setbacks. One side was, one side wasn’t. MR. EVANUSA-We had the same problem with the 14 foot. MR. THOMAS-Yes, right, but other than that, according to this map that’s dated January 1, 1998, nothing has really changed since that ’95. MR. EVANUSA-Substantially, no. In fact, if you will recall, I came back for a second hearing because initially you had some questions about what we could do to make it in greater conformance. We changed some things. We made the deck smaller. We shuffled the house around a little, as much as we could, because of the existing septic field there. I’m also, I would like to be on record as saying, you don’t necessarily have to give me this deck that’s out front, on the 50 foot setback, because it’s not in conformance, but it’s not in any worse shape than it was when we did the original application, and in fact, you gave us a much, much greater variance from the 75 feet, and I want to just ask for a foot less. The original application had 44 feet to the proposed second floor deck, which is what you approved, and I’m making that 45 feet, just to make that even a little bit better. The applicant would still like to have a deck there, and the positioning of the house, the situation of the house on the lot, the septic field, the dimensions of the house, nothing has changed except that. MR. HAYES-I guess the one question I had, is the change from 75 to 50 feet was actually, the wording that I got was that that was actually to preserve the integrity of the setback, and that, I (lost words) with the project as much as the fact that he’s better off. MR. THOMAS-Well, you know, really when they changed the Ordinance from 75 to 50, they did say a 50 foot setback, but it also says, or the average setback of the house on the two adjoining lots, whichever is greater. So, you know, if the house on either side of them were 100 feet back, he’d have to be 100 feet back. MR. HAYES-Right. I guess what I’m saying, didn’t we get some interpretation, part of the reason that it was changed from 75 to 50 was to try and maintain the 50? MR. ROUND-I don’t know what that particular history is, but what you have before you is a new application, and requesting relief from the 50 foot setback. So I think that stands on its own. MR. THOMAS-Yes. At one time is was 50 feet. It changed to 75. Now it’s back to 50, because we were getting so many applications. Okay. Are there any questions of the applicant? MR. MC NALLY-I take it the little porch on the front is coming down, on the lake side? MR. EVANUSA-Yes. What you see on the dotted lines, is that what you’re referring to? MR. MC NALLY-Yes. MR. EVANUSA-Yes. Those are existing structures, steps and little stone patios, and entrances to the existing house, and they will be all removed. Also, what we’re removing is all these incidental structures that are in the yard. We’re moving, it’s a barbeque of some sort, miscellaneous stone structures. MR. MC NALLY-And that balcony is going to be five feet wide then? MR. EVANUSA-At that point. It’s going to have a slight curve to it. So it will actually project from the house probably a little bit more than five feet, but the closest it will be to the setback would be five feet. The house is a little katty corner to how you would measure. 29 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-What’s the height on that overall? MR. EVANUSA-It’ll be, it’s somewhat under 28 feet. MR. MC NALLY-You submitted an elevation. MR. CUSTER-Yes, but it’s kind of loosely drawn. MR. ROUND-Twenty-six feet I think it’s on the elevation? MR. EVANUSA-I think right now it’s 26. MR. THOMAS-Okay. Any other questions for the applicant? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed to this application? Opposed? PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Are there any more questions for the applicant? MRS. LAPHAM-The owners are committed to having this deck on the front? It’s something that’s really important to them? MR. EVANUSA-It’s important enough that they asked me to bring it up in the meeting here. MRS. LAPHAM-Because you really couldn’t make it any narrower than five feet. MR. EVANUSA-Well, it would not be a useful deck. MRS. LAPHAM-At first I thought about having the deck wider around the house, but narrower, but it wouldn’t be useable that way. MR. THOMAS-No. MRS. LAPHAM-It’s minimal now. MR. THOMAS-Any more questions for the applicant? Lets talk about it. Bonnie, we’ll start with you this time. MRS. LAPHAM-Well, in looking at the site, and of course looking at what is going on next to them, there’s a huge building project right next door, because that’s the Morse’s property. I don’t think I would particularly have a problem with the house as I do the deck. Although, the house that is there now is quite large and takes up most of the lot. So essentially we’re talking about the side yard setback. I would have no problem with that. I would have a little problem with the deck. MR. THOMAS-Okay. Bob? MR. MC NALLY-The applicant would be allowed to construct a lakefront home at a desired location. This would be a great benefit to the applicant. I don’t see that there are a great many feasible alternatives to placing the structure itself. The necessity of the balcony is something else. How wide is that balcony going to be? It’s five or six feet wide, but how long is it along the facade? MR. CUSTER-About 15, 16 feet. MR. EVANUSA-I’d say in the range of 16 feet, because I think those are four foot windows, so I’d say 16 or so. MR. MC NALLY-You’re planning to construct it in accordance with the drawings you presented to us? 30 (Queensbury ZBA Meeting 2/18/98) MR. EVANUSA-Yes. MR. MC NALLY-I don’t see the relief requested being substantial to the Ordinance, given the nature of the location and the nature of the property, the fact that in large part the property is in compliance with the setback and the deck is relatively minimal. The effect on the neighborhood also seems to be minimal. It’s self-created, but overall, I don’t have a problem with the structure, as long as it’s built as it’s indicated. MR. THOMAS-All right. Brian? MR. CUSTER-I know we’re supposed to consider this a new application, but the old application had this deck also? MR. EVANUSA-Yes. MR. CUSTER-Okay. MR. EVANUSA-The drawing that I have presented to you is the drawings that were shown originally. MR. CUSTER-That was approved with the 75 foot. MR. EVANUSA-Yes, and in fact I could probably trim it down another foot by allowing for the curve on the sides. MR. CUSTER-I think everybody else has pretty much addressed everything. I’m okay. MR. THOMAS-Okay. Jamie? MR. HAYES-I agree with Bob. I think the building itself is substantially in compliance with the setbacks. I think the lot presents some restrictions. So, I don’t think I have any problems with this application. I don’t think a deck is quite the same as an enclosed structure, either, as far as its impact on the lake. MR. THOMAS-For the same reasons as the other members of the Board mentioned, I have no problem with this. We did give, back in 1995, a setback from the 75 foot requirement. So it’s less of an impact than it was before, and the six foot side yard setback was the same as before. We did give a variance for it. So I have no problem with this application, as long as he conforms to all the other requirements, as far as height and I also have no problem with the Floor Area Ratio going from 22% to 26%. Having said that, I would ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 5-1998 STEPHEN S. EVANUSA , Introduced by Robert McNally who moved for its adoption, seconded by Brian Custer: Assembly Point. The applicant proposes the construction of a 2,670 square foot residence in a WR-1A zone. The proposed project requires relief from the setback requirements of Section 179- 16 and Section 179-60, and relief from the Floor Area Ratio requirements of Section 179-16. The required shoreline setback is 50 feet, and the applicant proposes a lakeside elevated deck/balcony on the second floor that will, at its closest point, be located 45 feet from the shore, and they therefore require five foot of relief from the shoreline setback. The west side of the structure is to be located 14 feet from the side property line, where a 20 foot setback is required. The applicant also proposes to demolish an existing porch on the lake side. The proposed structure is 430 feet squared, in excess of the 22% Floor Area Ratio requirement. Proposed FAR equals 26%. I move that we approve the application on the following grounds. The applicant would be allowed to construct a lake front home, modern one, essentially at the same location where the existing structure is with only minimal changes in the existing floor plan and setbacks. The feasible alternatives are, as far as I can tell because this is an inordinately small lot, and the placement of septic tank, the location of the lake front, restricting closer construction to the shoreline, and the side lot dimensions are such that you really don’t have any alternatives except where it is constructed or proposed to be constructed. I do not interpret the relief as substantial due to the fact that this is an existing structure, and the changes they’ve suggested, when you take into account the demolition of the existing porch and the existing structure on the one side of the property which is already 14 feet from the building would be minimal. The difficulty is self-created, but I don’t envision any impacts at all, and what ones there are minimal. My motion includes a 4% variance 31 (Queensbury ZBA Meeting 2/18/98) relief from the Floor Area requirement from 22 to 26%. The structure is to be built in accordance with the plans that have been submitted. th Duly adopted this 18 day of February, 1998, by the following vote: AYES: Mr. Hayes, Mrs. Lapham, Mr. McNally, Mr. Custer, Mr. Thomas NOES: NONE ABSENT: Mr. Stone MR. EVANUSA-Thank you. MR. THOMAS-There you go. We hope we don’t have to hear you in another two years. DISCUSSION ITEM: USE VARIANCE NO. 68-1997 SR-20 TYPE: UNLISTED JAMES HITCHCOCK OWNER: SAME AS ABOVE 373 PINELLO ROAD APPLICANT PROPOSES PLACEMENT OF A MOBILE HOME OUTSIDE OF A MOBILE HOME PARK. RELIEF IS REQUESTED FROM THIS REQUIREMENT. TAX MAP NO. 147-1-72 LOT SIZE: 0.46 ACRES SECTION 179-19 MR. THOMAS-We have received a letter from Larry Clute saying that there are additional facts that may change the outcome of this variance application. MRS. LAPHAM-Do you want me to read the letter? MR. THOMAS-Yes, would you read the letter. MRS. LAPHAM-Okay. Clute Enterprises, Inc., General Contractor, 13 Dawn Road, Queensbury, January 21, 1998, Town of Queensbury, Bay Road, Queensbury, NY 12804, Reference: Re- hearing Use Variance “To Whom It May Concern: I would appreciate your consideration for a new hearing on the application for a use variance concerning 373 Pinello Road (tax map #147-1- 72). I understand that this variance has been denied to Mr. and Mrs. Hitchcock recently. My belief is that they were not familiar with the procedures for this type of variance. They attended their hearing totally unprepared; no history, no facts, and no specifics, etc. If the necessary information had been presented to the Board, the outcome may have been different. Hence, my request for a re-hearing. I have at my disposal all the pertinent information the Hitchcocks failed to present originally. My apologies for any inconvenience this may present. Thank you for your consideration concerning this matter. Sincerely, Larry W. Clute” MR. THOMAS-Okay. Mr. Clute, what would you tell us, in a scheduled variance hearing, re- hearing of this, that we didn’t hear before? What new evidence do you have? MR. CLUTE-I’ve got the minutes of the last meeting. There was actually a lot of information lacking. I don’t believe it was necessarily the Hitchcocks that were shy of the information. I think that there was a representation, Miss Marcy. The facts are, going with Bonnie’s statements, is that the dollars and cents of the area, it doesn’t work. It fits all four criteria without a doubt. The average assessed value, I’ve got the documentation of that, and of that entire street, is $47,000. Common sense prevails. I think you’re just not going to get a dollar amount in there. You’re not going to sell it. They were trying to sell the lot for $29,000, and I also agree with the Board on that. That was his problem. I mean, the garage was his problem, but it doesn’t change the fact of the re-sale of it, even if you brought it down to a reasonable amount, say $20,000. You still, to put an improvement on it and get an overall sale on it, you’re still very much restricted, simply because of what the street is. So I guess it’s a matter of semantics and how it was put across to the Board. Reading the minutes, to be honest with you, it was pretty close, yes, no, from what I see in here. It was very close, yes, no. MR. THOMAS-Can I ask what your interest in this is? MR. CLUTE-Well, it’s funny you mention that. I’m trying to get off my personal lot storage of concrete forms, where to put my back hoe and stuff like that, and I’ve been telling my agent, I want a large garage, hence Pinello Road. I get over to Pinello Road, and the garage fits the purpose, but the neighborhood doesn’t. I mean, I’m in the same situation as Pinello Road personally, in my 32 (Queensbury ZBA Meeting 2/18/98) neighborhood. I don’t know how familiar you are with mine, but it’s the same thing. The majority, well, I’m swinging that. The majority are mobile homes, single wides, difficult to get your values up. Difficult to gain interest to have people come in and improve the neighborhood. So I feel for them. So I kind of changed my mind, as to the use of it, but I recommended to them, as I said, do go for a variance of the mobile home, because you’re not going to get a stick built in here. It just will not happen, I mean, my opinion of course. It just won’t happen. You will not get a stick built in there that you can sell. There’s no way. Driving down that street, people have too many other options within Queensbury, and the prices are definitely getting better and better as time goes on. There’s a lot going on the market. So Pinello Road would be one of the last roads to move. So you’d be sitting on it for a while, and it would be an unwise investment to stick build on that street, but to do a double wide, like I’ve done in my neighborhood. I’ve essentially taken some double wides and made a conscientious effort to really give it an appearance of a stick built home, but at much less cost than a stick built home. You’ve got a salable product. Also, they made no effort to go talk to the neighbors. The Hewitts, which were very vocal here at the first meeting. I’ve gone and spoken with them, described what I would probably do if allowed, and they had no arguments whatsoever. They’re really only after what everybody else in the neighborhood, you just want your neighborhood, you want a nice neighborhood, and that’s all they’re after, and when you say mobile home, the first thing that comes to people’s minds is that single wide. It tends to give you the heeby geebies a little bit to stick built owners, but they’re just after a nice appearance. The way it sits right now, they’re not exactly comfortable with the way it sits right now. It gives you a commercial feel. You drive up to it, that’s a commercial garage. That’s by no means a residential garage, and it’s unsightly. If I were to drag my forms and my tractor over there, even more unsightly. MR. THOMAS-Right. MR. CLUTE-So it’s totally against the grain, and like I said, once I drove over there, I’m going through this right in my own neighborhood. The same situation, where I’m trying to overcome this mobile home thing. MR. CUSTER-Larry, you’re proposing a double wide. You mean like a modular type unit or? MR. CLUTE-No, not a modular. MR. CUSTER-It would be a double wide. MR. CLUTE-It would have to be a trailer, yes, absolutely. Just shear dollars and cents. MR. CUSTER-In other words, (lost words) foundation there, just going to put it. MR. CLUTE-No, it would be crawl space. I don’t like trailers, to put it bluntly, unless you do them properly, which I mean (lost words) by some of the Codes of a stick built. The crawl space underneath it, the front page is the double wide. The back page is what that double wide looks like today. MR. THOMAS-The front page is what it used to look like? MR. CLUTE-That’s what it used to look like, and the second page is what that double wide looks like today. MR. THOMAS-Where is this located right now? MR. CLUTE-It’s on Dawn Road. That happened to be my personal residence about five years ago. MRS. LAPHAM-Well, are we supposed to be deciding whether or not we want to re-hear this? MR. THOMAS-Yes, that’s the question. We have to find out if there’s enough information that’s different, if there’s more information that maybe would have made it go the other way. MRS. LAPHAM-Okay. Because I’m getting the feeling more that we’re being presented with a judgment on this case, when we’re supposed to be deciding if we’re going to re-hear it or not. MR. THOMAS-If we’re going to re-hear it or not, but we have to find out if we have enough, if there’s enough different or more evidence to be presented. 33 (Queensbury ZBA Meeting 2/18/98) MR. HAYES-I mean, one of the questions you have to ask is if we grant the variance, that a matter of taste, he’s presenting here, I mean, that’s up to the property owner once that’s granted, right? I mean, clearly this is much more tasteful, and I would agree with you 100%. When we grant a variance, if we re-hear that thing. MR. ROUND-This is a Use Variance. MR. HAYES-Which means a matter of taste is not going to apply. It could be a single wide, just as those people oppose. MR. CLUTE-No, it does. The taste does have a matter in this, because you had neighbors against it. I will have neighbors in here for it. They didn’t have dollar amounts in here, and I have facts, as to what, the Hewitts, the main complaint with the Hewitts is they don’t want the mobile home. They failed to state to you, nothing against them, but they failed to state to you that they put their home on the market. This is an assessed home at $105,000. They put their home on the market for $85,000. No bites, and it won’t bite. You’re not going to sell a home in there for $85,000. MR. HAYES-I agree. MR. CLUTE-And so that’s the information I’m bringing forward to you. I’m not trying to tell you the difference between a mobile home taste or anything, but the difference between this is, I would have neighbors for rather than against. No dollar amounts were really specifically mentioned. As a matter of record, assessed values, average assessed values, $47,000. That right there. I mean, that’s a fact. These are things that weren’t brought over. They mainly stuck on the health of Mr. Hitchcock, and I’ve got to say that that’s not the way to approach a variance. You bring facts of what you’re trying to get a variance for, not Mr. Hitchcock’s health, and I’m reading it. It’s right here, the minutes of it. So, I mean, had they have dealt with the facts, this variance was close just the way it was argued. Had they dealt with the facts, I think it would have been a yea, is what I’m trying to say. MR. THOMAS-Well, I’ll grant you the fact that they didn’t bring any financial evidence, and the person that was there, Ms. Marcy or Mrs. Marcy, she’s a realtor. She could speak to the fact of what it’s worth, but according to the Ordinance, we need to see real dollars and cents, and you have that. So that’s an added. I think they did prove the uniqueness of the, the hardship is unique, in that part. It was real questionable about the character of the neighborhood, about that, because of what they want to put in there. The alleged hardship has not been self-created. Didn’t that go through a zone change? MR. MC NALLY-Hitchcock? MR. THOMAS-No. MR. ROUND-No. They had a trailer on the property, and then constructed a garage and they removed the trailer and in hindsight, they should not have removed the trailer, and they probably could have been allowed, they would have been better off, they would have been subject to review, Town Board review, but my recollection was that clear financial evidence wasn’t presented, and that was one of the tests that did not past the muster on, and the other was there was neighborhood, and so they did not pass altering the essential character of the neighborhood. So there was two issues, and you’ve still got to satisfy both of those issues, if all the other issues are still the same. I don’t know if, I don’t have the information that Mr. Clute has in front of him, as far as, I don’t know what the merits of the argument are going to be, but if he has clear financial evidence, maybe it’s, the application is materially different. That’s something you have to look at. MR. MC NALLY-They can’t file a new application unless it’s materially different. MR. ROUND-Right. I mean, it could be considered the same application. It’s requesting the same relief, but there’s some really gray areas on how you satisfy that test. MR. HAYES-Chris, who determines if it’s substantial? Is that your call? MR. THOMAS-No, it’s our call. MR. MC NALLY-We don’t have a formal application to even look at. 34 (Queensbury ZBA Meeting 2/18/98) MR. THOMAS-No, we don’t, but this is a discussion item, as to see if there is substantially more information or if it’s substantially changed from the original application. MR. ROUND-What you could do is receive the application, review it prior to establishing it as an agenda item, say that it’s not significantly different, or it is, and choose to hear it. MR. MC NALLY-Are you developing this lot? You never quite answered Chris’ question regarding what your interest is. You looked at the garage. MR. CLUTE-I’m going to purchase the lot irrelevant of this variance. So the question is, do I upset some neighbors, and I definitely feel for them, or do I turn the property over, which is what I do for a living. The only way I could turn over this property is what I’m presenting to you. Because I know point blank, I cannot stick build a home, and without patting myself on the back, I’m the least expensive builder in this area. So, I mean, there’s just no way. It can’t happen. With a double wide, which I own. I mean, I own a 1991 right now that I can put on there and do exactly what you see right there. So the taste issue, it does matter, because you’re going to please the neighbors, and their intent is to upgrade their neighborhood which is, like I said, I feel for them. This is exactly what I go through over on Dawn Road. So I understand, but I’m going to purchase this lot irrelevant. MR. HAYES-I wasn’t referring to your taste as much as the fact that if we grant a Use Variance, there could be any kind of trailer on there, in the future. MR. CLUTE-Yes, I understand your criteria. MRS. LAPHAM-If you purchase the lot, and we don’t re-hear this, you’re just going to store your equipment there? MR. CLUTE-I’ll have my concrete forms, my equipment, my dump trucks. MR. ROUND-I don’t think that enters into your decision making process. Mr. Hayes indicated, well, can you, if you chose, if you decide to hear it, and if you decide to approve it, I mean, that’s not what’s in front of you now is whether you’re going to approve it or not, but if you did decide to approve it, you can impose reasonable conditions as a part of a Use Variance, and that could include various items that we’d have to be very careful in constructing, in order to ensure that what you see is what you get. MR. CUSTER-Right. MR. MC NALLY-Have you already purchased the lot? MR. CLUTE-I’m in contract. MR. MC NALLY-You’ve got a contract for it. MR. HAYES-I mean, does he, well, it’s not a matter we should be discussing anyway because he could get a Use Variance to do that though, right? MR. THOMAS-What? MR. HAYES-Store his tractor and forms there? What’s the zone there? MR. THOMAS-SR-20. Single Family Residential 20,000 square foot. From what Mr. Clute has told us, that he has financial evidence, and the hardship is, well, they proved the hardship was unique before. Will not alter the essential character of the neighborhood. That was up in the air. I would say, I would entertain another variance for this project, for Mr. Clute, with a plot plan, with an elevation showing what exactly he wants to do with it, and the whole nine yards, a whole other application. I don’t want to use the same number. I want a new application with Mr. Clute’s name on it, since he has the contract on the property. So I would make a motion. Well, I really don’t need to make a motion. MR. CUSTER-No. MR. THOMAS-Just say, yes, we’ll hear another application on this particular piece of property, because it is substantially different from the original one. 35 (Queensbury ZBA Meeting 2/18/98) MR. CUSTER-That’s fine by me. MRS. LAPHAM-I’m for that. MR. THOMAS-Okay. Like I say, a whole new application, with your name on it. There’s going to be a whole new application on this, so any paper work we have. MR. CUSTER-Do you want to do these minutes, Chris? MR. THOMAS-Yes, I do. I don’t want to get behind like we did before. Okay. So you’ll be submitting an application for either the March or April meetings. Okay. MR. CLUTE-Thank you. MR. THOMAS-You’re welcome. CORRECTION OF MINUTES January 21, 1998: Page 28, the motion to deny the Salvador variance, seventh line down, beginning “summarize, s/b summarize them to the extent that I can incorporate, not can’t - “I will attempt to summarize them to the extent I can incorporate the comments of the Board members made earlier”; third up from the bottom - s/b turbidity, not trebidity; down two lines, these include relocating the property, didn’t say that, s/b these include relocating on the property; last sentence - “is our finding, it is our finding that the relief is substantial relative to the Ordinance, period should follow; strike the words “in the fact that”, point was Mr. Salvador has self-created his own problem in, and again “placing” the structure on the location, strike the word “neglecting to deal with”; MR. SALVADOR-You’ll check the tape in that regard? MR. MC NALLY-As you see fit. MR. SALVADOR-Would you like to hear the tape? MR. MC NALLY-Do you have it today? st MR. SALVADOR-The tape of the 21, is it still available? MS. GAGLIARDI-Yes. MR. MC NALLY-At some point maybe we can listen to it, because the last sentence, “It is our finding”, is the one that really got me going. MR. SALVADOR-You know, I signed a stipulation on my application that if there is a discrepancy between the recorded minutes and the transcript, that the transcript is binding. MR. MC NALLY-I think our point is to get it accurate, irrespective of what it is, and that’s the important point. MR. SALVADOR-I refused to sign this. I made a note on my application, okay. I think you should review this thing. This is ridiculous that you have a recorded transcript, and then you transcribe from that to the written page, and if there’s a discrepancy between the two, this is binding? Does that mean you can sanitize the record, as you’re doing tonight? MR. MC NALLY-I don’t think that’s necessarily true that we’re doing it, or that that’s our intent. MR. SALVADOR-Get it right. MR. MC NALLY-Let me ask you this, Mr. Salvador, that last sentence, “It is our finding”, is that substantially different from what your recollection of what the intent of that sentence was? MR. SALVADOR-I can’t answer that tonight. I read the one about, you know, one thing I could have done was relocate the property. 36 (Queensbury ZBA Meeting 2/18/98) MR. MC NALLY-I’m pretty sure I didn’t say that, but the tape would say what it does. MR. SALVADOR-The judge will be reading that, by the way. MR. THOMAS-Well, we just won’t officially adopt these minutes until the tape is checked, and we’ll get a, see if it is different from what the printed word is. MR. MC NALLY-That’s fine. Lets hold off. MR. THOMAS-We’ll hold off. We’ll worry about this in March. Has anybody else got anything? MR. MC NALLY-Maybe someone should just listen in. Maybe there’s a word you can’t understand. MR. ROUND-I can take a look at it, the way it’s transcribed, the particular points, and see if fix those changes. MR. THOMAS-Okay. Does anybody else have anything, for the good of the Board? If not, I’ll make a motion to adjourn. MR. CUSTER-Second. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Thomas, Chairman 37