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1996-08-28 ~ r \ QUEENS BURY ZONING BOARD MEETING SECOND REGULAR MEETING AUGUST 28, 1996 INDEX Use Variance No. 76-1996 Joseph Monsour 1. Sign Variance No. 56-1996 Hanley Sign Co. 6 . Area Variance No. 67-1996 Tax Map No. 83-1-12.1 Marguerite Eldridge 13. Area Variance No. 73-1996 Tax Map No. 15-1-21 Dr. Edward G. Farhart 17. Area Variance No. 75-1996 Tax Map No. 45-3-28 Norman & Joyce Teator 26. Use Variance No. 69-1996 Tax Map No. 54-1-10 Lorraine Jude Spero 30. Use Variance No. 70-1996 Tax Map No. 63-1-2 Niagara Mohawk Power Corp. 41. Area Variance No. 74-1996 Tax Map No.4-I-II John, Jr. & Kathleen Salvador 50. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. -- -- (Queensbury ZBA Meeting 8/28/96) QUEENS BURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING AUGUST 28, 1996 7:00 P.M. MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY BONNIE LAPHAM DONALD 0' LEARY ROBERT KARPELES DAVID MENTER MEMBERS ABSENT WILLIAM GREEN PLANNER-GEORGE HILTON TOWN COUNSEL-MILLER, MANNIX, & PRATT, JEFF FRIEDLAND STENOGRAPHER-MARIA GAGLIARDI MR. CARVIN-Okay. Now, I was not at the last meeting. guess you want to, do you want to move up, which one? Chris, I MR. THOMAS-Yes. I wanted to do Use Variance No. 76-1996, Joseph Monsour. We held the public meeting last Wednesday, and I do believe I left the public hearing open. MR. HILTON-I was not there, but I believe you did. MR. THOMAS-I don't remember. Yes, I think I did. At that time, also, we didn't have anything from Warren County, so we couldn't move on it. That's the reason we didn't do anything on that, and we also have reçeived additional public comment on it. MR. CARVIN-Okay. I just have a question of Don. Don, I understand you were not present at the last meeting? MR. 0' LEARY-I was present, but I had not completed all the documentation. So I was not a voting member that night. MR. CARVIN-Okay. I'll ask you. Do you feel comfortable voting on this particular application? Do you feel that you have sufficient information to render a fair and impartial decision? MR. O'LEARY-Yes. MR. CARVIN-Okay. I will publicly state that I will abstain because I have not had an opportunity to read the minutes on this. I am not totally familiar with this particular application. So, I'm going to refrain from voting on this application. So, having said that, I'll turn it over to Mr. Thomas. MR. THOMAS-From the Warren County Planning Board, "At a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for a Use Variance for automobile rental, leasinq, sales, storage, washinq and safety check of vehicles and related services was reviewed and the following action was taken. Recommendation to: Approve With the conditions that there should be a single curb cut, that the control of water runoff from the lot is controlled because of the automobiles that could be parked there. That no repairs of vehicles be undertaken outside, and also all car washing be undertaken inside." Signed by C. Powel South, Chairperson. - 1 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? Does anyone have any questions of the applicant? Chris, why don't you start it off. MR. THOMAS -Okay. I didn't ask last week, Mark. How many employees are going to be in there, the same number that are at the same business? MARK LEVACK MR. LEVACK-I'd like to refer to William Burch on that. We have a representative from Enterprise Rent-a-Car here this evening. WILLIAM BURCH MR. BURCH-Hi again, I'm William Burch. To answer your question, every day usually four to five, including myself, plus we have part timers who come in on an on call basis. I would say five full time, at a max. MR. THOMAS-On an average, there would be five employees there at one time? MR. BURCH-Yes, sir. MR. THOMAS-Okay. Warren County also stated that they would like one of those curb cuts closed. Is there any problem doing that? MR. LEVACK-My name is Mark Levack, from Levack Real Estate. I'm here as an agent on behalf of Joe Monsour. Because of the re- scheduling of the County Planning Board meeting, we didn't have an opportunity to take our argument up to the County. Tom Nace, of Nace Engineering, has drawn a proposed site plan that we submitted to the Town of Queensbury today for next month's site plan review, pending a favorable outcome this evening. Tom Nace feels that an egress out only lane in this section of the property would be most beneficial to traffic flow on the property. If anybody's familiar with the site, Route 9 crests right here, and when you come into the driveway, it takes a bit of a dip down right here. So we thought that if we had an egress out and an ingress, and an egress only here, then that would be the best traffic flow for the site, but to have all the ingress and egress right here, but because it comes over, we feel people would be hesitating on that rise right there, and we certainly don't want people hesitating on Route 9. So, unfortunately, we didn't have the opportunity to submit this to the County, and had we had that opportunity, we feel, hopefully, that there might not have been that stipulation to close one of these. We would like to proceed and get a feel for the Board of whether they feel a super majority would be in line here this evening so that we could overrule that, take this plan to the Town, obviously, pending a favorable outcome on the Use Variance, take this plan to the Town Planning Board, and we would put ourselves subject to whatever the Town Planning Board felt would be the right thing to do for this property. Does that answer your question? MR. THOMAS-Yes. I feel that an exit only right there would be beneficial to the traffic flow on Route 9. As everybody knows, Route 9 has become almost a crash course, and an exit only there I think would help this business, and I think they stated in the testimony last week that there'd be, what is it, 40 cars, 80 cars, in and out, 40 cars in and out or 80 trips a day, is what was stated. So I think an exit only would be advantageous at that point. Anyone else? MR. KARPELES-How about the washing inside only provision? Is that practical? MR. BURCH-Washing inside only? It's not practical. I don't know how it's possible, actually. - 2 - '- (Queensbury ZBA Meeting 8/28/96) MR. KARPELES-Isn't that what they said? MR. THOMAS-Yes. MR. BURCH-We don't anticipate actually, like, washing vehicles, like using detergents or anything. We only will use regular water from the spigot of the building there, of the property. We're not going to have like a car wash facility there. That's not the intent at all. A bucket of water, a brush, and that's our usual. MR. CARVIN-This wouldn't be for a public, anyway, this would be just for your own cars, right? MR. BURCH-Yes, sir. MR. THOMAS-What about the runoff from that heading toward Halfway Brook? MR. LEVACK-There's quite extensive green space in between the existing parking lot and the stream that will act as a silt screen, a buffer to the stream area. The site has no intentions of expanding its parking area, no intentions of expanding the roof area on the building. It basically won't be any worse than it is right now, or any better, for that matter, but this is an issue that we feel we'd be happy to respond to at site plan review, if they feel any need to. We don't, according to our engineer, there's no need to have more runoff retention. Again, Route 9 crests and all the runoff runs on the other side of the road. It doesn't get over that rise to go down onto this parking lot. The only stormwater management that we need to control is what's coming off of the building and what's coming off of that parking lot. MR. THOMAS-Anyone else? Any questions? The public hearing is still open. I'll open up the public comment, since I have some to read also. Does anyone want to speak in favor of this variance? Anyone want to speak opposed? PUBLIC HEARING ÒPEN NO COMMENT PUBLIC HEARING CLOSED CORRESPONDENCE MR. THOMAS-I'll read the public comment. A letter dated August 21, 1996, regarding Monsour Application Hearing "We should like to go on record as stating we do not oppose the above application, but we do hope there will be no noise pollution of the area as the result of the proposal. As we have stated in the past, when noise pollution from a radio became a factor, the angle of Glenwood Avenue here and the amplifying effect of Halfway Brook can present a problem. Thank you for informing us of this opportunity to present our position. William and Natalie Simpson" I have four form letters "To Whom It May Concern: I have been informed of the newly proposed application for a Use Variance at 676 Glen Street, Queensbury, New York. I understand that, if granted relief from the zoning an automobile rental agency will occupy the demise premises for automobile leasing. In addition to this use, the agency plans to conduct safety checks of vehicles, washing, sales, storage, and other related services. Please accept this acknowledgement as my support for this proposed Use Variance. Sincerely, Meta Murray, 2 Glendale Avenue. Another one from Wayne Kellogg, President of Warren Tire; Matthew Rafferty, Assistant Manager, 657 Upper Glen; and Anthony Howie, Manager of Cole Muffler. I'm not sure if these were read into the minutes last week or not. So I read them again. I also have one more question. Lets talk about the money end of this thing, which a Use Variance - 3 - - (Queensbury ZBA Meeting 8/28/96) calls for. What you've supplied the Board, here, shows that the property has been losing money for the last six years, and you've stated, Mr. Monsour, that you're going to close the restaurant business down? JOSEPH MONSOUR MR. MONSOUR-Right. MR. THOMAS-When are you going to close it? Or is it closed now? MR. MONSOUR-Next month. MR. THOMAS-It's going to close next month? MR. MONSOUR-Yes. MR. THOMAS-Okay. That's all I've got. MR. CARVIN-All right. Any other questions of the applicant? MR. MENTER-Yes. I have one question. There was a note on part of the application in your notes, that the applicant plans to build a suite for a specific tenant? Explain that to me. MR. LEVACK-The existing restaurant is about a 1500 square foot building. It's going to be totally gutted and remodeled into an office building, that's an office suite or an office building. There will be no additions on the building, no alterations to the building. They plan on removing the old exterior garage, the bathroom doors that are seen on Route 9. It's going to be aesthetically an improvement over what it is right now. MR. MENTER-Okay. So you're referring to the fact that there's an investment in tailoring into this. MR. CARVIN-Dave, were you at the last meeting? MR. MENTER-No, I wasn't at the meeting. MR. CARVIN-Okay. Do you feel comfortable with this? MR. MENTER-Yes. I reviewed everything. I didn't really intend on, I didn't plan on reviewing it tonight, deciding on it tonight. MR. CARVIN-Do you think you have sufficient information? MR. MENTER-I'm comfortable with it I think, yes. MR. CARVIN-Okay. Then I'll ask Bonnie if you've got any thoughts, comments, opinions? MRS. LAPHAM-Last week I didn' t think it was a bad plan, and I haven't changed my opinion of it. MR. CARVIN-Don, do you have any thoughts or comments? MR. O'LEARY-I don't, no. MR. CARVIN-Are you comfortable with this application? Okay. Dave? MR. MENTER-I'm comfortable with it. I'm comfortable with the project itself. I'm not as comfortable as I would like to be with the unsuitability of the building for any use as zoned, probably because of lack of information, possibly because of lack of information on my part. Could you do me a favor and outline that one more time? - 4 - --' (Queensbury ZBA Meeting 8/28/96) MR. LEVACK-Sure. Joe has had the property, Mr. Monsour has had the property, for sale for over two years. I've had the property listed exclusively with a commercial real estate sign on the property. It's been listed in the Warren County Board of Realtor's Multiple Listing. It's been actively listed for lease and for sale, and at a very realistic number. We have had no offers on the property. This has been the one and only offer on the property. The Queensbury Staff Department can tell you that they have received some inquiries on this property, and John Goralski was here last week and commented that the only inquiries that they've received were from perspective customers that wanted it as a gas station, which is not a conforming use in this zone. So we feel that 10 months certainly, we would ask that we not have to have it vacant for three years for there to be deemed a hardship here. We feel that we've given it a very-good opportunity to be sold or to be leased, and this is the only deal that's presented itself. That's primarily the basis for our ability, for our claiming that the property hasn't been able to be used as zoned, and I'd like to point out, Dave, that this project is an office project. It's an office, but because they may store vehicles in the lot or they may sell a car, it's not a permitted use in Plaza Commercial One Acre zoning. It is a permitted use in Highway Commercial. As it is, we're asking to transition one zone on those two items, but primarily this project is an office project, and an office project is a permitted use in a Plaza Commercial zone. So we're here because we're storing vehicles, and there may be a car sold, which I'm told, if they sell one or two a year, it'll be a lot. There's no intentions to make this a used car lot. It's an office. MR. CARVIN -Okay. Which leads me to one question. Do they have any outside advertising for these car sales, or is it just all interior? Do you have any outside advertising for cars for sale or anything like that? MR. BURCH-No, sir, not in the Queensbury/Glens Falls area. MR. CARVIN-Okay. What I'm saying is, would you have a sign outside, if this was permitted? MR. BURCH-At our location here? MR. CARVIN-Yes. MR. BURCH-No, sir. It would be actually I think you might have the facia band, it only says Rent-a-Car on the sign, or on the building. MR. CARVIN-Okay, but you don't advertise outside the fact that there are cars for sale? MR. BURCH-Outside meaning like newspaper? MR. CARVIN-No, outside physically, like on the lot. MR. BURCH-No, sir. MR. CARVIN-This car for sale or anything like that? MR. BURCH-No, sir. MR. KARPELES-If I remember right, you're not going to apply for a Sign Variance? Is that right? MR. BURCH-We, just in sitting in last week's meeting, before we came forward, our signage that we have as a company is permitted per your permits through the Town. So, we'll submit a permit and I would assume be granted a sign permit. We wouldn't have to move forward with a Sign Variance. - 5 - .~ (Queensbury ZBA Meeting 8/28/96) MR. KARPELES-I think it's a good use. I see nothing but pluses. MR. THOMAS-I'm all set. MR. CARVIN-Okay. Does someone want to move it? MOTION TO APPROVE USE VARIANCE NO. 76-1996 JOSEPH MONSOUR, Introduced by Chris Thomas who moved for its adoption, seconded by Robert Karpeles: The applicant proposes an automobile rental, leasing, sales, storage, washing, safety check and related service businesses which does not conform to Section 179-22 of the Zoning Ordinance. Relief is being sought from this Section. A reasonable return is not possible if the land is used as zoned. The applicant has stated for the record that this property has been on the market for three years, and that the only offers that have been made are for something not consistent with the Zoning Ordinance. The applicant has shown that there is financial difficulty with this property because of the loss of business and the closing of a business of the existing restaurant. The alleged hardship relating to this property is unique in the fact that the applicant is asking to use this business primarily has a rental office and will not conduct any other business other than car rental, except for sales of vehicles once or twice a year. There does not appear to be any adverse effect on the neighborhood. In fact, it will improve the neighborhood due to the fact that there will be less traffic in and out of the parking lot because now it is a restaurant, and more cars go into a restaurant than into a car rental agency, and this is the minimum variance necessary to alleviate the hardship, and at the same time protect the character, health, safety and welfare of the neighborhood. This is a good plan, as stated by the Board members, and I have no problem with it. That the second access be used as an exit only, in deference to Warren County's action that it be closed, and the applicant has also stated all car washing outside does not use detergent and does not run off into Halfway Brook, and all repairs are off the premises anyway, so there wouldn't be any of that. Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mr. Menter, Mr. Karpeles, Mr. Thomas, Mr. O'Leary, Mrs. Lapham NOES: NONE ABSTAINED: Mr. Carvin ABSENT: Mr. Green MR. CARVIN-The next item of business, do you want to clean up the old one, the Sign? MR. THOMAS-Yes. SIGN VARIANCE NO. 56-1996 HANLEY SIGN CO. MR. THOMAS-I think we left this open just for a, before we start, I have to read in Warren County's recommendation. "At a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for a Siqn Variance for a 76 square foot freestandinq sign and two 47.03 square foot projectinq siqns, was reviewed and the following action was taken. Recommendation to: Disapprove. The Warren County Planning Board believes that the applicant should conform to the Queensbury Sign Ordinance. II I do believe I closed the public hearing on this last week. MR. CARVIN-No. The public hearing is open I think. - 6 - '-" -" (Queensbury ZBA Meeting 8/28/96) MR. THOMAS-The public hearing is open? MR. CARVIN-Yes. I'll leave the public hearing open, to quote you. MR. THOMAS-Yes. MR. CARVIN-Okay. Anything else? MR. THOMAS-No. In discussions last week with the Board members that were here, we talked about this, and we figured that, or I figured that the applicant could take the sign off the building and put it on the road, and take the sign that's on the road and put it on the building and be in conformance. MR. CARVIN-Okay. Let me ask, Dave, are you comfortable with this? Have you had a chance to read the minutes? MR. MENTER-I'm not up to speed, no. I'd have to read the minutes. MR. CARVIN-Okay. Don, how about you? Are you comfortable? MR. O'LEARY-Yes, I was here. MR. CARVIN -Okay, and I have just read the minutes. So I feel comfortable that I can objectively look at this, as objectively as you can look at signs. Going through the minutes, I just have one question. Am I to understand that one of the prime reasons for your request is the fact that your signs are made overseas in Germany and only come in two sizes. LEE MOST MR. MOST-My name is Lee Most from Hanley Signs. Primarily that's one of the reasons on the pylon sign. We have, since the last meeting, revised this request, after the discussion at the last meeting because of the size of the pylon sign, and we have reduced, and I gave you all a drawing. We have reduced the size of that pylon sign. This is the second size that we have available to us, which is, I think, within conformity, and we have also lowered it from 28 feet to the top of the sign, which was the original request. MR. CARVIN-What do you think? Is this in conformance now? MR. HILTON-Well, you have the sheet that I handed out to you just prior to the meeting. It is a conforming sign. However, again, there are two freestanding signs here. There's the Aldi one, which is approximately 42 square feet in size, and the additional food store one which is beneath it. So again, we're dealing with two wall signs, two freestanding signs, and as the Ordinance states, you're only allowed one freestanding sign with one wall sign, or two wall signs exclusively. MR. MENTER-This is a picture of two freestanding signs? MR. HILTON-Yes, it is. MR. MENTER-Is that the interpretation? MR. HILTON-Yes. MR. MENTER-Based on? MR. HILTON-Based on the fact that you have one contained cabinet for the Aldi's sign and you have a second contained cabinet for the "Food Store". They're two separate entities, so to speak. So they're two freestanding signs. - 7 - (Queensbury ZBA Meeting 8/28/96) MR. MOST-In actuality, it's the same entity, and if you notice the notation on the bottom, that the "Food Store" sign will be removed one year after the store is open. The "Food Store" sign is there because most people don't know what Aldi is. They don't know the store name. They don't know what kind of a store it is. So the "Food Store" is only there temporarily until people know what the store is, and then just to identify. MR. KARPELES-Isn't there a provision for temporary signs? MR. HILTON-Yes. There is a provision in our Ordinance temporary signs. Permits can be issued administratively. have that time frame for you here in just a minute. for I'll MR. CARVIN-Okay. You said that there's going to be two freestanding signs? MR. HILTON-Yes. MR. CARVIN-All right. I'm thinking of two separate entities. Okay. It's one pylon, but two signs. You could look at it that way. MR. HILTON-Right, and the fact that they're going to remove the bottom "Food Store" one after one year, I don't think they're going to be ripping their entire sign apart, that they're two separate signs there, on one pylon. MR. CARVIN-On one pylon, and then you're going to have two wall signs? MR. MOST-Yes. MR. CARVIN-And you're only allowed one wall sign, is that correct? MR. MOST-We're only allowed one wall sign. Each of the wall signs are only 46 square feet. MR. CARVIN-And a wall sign is 50 feet I think, isn't it? Is it 50 feet on a wall sign? MR. THOMAS-Forty-seven. MR. CARVIN-No, I'm saying the Ordinance is 50 feet, I think, isn't it, 50 square feet? MR. MOST-One hundred, I think, isn't it? MR. THOMAS-Yes, it's 100 square feet. MR. CARVIN-That's right. MR. HILTON-For your information, temporary signs are issued for a period not to exceed 60 days per calendar year. They're issued administratively. MR. MOST-And this one is a unique position because, again, it is a new change of the area, and no one really knows what it is. I mean, they might mistake it for a car dealership, for that matter. They are going to put a berm in, from what I understand, to enhance the property. The building is being redone and approved at the last meeting was a setback with the facia. I think on the plans I had measured a setback, and I said the wall signs are going to be set back, the distance is wrong because they will be measured, they will be actually put on the facia of the building. There's a discrepancy in those two numbers. I was measuring from an old plot plan to the building face, and it's actually further back, and that facia was approved at the last meeting. I've noticed in many other - 8 - -' (Queensbury ZBA Meeting 8/28/96) instances in the Town that there are situations where there are two signs on the building and a pylon sign. We are well under the square footage permitted. We feel, aesthetically, which is normally the purpose of the Ordinance, aesthetically, it's still very pleasing and it just fits. The facia would look kind of out of place without something on it, big open. The one is really over the entrance. That's where the people will walk into it. MR. KARPELES-Is the Grossman's sign conforming now, the sign that's on the building? MR. HILTON-Right now, they're two signs without a freestanding, and they conform to the sign code. MR. KARPELES-And that's certainly very noticeable. MR. MOST-Yes, but they're huge. When you take that small sign that we're putting on the building, it much more. MR. KARPELES-Yes, but you could conform, too. MR. MOST-Well, we could conform, but we'd have a much smaller sign. The building facia doesn't call for any big sign on the building facia, like the one we'd put on the pylon. It would just look out of place. So we must put a small sign. MR. KARPELES-That's your choice to design the building that way. I mean, when you design the building, you should take into consideration our zoning laws, our Sign Ordinance. MR. MOST-Well, that's true. I'm just saying, I know the company, they have 4500 stores world wide, and they have a design, a building that they use. It's just, aesthetically, it looks correct to have the one on each facia, and we have come a long way in trying to work with the Town to make it work. MR. MENTER-So this proposal is conforming, other than the fact that "Food Store" is a separate cabinet than "Aldi"? Is that right? MR. CARVIN-With the exception of the two signs on the building, yes. I mean, if this sign had been incorporated into a single sign, or single cabinet, I believe it would be conformance, or compliance with our freestanding ordinance, which is 100 square feet, is it? MR. HILTON-And also except the fact that if you do add the square footage of the two signs 'together, it exceeds the 50 square feet that is required at a 15 foot setback. MR. MENTER-The square footage of the "Food Store" portion being what? MR. HILTON-Being approximately. MR. MOST-I didn't calculate that. MR. CARVIN-Yes, 50 feet at 15 feet, or 64 at 25 feet. MR. MOST-It's about 12 or 13 feet, square feet. MR. HILTON-You're looking at six feet by a foot and a half. MR. MOST-Yes. So about nine feet, nine and a half feet. MR. HILTON-So it would probably put it just over the 50 square feet. MR. MENTER-Pretty darn close, yes. - 9 - (Queensbury ZBA Meeting 8/28/96) MRS. LAPHAM-And the two signs on the building total less than 100 square feet? MR. MOST-Yes. MRS. LAPHAM-But they're two instead of one? MR. MOST-But they're two instead of one. If I brought them to the corner of the building and tied them together, it would make them legal, but they'd look stupid. What we tried to do is reduce the request to make it something that you could hopefully that everyone could live with and make it aesthetically pleasing to everyone. We've been trying to make an improvement on the property, make it look and work. LOU KIBBLING MR. KIBBLING-May I say a few words? I'm Lou Kibbling with Aldi. The design was created by our owners, and it exemplifies the company strongly. As far as a hardship would go, and I run up against this occasionally, where one sign is allowed only. It so happens that they designed a store with a canopy that wraps around the corner. Not only are our store designs all very similar throughout the United States, but the product alignment in the store is identical. The amount of products is identical, and all the prices of each product are identical, no matter if you're in Iowa or downtown Chicago or here in Queensbury. As far as the hardship, I think it is somewhat basically, if we don't get the sign, a little bit of a philosophical as well as a physical hardship, and I'll try to explain a little bit about that. The second logo sign, because of the canopy, seems to finish off or complete that portion of the building, which, to us, is the main focal point, and the entrance usually is, and it not only creates some symmetry of the building, but it also maintains a strong sense of organization to the company. As a corporation, we believe that, you know, it may be a minor characteristic, but it also plays a large role in cqntinuing to exemplify the high management standards in both the quality of our products and employees. It's just a strong requirement, and that's all I can ask for. MR. CARVIN-Okay. Does anybody else have any questions of the applicant? Does everybody understand the measurements here? Have we got that all straight? Okay. Chris, I think you left the public hearing open. I'll ask anyone if there's any public comment. PUBLIC HEARING OPEN NO COMMENT PUBLIC HEARING CLOSED MR. CARVIN-Okay. Has anybody got any questions of the applicant here? Has everybody got their minds made up? MR. THOMAS-Well, I'm glad to see that they took the sign on the road and reduced it down to somewhat conforming, but I still have a problem with the two signs on the building. I think there should only be one sign on the building. As far as the other facia, whichever one they don't choose to put the sign on, they could paint a horizontal stripe across there or something, to break it up, but I would be in favor of leaving the "Food Store" sign at the bottom of the pylon sign, for a period of one year, as requested. Last week in testimony the applicant stated that they don't advertise. There's no need to advertise because business is so good. So, I can't see, why we should give them two signs on the building to be in nonconformance with the Ordinance when they don't need to advertise and everybody's going to know where it is anyway. - 10 - -- (Queensbury ZBA Meeting 8/28/96) They have the one sign on the road and one sign on the building. If they put it on the correct facia, everybody will see it. MR. KARPELES-I don't feel the existing Sign Ordinance creates any problem whatsoever, any hardship whatsoever to comply with, and I think particularly with a 60 day temporary sign, you should get well established within 60 days. So, I see no reason for granting this variance. MR. MENTER-Well, I, too, have a little problem with the wall, the two wall signs. The pylon sign, the "Food Store" I have no problem whatsoever with. MR. CARVIN-Would you agree with Chris, then, about a temporary, after one year it should be removed, and only one wall sign? MR. MENTER-Yes, and I would say that it may make more sense just to, you know, I don't know what your production, you know, how those are produced, but if you were to just make one sign, with the "Food Store" on it, that's your thing, but I wouldn' t have a problem with the one year on that sign, although I do have a problem with two signs on the building, two smaller signs on the building. MRS. LAPHAM- I tend to feel the way Dave does. I'm really not comfortable with two signs on the building, although I like the idea that the gentleman tried to make their signs smaller so that, and I think it's more for aesthetic reasons at this point. So I'm not totally convinced one way or the other with that. The "Food Store" sign I really think is probably necessary because they're right, no one's ever heard of Aldi around here. So that as a temporary for one year, I'd be in favor of doing that. MR. O'LEARY-Well, I'm sympathetic with the argument that they could hardly be considered two freestanding signs, the "Food Store" sign and "incorporated. It looks like one freestanding sign to me, plus the fact that it would disappear in front. I'm not really sympathetic with the fact that total signage will be at variance, and some of the reasons are that your manufacturer doesn't give you much choice in size, etc., etc. So I have no problem with the freestanding sign, but I'd like to see total signage conform. MR. CARVIN-Okay. In other words, just the one wall sign? MR. O'LEARY-Yes, but I mean, they can do anything they want with it, just the way Grossman's has. It doesn't have to be, as long as it's conforming. MR. CARVIN-Okay. Would you be in favor of letting them have the freestanding sign with the "Food Store" only being allowed for one year, as has been proposed by Mr. Thomas? MR. O'LEARY-Yes. MR. CARVIN-Okay. I don't have a problem with what Chris has suggested. Personally, I don't have a problem with the two wall signs, because neither one of them add up to 100 square feet. We've been confronted with this on a couple of other occasions in the last few months, but the argument that Bob and everybody else has made tonight is very convincing. I mean, I think that, with the freestanding and one wall sign, you should be adequately signaged. So I would ask for a motion. MR. HILTON-Before a motion is made, I'd like to just say that if you feel comfortable with portions of this application, and other portions you don't feel comfortable, I think you can approve the parts that you are comfortable with and deny the others. There's nothing that says it's all or nothing. - 11 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-I think, if Chris is going to make the motion, I think what we'll do is probably give the "Food Store" a one year life, and the rest of it is in compliance. MOTION TO APPROVE SIGN VARIANCE NO. 66-1996 HANLEY SIGN CO. FOR ALDI'S FOOD STORE, Introduced by Chris Thomas who moved for its adoption, seconded by Fred Carvin: That the freestanding sign on the road containing the word "Food Store" be removed one year after it's being in place, just the sign stating "Food Store" be removed, after one year being in place, and Number Two, that one sign be placed on the building on the facia the choice of the applicant. That would not bring the sign into conformance because the freestanding sign is over 50 square feet. The granting of this variance would allow the applicant to have an oversized freestanding sign for a period of one year, and after a period of one year, would have a sign in conformance. The sign would not have an effect on the character of the neighborhood because this is a commercial strip and there are signs along the road and this sign will be in conformance after one year. There do not seem to be any feasible alternatives to this. The amount of relief is not substantial relative to the Ordinance, due to the fact that one sign will be coming down after a year, and the variance will not have an impact on the physical or environmental condi tions in the neighborhood. It's a new business, and new businesses should have signs. Duly adopted this 28th day of August, 1996, by the following vote: MR. KARPELES-The way I understand it, after one year, this would be in conformance? MR. THOMAS-Yes, it would, because this 10 plus square foot sign would come down, and it would be less than 50 square feet. MR. CARVIN-If my math is correct, the freestanding sign would be approximately 54 square feet. So it may be a four square foot difference for one year, and only one wall sign. MR. KARPELES-Really all we're granting is 10 months of temporary signing. MR. CARVIN-Twelve months. MR. KARPELES-He could get two months, essentially. We're giving him 10 months. MR. CARVIN-If you want to look at it that way. MR. KARPELES-Okay. AYES: Mr. Karpeles, Mr. Thomas, Mr. O'Leary, Mrs. Lapham, Mr. Menter, Mr. Carvin NOES: NONE ABSENT: Mr. Green NEW BUSINESS: AREA VARIANCE NO. 67-1996 TYPE II SFR-IA MARGUERITE ELDRIDGE OWNER: SAME AS ABOVE NORTHEAST CORNER OF BENNETT ROAD APPLICANT PROPOSES TO SUBDIVIDE AN EXISTING LOT INTO TWO LOTS AT THE CORNER OF AVIATION ROAD AND BENNETT ROAD. THE NEW LOT WOULD NOT CONFORM TO THE AREA REQUIREMENTS OF THE SFR-IA DISTRICT. THE NEW LOT WOULD NOT HAVE THE REQUIRED LOT WIDTH NEEDED FOR A LOT LOCATED ON AN ARTERIAL ROAD. RELIEF IS BEING REQUESTED FROM THE AREA REQUIREMENTS LISTED IN SECTION 179-20 AND THE REGULATIONS REGARDING - 12 - (Queensbury ZBA Meeting 8/28/96) THE WIDTH OF LOTS ON ARTERIAL ROADS LISTED IN SECTION 179-30C. TAX MAP NO. 83-1-12.1 LOT SIZE: 1.46 ACRES SECTION 179-20, 179-30C PAT TAYLOR, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 67-1996, Marguerite Eldridge, Meeting Date: August 28, 1996 "APPLICANT: Marguerite Eldridge PROJECT LOCATION: Northeast corner of Bennett & Aviation Rd. Proposed proj ect and Conformance with the Ordinance: The applicant is proposing to subdivide an existing lot into two lots at the corner of Aviation and Bennett Rd. The new and existing lot would not conform to the area requirements of the SFR-IA zone. The new lot would also not have the required lot width needed for a lot located on an arterial road. Relief is being requested from the area requirements listed in Section 179-20 and the regulations regarding the widths of lots on arterial roads listed in Section 179-30C. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to subdivide her property into two lots. 2. Feasible alternatives: It appears that there are no alternatives which would provide a lesser amount- of relief and allow the applicant to split this property into two lots. 3. Is this relief substantial relative to the ordinance? The area of the current lot would be reduced to .92 acres and the new lot would be .427 acres. The frontage of the new lot on Aviation Rd. would be 115.36 feet. 4. Effects on the neighborhood or community? The proposed expansion appears to be in character with other lots in the area. Other comments may be provided at the public hearing. 5. Is this difficulty self created? The difficulty that exists is the desire for the applicant to subdivide her property and sell the new lot to pay her property tax. Staff Comments & Concerns: This application was previously heard as Area Variance No. 69-1994 and was approved on December 21, 1994. Since that time the applicant has not acted on the original variance within one year of approval. At that time, the applicant proposed the area of the existing lot conform to be one acre. Staff would like to see the existing lot conform to the area requirements for this zone as was planned with the previous application. In addition, staff would recommend that the new lot only have vehicular access off of Bennett Rd. SEQR: Type II, no further action required." MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? Okay. I have a question of the applicant. How much taxes are owed on the property right now? MRS. TAYLOR-I have no idea. MR. CARVIN-Okay. How much was owed in 1994? MRS. TAYLOR-I have no idea. MR. CARVIN-Are you currently in arrears? MRS. TAYLOR-I'm not the owner. agent. I'm Pat Taylor, the Real Estate MR. CARVIN-Well, I'd like to know. I mean, 1994 we granted a variance based upon a hardship that was presented at that time, I presume on the fact that she hadn't paid her taxes. Where now 18 months later she's never moved on it. The property's never sold. I want to know how much the taxes are, because, I mean, if the property is, you know, if the taxes are being paid on it, where's the hardship? Why should we subdivide this? MRS. TAYLOR-Good question. - 13 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Well, I'm asking it. So, unless I get an answer, we're not going anywhere. So, I mean, if the applicant is not here, I suggest that we table this until I get some financial information on this. I mean, I don't know what the rest of the Board feels like, but I voted for this in 1994. Apparently she presented incredible, a year and a half later, I'm not quite as tolerant, I guess, and the taxes, we all have taxes, and I'm just wondering what the other agenda is here. MRS. TAYLOR-Yes. Well, I guess basically it's been for sale for this length of time. He still hasn't sold it. He's just renewing it to try to sell it. MR. CARVIN-She can't prove to me that she hasn't paid taxes on this property for the last three years. MRS. TAYLOR-She hasn't paid any? MR. CARVIN-Well, I don't know. She's saying she needs to subdivide it. So we're creating two nonconforming lots, so that she can have the ability to sell one of these to pay her back taxes. Well, I just want to know what the back taxes are. MRS. TAYLOR-Okay. We have record of that in these offices, don't we? MR. CARVIN-I would assume. MRS. TAYLOR-All right. That I have no idea. He hasn't expressed anything to me that he hasn't paid his taxes. He just said it's been a hardship paying them. That's what I'm getting. MR. CARVIN-We all have hardships. I bet everyone in here has got a hardship, but I'm not quite sure I'm going to be able to, now personally I have a hard time buying it unless I see some kind of proof on that. MRS. TAYLOR-Okåy. MR. KARPELES-Well, why wasn't it ever subdivided? MR. CARVIN-I don't know. MRS. TAYLOR-It has been subdivided. MR. CARVIN-No. MRS. TAYLOR-It hasn't? MR. CARVIN-It hasn' t. variance in 1994. She never moved on it. We granted a MRS. TAYLOR-The variance. MR. CARVIN-She never did it. MR. KARPELES-According to our information. MR. CARVIN-I'm assuming the tax meter continues to run. It's never been subdivided. MR. HILTON-If it had been subdivided, there'd be no real reason to even be here tonight, because it would have been taken care of. MRS. TAYLOR-You're kidding. That must be why I'm here by myself. Okay. Did he get a letter or anything telling him to subdivide it? - 14 - "- ---'~ (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-I didn't create this. MRS. TAYLOR-I have this survey map. Doesn't that? MR. CARVIN-It just shows that we've got a conforming lot. MR. MENTER-It shows one lot. MR. KARPELES-It says map of proposed subdivision of lands. MRS. TAYLOR-Okay. MR. MENTER-So what they're applying to do is split the land into two pieces. Unfortunately, they're not large enough to comply with the zoning. Therefore, they would need a variance to do that. MRS. TAYLOR-Okay. MR. KARPELES-They got the variance. MR. CARVIN-The variance lapsed after a year. They never exercised the option, or the variance. MRS. TAYLOR-Okay. All right. MR. MENTER-In addition, it just might be helpful to you. One thing that I would be concerned about is that, back a year and a half ago when we did this, I voted on it also, and I feel similar to the way you feel. I'm looking at it saying, why? One issue is that you're creating two nonconforming lots where there may be an opportunity, it might make more sense to have one nonconforming lot created from this big one, rather than two, at least it would to me. MRS. TAYLOR-Okay. So what goes into getting the subdivision, and what does he have to do to do that? Of course he hasn't got the variance now to do it. MR. MENTER-Right. variance. The first thing he's got to do is get a MRS. TAYLOR-Yes. What would he have to do to get this? MR. CARVIN-Well, the criteria for an Area Variance is. MR. HILTON-I think you're asking, what would the owner have to do in order to subdivide it? MRS. TAYLOR-Right. What would he have to do? MR. HILTON-This is a simple, would be a simple two lot subdivision, which you could come in and see us in the Planning Department and the Executive Director, Jim Martin, would be able to administratively approve this two lot subdivision because it's not in the Adirondack Park and it doesn't have any County impact. So it's very, really an easy procedure. MRS. TAYLOR-See, I think he was of the understanding that because he had the variance, that's all he had to do. I don't think he realized he had to do anything more than that. MR. CARVIN-I don't think you can create a nonconforming lot. That's the problem. MR. HILTON-A subdivision? Well, if you have a variance and there's a two lot subdivision. MR. CARVIN-If you have a variance. - 15 - (Queensbury ZBA Meeting 8/28/96) MR. HILTON-Right, but now it's expired. MR. CARVIN-Yes. So they have to apply for a variance, and the criteria is, you know, is if granted, the benefit to the applicant as weighed against the detriment to the health, safety and welfare of the neighborhood and the community. Okay. Well, if the only benefit to the applicant is to reduce their taxes, I just want to know why they didn't exercise that option a year and a half ago. MRS. TAYLOR-I really think he didn't know he had to go any further than that, other than to sell his piece of property. I don't think he realized he had to do anything more than that. MR. CARVIN-Yes. Well, I'm just saying the criteria for us to grant the variance, I mean, you know, wha t 's happened has happened. What's gone is gone, and we've got a criteria for six or eight different items here that we have to address, and obviously one of them, one of the bigger ones is the benefit to the applicant versus the reason to change the zone, and also if this is self created. I think that's one of the things that I'd have a hard time, and is it substantial? I mean, there's a list of criteria, and again, I think Staff can review that with the applicant, but my biggest question right now is, if his benefit is to pay his taxes, I want to know why it didn't occur almost two years ago, and what I'm saying, now I would hope that the Board would look at a little bit more concrete information other than just the fact that they're having trouble paying their taxes, you know, verbal confirmation. MRS. TAYLOR-I know I was connected with him when he got the first variance, and he and I did not realize that there was anything more you had to do. We just thought you needed to sell the piece of property, and that everything was done, didn't know that he had. MR. CARVIN-Well, apparently, you still have to file it I guess, right? It's got to be filed. So apparently they didn't file it. MR. MENTER-The variance is just basically the Zoning Board comes in to approve or disapprove the action. We don't do the action. We say, yes, you can subdivide it. Go ahead and talk to the Town and get it subdivided, but they can't do it unless, you know, because they determine that it wouldn't conform to the zoning. Therefore, we would need to approve it. They can't do it unless we approve it. MRS. TAYLOR-Okay. So you just approve the variance, but somebody else has to approve your approval. MR. MENTER-They do the next step. Okay. Right now it's not approved, because when it's approved you have one year to do it. It didn't happen in that year, so it's like nothing ever happened. So it's got to be completely re-opened. In order for us to consider this, I think we would need more information probably from the Eldridges. MRS. TAYLOR-Okay. All right. I'll go back to them. MR. CARVIN-I'm going to open up the public hearing. PUBLIC HEARING OPENED MR. CARVIN-Okay. I'm going to leave the public hearing open, but I'm going to move that this application be tabled. MOTION TO TABLE AREA VARIANCE NO. 67-1996 MARGUERITE ELDRIDGE, Introduced by Fred Carvin who moved for its adoption, seconded by Chris Thomas: - 16 - "---, '-" (Queensbury ZBA Meeting 8/28/96) For further information from the applicant. Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mrs. Lapham, Mr. Menter, Mr. Karpeles, Mr. Thomas, Mr. O'Leary, Mr. Carvin NOES: NONE ABSENT: Mr. Green MR. CARVIN-Now we have a tabling policy of 60 days. So if we don't hear back from you within 60 days, this application is deemed null and void. So then they'd have to start the whole procedure over again. MRS. TAYLOR-Okay. All right. MR. HILTON-And just for the applicant's information, if you'd like to contact us, you know, tomorrow or whatever, give us a call at the Planning Department and we'll work with you. MRS. TAYLOR-Planning Department? Okay·. AREA VARIANCE NO. 73-1996 TYPE II WR-1A CEA DR. EDWARD G. FARHART OWNER: SAME AS ABOVE WEST SIDE OF ROCKHURST ROAD, ONE HALF MILE NORTH OF SEELYE ROAD APPLICANT PROPOSES TO CONSTRUCT A PORTABLE "CARPORT" AT THE REAR OF HIS PROPERTY. THIS STRUCTURE WOULD NOT CONFORM TO THE SIDE AND REAR SETBACKS OF THE WR-IA DISTRICT. RELIEF IS BEING REQUESTED FROM THE SETBACKS LISTED IN SECTION 179-16. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 8/21/96 TAX MAP NO. 15-1-21 LOT SIZE: 0.19 ACRES SECTION 179-16 EDWARD FARHART, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 73-1996, Dr. Edward G. Farhart, Meeting Date: August 27, 1996 "APPLICANT: Dr. Edward Farhart PROJECT LOCATION: Rockhurst Rd. Proposed Project and Conformance wi th the Ordinance: The applicant is proposing to construct a 'portable' carport at the rear of his property. This structure would not conform to the side a~d rear setbacks of the WR-IA district. The structure would be located 26 inches from the side lot line, and 7 feet from the rear property line. Relief is being requested from the setbacks listed in Section 179-16. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to build an open sided structure with a roof to protect his automobiles from sap and needles falling from a pine tree. 2. Feasible alternatives: Any alternatives depend on the parking of cars elsewhere in the designated parking area. 3. Is this relief substantial relative to the ordinance? The applicant is seeking 17 feet 10 inches of relief at the side lot line and 13 feet of relief at the rear property line. 4. Effects on the neighborhood or communi ty? It appears the proposed carport would not have a negative impact on the surrounding neighborhood. Additional comment may be provided at the public hearing. 5. Is this difficulty self created? The difficulty arises from the applicants desire to protect his automobiles where they are currently being parked. Staff Comments & Concerns: Staff believes the construction of this proposed carport would not have an adverse impact on the surrounding neighborhood and would satisfy the applicants desire to protect his automobiles. SEQR: Type II, no further action required." MR. THOMAS-"At meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for an Area - 17 - (Queensbury ZBA Meeting 8/28/96) Variance to construct a portable qaraqe, metal roof, with no enclosed sides. was reviewed and the following action was taken. Recommendation to: No County Impact" Signed by C. powel South, Chairperson. MR. CARVIN-Does anybody have any questions of the applicant? Does everybody understand what the applicant is requesting? MR. O'LEARY-I just wanted to ask, I see here they have "portable" in quotes. Is portable relative to the intention of what may happen to the car port, or just a description? DR. FARHART-Just a description, sir. No, we don't intend to move it. MR. CARVIN-Okay. Is this something that you plan on taking down in the winter time? DR. FARHART-No. MR. CARVIN-In other words, it's going to be permanent? DR. FARHART-Yes, from that standpoint. MR. CARVIN-Are you a full time resident out there, at the lake? DR. FARHART-No, about four months. MR. CARVIN-About four months? DR. FARHART-Yes, three to four months. MR. CARVIN-But that's going to be up all year? DR. FARHART-Yes. MR. CARVIN-Okay, and how long has it been up. DR. FARHART-I think it was up in April. I'm not positive, but I think it was April that it was up. MR. CARVIN-Okay, and how did it come to QY£ attention? DR. FARHART-I don't know, except I suppose one of my neighbors had a complaint. MR. CARVIN-Okay. DR. FARHART-No. MR. CARVIN-Okay. DR. FARHART-Yes. Has any of your neighbors come to you about that? It cost you, what, $15, $1600? MR. CARVIN-Have you ever heard of car clothes? DR. FARHART-Yes. MR. CARVIN-Did you look into those? DR. FARHART-Where you cover the cars? MR. CARVIN-Yes. DR. FARHART-Well, I just can't picture my wife doing that. I mean, just can't do it. MR. CARVIN-Well, mY car's outside a lot and I've got a lot of - 18 - '--- ~ (QueensburyZBA Meeting 8/28/96) pigeons flying over, and I don't know if that's justification for me to put a carport up. DR. FARHART-Well, you know, the thing is, we have a lot of, not only sap, but the pine needles get in the windshield wipers, the pine cones. So you just have an ongoing thing. The only good part about the whole thing is around Christmas when I still see the pine needles in the wipers, it reminds me of the good days at the lake, but it is a problem. It's been a frustration. MR. CARVIN-How about all the other neighbors up there? Suppose we had all of them come in and say that they had the same problem, and we had a proliferation of these little carports all up and down there? I mean, that's pretty crowded out there now. I mean, don't you think that would cause a detriment to the community? DR. FARHART-Well, if there were a lot of them, I'm sure it would. MR. CARVIN-Yes, but there's a lot of trees out there. I mean, so if we grant a variance based upon pine needles and pine sap, what prevents your neighbors coming in and saying that they have the same pine needles and pine tar, as a justification to build a carport? DR. FARHART-Well, not everybody has pine trees where they're located. MR. CARVIN-Well, I'm going to extend it. Suppose there's a lot of birds. I mean, birds fly over that place all the time. It's not the most pleasant thing to clean up. Do you see what I'm saying? I don't have a lot of justification here to grant a variance. DR. FARHART-Well, just the expense, having the car re-painted. MR. CARVIN-Well, what I'm saying is that the car clothes would probably serve the same purpose. DR. FARHART-I'm not saying it wouldn't. I'm just saying that not too many, well, I mean, lets put it this way. My wife wouldn't be able to put the cover on, and I certainly would not have time to stop and take the cover off and put it on. That wouldn' t be practical from illY standpoint. MR. CARVIN-Does anybody else have any questions of the applicant? MR. KARPELES-Not at this stage. hearing. I'd like to hear the public MR. CARVIN-All right. I'll open up the public hearing. PUBLIC HEARING OPENED MARIE FARHART MRS. FARHART-Hi. I'm Marie Farhart, wife of Dr. Farhart. To begin with, we had no idea that we were violating a law. We've been on the lake long enough to know if you have a permanent fixture, you must have a certificate of something, a permit, but how do you propose that I contend, I have irrevocable damage done to the top of illY car, and am I supposed to spend the rest of my days with a car that's, you know, constantly needs? MR. CARVIN-Well, let me ask you this. When I was out there, I noticed that you have quite a bit of parking all along the front there. I mean, why didn't you put three or four carports, because it looks like you've got a couple of cars. MRS. FARHART-Because we only need one. There's just that one large - 19 - (Queensbury ZBA Meeting 8/28/96) pine tree, that continues to drip sap on our cars, and if you came on a weekend, we have three or four cars there almost every weekend, but the other cars, the other three aren't affected by this one tree. MR. CARVIN-Then why don't you move your car over, because, it's your car. MRS. FARHART-No, but we need that space, and I park it there because it's shaded through the week. DR. FARHART-And there's no room, actually, there's no room. MR. CARVIN-I was out there the other day. It looked like there was a pick up truck that was parked in front of your house. It looked like there was at least space for two other cars, plus the carport. MRS. FARHART-There are. There are space for four cars, very nice. We're not talking about parking cars. We're talking about damage to finish of cars. Is that not important to you? Would you like that to happen to you? MR. CARVIN-Well, the benefit to you as weighed against the detriment to the community, you haven't convinced me yet. MRS. FARHART-Okay, but lets chop that tree down, so it doesn't continue. MR. CARVIN-Well, that's between you and your neighbor. MRS. FARHART-Well, that's another story. Well, anyhow, that's all, and we didn't, we put it up in June, not in April. We purchased it last fall, but it was not put up until last June. DR. FARHART-Actually, when I saw it in Wards, I said, this is what I've been looking for, but I never thought of anything like that. MRS. FARHART-Rìght. It never entered our mind that we were doing anything that was not pleasant. We were just protecting our cars, and we do take pride in our cars. DR. FARHART-Still got another building which unfortunately wouldn't comply today, and I didn't understand, and I had nothing to do with where it was being set, by the way, it's like maybe a foot or less, maybe from the yard, at most, and from my neighbor's land, it's probably, it can't be more than two or three feet there either. So, I just didn't see any problem with the situation at all. Again, this was a portable structure with no sides that would be interfering with anybody's view or anything of that nature, but it did supply a roof to cover the car. MR. CARVIN-Okay. Well, let me find out what the rest of the public has to say. I think there's some comments up here. RONALD SEWN MR. SEWN-For the record, my name is Ronald Sewn. I'm the adjoining neighbor of the Farharts. MR. KARPELES-On which side? MR. SEWN-I'm on the north side of the Farharts. MR. CARVIN-Is it your tree that's dripping? MR. SEWN-It's my tree. Yes. It's also my tree that they had a tree man come in and trim and absolutely upset the balance of the tree, and then after they did it, told them about it, but that's - 20 - ."'--"" (Queensbury ZBA Meeting 8/28/96) neither here nor there. What I'm going to do, I couldn't commit all this to memory, so I've got a statement prepared, and I'm going to quote from the zoning laws of the Town of Queensbury. I don't even think that these should matter. It's just a ridiculous thing that they would even propose to put this on the property line, not inches from it, on it, and I've got pictures to substantiate that. All right. Certain sections of the Queensbury Zoning Ordinance, in particular Sections 179-16 and Article 22, which include Sections 179-85 to 179-92. Also, the Town of Queensbury Zoning Map, which shows Rockhurst to be located in an area which has been zoned in a classification WR-IA, which is Waterfront Residential One Acre, which I'm sure you people know, but that's for the benefit of the rest of the people listening. Section 179-16, Paragraph C, of the Ordinance requires, in a WR-IA zone, that there be a minimum yard setback of 30 feet in front of the lot and 20 feet in the rear. In addition, with regard to the side yards, the Ordinance requires setbacks having a total for both sides a minimum of 50 feet or more with a minimum of 20 feet on each side. The public hearing notice refers to the application of Dr. Edward G. Farhart for a variance to construct a portable carport, to construct. It's already been constructed, without a permit and without a variance, at the rear of this property. Therefore, the sides of the lot adjacent to the public highway, which is Rockhurst Road~ is being considered as the rear of the lot and thus a minimum setback of 20 feet from the rear of the lot would be required. Therefore, a variance would be required to place any portion of the carport within 20 feet of the rear boundary. In addition, a variance would be required to place the carport within 20 feet of side boundary of the lot. In addition, both side yards would require 50 feet or more setback under the Ordinance. It appears that the available information that Dr. Farhart would need in order to construct the carport, a variance from the side yard setback requirements of 20 feet, and a variance from the rear yard setback requirement of 20 feet. Article 22 of the Queensbury Zoning Ordinance sets forth the requirements of the variance. There are essentially two types of variances, Use Variances and Area Variances. Since Dr. Farhart is seeking a variance with regard to the side yard and rear yard setback requirements, he is seeking an Area Variance. Section 179- 88 of the Ordinance states that the Zoning Board of Appeals of the Town of Queensbury has the power and the authority to grant among other things an Area Variance in accordance with the Town provisions and requirements of Sections 267-a and 267-b of the Town Law of the State of New York. Copies of the Town law are as follows. The factors to be considered by the Zoning Board of Appeals are set forth in Town Law 267-b, Paragraph Three, Section B, which states as follows: "In making it's determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted as weighted against the detriment to the health, safety and welfare of the neighborhood or community by such a grant. In making such a determination, the Board shall also consider, Number One, whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties would be created by granting the Area Variance. Number Two, the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an Area Variance." I'll take a little break here for a second. They don't need a variance. All they've got to do is move their car, which would make a lot more sense than all the stuff that they're looking for. MRS. SEWN MRS. SEWN-Would anybody like to see pictures of, I know you've seen it. MR. SEWN - "Number Three, whether the requested Area Variance is substantial. Number Four, whether the proposed variance will have an adverse effect or impact on the physical or environmental - 21 - (Queensbury ZBA Meeting 8/28/96) condition in the neighborhood or district, and Number Five, whether the alleged difficulty was self created which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the Area Variance. The Town Board must consider each of the five following criteria in the Statute." With regard to Dr. Farhart's application, it would appear that the construction of the carport virtually right on the boundary line would be a detriment to the immediate adjoining property of Mr. and Mrs. Ron Sewn if the Area Variance is granted. With regard to the second criteria, it would certainly appear that the construction of a carport on Dr. Farhart's property could be achieved by a method that would be feasible for Dr. Farhart to pursue, other than a variance. It would appear to be clear, from the photographs, which you have now, that there is no reason why Dr. Farhart cannot construct a carport on the other side of his property, at a location where the trees and hedges appear in the photographs. Dr. Farhart may have to remove some portion of the trees or hedges, but it would appear that there's ample room for him to construct a carport on the other side of the lot where, presumably, he would not need a variance, certainly from the side yard requirements of the Ordinance, and possibly he would not need a variance from the 20 foot rear yard requirement of the Ordinance. The mere fact that Dr. Farhart prefers to place the carport where he has already constructed it without a variance does not justify the grant of an Area Variance. Now the New York State Court of Appeals, the highest court in the New York State Court System, on October the 3rd 1995, New York State Court of Appeals decided in the matter of Sosso vs. Osgood. Are any of you familiar with that decision? Would you like me to read it? "In the matter of Sosso vs. Osgood, 86 New York 2nd 374, a copy enclosed herewith that the Town Law Section 267-b, Paragraph Three, which became effective as law on July 1, 1992, does not require that an applicant show practical difficulties and has been the law previously. In order to be granted an Area Variance, however, the Court of Appeals held that the Zoning Board of Appeals must consider the five specific criteria set forth in Town Law." That's the point I'm trying to make. I can't ~ee where he has met any of these criteria at all. "Section 267-b, Paragraph Three, Subsection b, in the case the Court of Appeals upheld the grant of an Area Variance by the Zoning Board of Appeals upon an application to permit construction of a boathouse on the applicant's lot, which did not meet the Zoning Ordinance requirements, or the area of the lot or width of the lot. However, in the case, the Court of Appeals found that the construction of the boathouse would not create any undesirable change in the character of the neighborhood, nor would the construction be a detriment to the adjoining properties. The Zoning Board has also concluded that the Area Variance would have a minimum impact on the nearby properties because the boathouse would comply with all setbacks, height restrictions imposed in the Zoning Ordinance. Further, the Zoning Board found that there was no alternative other than to grant the Area Variance that would permit the applicant to construct the boathouse without being granted the variance because of the size and shape of the lot." None of these factors appear to be present with regard to the application of Dr. Farhart. Obviously, there is an alternative that Dr. Farhart could pursue to construct the carport, and that is by simply placing it on the other side of his residence. It would not appear that the Area Variance would be required under those circumstances. The fact alone requires denial of the variance application. If this application for an Area Variance is granted, anyone seeking a variance from a side line requirement would have to be granted the Area Variance by the Queensbury Zoning Board of Appeals since there appears to be no justification for grant of this particular variance application. With regard to the side yard variance applications, there would be no reason whatever that if Dr. Farhart did not want to move the carport to the other side of his house, in the area where the trees or hedges are located, he could construct a carport 20 feet away from the boundary line with - 22 - ~'''' (Queensbury ZBA Meeting 8/28/96) the Sewn property. He may have to give up some of his basketball hoop area as shown in the photographs, but he certainly could construct a carport more than 20 feet away from the side yard adjoining the Sewn property. Merely because he does not want to interfere with the basketball area is a self created circumstance that does not justify granting an Area Variance. There appears to be no basis, when one considers the criteria for an Area Variance set forth in Town Law Section 267 Paragraph b for the Zoning Board to do anything other than deny this Area Variance application. You should note your objections on the Zoning Board. I've shown you the photographs of the property, and the point to where the carport could be constructed without the necessity of a side yard variance, and that's basically my argument. I mean, I have the same problem on my side of the hedges. I've got trees. I've got trees in my driveway. The people down the street have them also. As you can see from the pictures, I've got sections of my property in there that show, basically I have the same problem, and the seagulls fly over all our properties, allover Rockhurst. Now, if everybody up there is going to put up a carport, fine. Then we'll give them the variance, but if nobody can do it. MRS. SEWN-Well, I like your idea about a cover. I think that would be the answer to it all. MR. SEWN-It's cut and dry what the zoning law says, and this is my argument. There's no basis. He has not met the criteria, other than the fact that he wants to do it that way. MR. CARVIN-Okay. correspondence? Anyone else wishing to be heard? Do we have MR. THOMAS-No correspondence. MR. CARVIN-Okay. Are you all set? MR. SEWN-I'm all done. MR. CARVIN-Okay. Dr. Farhart? DR. FARHART-First of all, my wife did consult Ron about trimming the trees. In fact, he said he would even use the man, possibly, himself, to trim some of his trees. That's Number One. I want to make that clear. Number Two, there would be no justification for me to move the carport over to another area, because it would not solve the problem. The problem is the trees. There was no purpose for me to put a carport on the other side, because I have no problem with trees on that side, and so my whole thing is defeated. The other thing I'd like to say is this, I always have kept my property up very nicely. If you happened to check my Glen Street property, it's always kept up nicely, and I would not put anything that would not benefit the appearance of the neighborhood or the property, and if you were to look at my property, you would see that we put a lot of effort into making it beautiful. I even received a letter from the Lake George people at one time. I think it was Lake George Beautification or something, that they appreciated what I had tried to do, and so I don't feel that I am doing anything that is going to jeopardize the appearance of the neighborhood in any way. In fact, unfortunately for all of us, everything is pretty congested on Rockhurst, and if I could envision that 25 years, well, 1957 I bought the lot. I would certainly have bought a lot some place else, believe me, for that very reason, but at any rate, I just wanted to make that clear. I thank you for listening. MR. CARVIN-Any other public comment? PUBLIC HEARING CLOSED - 23 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Does anyone have any questions of Dr. Farhart? MR. MENTER-I have, not a question of Dr. Farhart, but just a point. Would he also not need relief from the section of 179-16 that requires a 50 foot aggregate setback? I don't think that was listed, but I think. MR. HILTON-No. We had the side setbacks. from the side and rear setbacks there. He would need relief MR. MENTER-The 50 foot aggregate side setback, because he has that shed on the other, on the south side. MR. HILTON-Well, he's not doing anything with the new, with the existing shed over there. It's just, we're dealing with this building, and he'd have to have his minimum of 20, with this carport here. MR. MENTER-Okay, even though he's got an existing setback on the other side of, what, a couple of feet? MR. HILTON-Yes. Even though, you know, there is a setback over there of less than 20 feet, we're just dealing with this, and he would need the minimum 20. MR. MENTER-Okay. MR. CARVIN-Any other questions? What's your thought, Bob? MR. KARPELES-MY thought? Well, I agree. I think Dr. Farhart has got a pretty property there, but beauty is in the eye of the beholder, and I don't think much of that carport. I think it cheapens the whole property, in mY opinion, and I do feel that it would be pretty bad if we allowed everybody in Rockhurst to have a carport that looked like that. That's my opinion. MR. CARVIN-Okay. Do you feel that, does he meet the criteria for an Area Variance? MR. KARPELES-I believe that it has a negative effect on the character of the neighborhood. MR. CARVIN-How about you, Don? MR. O'LEARY-Well, I agree with the Doctor that putting the carport where the tree is not doesn' t solve his problem. By the same token, the encroachment, while I don't think it is directly your line, I think that Staff is probably pretty close when they say it's about 26 inches. MR. SEWN-But it come nowhere near meeting the criteria. MR. O'LEARY-Well, it's blatant, I agree. MR. SEWN-And my whole objection here is, all you've got to do is move the car over. They've got 55 feet across the front of that, plus grass area to park on. I have to park on my grass when I have company. There is no reason that they have to put a carport blatantly in violation of the zoning laws and on my property line as I consider it. MR. CARVIN-I'm going to remind you that the public hearing is closed. If we have a question of anyone out there, then we'll ask it, but the conversation should remain to the Board. Okay. MR. O'LEARY-Well, the vote will be all telling. I think that it's a blatant encroachment, and I don't think that, I don't think it does anything for the property at all. - 24 - --./ (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-How about you, Bonnie? MRS. LAPHAM-Well, actually, I couldn't tell you any better than Bob did. I'm in complete agreement with him. I think it's visually polluting to the neighborhood, and furthermore I'm really tired of hearing these things after the fact. MR. CARVIN-Yes. How about you, Chris? MR. THOMAS-To me, you know, the carport shouldn't be there, even though it is the problem with the tree, but on the other hand, the Doctor is entitled to a garage on that property. I mean, he could put it on there up to 900 square feet. MR. CARVIN-That's true. MR. THOMAS-I mean, he'd probably need all kinds of variances to do it, but he could do it. To me, you know, which would be worse, a garage sitting there or this carport sitting there? MR. CARVIN-Yes, but is it minimum relief? MR. THOMAS-Is it minimum? MR. CARVIN-You have to go back to your Area Variance criteria. Is it self created? MR. THOMAS-Yes, it is self created. MR. CARVIN-Okay. Is it the minimum relief? MR. THOMAS-No. MR. CARVIN-Is the benefit by the applicant, can it be achieved by another feasible method? Is it substantial? Will there be an adverse impact or effect on the physical and environmental conditions in the neighborhood or district? And you have to, most importantly, weigh the benefit to the applicant against the detriment to the safety, health and welfare of the community and neighborhood. Now those are your criteria. MR. THOMAS-In my opinion, the Doctor has not met all the criteria. MR. CARVIN-Okay. How about you, Dave? MR. MENTER-I agree. In my mind, he's met very few, if any of them. We can't consider what the alternatives are. All we can consider is this, and it's not minimum relief, I don't believe. MR. CARVIN-I sympathize with Dr. Farhart and his plight. It's a plight that we all share similarly. I know I live on a wooded lot, and the pine pitch and everything falls on illY cars. However, we are guided by the criteria for an Area Variance, and I think as the neighbor has pointed out, and he's done a lot of homework, we have to meet certain criteria, and I do believe that the benefit, by placing that carport where it currently is, would, eventually cause and be detrimental to the health, safety and welfare of the neighborhood and community, but I think by granting of this variance that there would be an undesirable change in the neighborhood and the nearby properties. I think that the benefit that the applicant is seeking, in other words, relief from pine pi tch and so forth, can be achieved by methods other than the carport. I think that the relief is substantial. I mean, we're placing this practically on the property line. I think it is self created, and I don't think it's the minimum relief necessary to accomplish what the applicant is looking to do. I will point out that Mr. Thomas is correct. The applicant would be entitled to a garage, and if he wanted to build a garage, he still would have to - 25 - (Queensbury ZBA Meeting 8/28/96) meet the criteria, and I think that if a garage were to be built out there, that he probably could meet most of the side setbacks. Now it may not be a very large garage, and I think as the neighbor has pointed out, the garage may be centered over toward the basketball hoop, but there are other al ternati ves that you can explore to accomplish what you're looking to achieve. So, having said that, I'd ask for a motion. MOTION TO DENY AREA VARIANCE NO. 73-1996 DR. EDWARD G. FARHART, Introduced by David Menter who moved for its adoption, seconded by Bonnie Lapham: Who is seeking approval for an already constructed carport on his property on Rockhurst Road. The structure requires relief from setback requirements of Section 179-16. The applicant would benefit in that he would have protection for his vehicles that were parked in this particular location. It does, however, appear that there are several feasible alternatives to this structure, including use of what appears to be ample paved parking, or possibly a cover or maybe another location for vehicle protection. Relief would certainly be substantial relative to the Ordinance, as the proposed structure is virtually on, or very close to being on the property line. This structure would quite possibly have detrimental effects to the community, not only in its own visual appearance both to the neighbor and other, the immediate northerly neighbor and other neighbors, but more far reaching effects in terms of granting such a variance without satisfactorily meeting the criteria for such granting. The difficulty would appear to be self created in this case, again, as there appear to be other alternatives to meet the desired goal of protecting vehicles. Therefore, granting of this proposed location would certainly not be minimum relief from the Ordinance. It is also understood that as this structure is already in place, with denial of this variance application, I would require that the structure be removed within 20 days of passing of this motion. Duly adopted th~s 28th day of August, 1996, by the following vote: AYES: Mr. Menter, Mr. Karpeles, Mr. Thomas, Mr. O'Leary, Mrs. Lapham, Mr. Carvin NOES: NONE ABSENT: Mr. Green AREA VARIANCE NO. 75-1996 TYPE II WR-IA CEA NORMAN & JOYCE TEATOR OWNER: SAME AS ABOVE 92 HALL ROAD, OFF OF TEE HILL ROAD APPLICANT'S PROPOSE TO CONSTRUCT A TWO CAR GARAGE ON THEIR PROPERTY. THE PROPOSED GARAGE WOULD NOT MEET THE SIDE YARD SETBACK REQUIREMENTS OF THE WR-IA ZONE. RELIEF IS BEING REQUESTED FROM THE SETBACKS LISTED IN SECTION 179-16. WARREN COUNTY PLANNING 8/21/96 TAX MAP NO. 45-3-28 LOT SIZE: 0.47 ACRES SECTION 179-16 MATT STEVES, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 75-1996, Norman & Joyce Teator, Meeting Date: August 28, 1996 "APPLICANT: Norman & Joyce Teator PROJECT LOCATION: Hall Rd. Proposed Project and Conformance with the Ordinance: The applicants are proposing to construct a two car garage on their property. The new garage would not meet the setback requirements of the WR-IA district. The garage would be built 15 feet from the side property line. Relief is being requested from the setbacks listed in Section 179-16. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicants to build a garage on their property that would not meet the side - 26 - (Queensbury ZBA Meeting 8/28/96) setbacks. 2. Feasible alternatives: The applicant may have the ability to move the garage so that it would meet all zoning requirements. 3. Is this relief substantial relative to the ordinance? The applicant is seeking 5 feet of side setback relief. 4. Effects on the neighborhood or community? It appears the proposed garage would not have a negative impact on the surrounding neighborhood. Additional comment may be provided at the public hearing. 5. Is this difficulty self created? Automobiles accessing this property would be able to use a garage that met zoning requirements without much difficulty. staff Comments & Concerns: Staff believes that the proposed garage would not have a negative impact on the surrounding neighborhood. However the ZBA should determine whether or not the applicant has the ability to build a garage which meets the requirements of the Zoning Ordinance. SEQR: Type II, no further action required. II MR. THOMAS-IIAt a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for an Area Variance for a two car qaraqe that can not meet required side line setback., was reviewed and the following action was taken. Recommendation to: No County Impact" Signed by C. Powel South, Chairperson. MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? I just have a question of the applicant. Staff says that the ZBA should determine whether or not the applicant has the ability to build a garage which meets the requirements. What is your comment? MR. STEVES-My name is Matt Steves with Van Dusen and Steves. The reason that the garage is proposed where it is, and the way it is facing with the roof line being north/south is to conform with the existing roof line of the house. This is in keeping with the character of the existing house and right in line with the building that exists, being the house, and the roof line. By offsetting it five feet, that's what you get. You get an offset roof line of five feet that would most likely be visible not only from the lake but also from the, it would impede the view of the front of their house. So it is our belief that this is the best location for the garage. NORMAN TEATOR MR. TEATOR-Your question was whether we can afford it? MR. CARVIN-No, whether you can build a garage in compliance. MR. TEATOR-In compliance. MR. CARVIN-In compl iance . George? So they would need, what, 20 feet, MR. STEVES-That's correct. MR. HILTON-Yes, 20. MR. MENTER-How would it impede view? MR. STEVES-We're trying to keep the roof lines in line. MR. MENTER-The view of the house from the lake. MR. CARVIN-Have you thought about attaching it right to the house? MR. STEVES-That retaining wall, there is a slight difference in elevation there, not much. It does go into grade and then gets higher as you come out toward the south. At this time there's no - 27 - (Queensbury ZBA Meeting 8/28/96) intentions of connecting it to the house. MR. CARVIN-Okay. answer? Is everybody satisfied with the applicant's MRS. LAPHAM-How tall is the garage, it's going to be one story? MR. STEVES-Yes. The parking with just a roof above it, storage, attic, no living space. MR. CARVIN-Give me a height. MR. STEVES-Twenty-one feet, which is consistent with the house. MR. KARPELES-I don't see how you could see that from the lake, the garage, you can't see it. So the fact that it's not in line doesn't have any impact from the lake. MR. CARVIN-No. What he's saying is that if they moved it in here, it would be. MR. STEVES-Looking toward the lake. MR. KARPELES-Looking from the road. Okay. MR. STEVES-It'll also be consistent with the color of the house that is there now, a natural light brown color. MR. CARVIN-When I was out there, there was a bunch of trees. Are there going to require a lot of tree removal? MR. STEVES-No. It's basically going, as you can see, right where the existing driveway is, and that small existing turnaround will be removed. I do not believe there's any substantial trees there. Maybe one or two small trees. MR. TEATOR-Most~y brush. MR. STEVES-That's correct. MR. CARVIN-It looked like it had been cleared out in there anyway. Okay. Does anybody else have any questions? MR. O'LEARY-I'm just curious. It seems that the garage is at least equal to or better than the house setback. MR. STEVES-That's correct. MR. STEVES-What would be the northeast corner of the house is approximately 14.6 feet. So we're five inches farther back, but we're also parallel and perpendicular to the house. MR. CARVIN-Okay. Any other questions, anyone? Okay. I'll open up the public hearing. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. CARVIN-Okay, folks, what's your thoughts? MR. O'LEARY-I think, aesthetically, it looks like it's in line with the house property as it exists on the lot right now, and if the Staff has no problem with it, and we have no public comment against it, I see no difficulty. - 28 - '- (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Okay. MRS. LAPHAM-I feel the same way. I was just concerned it might be a little bit too tall, but as long as you can't see it from the lake, I don't think it's a problem. MR. CARVIN-Okay. Would you be more comfortable if it was to be no higher than the roof line of the existing house? MR. STEVES-That's the intention. MR. MENTER-Is that the intention, to match it? MR. CARVIN-Okay. How about you, Dave? MR. MENTER-I'm probably a little less convinced that the aesthetics make up for the location. I'll leave it at that. MR. CARVIN-Okay. Bob? MR. KARPELES-Well, I'm not, in my own mind, keeping that roof line in line doesn't really carry much weight, but I think there are a lot of other ways the garage could be' aligned, so that it would still look good, but on the other hand, if the neighbors don't object and we're only looking for, what, five feet of variance, I guess I could live with it. MR. CARVIN-Chris? MR. THOMAS-No. I agree with all the other Board members. Keeping everything all lined up is more aesthetically pleasing than to offset it by five feet. MR. CARVIN-Here again, the benefit to the applicant as weighed against the detriment to the community, I think, warrants relief. The location of that garage in relation to its neighbors, the wooded nature of that lot, I don' t think that garage would be unobtrusive. I think if they keep it in line with the height of the house, and it's going to be what, 24 by 21, which is 4, 500 square feet, something like that. I don't have a problem with this, and I'd ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 75-1996 NORMAN &: JOYCE TEATOR, Introduced by Bonnie Lapham who moved for its adoption, seconded by Chris Thomas: The applicant seeks to construct a two car garage on their property. The new garage would not meet the setback requirements of the WR-IA district. The garage would be built 15 feet from the side property line. Relief is being requested from the setbacks listed in Section 179-16. The benefit to the applicant would be that the applicants could build a garage on their property that would not meet side setbacks. There do not seem to be feasible alternatives that would meet the aesthetic criteria, and also allow their home to be visible from the road. Is the relief substantial to the Ordinance? The applicant is seeking five feet of side setback relief, which does not seem to be substantial. There appears to be no effect on the neighboring community. We've heard no public comment against it, and the difficulty does not seem to be self-created, as there's already a driveway leading into that. I would further condition the application that the garage be no higher than the existing roof of the house where it will be placed directly behind. Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mr. Menter, Mr. Karpeles, Mr. Thomas, Mr. O'Leary, Mrs. Lapham, Mr. Carvin - 29 - (Queensbury ZBA Meeting 8/28/96) NOES: NONE ABSENT: Mr. Green USE VARIANCE NO. 69-1996 TYPE: UNLISTED SR-IA LORRAINE JUDE SPERO OWNER: SAME AS ABOVE 972 RIDGE ROAD APPLICANT PROPOSES TO USE HER PROPERTY FOR THE SALE OF HANDCRAFTED ITEMS FROM AN EXISTING GARAGE. AS A PART OF THIS SALE THE APPLICANT PROPOSES TO USE A SIGN IDENTIFYING THE SALE. RELIEF IS BEING REQUESTED FROM THE ALLOWED USES LISTED IN SECTION 179-19 AND THE REGULATION REGARDING PLACEMENT AND NUMBER OF FREESTANDING SIGNS LISTED IN SECTION 140- 6B,3. WARREN COUNTY PLANNING 8/21/96 TAX MAP NO. 54-1-10 LOT SIZE: 1.73 ACRES SECTION 179-79, 140-6B,3 LORRAINE JUDE SPERO, PRESENT STAFF INPUT Notes from Staff, Use Variance No. 69-1996, Lorraine Jude Spero, Meeting Date: August 28, 1996 "APPLICANT: Lorraine Spero PROJECT LOCATION: 972 Ridge Rd. PROPOSED PROJECT AND CONFORMANCE WITH THE ORDINANCE: The applicant is proposing to use her property for the sale of handcrafted items from an existing garage. As a part of this sale the applicant proposes to use a sign identifying the sale. Relief is being requested from the allowed uses listed in Section 179-19 and the regulation regarding placement and number of freestanding signs listed in Section l40-6B, 3. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE IF THE LAND IS USED AS ZONED? It appears that this property which is currently being used as a single family residence could realize a reasonable return if used as zoned. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? The characteristics of this property appear to be the same as the surrounding neighborhood. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? The proposed use could lead to requests of the same nature throughout this residential area. 4. IS THIS THE MINIMUM VARIANCE NECESSARY TO ADDRESS THE UNNECESSARY HARDSHIP PROVEN BY THE APPLICANT AND AT THE SAME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEALTH, SAFETY, AND WELFARE OF THE COMMUNITY? The applicant has the option of operating a home occupation at this location. The regulations for a home occupation are listed in the Zoning Ordinance. STAFF COMMENTS AND CONCERNS: If the ZBA chooses to grant relief for this application a separate sign variance will not be needed. The applicant is seeking relief for proposed signage as a part of this use variance application. ,SEQR: Type Unlisted, Short Form EAF required. " MR. THOMAS-IIAt a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for a Use Variance for the sale of handcrafted items from existinq qaraqe. was reviewed and the following action was taken. Recommendation to: No County Impact" Signed by C. Powel South, Chairperson. MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? Okay. Does anyone have any questions of the applicant? MR. O'LEARY-I just had one question, Mr. Chairman, on the Staff comment. If the Board chooses to grant relief, the applicant is seeking relief of total signage as part of this. Are these two tied together? MR. CARVIN-Well, that would be my interpretation here. MR. O'LEARY-So if we grant relief from the Use, we would be granting relief for the signage. - 30 - ',-, (QueensburyZBA Meeting 8/28/96) MR. CARVIN-Not necessarily. MR. HILTON-Right. You have the option. MR. CARVIN-We have the option of either one. Any other questions? MRS. LAPHAM-I have a question, for George. I'm reading that the applicant has the right to have a home occupation and to do her craftwork and sell it from that garage without a variance. Is that correct? The applicant has the right to have her craftwork be sold from her garage as a home occupation now? MR. HILTON-She has the right, under the existing zoning, to operate a home occupation at this location. A home occupation, two of the requirements are that you cannot sell any merchandise from the site, and you cannot use signage on site. The fact that she's proposing to have an on-site sale and use a sign, the use then becomes a commercial business at this location, and therefore this Use Variance is being applied for. MR. CARVIN-Okay. I'm going to ask the applicant, these quilts. Are they all handmade by you? MRS. SPERO-Yes, they are. MR. CARVIN-Okay. You buy no pre-made quilts or anything? MRS. SPERO-No. MR. CARVIN-Okay. you? All the handcraft stuff is made personally by MRS. SPERO-Yes. MR. CARVIN-In other words, there's nothing that's warehoused or brokered through? MRS. SPERO-No. Occasionally, we have an open house where I would invite some other craft friends, and we would, it would be just kind of a craft sale, but that's really, we've only done that about two times, but basically everything that's sold on the premises are made by me. MR. CARVIN-Okay, and how long has that sign been up out front? MRS. SPERO-Well, actually, it's on wheels, and we used to just bring it in and out when I was going to be open, and I really, I just started this whole thing with just having one quilt hanging out on the front lawn, and it just started, we just started doing it in the garage, and last year was really when the sign really went up and then this spring I left it out permanently, and I guess that's when I was encouraged to get the variance. MR. CARVIN-Okay. Any other questions by anybody? open up the public hearing. If not, I'll PUBLIC HEARING OPENED JIM GRAY MR. GRAY-My name is Jim Gray. I live two houses down from the Spero's. The business that Mrs. Spero has conducted has pretty much gone undetected from illY house. I don't have a problem with it, being her neighbor. MR. CARVIN-Okay. - 31 - (Queensbury ZBA Meeting 8/28/96) MRS. SPERO-Yes. It's basically a very quiet little operation. If I have three cars a week. I mean, this year especially it's been very quiet. There's been no impact on the road, as far as traffic problems or anything of that nature. I mean, if you go to a garage sale, there's a lot of chaos going on and that's something that never occurs. MR. GRAY-It's not like that on that road. MRS. SPERO-No. MR. GRAY-It's pretty much undetected from my house, and I live two houses down. So as a neighbor, I don't have a problem with her doing that. MR. CARVIN-Anyone else wishing to be heard in support? opposed? Anyone opposed? Any correspondence? Anyone MR. THOMAS-No correspondence. MR. CARVIN-Any other public comment? Seeing none, hearing none, the public hearing is closed. PUBLIC HEARING CLOSED MR. CARVIN-Does anybody have any questions? MRS. SPERO-If I may address the Board. I've tried other options in merchandising my goods, and basically I was in a store in Aviation Mall, and I was in small claims court on Monday because the store closed and they refused to pay me the money that is owed to me from the sale of my goods, and it's been a real problem exploring some other options, and like I said, I really do need to be at home. I have a handicapped child who is in need of continuous supervision. He's very impulsive, and, quite frankly, I don't want a day care provider caring for my handicapped child, and I really feel I should be able to continue to sell my goods from my home and, quietly as I've done so in the past. MR. CARVIN-Part of the Use Variance criteria, and it's a part that's gaining tremendous weight over time, is that the applicant cannot realize a reasonable return provided that the lack of return is substantial as demonstrated by competent financial evidence. All right. Do you have any, can you demonstrate competent financial evidence? MRS. SPERO-In other words, you'd like to see our financial statement of what our earnings are? MR. CARVIN-Right, in other words, that you can't make a go of it as it's currently zoned, and it's zoned as a residential. MRS. SPERO-Okay. Well, it's rare, in this day and age, that there's a family with children that can get by on one salary, and I don't know if I'm answering this question correctly, but. MR. CARVIN-The next criteria, is it unique. MRS. SPERO-Well, yes, because I have a handicapped child, and I think that would set me apart from Joe down the road who may decide he wants to fix lawn mowers in his garage. MR. CARVIN-Okay, and will it alter the essential character of the neighborhood. Now, remember, as we go down through the list. MRS. SPERO-I don't think so, because we have a fruit and vegetable stand just down the road. We've got Smith's Equipment. There's the TLC boat place. There's the Oneida General Store. There's the - 32 - (Queensbury ZBA Meeting 8/28/96) Mohican Grange. There is Gwinup's. MR. CARVIN-Yes, but are they single family residences? know what the zonings are. I don' t MRS. SPERO-Well, there used to be Adirondack Glass which was down the road there right next to Smith's Equipment. There was a day care center with a sign out. There has been breakfasts. There's quite a number of businesses along Ridge Road. MR. CARVIN-Okay, and is this alleged hardship, basically, self created? MRS. SPERO-No. MR. CARVIN-And is it the minimum relief necessary? MRS. SPERO-Yes. MR. CARVIN-To protect the character of the neighborhood, health, safety and welfare of the community? And I've got to tell you, right up front, that I have a very hard time with commercial ventures in residential areas. So you're going to have to convince me, personally, as one vote, and good luck. I mean, I haven't heard anything here, so far, that meets the criteria. I don't have competent financial evidence. I don't feel it's unique. I think it will alter the essential character of the neighborhood, because the next guy that comes in, your next door neighbor decides to open up a small motor repair shop. MRS. SPERO-But does he have a handicapped child that needs care for at home? MR. CARVIN-I don't know. Maybe he does. Maybe his wife isn't working and maybe he's unemployed. I don't know. MRS. SPERO-Then that would make him unique in that. need there. There is a MR. CARVIN-Can he show me the competent financial evidence? MRS. SPERO-Are you asking me if I were to sell my home and it was not, and I didn't have a Use Variance, for which I understand, if I were to sell my home, that Use Variance would no longer apply? MR. CARVIN-I'm saying that once we grant a Use Variance for a commercial venture in there, it goes with the land, that if you decide to move, that that stays there forever. MRS. SPERO-That was not the intention of, changing the zoning of. MR. CARVIN-That's why, as far as I'm concerned, and I'm only speaking for me. Now the rest of the Board members may feel terribly different. MRS. SPERO-That was not the intention, to change the actual zoning of the property. MR. CARVIN-But that's what you're requesting. MRS. SPERO-That is not what I was led to believe when I, I had a meeting with Jim Martin and John Goralski, and also with Fred Champagne, and they told me that applying for this Use Variance was not going to change the zoning of my property, and if the time came that I were to sell my property, that variance would no longer exist. MR. CARVIN-That is incorrect. - 33 - (Queensbury ZBA Meeting 8/28/96) MRS. SPERO-Well, isn't there a way that that stipulation could be applied in this case? MR. CARVIN-Not easily, because variances go with the land. MR. HILTON-The zoning of the property would not change. still have the same designation. You'd MRS. SPERO-That's right, it would be residential. MR. HILTON-But the use of the property that you're asking for would run with the land. MR. CARVIN-Has changed. MRS. SPERO-Well, I was told that it would be set up that when and if the time came that the property were to be sold that that variance would no longer exist. MR. CARVIN-That's incorrect, and that's why I have a very hard time putting commercial ventures in residential areas, because over time, the only reason a person goes into business is to let that business grow, and what happens is that we have growth of commercial ventures in residential areas. They sell the business and somebody else comes in and makes the business grow even bigger, and we end up with, I know that's not your intention, and that's what I'm saying, you prove to me, here, that I have enough to grant the variance, and we've done it. I mean, I'm just saying from illY standpoint, I haven't heard enough. I don't know what the rest of the Board feels like. MRS. SPERO-Well, I mean, I would think for the short time during the year that I'm actually open to the public to come, which would only be weather permitting because I'm not certainly going to leave my garage doors open with the snow flying in the door, that I'm only open for a few months out of the year, and for me to be able to work at home and be there with my children, especially during the summer months when they're not in school, I feel I should certainly be allowed to do that. That's the only time of year that I get any business there. Last year, I had over $8,000 in sales, and I believe that was a pretty substantial amount of money to pursue this. Because we need a second income, and I need to be home with my children. MR. CARVIN-And that's what happens in these residential areas. Next year it's $10,000. Then it becomes $20,000. So instead of having one car, now you have 10 cars, and next year you have 50 cars. MRS. SPERO-Well, I don't agree with that. I really feel I should be allowed to do this, and I have not created any impact whatsoever on my community. My neighbors haven't had a problem. As a matter of fact, my neighbor on the south side of me was very happy to draw my maps and everything and help me fill out my Use Variance, that's Ray Buckley, and I have been an upstanding member of this community. I've been a Cub Scout leader. I'm a 4-H leader. I have taught quilting classes for free in Queensbury Elementary School for donation for AIDS babies, and I give a lot to my community, and I'd be really disappointed to see that my community wasn't willing to help ~ out, to be a stay at home mom. You're legitimately forcing me to put my children into day care, by not allowing me to do this. MR. CARVIN-Well, I'll ask, what's the rest of the Board feel? MR. O'LEARY-I've got a question, Mr. Chairman. Could we not restrict, sufficiently, the wording of the variance to be specific to the specific business there? - 34 - (QueensburyZBA Meeting 8/28/96) MR. CARVIN-It's been done in the past, but it's been challenged in court, and it's been found that it doesn't stand up, and we have legal counsel here. He may argue, but, yes, we've done that on occasion, but I'm not confident that any of those would ever stand the test of a court case. If I'm speaking wrong, correct me. MR. FRIEDLAND-Typically, a variance does run with the land, and it goes with whoever else moves in. It's not particular to that person. It goes with the land, typically, that's the general rule. MR. CARVIN-Now there are exceptions to that, but what I'm saying is that I don't feel that this is a unique enough situation to warrant that. If this was in a semi commercial area or any other area, and this is a personal bias, on my part. I just am a real stickler on putting commercial ventures in residential areas, point blank. MRS. SPERO- It's not the only business on the road. unique. It's not MR. CARVIN-I can't speak for the rest of them. they got there. I don't know how MRS. SPERO-But they're there. MR. CARVIN-I realize that, and that's the same argument that the next person comes in and says, your next door neighbor says, well, if she's selling quilts, why can't I fix lawnmowers, or why can't I repair boats, or why can' t I do this, and that's the same argument, and I'm just saying that I've listened to all of the arguments. In residential areas, I just have a very hard time. Now, again, I'm only one vote, and I don't know what the rest of the Board feels. Dave, you look like you're. ready to say something. MR. MENTER-Yes. Because the variance goes with the property, the uniqueness of your situation is not the question. The question is the uniqueness of the property. Okay. I empathize with your situation. I understand your reasonings and the logic behind it all, but in terms of weighing out, you know, what the criteria are, and there's certain things, particularly in a Use Variance like this where we have very little latitude, because it's gone through court enough times and they've come up with the same ruling enough times, where the question is, could the property be used and there be a reasonable financial gain, if it is used as zoned only, and if the answer is yes, and my interpretation is that we cannot give a Use Variance. So in this case, you know, the question is, can that property return a reasonable return if it's used as a home only, and in my estimation, it can. Therefore, I cannot grant a Use Variance for that. MRS. SPERO-Why isn't there some sort of a variance that would apply here where, if and when we were to sell the home, that this no longer exists? I don't understand why something like that cannot be created in this circumstance. MR. CARVIN-Because you may not sell the home for 30 years, and it becomes an enforcement action. It becomes an enforcement action. MRS. SPERO-I don't understand what you mean? MR. CARVIN-I'm saying that if we were to do this across the board, we could have hundreds, and who's going to supervise these? MR. MENTER-There's no guarantee as to what your business will become. MR. CARVIN-There's no guarantee. - 35 - (Queensbury ZBA Meeting 8/28/96) MR. MENTER-And it would be very difficult to get into limiting you to a specific volume of business and it would just become an absolute nightmare, and in the interest of protecting neighborhoods and neighbors and people who will be neighbors down the road, you know, it's. MRS. SPERO-There are, from what I understand, no restrictions on garage sales in the Town of Queensbury. This is what I've been told by the Code Officer. This is nothing more than a glorified garage sale for selling quilts. I have quilts in my garage and there's a little sign out there by the garage indicating the fact that I sell quilts, and that's all it is. It's not a retail store. I'm not erecting a building. I don't have neon signs flashing. There's not an amusement park in my back yard. There are some quilts in my garage, a garage sale type of operation. I don't understand what the big problem is here. It's not like we're setting a precedent or I'm putting up Sutton's Farm Market over there or anything like that. It's a garage. It's just my garage. I have no intentions of doing anything different than what I'm doing there now. MR. CARVIN-Bob, what do you think? MR. KARPELES-Well, I agree with everything you've said. I have some questions. I think it is setting a precedent. I disagree with you, and how long have you lived there? MRS. SPERO-Since 1988. MR. KARPELES-And it was zoned this way when you moved in? MRS. SPERO-Yes. MR. KARPELES-So you knew that you were moving into a residential area, and you knew what the requirements were. MRS. SPERO-Yes. When I began this whole business, if that's what we're calling it at this point, I never realized that I was doing anything wrong, because I thought I was having a garage sale, and I really, at this point, up until the time that I was instructed that I needed a Use Variance to do this, this is what I believed. The fellow that came by the other day to inspect the property asked me the same question, and it's always been on a garage sale level. It's never been anything more than that, in all that time that it's been there. I don't even use the whole garage. I use half the garage. There's a car in the other half of the garage. MR. THOMAS-I've been going through the New York Zoning Law and Practice here, the supplement that just came out, talking about Use Variances, and everyone of these court cases mentions dollars and cents, by evidence in dollars and cents form. Everyone of them, and we haven't seen dollars and cents tonight, but on the other hand, Mrs. Spero says that it's no more than a garage sale, which it really is. I mean, how many times do you go down the road and you see a garage sale sign out, and, I mean, there's a lot of cars in and out of a garage sale. MR. CARVIN-Well, I think we're getting into an area of what's the definition of a garage sale. I mean, most garage sales are one or two weeks in duration. Now I'm not saying that there aren't somebody and some people out there abusing the term "garage sale", the same as there are people out there abusing the 55 mile and hour or 65 mile an hour speed limit. MR. THOMAS-That's true, but if Mrs. Spero didn't have the sign out there, who would know? MR. CARVIN-Well, I think that's part of the problem. - 36 - ,--- (Queensbury ZBA Meeting 8/28/96) MR. THOMAS-Yes. So if the sign wasn't there, who would know? MR. CARVIN-We're not taking away her ability to have a home occupation. According to the guidelines, it just says that you can't have the retail sales. MRS. SPERO-You're taking away my ability to sell my merchandise. MR. CARVIN-Only from your home, and that was done because the zone there is for residential. MRS. SPERO-And like I said, I've explored other options, and the bottom line is that. MR. CARVIN-Because your neighbors bought their homes on the pretense that these were going to be residential. MRS. SPERO-My neighbors bought, the people that live next door to me on the right, bought that house during the time that I had been selling my quilts there, and they never had a problem with that. Mr. Buckley's never had a problem with that. Mr. Grey has never had a problem with that. There is no one across the road from me that has a problem with that. There -is a boat place across the road from me, with the sign. There is the vegetable stand up the road from me. There's a guy on Chestnut Ridge selling night crawlers, that big sign right there on the corner, "Night Crawlers". Nobody's bothering him. MR. CARVIN-Again, that's an enforcement. I don't know. I can't give you an answer. I don't know what the difference is. That might be worth a phone call to the Staff and you might have an enforcement issue there. They may be before us. also. I don't know. MRS. LAPHAM-I was kind of thinking in the'same direction that Chris was, that (lost words) go by Mrs. Spero's house quite often. It is very quiet. It's very unobtrusive. Once in a while I see the sign, but I have trouble granting a variance that would allow a business there for any amount of time, for other people that wouldn't be an unobtrusive as Mrs. Spero, and I don't know how exactly to get around or deal with this or whatever, because I don't have a problem with her particular business. I have a problem with the variance on Ridge Road. MR. 0' LEARY-I would like to ask something, Mr. Chairman. Ironically, I think that, had Mrs. Spero not requested the variance, she could have continued her business without objection by anyone. She is right, within a stone's throw you have a boat business and repair and storage and not too far away, I believe, there's auto repair, something of that nature. So I don't think the impact on the neighborhood would be anything at all, but I agree with you that I would be hesitant to give a variance that would allow business in an otherwise residential area, but I would like to see if we could explore a restrictive enough variance to split a hair. MR. CARVIN-That's up to the Board. I mean, you're not familiar with my position, but I've never found the Board that was able to come up with, right folks? I mean, you try to put restrictions on it, and you just end up going around in a circle, but if that's the direction the Board wants to move, then certainly we can entertain that. MRS. SPERO-I've stated that I'm very willing to comply with any restrictions regarding this matter, and it's a sign sworn statement that it'll never leave my garage or, if I have more than five cars there, I'll tell them to leave. - 37 - (Queensbury ZBA Meeting 8/28/96) MRS. LAPHAM-And your sign is on wheels? MRS. SPERO-Yes, it is. I also would like to state that if my variance is granted, I would like to put up something a little bit nicer there, probably not even as big. I just kind of have this big old clunky sign there, because we wheel it back and forth, and I would definitely, aesthetically, out there would be a much nicer looking sign there. Probably not even as big as what's there now. I'm sure, and that would be something like the bed and breakfast has, something along those lines. MR. CARVIN-If there's no other questions, has anybody got any thoughts? If you want to work out some kind of compromise, otherwise I'm going to ask for a motion, either to approve it or to deny it, or you can table it until Mr. Thomas' administration. You do have 60 days to make a decision. MR. THOMAS-Like I said before, to me this is just like a, more or less a small garage sale, and I think the only, the big problem here is maybe the sign, okay, and the fact that, you know, Mrs. Spero stated there's only, what, maybe three cars a week come in there, you say? MRS. SPERO-I would have been happy this week, this summer, if I got three cars a week. It's been really quiet this year, and last year it was really not that much busier, but people come to me to order quilts, and that's a unique opportunity for people to be able to do that, to pick out their fabrics, get what they want. I offer a service to the community, and I have a lot of local repeat business, and I'll lose all that if I do not get this variance, and that would seriously effect our family income. MR. THOMAS-So you do a lot of repeat business that people already know that you're there that you really wouldn't need a sign, right? MRS. SPERO-Well, yes, I believe I would, because how would other people get to k?ow that? MR. THOMAS-How about if you hung a quilt out there and just said, for sale? MRS. SPERO-Well, you know what happens when you hang quilts out in the sun for any length of time? They fade and then they're worthless. MR. THOMAS-I wouldn't know. I'm not married. MR. CARVIN-I'm still saying you're going down the path of growth. MRS. SPERO-I've lost many a quilt that way, and they get dirty, and sap from trees fall on them. I know Dr. Farhart understands that problem. MR. THOMAS-You're not getting a portable garage. MRS. LAPHAM-Do you have a mailbox in front of your home? MRS. SPERO-Yes, I do have a mailbox. MRS. LAPHAM-Have you ever thought about maybe painting it, you know, the numbers of your house quite large on your mailbox and calling your business whatever number you are? MRS. SPERO-972 Ridge Road. Well, we have our name on a sign there on the mailbox. MR. THOMAS-It's a commercial business, okay. There's no doubt about it, but I don't think it's a thriving commercial business, - 38 - '-- (Queensbury ZBA Meeting 8/28/96) and Mrs. Spero, she's only one person. She can only make so many quilts, and according to the Ordinance for a home occupation, you can only have one outside person in there. MR. MENTER-Well, it's not a home occupation. That's got nothing to do with it, because a home occupation means you cannot sell anything out of the house. MR. CARVIN-Once we open it up, I mean, it's a commercial venture. I'm telling you, this Board is venturing into some thin ice. MR. MENTER-I just can't see it meeting the criteria for granting a Use Variance, restrictive or otherwise. MR. THOMAS-Well, why don't we go back to the first question here. Where's the dollars and cents, in writing? There's where the hang up is right there. MR. MENTER-Yes, and I don't think that's an optional criteria. MR. THOMAS-No, all four have to be answered. MR. MENTER-Yes, and to me, that's the first and probably the most difficult and the way I see it, if that one's not met, you know, you really don't need to continue because you can't, you know, in your mind, you can't do it. MR. CARVIN-Well, just remember, with a Use Variance, you have to meet all the criteria. With an Area Variance you do have a little bit of latitude, but the Use Variance is the hardest variance to grant, and rightfully so. MR. MENTER-And again, to me, it's a question of uniqueness of property, not necessarily the uniqueness of the situation of the property owner. MRS. SPERO-There's got to be some leniency somewhere. I mean, are these things really that cut and dried? If it was your wife and your handicapped child, who would you want raising your handicapped child? MR. MENTER-There's no question. MRS. SPERO-Well, there you go, now. If you're taking away the source of income and forcing the parents of this child to have this child cared for by strangers, what would you do? MR. CARVIN-Okay, but I've also heard that you've marketed your wares at other places. MRS. SPERO-Yes, I have, and what's happened to me is I have had the store, the store has closed. It's absconded with my money. I have been in small claims court. MR. CARVIN-Was this the first time you've ever done that, or have you marketed in other places where you were successful? MRS. SPERO-I have done things on consignment level, and the take is so high, I don't get my merchandise, get my materials wholesale that I buy. I have to pay the same price that everyone else does. MR. CARVIN-But the point is there are other venues that you could explore. MRS. SPERO-There are, but they are not profitable. If I have to go into a store and pay 35, 40% consignment fees, plus rent, to be in these stores, then where's my profit going to come from? What is the point of me bothering to do this? I mean, it just doesn't work - 39 - (Queensbury ZBA Meeting 8/28/96) that way, and if it was an option for me to go and rent store front, or to do something like that, well, by gosh, I'd be doing that, but it's just not feasible at this time to be able to do that. MR. CARVIN-I hear your arguments, and I still come back to the reason that I bought my home in a residential area is that I did not want to have commercial ventures of any type opening up near me. MRS. SPERO-But the area that we are referring to already has a lot of commercial ventures going on there. MR. CARVIN-And again, I'm standing by that they may be pre- existing. I don't know where they came from, and they may be in different zones. They may be zoned properly. MRS. SPERO-But regardless, the neighborhood has these businesses going all up and down along Ridge Road. MR. CARVIN-And then that's the same argument that every person that comes in for a Use Variance can use, and if we had to grant it on that basis alone, we might as well tear up the book and go home, because believe me. MRS. SPERO-But if you're granted a variance because of a unique situation, that sets you apart from Joe who wants to fix lawn mowers down the road. I mean, not everybody can just waltz in here and say, well, hey, I have a handicapped kid. Lets fix lawnmowers. That's just not the way it's going to be. I mean, God gives you handicapped children for a reason, and I would like to be able to raise my handicapped child, not to have someone else do it. MR. CARVIN-What's the Board want to do here? I mean, we can table it for 62 days, or we can move it. Give me some direction. MR. MENTER-I'll try to make a motion. I'll start with that, I guess. MOTION TO DENY USE VARIANCE NO. 69-1996 LORRAINE JUDE SPERO, Introduced by David Menter who moved for its adoption, seconded by Fred Carvin: Who is proposing to use her garage on your property on Ridge Road at 972 Ridge Road to sell hand made quilts, and also to erect a sign stating that on the road. It does not appear to me that it has been shown that a reasonable return is not possible on this property if it is used as ·zoned. In addition, the hardship, the personal hardship of the applicant is not necessarily illustrative of a hardship on the property. There does not seem to be a uniqueness of the specific property relative to the other homes in the area. This action would quite possibly not have a negative effect on the neighborhood in the short term. However, commercial venture in a residential area always has the potential, just by its nature, of growth, and possible adverse effects down the road. This would appear to be the minimum variance necessary to meet the applicant's needs. However , given the fact that all of the criteria would not appear to be met, it doesn't seem possible that a Use Variance could be granted in this case. Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mr. Karpeles, Mrs. Lapham, Mr. Menter, Mr. Carvin NOES: Mr. Thomas, Mr. O'Leary ABSENT: Mr. Green MR. CARVIN-Four to two, it's denied. Okay. - 40 - '- (Queensbury ZBA Meeting 8/28/96) USE VARIANCE NO. 70-1996 TYPE: UNLISTED SFR-1A NIAGARA MOHAWK POWER CORP. OWNER: SAME AS ABOVE WEST SIDE OF COUNTRY CLUB ROAD, JUST SOUTH OF THE WARREN COUNTY BIKEWAY APPLICANT PROPOSES CONSTRUCTION OF A STORAGE BUILDING AT THE QUEENSBURY ELECTRIC SUBSTATION ON COUNTRY CLUB ROAD. THIS PROPOSED USE DOES NOT CONFORM TO THE USES ALLOWED IN SECTION 179 - 2 0 . WARREN COUNTY PLANNING: 8/21/96 TAX MAP NO. 63-1-2 LOT SIZE: 9.94 ACRES SECTION 179-20 JOE KRYZAK, REPRESENTING APPLICANT, PRESENT MR. THOMAS-Mr. Chairman, before we start this variance, I would state I will not be voting on this variance, but I would reserve the right to ask questions, and I will stay on as Secretary, due to the fact that I am an employee of the Niagara Mohawk Power Corporation. STAFF INPUT Notes from Staff, Use Variance No. 70-1996, Niagara Mohawk Power Corp., Meeting Date: August 28, 1996 "APPLICANT: Niagara Mohawk Power Corporation PROJECT LOCATION: Country Club Rd. PROPOSED PROJECT AND CONFORMANCE WITH THE ORDINANCE: The applicant proposes to construct a storage building at the existing Queensbury electric substation on Country Club Rd. The proposed expansion of this nonconforming use does not conform to the allowed uses in the SFR- lA district. Relief is being requested from the uses in Section 179-20. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE IF THE LAND IS USED AS ZONED? The property is currently being used as an electrical substation for Niagara Mohawk. 2 . IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? The use of this property is unique in comparison to the uses in the surrounding neighborhood. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? The addition of a storage building at this location is not likely to have an adverse impact on the surrounding neighborhood. 4. IS THIS THE MINIMUM VARIANCE NECESSARY TO ADDRESS THE UNNECESSARY HARDSHIP PROVEN BY THE APPLICANT AND AT THE SAME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEALTH, SAFETY AND WELFARE OF THE COMMUNITY? It appears this request would satisfy the applicant's needs and have the least impact on the community. STAFF COMMENTS AND CONCERNS: This application for the addition of a storage building would not increase land area that is currently being used for this nonconforming use. Staff believes this proposal will not negatively impact the surrounding neighborhood. SEQR: Unlisted, short form EAF required. II MR. THOMAS-II At a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for a Use Variance for the construction of a storaqe buildinq at the Queensburv Electric Substation site to store equipment, tools and other substation materials. was reviewed and the following action was taken. Recommendation to: Approve Comments: Concur with local conditions." Signed C. Powel South, Chairperson MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? MR. KARPELES-No. I've got a question. I took this drawing and I went out there and I honestly wonder if I was looking at the right substation. Because there doesn't seem to be any resemblence between the drawing and what's there. It says existing entrance, and it's way down near the angle over there, and when I went, the existing entrance is way over by the south side of the property, and was I on the wrong property, or isn't this representative of what you've got out there? - 41 - (Queensbury ZBA Meeting 8/28/96) MR. KRYZAK-You were at the right property. Joe Kryzak, Niagara Mohawk. Basically, the line you're looking at shows the property line, and to the northeast of the substation you'll note that there is an existing power line that runs northwesterly along there. MR. KARPELES~Well, I saw the high tension power line, but these existing overhead transmission lines, I didn't see those. Were they there? MR. KRYZAK-Yes. They run right along the bike path, or right next to the bike path. MR. KARPELES-The bike path? I don't think I had the right place. Is there another building on there? MR. KRYZAK-Are you referring to the ones that are at the south pf the station? Which ones are you referring to? MR. KARPELES-I'm talking about the one on the south side of the station. It s~ys existing overhead transmission lines. They're there? MR. KRYZAK-Yes. MR. KARPELES-Boy, I had the wrong place then. MR. KRYZAK-I've got some photographs, if you'd like to look at them. MR. MENTER-You were here. You were thinking you were over here, but you were here. MR. KARPELES~Okay. I see it now. Well, where is that existing building that's there. That's what I'm wondering. Where is this in relationship to the existing building? MR. KRYZAK-The existing building sits right here. MR. CARVIN-There's two of them, isn't there? MR. KRYZAK-This is the one existing larger building. MR. KARPELES-Okay. I see it now. I thought I was here, and I was there. MR. MENTER-Right. MRS. LAPHAM-Where's the new building going to be on here? That's the part 1 couldn't understand. MR. KARPELES-Yes. It's not a good drawing. It doesn't show the existing building. MR. KRYZAK-The proposed building, I'll bring you back here. This is the existing, the present entrance to the station right here, and the proposed building is to the south of the entrance, okay, in line with the fence, and 25 feet either side of the fence. The building is 50 foot wide this way. MRS. LAPHAM-So this is the proposed building right here? MR. KRYZAK-This is the proposed building, right. So this gate is located here, presently, and the fence line is here, which is 25 feet either side of the building. So basically it would be right in this area here. Going south, this is the transmission line. It crosses over. MRS. LAPHAM-And how tall is it going to be? - 42 - (Queensbury ZBA Meeting 8/28/96) MR. KRYZAK-The building is 16 plus to the roof. feet. It's about 20 MR. CARVIN-So you're going to be moving that entrance, then, is what you're saying? The driveway will be moved? MR. KRYZAK-We're going to be widening it. MR. CARVIN-Okay. So the driveway will be the same, but it'll just be wider? MR. KRYZAK-The driveway is the same entrance. MR. CARVIN-Okay. MR. KRYZAK- It'll just be widened. The total height of the building is 24 feet. MR. CARVIN-Well, let me ask you this. they're going to continue to be there? The existing buildings, MR. KRYZAK-Yes. MR. CARVIN-Okay. Also, I noticed in the back there were three trailers, tractor trailers, you know, boxes. Are those permanent? Are they used for storage? What is the purpose of those? MR. KRYZAK-Those are construction trailers that we use on construction sites as needed. So as new substations and stuff are being built, we'll pull them off and locate them at those sites. MR. CARVIN-Yes. Because I'll tell you my problem here, gentlemen, is that this is a, what is the primary use of this property right now? MR. KRYZAK-As an electric substation. MR. CARVIN-It is an electric substation. Is it like a booster or transmitter? MR. KRYZAK-It transforms the transmission voltage coming in of 115 down to a distribution voltage which is distributed along the streets to the customers. MR. CARVIN-And in your application, I know you'd indicated that you're going to use this building to store equipment related to this particular facility? MR. KRYZAK-That's correct. MR. CARVIN-So that any tools or equipment will be related to the operation here? MR. KRYZAK-Yes. MR. CARVIN-All right. What types of equipment are needed to operate that particular facility? MR. KRYZAK-Some of the equipment that we will store includes test equipment, for testing of the components within the substation, wi 11 be called mergers or (los t words) equipment. I've got pictures of that equipment here if you'd like to see that. MR. CARVIN-Yes. I'd like to know, because I'll tell you, it looks like there's an awful lot of property, and again, I mean, there's a lot of positives, and I don't want to sound negative on this, but this is a use issue in a residential area, and I'm looking at, all right, you're calling a storage building, and in a residential area - 43 - (Queensbury ZBA Meeting 8/28/96) you'd be allowed 200 square feet, and you're asking for 4,000, and I want to know what kind of equipment is going to go into a 4,000 square foot building. MR. KRYZAK-I can show you samples of some pictures. MR. CARVIN-Okay. MR. KRYZAK-Some of the material includes (lost word) bands and conductors, insulators. MR. CARVIN-All related to this facility, or will these be transported to other similar facilities? MR. KRYZAK-It will be used to support other facilities as well. MR. CARVIN-In other words, it won't be just unique to this facility? MR. KRYZAK-That's correct. MR. CARVIN-Okay. Well, that's where I'm having a problem, because that's an expansion of a use. In other words, if you've got trucks, I mean, would you have the potential of putting, you know, a truck park in there? MR. KRYZAK-No. Well, the size is of that capability, but we will not be parking trucks. MR. CARVIN-So the equipment that's going to be stored here will not necessarily be unique to this particular property. It will be used in other sites throughout the area. MR. KRYZAK-Yes, that's correct. MR. 0' LEARY-How frequently? will there be trucks coming in and out during the day? MR. KRYZAK-A couple of times a week, not in any great volume. Lets say maybe three, four times a week. That's about it. It's not to be used as a day to day type of go in and get out. More as a type of, as you need material for a job, we'll bring it to the site. MR. O'LEARY-What sites have you got in mind that this might support? What other sites have you in mind now that this site might support? MR. KRYZAK-We're looking at supporting a substation in our Glens Falls area, up north toward Ticonderoga, down toward Wilton and Saratoga area. MR. O'LEARY-How many substations, that's quite a few. MR. KRYZAK-To be honest, my guess would be maybe about 100 substations, somewhere around 75 to 100. MR. O'LEARY-Yes, very little traffic. MR. KRYZAK-Yes, very little traffic. MR. CARVIN-George, what does Staff feel about something like this with this information? I mean, are we going to get into an area here that we might want to look at a little bit closer? Because it sounds to me that we're having a change of use here. MR. HILTON-I'm going to have to confer with the Jeff here. MR. FRIEDLAND-A Use Variance for a public utility is judged by a - 44 - ---. (QueensburyZBA Meeting 8/28/96) different standard than other Use Variances. It's not judged by the same Use Variance standard set forth in the Town Law, and that's by court decision. It's not by any statute or anything. It's by court decision. Use Variances are judged differently. Usually it has to do with whether the use is, will fulfill an essential need or fill a void in the area providing the central service. This situation seems to be a bit unique. It seems to be a bit different. They're not proposing to build a substation or a generating facility, but some sort of storage building. I don't, honestly don't know, as I sit here, how that fits into the different standard I just mentioned that's been proposed by the courts. It's something we can look into, but I don't have an answer for you. MR. CARVIN-Well, I'm looking at a couple of things, and I realize that utilities are judged on a different criteria, but I also know that I think that's coming under some question and scrutiny, as these utility industries are being deregulated. I mean, they no longer have a uniqueness. So I think that there may be some movement there to alter those criteria. My primary concern is that this is probably a pre-existing nonconforming use in a residential area. So I can't take away the pre-existing nonconforming use, but having some experience with the ëxpansion of pre-existing nonconforming uses, I just want to make sure that we're not going to bump into a problem here, because what I'm looking at is a very large building that sounds like it's going to be a central location for several other areas, which sounds to me that this is a new use of this particular property, or is, at the very least, an expansion of that use, and if that is indeed the case, I want to go very cautiously. Does the Board understand where I'm coming from? MR. KARPELES-Could you expand in some other area that wasn't located in a residential area? I mean, I think this would be something that would prove your need, if you had no other place that you could locate. MR. KRYZAK-We had looked at three other sites in the Queensbury area, Cedar sub, which is on Queensbury Road to the east, and also Ogdensbrook to the west, and I believe Cedar was also a residential area. Ogdensbrook was a split zone, in that, it was residential the first 150 feet of road frontage back, and then 150 feet back, I believe, was Light Industry. MR. HILTON-If I may here real quick. Even if it is a new use or expansion of a nonconforming use, that's what the application's in for any way is a Use Variance. So we're, you know, I think we're covered in that. MR. CARVIN-Yes, well, again, we're going to come back to the dollars and cents. I mean, that's what it's going to boil down to. MR. HILTON-But I think we're governed, again, by the different criteria. MR. CARVIN-Yes. I don't have that criteria. I mean, I really don't know what the criteria is. I mean, do I use the Use Variance? Do they have to support dollars and cents? I don't know. I mean, is it a utility? You tell me what criteria I'm supposed to use here. MR. HILTON-It's a utility, and we're governed under the utility criteria. MR. CARVIN-Whatever that is. MR. HILTON-Which we just stated was that it was essential service needed to fill a void in their area, or bring up, provide service - 45 - (Queensbury ZBA Meeting 8/28/96) to the public, and, you know, it boils down to the utility's need to adequately provide service to all its customers. MR. KARPELES-Well, there's no reason why this has to be located in a substation, right? I mean, it could be located anywhere on your property. MR. KRYZAK-This is an existing piece of land we own, to which a substation happens to be located on. There is approximately 9.9, 10 acres of land here, substantially the area is surrounded by a transmission line to the northeast, a transmission line to the south, and if you were to proceed southerly down Country Club Road, you'd see that even though it's residential, zoned residential. There's a vacant residential lot. Southerly of that, there is a warehouse, somewhat similar to a storage building, somewhat similar to what we're proposing, and then at the corner of Quaker Road and Country Club Road, there is a commercial establishment, I believe it's Light. MR. CARVIN-Okay, but can you show me or demonstrate to us that, from a financial perspective, that this is the best location? In other words, is this the most cost efficient area to locate this particular building, in view of the fact that you do have other alternatives, and what's the service area? MR. KRYZAK-The other alternatives we had looked at, as I said, were the Cedar substation, which is to the east, and Ogdensbrook to the west. This was generally located centrally within this particular service area, so that in those, those three sites could be serviced, rather centrally from this location here. MR. THOMAS-I have two questions. I'm not a voting member because I work for Niagara Mohawk. Number One, is there any hazardous material to be stored in this building? MR. KRYZAK-No. MR. THOMAS-None' whatsoever? MR. KRYZAK-Whatsoever. MR. THOMAS-None of the oil or any of the other stuff. Number Two, why can't you put this up on Quaker Road? MR. KRYZAK-On Quaker Road? That property is owned by the IDA, not us, and secondly most of it's in the City of Glens Falls. We did look at some properties in the City itself, but as you're aware, they're going through municipalization efforts. We did not want to locate a building there and have to turn it over to the City and New York Tel. MR. THOMAS-All the property on Quaker Road is in the City? MR. KRYZAK-Most of the building area and the storage area that exists right now, I believe a portion that is owned by Queensbury. I believe the cut off line goes from Quaker Road back to some line near where the building begins or maybe the middle of the building itself, precisely where I don't, where the line is, but I know it's toward the Quaker Road side of the property. MR. CARVIN-Well, where is this material being stored currently? MR. KRYZAK-We have it stored, one of the problems why we need the substation is because it's scattered amongst various substations, as well as being stored currently at a facility at Sherman Island Hydro. One of the problems we've had within the Company is the recent split departments, and (lost word) separate company, and we've already started to be asked to move our material out of that - 46 - --.--- (Queensbury ZBA Meeting 8/28/96) facility, and right now we have no spot to put those materials, and so that's what we're looking for, a location closer to our operating (lost words) MR. CARVIN-Now this material will also be used to service other communities, is that correct? I mean, you mentioned Ticonderoga, places, I'm assuming, north, south, east west. I mean, what kind of geographic area? MR. KRYZAK-We're going to serve the areas that this Quaker Road facility services right now, which goes up to about north of Ticonderoga and Fort Henry and down to the Saratoga area. MR. CARVIN -Okay. In the current storage sheds, do you have materials unique to that particular spot? I mean, are there, I'm looking at the wires and the capacitors and things like that. I mean, are there that material being stored for that facility there now? MR. KRYZAK-We have materials stored, like at Cedar Substation we have a bunch of steel stored there, okay. That is not for Cedar Substation. That is for other projects. As we need the steel, we'll take it from the Cedar Substation~ So, at other substations, we are not storing materially that is solely for that location. MR. CARVIN-Well, no, I guess what I'm trying to figure out here is, if this material is going to be shunted around to several different locations, have you looked at sites outside of Queensbury, in other words, in Warrensburg or Ticonderoga? I mean, could you service the Glens Falls out of a Ticonderoga spot? Not that I want to send your stuff up there, but. MR. KRYZAK-No. I understand. One of the reasons why we chose the Queensbury area was we wanted to be within a certain radius from our Quaker Road operating headquarters. One of the reasons for that, one of the primary reasons, was the fact that there are times when we have emergencies in substations where we're going to need to get out and get material to go service it. The closer we are to our operating headquarters, obviously, if there is an outage involved, that's shorter. Does that answer your question? MR. CARVIN-Partially. MR. KRYZAK-What's part two? MR. CARVIN-Well, part two is I haven't heard why you couldn't service it out of some place else, I guess. It sounds to me, and I'll be brutally honest here, that you're consolidating a lot of the stuff out of Glens Falls for more corporate reasons than financial, and I need to base it on some kind of financial evidence, that this makes more financial sense than storing it in Ticonderoga. MR. KRYZAK-Well, for one thing, we have no building up in Ticonderoga where we can store material. All our substations up there have no buildings for storage. MR. CARVIN-Well, you have no building here. You're going to build one. MR. KRYZAK-There's the financial the financial sense of it. MR. CARVIN-That's a net zero. MR. KRYZAK-Also, I think, and for example, Ticonderoga I don't believe we have the land area sufficient to construct the building of this size either, and some of the other substations. For - 47 - (Queensbury ZBA Meeting 8/28/96) example, Cedar Sub really doesn't have the area to allow access into the substation and the building. It's a relatively small site, as many of the other substation sites are, and we would most likely need to acquire additional lands, in many of the areas, you know, if we were to propose a building in other areas or near other substations. MR. CARVIN-Okay. Has anybody else got any questions? MR. O'LEARY-If you were just going to store the equipment necessary for the local substations at that site, what size building would you need? MR. KRYZAK-For material just for the Queensbury substation? To be honest, we wouldn't require that big a building at all. Just for that substation, a shed, 15 by 15 or something like that. MR. O'LEARY-So that the 4,000 square feet does apply, if you've got a lot of material to be stored for distribution. MR. KRYZAK-Yes. A lot of the material that we have is large in size, not necessarily large in volume. Reels of cable, that is one type that will take up a certain amount of area, but we generally don't stack on top of each other. We may spread that out. Other types of stuff we want to store there, on the equipment side for example might be snowblowers during the summer. We may put that in there, a place to just keep it out of the way, lawnmowers in the winter and vice versa. So, you're right. We don't need that large a spot just for the Queensbury S MR. CARVIN-Does anybody else have any thoughts or questions? If not, I'll open up the public hearing. PUBLIC HEARING OPENED NO COMMENT . PUBLIC HEARING CLOSED MR. MENTER-It seems to me like we're talking about a change to a storage facility, and I feel like I'm flying blind, because you're talking about different criteria. You can say if it's a necessary, you know, if it's for the public good, the utility needs it. MR. CARVIN-What I'm hearing from them is that they don't need this big of a building to operate this site, and that's all I'm really concerned about is this site. MR. FRIEDLAND-Yes. I indicated before that this situation does seem sort of unique, in that, I mean, it's up to the Board, but if you'd like, we can look into that and see if we can come up with some better guidance for you, as far as the criteria goes, as applied to this situation. MR. CARVIN-I think there's a lot of information that I'd like. I mean, I'd like to know a full laundry list, I think, of what could be put in that building. A 4,000 square foot building is a pretty good building, and again, I hate to carry it over, but I think this Board is venturing into new territory, and I think, and this is just my personal opinion. I realize what Mr. Friedland has indicated about utilities being unique, but I think that some of that uniqueness will be challenged because of the potential for abuse. I mean, as utilities, not only Niagara Mohawk, but we're taking a look at these towers and so forth. I mean, they are becoming competitors, and, you know, I think they're losing that uniqueness that separated them, and I think we really have to take a look at that much closer, that any utility just because they're, you know, we could actually conceivably have 10 different utility - 48 - '-', ~ (Queensbury ZBA Meeting 8/28/96) companies in Glens Falls at some point in the very near future, and everyone of them could say, hey, we're exceptions, and it just knocks the whole property value thing right out the window. So, I think that, you know, if the Board wants to move on this, that's fine, but I think you might want to take a real serious look at this, do some sole searching. What does the Board think here? What do you want to do? MRS. LAPHAM-I'd like some more guidelines. MR. KARPELES-Well, I'd like more guidelines. I'd also like more information. I think that you people could do a better job of selling this thing. I think you could show the areas, give us a map showing the radius of the areas you're going to be servicing, and list the other properties you have and why you can't do it on those properties. I think you could give us a better drawing of this area, showing us the buildings that are in there right now, in relationship to the new building that you want to put up. I'm not sure whether I, I really don't see any big objection to it, but I'd like to be sold. MR. CARVIN-Does everybody else pretty much feel that way? Anything, because I think what I'm hearing is that we're going to move to table this, pending further information. MR. O'LEARY-And while we're requesting additional information, too, visa vie traffic, what you anticipate. MR. CARVIN -That's a good question. Yes. Absolutely. I would also want to know if you're going to have any other additional outside storage, because as I said, there are those three tractor trailers. I don't know if this eventually becomes a truck park, I mean, where you have your Niagara Mohawk trucks. I mean, there's a lot of land there that conceivably could be expanded. There's some loose steel. Right now it doesn't look too bad, but I'd hate to think that if this is becoming a central location that they're consolidating all of their material from outside areas into one spot, you could actually have a real problem out there, even though it is sort of isolated on that road, but that road won't be isolated forever. So, anything else, and I think maybe we might want to get the criteria for that to the Board. All right. MOTION TO TABLE USE VARIANCE NO. 70-1996 NIAGARA MOHAWK POWER CORP., Introduced by Fred Carvin who moved for its adoption, seconded by Bonnie Lapham: Pending the request of additional information from the applicant. Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mr. Menter, Mr. Karpeles, Mr. O'Leary, Mrs. Lapham, Mr. Carvin NOES: NONE ABSTAINED: Mr. Thomas ABSENT: Mr. Green MR. CARVIN-Okay. Again, we have a 60 day tabling policy. So if you can work with Staff, and, Staff, I assume you understand what we're looking for. MR. HILTON-Sixty-two days, yes, we're all set. MR. CARVIN-Okay. AREA VARIANCE NO. 74-1996 TYPE: UNLISTED WR-1A CEA JOHN JR. & - 49 - (Queensbury ZBA Meeting 8/28/96) KATHLEEN SALVADOR OWNER: SAME AS ABOVE ROUTE 9L, DUNHAMS BAY APPLICANTS ARE PROPOSING TO SUBDIVIDE LAND INTO TWO LOTS. THE PROPOSED NEW LOT WOULD NOT CONFORM TO THE REQUIREMENT THAT ALL LOTS HAVE FRONTAGE ON A PUBLIC STREET. RELIEF IS BEING REQUESTED FROM REQUIREMENT THAT ALL LOTS FRONT ON A PUBLIC STREET LISTED IN SECTION 179-70. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING: 8/21/96 TAX MAP NO.4-I-II LOT SIZE: 1.99 ACRES SECTION 179-70 JOHN & KATHLEEN SALVADOR, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 74-1996, John, Jr. & Kathleen Salvador, Meeting Date: August 28, 1996 "APPLICANT: John & Kathleen Salvador PROJECT LOCATION: NYS Route 9L Proposed proj ect and Conformance with the Ordinance: The applicant is proposing to subdivide land into two lots. The new lot would be completely submerged under the waters of Lake George. The new lot would not conform to the requirement that all lots have frontage on a public street. Relief is being requested from the requirement that all lots front on a public street listed in Section 179-70. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to subdivide the property and use it as a buildable lot. 2. Feasible alternatives: It appears there are no alternatives existing which could provide access to a public street as required by the Zoning Ordinance. 3. Is this relief substantial relative to the ordinance? The applicant is seeking to create a lot which would be submerged under Lake George and would not have a point of vehicular access. 4. Effects on the neighborhood or community? Allowing the creation of a lot that would not have access to a public street may lead to similar requests to divide and develop property without public street access throughout the Town of Queensbury. 5. Is this difficulty self created? The difficulty that exists is the desire of a property owner to create a lot without public access in light of a Zoning Ordinance requirement that all newly created lots have such access. Staff Comments & Concerns: Staff is not supportive of this proposal to create a lot without access to a public street. The creation of this lot could present serious threats to the physical safety of anyone who would use the property or anyone trying to reach this property in case of an emergency. The changeable physical state of the lake waters and changeable climatic conditions limit the ability of this property to be accessed year round. Staff also has concerns about utility service and solid waste disposal at this location should a lot be created and developed. SEQR: Type Unlisted, short EAF, required." MR. THOMAS-"At a meeting of the Warren County Planning Board, held on the 21st day of August 1996, the above application for an Area Variance for the subdivision of land into two lots. was reviewed, and the following action was taken. Recommendation to: Disapprove Comments: The Warren County Planning Board denied this application without prejudice pending review by the County Attorney." Signed by C. Powel South, Chairperson. A letter dated August 28, 1996, addressed to Fred Carvin, Chairman "Dear Mr. Carvin: This will confirm our phone conversation of today and a subsequent phone conversation I had with George Hilton of the Building & Codes Department, wherein certain inquiries were made concerning the Warren County Planning Board's action with regard to a variance application by John, Jr. and Kathleen Salvador bearing Queensbury No. AV74-1996. I have reviewed this matter with the Assistant Director, Wayne LaMothe, who was present at the Warren County Planning Board meeting. He advised me that the Board did intend to disapprove the application and recommend denial. However, he also advised that the Board wanted to leave the opportunity open for a second review of the application after receipt of an opinion from this Office as to whether the waters of Lake George in the vicinity - 50 - '- (Queensbury ZBA Meeting 8/28/96) of Mr. Salvador's property could be considered a highway or something similar to a highway and if so, whether the Planning Board should reconsider the matter on that basis. At this time, it is my plan to review the matter as requested by the Warren County Planning Board. This matter was brought to my attention today, and I will, of course, not be able to render an opinion to the Warren County Planning Board prior to your meeting tonight. Please note, however, that even if the matter should be reheard on the basis of any opinions issued by this Office, these mayor may not result in a reversal or modification of any position taken by the Planning Board. It would merely constitute new information upon which the Board is willing to rehear the application. I trust, that the above will provide you with sufficient information to clear up some of the issues that you raised concerning the position taken by the Warren County Planning Board. Very truly yours, Paul B. Dusek Warren County Attorney" MR. CARVIN-Okay. Does everyone understand what the applicant is requesting? Okay. I just have a question of the applicant. This is the map here. I just want to make sure that I understand. I've outlined in orange the portion that you are requesting be subdivided. Is that correct? MR. SALVADOR-Mr. Chairman, we would request that under the circumstances, that this matter be tabled until the County Attorney has rendered his opinion. It may dramatically effect the outcome of that Board's approval or non approval. MR. CARVIN-Okay. Except that I do have an opinion by the Town Attorney saying that this has, the Warren County did have a denial. So the only impact would be a super majority, as far as this Board is concerned. MR. SALVADOR-I understand, and I would prefer to have that issue settled, before we proceed. MR. CARVIN-Does the Board want to table this, or should we move ahead and open up the public hearing and then consider? MR. MENTER-My option would be to do that, right. We could do that, leave it open. MR. CARVIN-Yes. I think I'd proceed with the public hearing MR. SALVADOR-We'd prefer to have this tabled until the County Attorney renders his decision. MR. CARVIN-Well, I don't see any reason to table this based upon the County Attorney's opinion. To be very honest with you, I have a decision that was made by Warren County that says it was a denial. MR. SALVADOR-But it was a conditional denial, and it was without prejudice, and that the issue could be re-heard at the County, pending the Attorney's decision. MR. CARVIN-Yes, but the County Attorney does not have the power to approve or disapprove your application. MR. SALVADOR-I understand that. MR. CARVIN-I see no reason why we can't move ahead. MR. SALVADOR-We'd prefer to have this tabled until that matter is settled at the County. MR. MENTER-I understand that. The question is, should we open the public hearing, since everybody's here. - 51 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Yes, I was going to say, this was a publicly advertised meeting. MR. HILTON-I think what's commonly been done in the past is that if an applicant has a request to table an item, if that's the Board's decision, and the public has been notified that a meeting would take place this evening, they've granted the courtesy to the public to be able to speak this evening. As I've said, that's what's been common practice with other cases. I don't see any reason why you. MR. CARVIN-I was going to say, in lieu of that. MR. SALVADOR-All right. Then the public hearing will be held open? MR. CARVIN-Yes, it will. MR. SALVADOR-Okay. Thank you. We have nothing more to add. MR. CARVIN-Okay. Anyone wishing to be heard in support of this application? Anyone opposed? PUBLIC HEARING OPENED BOB SWEENEY MR. SWEENEY-My name is Bob Sweeney. I'm an attorney from Shanley, Sweeney, Reilly and Allen in Albany. I'm here on behalf of Frank Parillo, who is an adjoining property owner to the proposed subdivided lot. I have a couple of pieces of material that I'd like to distribute to the Board, make a couple of brief comments, and leave it at that. I have a comment letter, which puts in writing most of what I have to say. I've got several excerpts from the Salvador survey, I'll pass around here, which will illustrate the location of Mr. Parillo's lands, as compared to the proposed subdivided lot, and finally I have some photographs. MR. CARVIN-Okay. I think we should read this letter into the record. MR. THOMAS-A letter dated August 28, 1996, addressed to the Zoning Board of Appeals, regarding the application of Salvador, Dunham's Bay Subdivision Public Road Access Variance to the Zoning Board. "Please be advised that this office represents Frank Parillo, the owner of lands immediately adjacent to and west of the proposed Salvador subdivision of lands, immediate to the waters of Lake George. A copy of an excerpt from a survey map prepared for the Salvadors, showing the lands of Parillo, is attached hereto. It is our understanding that the Applicant previously filed an application for a building permit to construct a hunting/fishing cabin of less than 300 square feet supported by posts over the waters of Lake George. Thereafter, the applicant filed an application for subdivision approval of a one acre lot of the lands beneath the waters of Lake George to accommodate this proposed construction. The Applicant is now also seeking a variance due to the lack of public road frontage for the parcel. As the adjoining landowner, Mr. Parillo has several concerns which should be considered by the Zoning Board of Appeals in its review of this proposed variance. 1. Interference with Navigation Navigation Law § 32 - c prohibits any person from building any structure in navigable waters of the state' ...which will in any manner lessen the depth of such waters or interfere with the free and safe navigation thereof...'. Further, Navigation Law §32 provides that '. .no. . structure built on. . columns, open timber, piles or similar open work supports, temporary or permanent, shall be constructed, installed.. .or otherwise placed by any person in the navigable waters of the state or in a navigable channel..so as to interfere with the free and direct access to such waters from the property, wharf, dock or similar structure of any other person unless written permission is obtained therefore from such other - 52 - (Queensbury ZBA Meeting 8/28/96) person...'. In addition to the rights of the adjoining waterfront landowner, the courts in this state have been clear that' ...the public right of navigation and navigable water supersedes [the property owner's] private right in the land under the water (see Smith v. State of New York, and 153 A.D.2d 737, 740)'. Adirondack Leaque v. Sierra Club, 201 AD.2d 225. As a result, the applicant's somewhat unique status as the owner of the real property beneath the waters of the State of New York does not give rise to a right to interfere with navigation over the waters of the state which inundate those privately owned lands. It cannot be disputed that the proposed subdivision lot and the structure proposed thereon are to be located in an area subject to extensive boat traffic. There are hundreds of boat slips, commercial and private docks ringing in the perimeter of this proposed subdivision lot and structure. There can be no argument that such a structure would interfere with the free and safe navigation in the waters of the state. Of more particular importance to my client, the proposed structure would directly interfere with ingress and egress to the boat slips on Mr. Parillo's property. In addition to the six slips on Tax Lot 4-1- 10, the Zoning Board should be aware that my client, and his predecessor in title, have used and occupied the additional four boat slips to the east of the lands of Parillo for a period in excess of 30 years. The rights of Parillo to continue to use and occupy these boat slips has been fully litigated before Judge Moynihan and the Warren County Court and a decision determining those rights is expected within a few months. 2. Standards for a Variance from Queensbury zoning Law 179-70 Town Law §267-b requires proof from the applicant for an area variance that: (a) no undesirable change will be produced in the character of the neighborhood or detriment to nearby property will be created by the granting of an area variance; (b) the benefits sought by the applicant cannot achieved by some method, feasible for the applicant to pursue other than an area variance; (c) the requested area variance is not substantial (in this case it is a 100 percent variance); and (d) the proposed variance will not have an adverse affect or impact on the physical or environmental conditions in the neighborhood. The adverse and detrimental affect of this off-shore structure on the adj acent property owners, not to mention the aesthetics and environmental conditions in the Dunhams Bay, is obvious. The applicant cannot possibly meet the burden of proof on these issues. 3. Town Law §280-a In addition to Town of Queensbury zoning requirements, Town Law 280-a prohibits the issuance of permits for the erection of any building' . . .unless the street or highway giving access to such proposed structure has been duly placed on the official map or plan...'. Town Law §280-a(1}. This statute goes on to provide that '... for purposes of this section, the word "access", shall mean that the plot on which the structure is proposed to be erected directly abuts on such street or highway and has sufficient frontage thereon to allow ingress and egress of fire trucks, ambulances, police cars and other emergency vehicles. . . ' . There is, of course, no possible way that the applicant can meet the requirements of this state statute. The application, obviously, raises a number of other significant questions. For example, does the proposed structure qualify as a "Dock" under Queensbury Zoning Law §179-7 (Definitions), and thereby require compliance with all of the pertinent dock regulations? Is the proposed 'hunting/fishing cabin' a 'new recreational activity or use' requiring special permitting pursuant to 6 NYCRR §646-2.3 (Special Navigational Rules)? In what matter does the Town determine whether use of the proposed subdivision lot would meet the shoreline setback requirements of Queensbury Zoning Law §179-60? Finally, this application for a variance requires full compliance with all the requirements of SEQRA. The application for a variance raises all the implications of the entire "action" proposed by the Applicant including the subdivision of land, the variance, and the construction of the proposed structure on the subdivided land. It is improper for the Zoning Board to segment the consideration of the other aspects of the - 53 - (Queensbury ZBA Meeting 8/28/96) "action" from its consideration of the variance. See 6 NYCRR §617.7. The potential environmental impacts of this project in a designated critical environmental area must be fully addressed, including impacts to the bed of Lake George, water quality, fisheries, etc. The applicant has not adequately disclosed these impacts and they cannot be addressed by the Board at this time. Given the extensive detrimental implications of this variance application, we respectfully request that the Zoning Board deny the variance application. Very truly yours, SHANLEY, SWEENEY, REILLY & ALLEN, P.C. Robert L. Sweeney" MR. CARVIN-Okay. Is there anything that you care to add? MR. SWEENEY-I had intended to summarize the content of that letter. Obviously, that won't be necessary. The only other thing I would bring to the Board's attention are the photographs, which I think you have all seen now. It will give you a pretty clear picture of the impact of what is now a float and could potentially be a structure, from my client's property and the boat slips on my client's property. That's directly in front of their, clearly as we look at the statute that was read, Section 32 of the Navigation Law, placing any structure built on columns, open timber and so forth that interferes with the free and direct access to adjacent property is not legal, absent permission from the adjacent property owner. Those photographs make pretty clear where this subdivision lot is located with respect to my client's property and what the impact of the structure on that subdivided lot would be. I have nothing further. MR. CARVIN-Okay. Thank you. Anyone else wishing to be heard in opposition? KEN FUCHS LOCHER MR. FUCHSLOCHER-My name is Ken Fuchslocher and we own property on Dunhams Bay on the east side, about nine camps up from Mr. Salvador's property, and I kind of wrote this down because I have quite a few points I would like to cover to the Board and to neighbors and Mr. Salvador. I'm against Mr. Salvador's building a structure of any kind in the water at the foot of Dunham's Bay for the following reasons. Mr. Salvador said, this is in reference to the newspaper article I got this information from, that he pays $12,000 in taxes to the Town on the property that is under the water at Dunhams Bay and feels that since he pays taxes on the property that he has a right to build on the property, in this case, a hunting and fishing cabin. This same parcel of land, to my knowledge, also has a portion of, or all, of his boat docks that he rents. If my math is correct, this more than offsets the cost of the taxes. I know people that have parcels of land much greater in size than Mr. Salvador's few acres that are under the water. These people have either part of or all of their land has been declared forever wild or protected marsh land, and they cannot build on these portions, but they still pay the taxes on them. My second point is, the house is in the water. It's going to change the appearance of the Bay if it is approved. This also can set a precedent for others who may be in the same situation. My third point is sewage. There are times when ice flows, in the spring, come in and move docks, shoreline and anything else that gets in its way. Will this house be able to withstand those forces? And if it doesn't, will we have raw sewage leakage into the Bay? The other thing is we will also have the, if the ice does move this house, we may have building debris in the water as well, and my fourth point is fire. If this structure is to catch fire, how would it be put out if it is out in the water, especially in the winter, and the reason for that is, Mr. Salvador has circulator pumps for his docks. So there would be no access over the ice to get to the structure. Again, the ash and other contaminants will go into the water, and the fifth point I'd like to point out, that - 54 - (Queensbury ZBA Meeting 8/28/96) Mr. Salvador does own quite a bit of land, and there are alternatives for him to place this hunting and fishing lot possibly on some of those other lands. Thank you. DOUGLAS WRIGLEY MR. WRIGLEY-My name is Douglas Wrigley, and I have property on Dunhams Bay. I would like to second all of the arguments against John and Kathy's proposal to build a cabin in Dunhams Bay, but I also have a question which puzzles me. The attorney for Mr. Parillo touched on in, in regard to the navigation laws, but is it possible to have private land under State water? MR. CARVIN-I'm going to refer to our legal counsel. I don't know if I have an answer for you. MR. FRIEDLAND-It's certainly possible, yes. It is possible, sure. MR. MENTER-I think it's more like State water on top of private land. MR. WRIGLEY-Yes. MR. MENTER-Apparently it's possible. MR. WRIGLEY-But I wonder why any jurisdiction, the Board of Appeals or any jurisdiction, can act on something which is a part of a State body owned by all of us. It is a functional, irretrievable, undeniably part of Lake George, and Lake George is, as I understand it, not being an attorney, a State body of water, owned by everyone. So how can possibly anything be built? Now when docks are built, docks, we have to go through a number of State agencies to build a dock, but here, as a house. MR. CARVIN-Well, maybe I'm missing something here, because Mr. Salvador didn't explain maybe fully what the project is, but I'm only looking at a subdivision request. I don't see any application for a building: MR. WRIGLEY-I see. That was previously denied. MR. CARVIN-That one has been denied, at least in its original form, and what we are looking at is a subdivision of a piece of property, and what brings it to our table, if I can summarize, is the fact that this proposed subdivision, one parcel does not front on a town highway, and that is the variance that he is requesting relief from, and again, I don't ,want to put words into Mr. Salvador's mouth, but I'm assuming, that's my interpretation of what this application is all about. MR. WRIGLEY-I understand that. I wonder, looking down the road, whether or not this could become a precedent. I do not know, for example, that, and maybe Mr. Parillo could straighten it out, whether or not any of his land may extend under the waters, and a successor to him or others could bring this up again. In other words, the question is, can a dwelling, a stand-alone dwelling, be set in, irregardless of navigation law. That is a good point, obviously, but set in a body of water that is owned by the State, it seems rather ridiculous. MR. CARVIN-Well, again, as I said, I'm not looking at a building, and I don't have an answer to your question, and I don't think you're likely to find it here. MR. WRIGLEY-I raise that point for consideration at some point in time. MR. MENTER-At some point that may be discussed. - 55 - (QueensburyZBA Meeting 8/28/96) MR. CARVIN-I was going to say, at some point, I'm sure it will be discussed. WINTON H. WILLIAMS MR. WILLIAMS-I think there's been some misinformation in the papers, and one of the things was that this area that is being discussed is an island, and I've talked to people who've lived there for over, well, 70, 80 years, and there's never been any islands on the Bay there in Dunhams Bay. I've been here, myself, for 50 years, and I've never seen any island, and part of this request has to do with this formerly being an island, and from what I understand there's never been an island out there. This is what I get from talking with people. Now, I also oppose anything being done to that land because of safety reasons. There's going to be more boats going in and out, many boats now going in and out of that Bay, and it's a five mile an hour zone, and a no wait zone, but there's still an awful lot of boats going in and out of Dunhams Bay, and any more, any additional boats would really cause a safety problem. MR. CARVIN-Okay. Could I just have your name for the record, sir. MR. WILLIAMS-My name is Winton H. Williams, and our property is on 14 Joshua's Rock Road on Dunhams Bay. MR. CARVIN-Okay. Thank you. ROGER HOWARD MR. HOWARD-My name is Roger Howard, and I'm an adjoining property owner. I'm opposed to it, for all the reasons that have already been stated, and I just wondered if the Chairman had received a letter from the Lake George Association in reference to this? MR. CARVIN-Yes. We have correspondence which will be read in to the record. MR. HOWARD-Okay. MR. CARVIN-So, I don't know. Do we have one? MR. THOMAS-Yes. MR. CARVIN-Okay. MR. HOWARD-That's fine. That's everything I wanted to say. MR. CARVIN-Okay. Anyone else wishing to be heard? MR. SWEENEY-Mr. Chairman, Bob Sweeney again. Just a follow up comment on the comments by the Chair about what the application is before this Board. The applicant has made clear his intent to seek a permit to build a structure on this subdivided lot. He's already applied for that and been turned down. This is the next step in the process. This is an action pursuant to the State Environmental Quality Review Act, and it's not possible for the applicant here to draw a curtain over that part of the application and say, just look at this as a subdivision and a variance with no impacts. It's the obligation of this Board, pursuant to SEQRA to look at all aspects of the application and not to segment out one part of what is a clear plan by the applicant to put a structure on this property, and any environmental impacts associated with that structure should be considered by this Board. This is not a Type, this is an Unlisted Action under SEQRA. It's not a Type II Action. If this has potential significant environmental effects, they need to be addressed by this Board in the proper manner under the SEQRA Regulations, but I think the Board has to look at this as the whole - 56 - '- (Queensbury ZBA Meeting 8/28/96) package, the whole plan or scheme of the applicant here, and not just a paper subdivision and a variance to support that. MR. CARVIN-Okay. I'm going to refer that to Staff. I know Staff has declared this a, what, Type II? MR. MENTER-Unlisted. MR. CARVIN-Or an Unlisted. Do you feel that, based upon Mr. Sweeney's comments, that your opinion has changed or altered or we should be sensitive to those issues? MR. FRIEDLAND-I don't think there's any change of opinion. The action is an Unlisted Action under SEQRA. As far as, what's before this Board is just an Area Variance, but when this Board does SEQRA, it has to consider the entire action, and if this Board feels the entire action includes the subdivision and proposal to build something out there, then that's the entire action that you have to look at under SEQRA, and you have to look at the possible potential environmental impacts of the entire thing, and I would agree with Mr. Sweeney to that extent. Sure. MR. CARVIN-Okay. With Mr. Salvador's application, is this something that we tabling, the SEQRA issues? request to table the should explore prior to MR. FRIEDLAND-You certainly need to do SEQRA before you make a decision on the variance application, just like with any other variance application, or at least not a straight Area Variance, but anything that's subject to SEQRA, you need to go through it before you make a decision. You can do it tonight. You can certainly wait until you receive any further input from the County Planning Board if you want, but obviously you need to do it before you make a decision. MR. CARVIN-Okay. Well, I'll leave it to the Board's discretion. Okay. MARILYN VANDYKE MRS. VANDYKE-I'm Marilyn VanDyke, and I'm the Historian for the Town of Queensbury, and when Mr. Salvador filed his first application for the structure, I filed that paper at that time, with an opinion rendered by the State Archeological Survey, that this is a potentially archaeologically sensitive area, and the fact that it's under water does not negate the fact that we need to look at it in terms of what might be there, and we can't forget that as we move forward in trying to decide what to do about the property. I filed those papers again in this, for this variance request, and I believe that you have those, do you? MR. CARVIN-Yes. We will read those in shortly. MRS. VANDYKE-Okay. So they're as a matter of record. Also I expressed another opinion in that letter that there are many people in the Town who live on lands that are not submerged anywhere but are lands that have been designated in Land Conservation and that these people indeed pay their fair share of taxes on those lands. So the fact that this land is submerged does not negate that idea either. Thank you. MR. CARVIN-Okay. Thank you. Anyone else? Mr. Salvador? MR. SALVADOR-Thank you, Mr. Carvin, for clarifying that this is a subdivision application. Whether or not, and what we can eventually do with this lot remains to be seen. The Town of Queensbury is now in the process of amending, modifying its Waterfront Zoning Ordinance. I would think that if there are - 57 - (Queensbury ZBA Meeting 8/28/96) significant environmental impacts dealing with development of Waterfront acreage, that this would be addressed at the time that the Town does its Zoning Ordinance, and this should be on their agenda. Each individual applicant for a permit who meets all of the requirements of the Zoning Ordinance shouldn't be required to do a SEQRA review. That's the obligation of the Town in their zoning process. That's all I have. One more thing. The subject of State owned water has got to be a new one on me. No one owns water and no one owns air. They are public commodities. Their use is regulated by the State, but you don't own it. You don't own the water under your house, in the ground. You have the opportunity to use it, and what you take out you own. What remains there is common. The State regulates it. They don't own it. MR. CARVIN-Okay. Thank you. MEMBER OF PUBLIC-Now, what is a SEQRA review? MR. CARVIN-State Environmental Quality Review Act. wishing to be heard? Anyone else CHERYL BALDWIN MRS. BALDWIN-Hi. I'm Cheryl Baldwin, 24 Joshua Rock Road, and I just want to be on record as opposing this, but also I wonder where the press is. I keep reading this in the paper, and, is this a joke? Wetland, you know, we have historic photographs or pictures, paintings from a family artist. There's no land there. It's not a figment of my imagine or of family members. I think that this is ridiculous and a waste of time, and I'm sorry that you don't have the authority just to tell us all to go home. MR. CARVIN-Well, I will have to commend the Board for its patience, if nothing else, and also the public for suffering this late at night. Anyone else wishing to be heard? MR. SWEENEY-Just very briefly Mr. Chairman. As I understand the County issue, from what I heard this evening, the County Attorney may render an opinion as to whether the water between the shore and this lot suffices as a public road for access to this parcel. There are any number of other reasons to deny this variance. There's no application that 1 see here under 280-a which would be necessary as well. I think it's not inappropriate, if this Board is not inclined to table this application, to vote on it this evening, in whatever fashion they deem appropriate, and again, it could be voted on in the same fashion as the County Planning Board, without prejudice in the event that there's a change of opinion from the County Planning Board, but if the Board is inclined to vote, I don't think the position of the County Attorney is any reason, procedurally, not to do that. That's my opinion or observation, but I did want to say that. Thank you. MR. SALVADOR- It is not our claim that the waters between the shoreline and this lot are navigable waters. It is our claim that the waters north of the north boundary of this lot are navigable waters and provide the access. We have riparian rights, and that' s where our access comes from. The waters between the shore and the north boundary of that lot are not navigable waters of the State. MR. CARVIN-Any other comment? maybe, the letters. Why don' t you start reading in, MR. THOMAS-A letter dated August 24, 1996, regarding Area Variance No. 74-1996, "Dear Board Members: As Town Historian, I am writing in regards to the request for a variance made by John and Kathleen Salvador to subdivide their land into two lots. I suggested that consideration of this variance be based upon the following points: - 58 - (Queensbury ZBA Meeting 8/28/96) 1. There is a precedence for land in the Town of Queensbury to lay undisturbed. Several landowners near Mr. and Mrs. Salvador have land which is designated Land Conservation. These owners keep their land in a forever wild state. They also pay a fair share of their taxes on this undevelopable land. 2 . The property in question involves land which is submerged in Lake George. I would like to point out that such lands are archaeologically sensitive and any attempts to disturb or place construction in or upon them would require underwater archeological excavations to validate the presence of early Native Americans which may date back to the early Archaic Period. (See attached report from the Anthropological Survey of the NYS Museum previously submitted in regard to this property.) 3. The fact that the property does not front on a public street is moot. The property is submerged and therefore not developable. 4. It would seem a precedence to consider developing on submerged lands in Lake George. The prospect of the appearance of Swiss Lake type of housing on the lake is not in the best interest of the protection of the lake. Therefore, it is the recommendation of this Office that the variance be denied. Sincerely yours, Marilyn VanDyke, Ed.D. Town Historian", with attachments. A letter dated August 26, 1996 to the Queensbury Planning Board. "Dear Sirs: I have a home in Dunhams Bay, Lake George, living there for over 30 years and loving the area. I am faxing this letter to object strongly to the variance application of Mr. Salvador, Jr. to build a structure on submerged land near the 9L road in Dunhams Bay. This structure would obstruct my view about the Bay, it would affect the ecology of our Bay, it would be a navigation hazard in this small Bay and a safety health hazard as for example in emergency medical care or a fire. Please deny this variance. Andrew J. Bania Irene A. Bania" A letter dated August 23, 1996, regarding Variance No. 74-1996, John and Kathleen Salvador. We are Allen and Eleanor Strack, owners and residents of property on Dunhams Bay (Lot 4-1-17) We strongly object to the establishment of a subdivision, or 'building lot', or whatever it is to be called, in the open waters of Dunhams Bay. We understand that the ultimate purpose of the proposed Zoning appeal is to facilitate the construction of a 'hunting and fishing cabin', or shanty, or structure in the open waters of Dunhams Bay, and we are definitely opposed to such an action. We understand that the Zoning Board must consider the'.. . adverse effect or impact on the physical or environmental conditions in the neighborhood...' 1. This is a congested, high traffic area, because of Dunhams Bay Boat Company operations, the many docks in the immediate area (many of which are owned by the petitioner) the traffic from the boat launch facility operated by Mr. Parillo, plus the traffic of local owners and residents. The recent presence of Mr. Salvador's floating dock, with flashing lights, has added to this congestion. 2. There is much concern that a 'residential facility' in the proposed area would represent serious risk of pollution from water, power, drainage and septic facilities. 3. There would be added noise and lighting pollution from the occupation and use of the proposed facilities. Already the Bay area is being subjected to an annoying flashing red light on a round-the-clock basis. 4. There is no reasonable access to the proposed 'building lot'. 5. This proj ect (creation of residential building lot, et. al) would definitely detract from the character of the neighborhood. Mr . Salvador certainly has sufficient land holdings in the immediate area of Dunhams Bay to satisfy his desire to expand and develop 'hunting and fishing cabins' on property already owned, without going to the obj ectionable expansion being proposed here. The Planning and Zoning authorities of the Town of Queensbury are charged with 'continued vigilance in the growth of non-conforming use essential to the maintenance of residential integrity of residential zoning in this neighborhood'. We would suggest that the Zoning Board exercise its responsibility and deny the requested variance. Sincerely, Allen W. Strack Eleanor B. Strack" A letter dated August 26, 1996, addressed to Mr. James Martin "We are writing to express our opposition to John Salvador's intention to build a - 59 - (Queensbury ZBA Meeting 8/28/96) hunting and fishing cabin on submerged land in Dunhams Bay, on Lake George. From our home on the Bay, such a structure would obstruct our view of the mountains to the southeast. We are also concerned about sewage and other waste eroding the waters quality in the bay, also the proposed structure could create a navigational hazard. It is the scenery and the water that make our property valuable to us and future potential buyers. One relatively small development may not seem to the Planning Board like cause for alarm. We are concerned, however, about the precedent that could be set by approving Mr. Salvador's plans. He could choose to expand later or perhaps who knows start a gambling casino on the water, should such facilities get the green light in Warren County. Others could follow Mr. Salvador's lead, creating an entertainment strip on our now serene bay. Such development would dramatically change the local environment and residential community. Thank you in advance for considering our concerns. Yours truly, Dr. & Mrs. Zoni Sheremata" A letter dated August 23, 1996, regarding Area Variance No. 74-1996, Salvador "Dear Chairman Carvin and Board Members, The Lake George Association (LGA) urges the Zoning Board of Appeals to deny Area Variance #74-1996 submitted by John Salvador to subdivide two lots and create a lot on Lake George waters. It's clear from the Town's subdivision regulations, this kind of subdivision is not allowed. Under Section A183-22 whîch regulates density of subdivisions, it says: - from the total area of the property to be subdivided, subtract: (4) any unbuildable areas of the lot, such as wetlands, rock outcrops, slopes over twenty-five (25) percent and BODIES OF WATER. Simply, this subdivision regulation recognizes the proposed lot on Lake George as an unbuildable area. This project should be denied outright based on the fact the total area of the body of water cannot be part of the proposed subdivision. If for some reason the Town feels it needs to continue with the review, the LGA strongly recommends using the full environmental assessment form and visual EAF addendum. After completion, the LGA is confident the Town will recognize that the project will have a significant impact on water, on the aesthetic resources, on open space and recreation, on a critical environmental areas, on boating, on growth and character of the community, as well as a significant visual impact on state parks the forest preserve, on a scenic lake, state road, and designated open space. Add to ~his the precedential nature of the proposal and the Town can reach only one conclusion: an environmental impact statement is required on the project before it goes any further through the review process. Thanking you in advance for the opportunity to comment on this project. Sincerely, Michael H. Siegel, Chairman Land Use Committee Kathy A. Vilmar, Director, Land Use Management" And that's it. MR. CARVIN-Okay. Any other public comment? MR. SALVADOR-From the LGA letter, could you read that sentence or paragraph pertaining to forest preserve, toward the end. MR. THOMAS-I'll read the whole paragraph. "If for some reason the Town feels it needs to continue with the review, the LGA strongly recommends using the full environmental assessment form and visual EAF addendum. After completion, the LGA is confident the Town will recognize that the project will have a significant impact on water, on the aesthetic resources, on open space and recreation, on a critical environmental areas, on boating, on growth and character of the community, as well as a significant visual impact on state parks the forest preserve, on a scenic lake, state road, and designated open space." MR. SALVADOR-Thank you. MR. THOMAS-You're welcome. MRS. BALDWIN-I have one quick question. How long do we have to - 60 - (Queensbury ZBA Meeting 8/28/96) have that flashing light in our Bay? MR. CARVIN-I suppose there's no need for it anymore. I guess that' s up to Mr. Salvador. I guess he could remove it at any point. MRS. BALDWIN-It's up to Mr. Salvador? You mean we can all just put up flashing lights? We don't like that. MR. SALVADOR-There seems to be a lot of criticism about causing hazards, and we understand that even on our own property we are responsible for the safe passage of even a trespasser. That's why we have the red light. Now if somebody can alleviate us of this responsibility, I'll turn the light off tomorrow. MR. MENTER-I think the point is there's no need for the dock any more because the notice has been served. MR. CARVIN-Unless there's another reason other than our notice, you know, for our benefit. MR. SALVADOR-I'll take my instructions from the Planning Department. MR. HILTON-We've opened the public hearing tonight. There's been proper notice in the paper and to the property owners. The sign isn't necessary anymore. It can be taken down. MR. CARVIN-Yes, but that doesn't necessarily mean that he has to take the dock down. I'm just saying that we're granting him the permission to take down the sign. So I guess it's up to you whether you want to take down your dock, and I'll leave that to a court that's other than the Zoning Board of Appeals. So, as far as the sign is concerned, we all understand where the thing is, and I guess there's no need for the sign. MRS. BALDWIN-Ex?use me, it's not a dock. It's a float. MR. CARVIN-Well, again, it's not this Board's place to judge what it is or isn't. I think Mr. Salvador put the implement, if I can so phrase it, because we've asked applicants to post bright orange signs as a convenience to the Zoning Board members here we go out to visit these sites, and Mr. Salvador took it upon himself to construct the implement, that is in the middle of his property, and I'm just saying that there is, as far as this Board is concerned, no further need for the sign. MRS. BALDWIN-That's why I asked this question, is this a joke, because it just seemed that he was playing games with the press and with you, and you need this variance, so here is this float with a flashing light. MR. CARVIN-It may have it's humorous moments, but I don't think it's a joke, but as I said, we can't tell him to take down the implements, and I'm going to use it that way. I mean, it's his prerogative. He put it there. He can take it down. MR. SALVADOR-I would trust that if we were in violation of any Town Ordinances, State Ordinances, State laws, that we would have been instructed by the proper authorities to remove that. MR. CARVIN-I was going to say. I think that's a fair assumption. MR. SALVADOR-Yes. The Warren County Sheriff's Department is contracted by the State of New York to enforce the navigation law on Lake George. If they saw fit, they would have instructed us to remove that. The Town of Queensbury has a vessel regulation zone, as an overlay zone on this submerged subdivision, and the Warren - 61 - (Queensbury ZBA Meeting 8/28/96) County Sheriff's Department is under contract from the Town to enforce the Town Ordinances, the Town laws, and they did not see fit, on behalf of the Town, to instruct us to remove anything. MR. CARVIN-Well, again, as I said, I'm not instructing you to remove anything other than, if you wish to take down the sign, you may take down the sign. Is there any other public comment? I'm going to leave the public hearing open. The applicant has requested a tabling pending, I guess, further clarification from Warren County. Mr. Sweeney has brought up an interesting question, in that he feels that we can move forward. I will leave it to the Board whether you feel we can move forward or if you wish to table this application. MR. MENTER-Well, we haven't even discussed the application. MR. CARVIN-That's correct. Then what I'm hearing is that you would move to table this application? Okay. Because we have no control over Warren County, and we have no idea how long it will take to render that opinion, I will deviate from our normal 60 day tabling, to allow Mr. Salvador to get whatever satisfaction he deems necessary from Warren County before we proceed. Okay. MRS. BALDWIN-Why don't you table it until next summer, when those of us here. MR. CARVIN-I'm leaving it up to Mr. Salvador. Mr. Salvador has requested clarification from Warren County before he wants this Board to proceed. I'm leaving it in his lap to get whatever satisfaction he wants from Warren County, so that when he's ready and he has that satisfaction, then we will untable this and we will re-advertise at that point. MR. HILTON-With an extensive tabling beyond 62 days, I think, would require a re-advertising, and we would do that. MR. CARVIN-Yes. MR. O'LEARY-Mr. Chairman, I'm just a little confused. Why would we table it? MR. CARVIN-Because Mr. Salvador does not feel that he, or feels that he still has an argument before Warren County, and he would like to convince Warren County to maybe approve this particular request, because as it stands in illY interpretation right now, he has a denial, which means that he needs a super majority from this Board to overrule. So if this Board wanted to approve this particular application, we would need five votes. If he gets approval from Warren County, then he would only need four votes. As I said, Warren County, from the information that I have, at this point, did move, you know, but there is a couple of questions regarding, apparently Warren County wanted clarification from their legal expert on a couple of items, but I have a letter from Mr. Dusek stating, and he's had conversations, and his opinion is that they did deny the application, without prejudice. So, what I'm saying is that there is no mechanism. In other words, we are not going to send this back to Warren County. It remains up to Mr. Salvador to seek satisfaction from Warren County, and if he can get them to move any faster than anybody else, God bless him. I'm just saying that I don't think it's fair to, you know, put a 60 day time limit on this, because it could go for several months, or it could come back next week, but this Board will wait on Mr. Salvador, when Mr Salvador has determined that he has sufficient and conclusive proof from Warren County that we can move forward with the application. MR. O'LEARY-If we were to vote for denial of the variance, and we had four people vote in favor of the denial, theoretically, if there was relief from the County, we would have to, we would then - 62 - - (Queensbury ZBA Meeting 8/28/96) be estopped from voting again to get a super majority? MR. CARVIN-No. I mean, denial, all we need is four anyway, because we denied it, but to approve it he would need, at this point, five votes, to approve it. In other words, if the members of this Board feel that this is, you know, adequate and he meets all the criteria for the Area Variance, and they wish to grant the relief from the road, then he would need five votes, to override Warren County's denial. Does Staff understand what we're tabling here and the length of time? MR. HILTON-Have you established a length, or are you saying indefinitely until? MR. CARVIN-Well, we'll advertise after 60 days, or re-advertise, if it goes beyond 60 days when Mr. Salvador comes back. Does Mr. Salvador understand how we're tabling this? MR. SALVADOR-I understand. MR. CARVIN-In other words, if you don't get it back to us from Warren County, when you say Warren County has given you some kind of response, then you want to move forward. Otherwise it just sits here. MR. SALVADOR-I understand. MR. CARVIN-Okay. Anything else? Then I'd move that application to be tabled. MEMBER OF PUBLIC-I have a question, because I don't understand. I mean, we're all assembled here. You have your opinions. We've just presented our opinions as land owners and attorneys, etc., business owners. Why do you, no one else tonight had a choice of not having to make a decision. MR. CARVIN-I'm going to refer to legal. I've had instructions from legal. So I'm'going to let YOU tell me why we can't move this thing tonight. MR. FRIEDLAND-I think if you wanted to move this thing tonight, you could. I think, in your discretion, you could, there's no leqal bar to making a decision tonight. In your discretion, if you want to, if the applicant has requested it be tabled, and if in your discretion you think it's a reasonable request and you think there might be additional information forthcoming, for example, it' s certainly within your power and discretion to table it, but there's no leqal bar, again, to making a decision tonight, but again, it's up to you. If you think you'd be better off tabling it, if you want to give them the courtesy of tabling it, the applicant, it is the applicant's application. He has requested that it be tabled. It's up to you. MEMBER OF PUBLIC-I want the courtesy of you voting. here. I won' t be MR. FRIEDLAND-Even if the public hearing was closed tonight, you would still have 62 days to make a decision, whether you formally tabled it or not, but if you closed the public hearing right now, you still have 62 days to make up your mind. MR. CARVIN-I had a couple of questions of the applicant, but I'm sensing the applicant is reluctant to answer any questions from the Board, and if I'm incorrect on that, just correct me. MR. SALVADOR-We entered into this tonight on the agreement that, Number One, the public hearing would be open, and that we requested that it be tabled, pending the decision from the County Attorney. - 63 - (QueensburyZBA Meeting 8/28/96) It's a pivotal point. MR. MENTER-I happen to agree that it is an important point, and I believe that tabling makes sense for that reason. I'm not so sure that it was an agreement and a brokered deal that X would happen. I mean, you have, certainly, the right to request a tabling, but it's not incumbent upon us to grant that. MR. SALVADOR-Do we have the privilege of withdrawing our application at the outset of this meeting? MR. CARVIN-You sure do. You still have that option. MR. SALVADOR-Okay. Had you not agreed to the tabling, and had not agreed to. MR. CARVIN-Well, I have to support Mr. Menter. We never agreed to a tabling. We said we would consider a tabling. MR. SALVADOR-Okay. Then we would be desirous of withdrawing our application, and we will resubmit and go again at the County. MR. CARVIN-Okay. MR. SALVADOR-If you feel that you have to make a decision tonight. MR. CARVIN-Well, now you've given it a caveat. I mean, you are either withdrawing it, with no strings attached, because you can't make that caveat if we're going to make a decision tonight. I mean, you either are withdrawing it or you're not withdrawing it. MRS. SALVADOR-We haven't presented our case. MR. CARVIN-Well, I would be more than glad to give you that opportunity. MR. SALVADOR-Well, we feel, in light of the County Attorney's letter to you today, that is new information. That should be considered. MR. CARVIN-As I said at the beginning, I felt very comfortable that I have a determination from Warren County. I am very clear in illY mind that Warren County turned this down. All that means is that you needed a vote of five. As far as the issues that are presented to this Board, I have a whole list of other criteria, based on what you're requesting, that has absolutely nothing to do with the navigable rights of Lake George at this point, or what Warren County may determine later on, and certainly if, and if the County Attorney determines that Warren County made a mistake, then I think that they would invite you back for a rehearing, but it will not be up to the County Attorney to overturn their decision. They're just giving you the opportunity that if it is based, if he discovers new information that should have been presented at that meeting, then they would allow you the opportunity to go back and present your case without prejudice, and that's all that meant, but they turned you down at Warren County. MR. SALVADOR-Yes. We attended the Warren County Planning Board session, and we testified. It was clear to me that had the Board members understood the subject of navigable waterway and public highways, they were faced with a default approval. That's what they were faced with. Their option was to deny without prejudice, pending the County Attorney's decision in that matter, advice if you will. That's why we're where we are. MR. CARVIN-Okay, but that still presents us with a dilemma here - 64 - '-- ~. (Queensbury ZBA Meeting 8/28/96) tonight, I mean, whether you want to withdraw your application or if this Board feels comfortable. MR. SALVADOR-No, I don't think so. We entered into this hearing tonight. We stated, up front, what we felt should be done, and we'll live with that. MR. CARVIN-Okay. I mean, again, I do have some questions that I would like to ask, if you are going to continue. I mean, if you want to table or if you feel that you do not want to answer, then that's your prerogative. MR. SALVADOR-I'm here. I'll answer any questions you have. MR. CARVIN-Okay. The only question that I have, or one of the questions that I have is that you indicated the lot this way, which creates a situation that does not front on a Town highway. Am I correct? MR. SALVADOR-That's correct. MR. CARVIN-Okay. Why can't you subdivide it the other way, and that way you would have frontage on a County highway? Why is this the only way that you could, or on a Town highway? Why can't you go this way? MR. SALVADOR-It would not front on a highway. It would front on other land. MR. CARVIN-Well, it would front on the highway, the same as this other lot is. MR. SALVADOR-Well, we want to avoid the situation where the lot has shoreline associated with it, because then it becomes a criteria for setback. MR. CARVIN-But would not it be minimum relief to go the other way, as opposed to this way? I mean, are we granting minimum relief with this particular situation? Because you do have an alternative to subdivide where you would have frontage on a Town road. MR. SALVADOR-Could we leave the lot that way and grant an easement? MR. CARVIN-MY feeling is I'm very reluctant to get involved with easements or right-of-ways, because they always come back to haunt you, and I'm saying that, if this is subdivided in a different fashion, then we have a minimum relief situation, and this, to me, is not a minimum relief situation here, because you do have an alternative, I feel, to front on a Town road. MR. SALVADOR-Then if we were to want to build a structure on that lot, would we be faced with the same problem we had previously, where the shoreline setback is measured in one direction only? MR. CARVIN-Well, I think, first of all, I don't have an answer, because that's a Planning Board decision, Number One, but, Number Two, I think it opens up a couple of other interesting speculations, because there's a marina that, and about conflicting uses. MR. SALVADOR-Yes. Well, that's why we did this this way, to make it independent. MR. CARVIN-And again, I'm not too sure if this is a subdivision if we don't have some use issues here, but I think the public hearing has certainly brought out the fact that, certainly we have the safety, health and welfare issue. I don't know if you care to - 65 - (Queensbury ZBA Meeting 8/28/96) address that. MR. SALVADOR-The North Queensbury Fire Department maintains equipment to go out on the water and fight fires. In fact, they launch it over our property frequently. They practice with it over our property. They draft water from our property. This is not a concern. They're prepared to fight a boat fire, a structure fire from the water. They have the vessel and they have the pump, and they have the personnel trained to do it. MR. CARVIN-How about police or ambulance? I mean, these are other concerns. MR. SALVADOR-Our facilities are used frequently. Boats, tour boats from the lake come into our dock frequently, to discharge people who've fallen, heart attack, you name it. It's the easiest access, right at our pier, level and safe. MR. CARVIN-Does anybody else have any questions here? MR. SALVADOR-There's a lot of concern about any kind of a structure out there, but we put structures out on the ice all winter. They're called ice shanties. MR. MENTER-The boats don't have a problem with them. navigable water is the issue with the structure. navigable water. I think the Ice is not MR. SALVADOR-The boats, any boats that will travel over this land, this lot, this subdivision, will do so with our permission. That is private property. Right now, the boats that come in and dock there, they do so with our permission. We rent to them. MR. CARVIN-Does anybody else have any questions of the applicant? Okay. So the benefit to you as weighed against the detriment of the health, safety and the welfare of the community would be, again, just to reiterate? MR. SALVADOR-Well, we are seeking a minimum use of our land, in accordance with the Town Zoning Ordinance. MR. CARVIN-It's an Area Variance. I'm not asking about the use. I'm asking what the benefit, what would this allow you to do? MR. SALVADOR- It will allow us to develop a residential lot, a Waterfront Residential lot. MR. CARVIN-Okay, it would allow you, and that would entail building a structure, would that be correct? MR. SALVADOR-Whatever's allowed by the Town, and I tell you, they're going through this zoning, the hearings are taking place right this very day, and we'll be again on the agenda at the Town Board meeting on the 15th of September, and I can't tell you what will come out of that, for allowable uses, and to what extent, and with what setbacks. MR. CARVIN-Okay, and the reason you did this, again, is to avoid a shoreline problem? MR. SALVADOR-We were denied a building permit previously, because we did not meet the shoreline setback as interpreted by the Zoning Administrator, and upheld by your Board. MR. CARVIN-Okay. Any questions, Chris? MR. THOMAS-Are we going forward with the public hearing? - 66 - '-' -- (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Yes. We'll go forward with the public hearing. The public hearing is still open. MR. THOMAS-Well, not right now. MR. SALVADOR-I would just like to add one more point. The Town Ordinance, both the Zoning Ordinance and the Subdivision Ordinance, require access by Town road, improved to Town road standards. In this particular case, that represents the most environmentally damaging alternative available. Now I know how to build roads, and I know how to build roads to Town road standards, but I don't think that's what the Town wants. The relief we're seeking is to take an opportunity to use a cost effective alternative, very cost effective to us. We've already paid taxes for the privilege of owning waterfront property, and with those privileges go riparian rights, and we would be utilizing those rights to access our land, that would not impact anyone, our neighbors, anyone else. There's how many feet on the north boundary, 200 and? MR. CARVIN-You're going to have to pardon my ignorance, but could you define IIriparianll? I'm sorry, I don't have a dictionary, and I'm not that smart. MR. SALVADOR-A Riparian right is a right, an upland owner has to the access of public waters abutting their property. It's a right of access. MR. CARVIN-Okay, and again, I understand what you're saying that you could build a road or the Town could build a road and it would be very environmentally damaging and probably a very unique situation, but could you not subdivide the other way and still meet your criteria? MR. SALVADOR-I don't think I would be allowed to. I don't think I would be allowed to develop it. MR. MENTER-Well, we're not talking about developing it. MR. CARVIN-I was going to say, I'm looking for frontage on a Town road, and that's the only issue that I really am concerned with. MR. SALVADOR-Well, if that's the case, I can supply that, either through an easement or through the construction of a road, if that's necessary. MR. CARVIN-Well, as far as this Board is concerned, I mean, that's the only reason it's here. -Otherwise, it's a Planning Board issue. MR. SALVADOR-Yes. I'm asking you to listen to a reasonable alternative, which is to utilize the public highway, known as the navigable waters of the State, they abut our property. MR. CARVIN-Again, maybe I'm going to open up a can of worms, but is the navigable waters of the State of New York an approved Town highway? MR. SALVADOR-It's a public highway. Well, the Town law, if I might have my file. The Town law, Section 280-a, talks about permits for buildings not on approved mapped streets. IINo permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan. If there is no official map or plan, unless such street or highway is, A. An existing State highwayll. The navigable waters of the State are considered a State highway. At one time, this State was organized such that the navigable waterways and the highways of the State were in one department called Public Works. They reorganized the State and now we have a - 67 - (Queensbury ZBA Meeting 8/28/96) Department of Transportation, and we have the Navigable Waterways regulated by the DEC, but it was all transportation, and if I remember my history correctly, we were using waterways for transportation long before we were using roads. Now, let me continue. Paragraph Five of Section 280-a defines "Access". "Access shall mean that the plot on which such structure is proposed to be erected directly abuts on such street or highway, and has sufficient frontage thereon to allow the egress and ingress of fire trucks, ambulances, police cars and other emergency vehicles", and over the navigable waterways, we can get all of those emergency vehicles in. The Sheriff is out there. The Park Commission is out there. That's what they're there for, the health, safety and welfare of the people. MR. CARVIN-Okay. This State highway would be a dedicated highway to the Town? I mean, how would that work? MR. SALVADOR-It's dedicated to the people. How did you think you could get to see that sign without traveling over? MR. CARVIN-I couldn't. I couldn't get to see property. know why, because I didn't have a boat. Do you MR. SALVADOR-You didn't have a boat, but if you had one, you were uninhibited. MR. CARVIN-I don't have a boat. MR. SALVADOR-But if you had one. MR. CARVIN-If I had one, if I was a fireman who didn't have a boat, how would I put out the fire? MR. SALVADOR-But our fire department does have a boat. MR. CARVIN-Okay. If I was an ambulance person who didn't have a boat, in an emergency, they don't know that they're going to the lake. MR. SALVADOR-They practice. They do this all the time in North Queensbury. They should be here to testify, then. The equipment is in the fire station and they practice it. They asked our permission to practice off of our property. MR. O'LEARY-Mr. Salvador, may I ask you a question? MR. SALVADOR-Yes, sir. MR. O'LEARY-What you're saying, then, is that any submerged property on the lake does not require access by the highway because the lake itself is the highway? MR. SALVADOR-People own property on islands. How do they get to their island? Yes. It's a public highway. MR. O'LEARY-That the lake itself is the highway. MR. SALVADOR-Is a public highway. MR. O'LEARY-So that any property submerged on the lake would not have to meet this requirement of access by highway "roads", street because the lake itself represents that? MR. SALVADOR-'If that property abuts the navigable waterway, then it has public access. MR. O'LEARY-And in that case, this particular aspect of the Code is not applicable? - 68 - ---- (Queensbury ZBA Meeting 8/28/96) MR. SALVADOR-That's why we're seeking a variance, because we feel that utilizing the navigable waterways is the most cost effective way and the least environmentally disturbing way to accomplish this task. MRS. WINTON WILLIAMS MRS. WILLIAMS-We do have all these rights that you're talking about, but we also have responsibility, and I think responsibility is, I can't find it. I'm Mrs. Winton Williams. MR. SALVADOR-Well, believe me, anything we do with this property, we will, there will be no damage to the environment. Mrs. Vandyke mentioned an archeological survey. Would you that we stir the bottom sediments of this lake to do an archeological survey? MRS. VANDYKE-That's possible. MR. SALVADOR-Fine. If we can do that, and it's not environmentally damaging, we're prepared to do it. We're prepared to do it. MR. CARVIN-George, do we have any opinion from Paul Naylor about the lake as being an approved Town highway? MR. HILTON-As of yet, no. That's another reason that we could table this and get further information from our Highway Superintendent. MR. CARVIN-Okay. MR. O'LEARY-That raises another question I have, Mr. Chairman, a and that is that, if we restrict ourselves to the narrow question of accessibility, visa via a highway, and then the question of what constitutes a highway, then the attorney for Mr. Parillo has suggested that we cannot draw the curtain between what we know the intention is for the utilization of the property, and everything that's encomp~ssed therein, and just look at the highway accessibility in and of itself. Now, if that's the case, we're looking at much broader issue here than just the highway access visa via the local Ordinance. MR. SALVADOR-Yes. Any use of that lot will be in accordance with, will be an allowable use within the Town Zoning Ordinance. We haven't asked for any relief in that regard, previously, and it would be our intention. We would hope that a one acre lot, waterfront lot, that we would be able to develop and live within the Zoning Ordinance parameters. MR. CARVIN-What about the remaining lot? What would be the use there? MR. SALVADOR-It would stay the same. nonconforming use. It's a pre-existing, MR. CARVIN-Yes, to the oriqinal lot. MR. SALVADOR-The original lot is, yes. MR. CARVIN-Yes, but you're creating two new lots. MR. SALVADOR-Well, the second one is the existing one. MR. CARVIN-No. The whole thing is the existing one, that's the pre-existing, nonconforming. MR. SALVADOR-We're creating a two lot subdivision, one, one acre lot, the rest what's left over. - 69 - (Queensbury ZBA Meeting 8/28/96) MR. CARVIN-Okay, but there's nothing, using that logic then, you could use that as a marina, the subdivision. These are two new lots. MR. SALVADOR-Only with permission. Only with a variance approval. It's a nonconforming use. MR. CARVIN-Well, that brings up another issue, right? I mean, do we have a situation here, if we subdivide this, do we have two new lots, in which case, does he lose the pre-existing, nonconforming marina? Because we're creating a whole new situation, and remember, the pre-existing nonconforming, as far as ~ would be concerned, would be on the whole lot, and now we're changing the whole structure. So, in essence, we are expanding a nonconforming use from the possibility of one marina to two, or you could say we're putting the same intensity on half the lot. MR. MENTER-I think, to expand on that, the way I'd look at it is that any potential use of any of these properties must be considered when you're considering all the criteria. MR. SALVADOR-You can't anticipate what we're not asking for. MR. MENTER-Yes, but you're saying, so we have to look at what is allowable, though. MR. CARVIN-Yes. MR. SALVADOR-That's right, and marinas are not allowed. not an allowable use. They're MR. CARVIN-We're saying that we're creating two new· lots here, that was not there before. MR. SALVADOR-I think the expression "two lot subdivision" is there is one there now, and we are subdividing off one lot. That makes it a two lot subdivision. It's one new lot. MR. FRIEDLAND-There's a question there. I'm not sure what it is. Let me try to clarify one thing, I think. If the question is whether the new one acre, the proposed new one acre lot that's completely out on the lake would then be allowed to be used as a marina, because it was part of a lot that was a pre-existing nonconforming marina, I think the answer is no. MR. CARVIN-Then why is it different for the remaining lot? MR. FRIEDLAND-Because it would still nonconforming use, the marina. be a pre-existing, MR. CARVIN-But the whole thing was the pre-existing, nonconforming use. MR. FRIEDLAND-Right, again. This is sort of hypothetical, but he's not terminating. MR. CARVIN-I'm just saying, in my mind, that we're creating two new situations here, things that were not before. Were not before. MR. MENTER-Are we creating two new lots, or one new lot and it's shrinking the old one? MR. SALVADOR-Yes, shrinking the old lot. MR. HILTON-One new lot, shrinking the old lot. MR. CARVIN-In which case, we still have an increase in intensity, because we're having the same activity on a smaller piece of - 70 - -- (Queensbury ZBA Meeting 8/28/96) property. So we've actually got an increase in activity. MR. HILTON-Unless you restrict that, I would think, through your approval. MR. CARVIN-I'm saying that according to our nonconforming, I think that they can't do that without a Use Variance, because it's an expansion of use. MR. FRIEDLAND-I think I agree. If you're saying that he can't use the new, one acre lot as a marina without a Use Variance, I think that's probably right. MR. CARVIN-I'm saying that both of these, he can't use the marina on either one of them. Because he's expanding the use of the original by shrinking it. MR. SALVADOR-We're not expanding the use. We're not putting anything new on it, and if we did, we'd have to get a variance. MRS. BALDWIN-I'm totally confused. MR. CARVIN-It will get confusing, a lot more confusing. MRS. BALDWIN-Your building isn't new. Your docks aren't new. Your little float isn't new. I think we're all tired. MR. SALVADOR-I suggested tabling long ago. MRS. BALDWIN-Yes, because it's to your advantage, certainly. MRS. BALDWIN-I mean, we're all going back soon. We're all summer residents, obviously, and we're all going back. We all came here to state our opinions, and you're up there monopolizing everything, preventing them from taking the vote that they want to. Say what you have to say and go sit down. MR. SALVADOR-I'm answering questions the Board has directed to me. MRS. SALVADOR-And it seems to me we live in a republic, not a democracy. MRS. BALDWIN-Yes, I thought also. MR. CARVIN-Well, what do you want to do? thought? Has anybody got a MR. SWEENEY-Mr. Chairman, one quick comment on the procedural aspect of the vote. The only possible scenario under which the County makes any difference to this Board and this applicant whatsoever is if this Board votes four to two in favor of this application, and then the County changes their mind, and unless this Board has four votes in favor of the application, nothing that the County can or will or could do is going to make any difference to this application. MR. CARVIN-I agree with that. MR. SWEENEY-That is the only thing that would hold this Board up from taking a vote this evening, is if they have four votes in favor. If they do have four votes in favor, as we suggested before, they could deny the application, without prejudice in the event that the County changes their mind, but unless it's four in favor, the County is meaningless as to what this Board does with this application. MR. CARVIN-Well, again, without sounding arbitrary and capricious, I want to make sure that if we vote on this, that we follow our - 71 - - (Queensbury ZBA Meeting 8/28/96) criteria here, and I want to make sure that we've exhausted all the questions and make sure that we've got, at least in our own mind, either a positive reason why we want to pass this or a negative reason why we want to turn it down, and support it on our criteria. Because I still have the public hearing open. MR. SALVADOR-Mr. Carvin, I think we would like to withdraw our application. MR. CARVIN-Are you positive on this, John? MR. SALVADOR-I'm positive on it, and we'll resubmit. MR. CARVIN-Okay. He has withdrawn his application. MR. SALVADOR-Okay. Thank you. MR. CARVIN-And then that's it. We've got a little bit more business, before the Board runs off. Okay. We have the Mooring Post coming up on Wednesday. Everybody should have had the nine pounds of material that was submitted. I think this is probably going to be my last official meeting, regular style. We have a ton of minutes. If you want to just approve them in tote. Okay. Does anybody have any corrections to the minutes from last we read them to the latest issue? Okay. MOTION TO ACCEPT THE MINUTES FROM LAST WE APPROVED TO THE MOST CURRENT ISSUE, Introduced by Fred Carvin who moved for its adoption, seconded by Robert Karpeles: Duly adopted this 28th day of August, 1996, by the following vote: AYES: Mr. O'Leary, Mr. Menter, Mr. Green, Mr. Karpeles, Mr. Thomas, Mr. Carvin NOES: NONE MR. CARVIN -Okaÿ . Those minutes are corrected. adjourn the meeting. I'm going to On motion, meeting was adjourned. RESPECTFULLY SUBMITTED, Fred A. Carvin, Chairman - 72 -