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1994-05-03 SP ../ QUEENSBURY PLANNING BOARD MEETING SPECIAL MEETING MAY 3RD, 1994 INDEX I Site Plan No. 11-94 John Shaffer l. Subdivision No. 2-1994 Pyramid Company of Glens Falls 2. FINAL STAGE Site Plan No. 1-91 Pyramid Company of Glens Falls 8. Site Plan No. 12-94 Lucas Wi I son 9 . 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. .. '-< yl QUEENSBURY PLANNING BOARD MEETING SPECIAL MEETING MAY 3RD, 1994 7:00 P.M. MEMBERS PRESENT TIMOTHY BREWER, CHAIRMAN GEORGE STARK, SECRETARY ROBERT PALING CRAIG MACEWAN ROGER RUEL JAMES OBERMA YER CATHERINE LABOMBARD EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SCOTT HARLICKER PLANNING BOARD ATTORNEY-MARK SCHACHNER STENOGRAPHER-MARIA GAGLIARDI OLD BUSINESS: SITE PLAN NO. 11-94 TYPE II JOHN A. SHAFFER OWNER: SAME AS ABOVE ZONE: WR-IA LOCATION: ASSEMBLY PT. RD. PROPOSED 6' X 36' DOCK COMPLEX, 822 SQ. FT. BUILT ON 9 (NINE) 6' X 6' STONE FILLED TIMBER CRIB PIERS AND PROPOSED 16' X 20' (W/SKIRT) FLAT ROOF OPEN SIDED BOATHOUSE. WARREN CO. PLANNING: 4/13/94 LAKE GEORGE PÆ~K COMMISSION ADIRONDACK PARK AGENCY TAX MAP NO. 6-1-5 LOT SIZE: 1 6, 1 1 7 SQ . FT. SECT ION: 1 79- 60 JOHN SHAFFER, PRESENT MR. BREWER-Okay. Mr. Shaf f er, we asked you to do a coup 1 e of things for us, a drawing of the proposed ramp and the mean high wa ter mar k, and ad j us tmen t s, if neces sary, to the dock. How was the mean high water mark determined on this drawing? MR. SHAFFER-Well, that's just put there. had Leon, from Van Dusen and Steves, he determined the mean high water mark, and it works out that it's 13 inches below the decking of the dock. That's where the mean high water mark is. MR. BREWER-Okay, below the decking of the dock? MR. SHAFFER-Right. MR. BREWER-So you've got a foot to the top of the. MR. SHAFFER-So you've got 13 inches below the deck of the dock, then you've got 8 feet, which is (lost word). That missing number in there, that we were looking for last time, is 18 and a half inches, and then the railing's 32. So that comes out to 159.7 inches, divide that by 12, you've got 13.3 feet. The total thing is 13.3 feet. MR. BREWER-Okay. That question is satisfied. Now, I guess the question for me to ask would be, it's a 10 degree rise. How far back into the bank does that ramp go? MR. SHAFFER-Sixteen feet from the deck. MR. BREWER-Sixteen total feet. Okay. Those are the questions that 1 had. Has anybody else got any questions? Okay. We're ready for a motion. MR. HARLICKER-You might just want to revise the resolution to include the revised drawings that you received tonight. - 1 -- '- ..../ MR. MACEWAN-I thought we were asking that to be surveyed, or he said he was going to get it surveyed? MR. BREWER-Leon Steve's people went over there and found mean high water mark. Do you have any documentation of that? MR. HARLICKER-He called us and gave us the figures for it. MR. BREWER-Leon did? MR. HARLICKER-Yes. MR. BREWER-Okay. That's good enough for me. MOTION TO APPROVE SITE PLAN NO. 11-94 JOHN A. SHAFFER, Introduced by George Stark who moved for its adoption, seconded by Roger Ruel: Whereas, the Town Planning Board is in receipt of site plan application file It 11-94 to replace an existing 871 square foot dock with an 822 square foot dock with a flat roof, open sided boathouse; and Wher eas , the above men t i oned 3/28/94 consists of the following: boathouse, revised 3/23/94 2. boathouse, revised 3/23/94 3. construction, revised 3/23/94 4. sit e p I an app li ca ti on da t ed 1. Sheet 1, existing dock and Sheet 2, proposed dock and Sheet 3, dock and boathouse Survey map, dated 3/10/94; and Whereas, the documentation: 1. above file is supported with Staff notes, dated 4/26/94 the following Whereas, a public hearing was held on 4/26/94 concerning the above project; and Whereas, the requirements of the State Environmental Quality Review Act have been considered; and Therefore, Let I t Be Reso I ved, as follows: 1. The Town Planning Board, after considering the above, hereby move to approve site plan 1#11-94. 2. The Zoning Administrator is hereby authorized to sign the above referenced plan. 3. The applicant agrees to the conditions set forth in this resolution. 4. The conditions shall be noted on the map. 5. The issuance of permits is cond it i oned on comp li ance and cont i nued comp Ii ance with the Zoning Ordinance and site plan approval process. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mr. Stark, Mr. Obermayer, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: Mr. MacEwan ABSTAINED: Mrs. LaBombard SUBDIVISION NO. 2-1994 FINAL STAGE TYPE: UNLISTED PYRAMID COMPANY OF GLENS FALLS OWNER: SAME AS ABOVE ZONE: ESC-25A PROPOSED SUBDIVISION OF A 56.57 ACRE PARCEL INTO 10 SMALLER PARCELS IN ORDER TO OBTAIN CONSTRUCTION FINANCING FOR THE PREVIOUSLY APPROVED 105,000 SQ. FT. GLA EXPANSION TO THE .EXISTING AVIATION MALL. CROSS REFERENCE: AV 22-1994 TAX MAP NO. 98-1-5.2, 99-1-4 LOT SIZE: + 56.57 ACRES SECTION: SUBDIVISION REGULATIONS BOB STEWART, REPRESENTING APPLICANT, PRESENT MR. BREWER-Okay. Does anybody have any questions on this? I've got one. Mr. Stewart gave me this copy of these resolutions, and I'll pass them out to everybody on the Board, and it reflects that there's a modification, Jim. MR. MARTIN-Yes. That's right. - 2 - '- J MR. BREWER-Do we have to have a public hearing to do that, or do we not? MR. MARTIN-No, I don't think you do, but I didn't want to speak for the Board. They wanted some indication as to whether the Board would deal with this tonight, and I said I really didn't know, in that the information was new, although it's relatively minor, I said it may be put off until your meeting in May, depending on how the Board would view it. MR. BREWER-Okay. Mr. Stewart, could you please just explain to the Board what the modification is? MR. STEWART-Yes. Mr. Chairman, Members of the Board, for the record, my name is Bob Stewart, a lawyer in Glens Falls, representing Pyramid of Glens Falls. I'm not going to go through the background of this thing because you have lived with it for six months, and you know it better than I, at this point. We are here tonight for the Final Subdivision Review, and from the last time we met, until tonight, one change had taken place. This project involves, in large part, the construction of a J.e. Penney store, although there are other buildings involved with it. Penneys, at the last minute, has indicated that their store, even though it is to be the same size, they want it moved to the north, by 27 feet, because they think it gives them more of a presence or prominence in the setting, and their Executives, with their corporate wisdom, feel that this is very, very important. So we have adjusted the Final Subdivision that you know to a 10 lot, and that footprint, which is to hold the J.C. Penney store, has been moved forward 27 feet to the north. Now, Michael Piazzola, who's the Project Manager from Pyramid is here tonight, and he could answer, probably better than I, any questions you might have as to why, but I think the answer is because J.C. Penney really feels that they would prefer to have it that way. It represents no change, in terms of concept size, parking, sewer, water, or anything else. It's just that the square block is being moved that far north. In connection with that, as you know, this Board approved the Site Plan some weeks ago, and that Site Plan is also going to require the same minimal adjustment to move this block 27 feet forward, and of course that's (lost word) the sewer line and the water line, and it's going to realign the parking. It doesn't change the parking ratios. It doesn't change the land available. It just moves the block forward. So we are here tonight for final approval of the subdivision, and if you could see your way clear to also approve the site plan change and get rid of it once and for all, I hope, we'd appreciate that, but if you want more time to r&ad and study that, we'd certainly understand it. That's essentially what's up, no more, no less. MR. BREWER-Okay. Does anybody have any questions on the Board? MR. PALING-What you just said is what's in here? Is that correct? MR. STEWART-Yes. MR. PALING-Okay, and it's what's on the print, too? MR. STEWART-Yes. MR. PALING-Okay. MR. BREWER-Should we do that in two motions, Jim, one for the site plan and one for the subdivision? MR. MARTIN-I would. MR. BREWER-Okay. Does anybody want time to read this resolution that Mr. Stewart has given us? MR. MARTIN-And what time frame are we going to have mylars for - 3 - \... .,./ signing, and all that type of thing? MR. STEWART-I'm going to defer to Mike for that. MICHAEL PIAZZOLA MR. PIAZZOLA-Jim, we should have mylars within three to four days from Van Dusen and Steves for the Final Subdivision plan, and also the site plan will somehow be locked in permanently. MR. MARTIN-Yes. I'd like two copies of the modification, and just one page. If nothing else changes, your engineering details or nothing like that changes, I just need the site plan that reflects the 27 foot change. MR. PIAZZOLA-AII right. What we'll do is we're going to take the 98 different plans that we've got in to the Town at one time or another and put together file copies that we can stamp, or whatever you want to call them, and get as many sets as you need of final subdivision, as well as the site plan in your hands. MR . MART I N - Us u a II y we jus t nee d two sit e p I an s ,on e for 0 u r Planning file, one for the Building Department, and then this subdivision has to be filed with the County. They usually require, what, 10 copies of the subdivision plan, I think it is. MR. PIAZZOLA-We'll do that. MR. BREWER-I'll just ask you one more question, Mike. Did you ever get in contact with NiMo about filling the back in and putting the infiltrators in the back, or is that a dead issue? MR. PIAZZOLA-I met with NiMo legal two weeks ago, and ran plans to them which would entail filling those detention basins and replicating the stormwater management system which exists now, which as you all know now, is antiquated, with an infiltrator system to be subsurface, below asphalt, and last Friday, I met with N iMo 's eng i neer i ng to go thr ough that p I an, and I have another meeting this Friday, again, with NiMo engineering to go through the refinements of that plan. So, as is the way with NiMo, we're in the process. I can't tell you where we'll come out, but we're in the midst of it right now. We're doing what we can to get those detention basins taken care of. Obviously, we have to replicate the stormwater, the line that we're eliminating somehow else, and we'll do that with underground infiltrators. MR. BREWER-Okay. MR. MARTIN-Just to update the Board on the hauling of the fill. The Town requirement is about half met, according to Paul Naylor. We were by the sand pit today. I think it's about half full. He estimates approximately 50,000 yards is over there. So we're about halfway to the Town commitment. MR. PIAZZOLA-And that's continued on a nightly basis. MR. BREWER-Is there anything else from anybody on the Board? MR. STEWART-May I jus t conU11en t to the Board? In. the packe t tha t I handed out, there are two resolutions. The first six or eight pages covers the subdivision approval, and the last couple of pages stapled together is the resolution relating to the site plan approval. So you have both in front of you. MR. SCHACHNER-I've read it, Mr. Chairman. A couple of minor questions that I'm not clear on, probably because they precede my involvement. The second resolution that's submitted on the modification for the site plan says, the modification includes moving the new J.C. Penney store 27 feet to the north. Is there anything else that's included in the modification? I was led to - 4 - ~ ...< believe that was the modification. MR. STEWART-You're exactly right. when you move the building north, and electrical lines, that type substance, other than that. T hat l.§.. the mo d i f i cat ion, ex c e p t then you extend like sewer lines of thing. There's nothing of MR. SCHACHNER-Okay. That resolution also, at the end, says, Further Resolved that all conditions to the site plan approval been satisfied. I haven't the faintest idea if that's true. site plan approval preceded my involvement. it's have The MR. BREWER-I think that the conditions for the site plan were, basically, engineering, if I remember right, and I think they were met. MR. SCHACHNER-Okay. Again, I just have no idea. MR. BREWER-I think if they weren't met, Mark, we wouldn't have given them an approval. MR. SCHACHNER-Well, it says it was a condi tional approval, the final site plan approval. It says it was conditional. So all I'm saying is, I don't know. Jim probably knows, but I don't know whether those conditions have been satisfied. I don't even know wha t the condi t ions wer e. 1 d i dn 't even know ther ewer e any conditions, except it says in here. The question is, have all conditions of the site plan approval been satisfied? This proposed resolution says they have. MR. MACEWAN-The biggest condition we had with the site plan approval was the hauling of dirt. That was basically our big hold up. MR. MARTIN-Everything else was really, you know, you've got landscaping coming and all that. MR. SCHACHNER-The fundamental question is whether you think the modification is material or relatively minor, and I would certainly say it sounds relatively minor to me, and then it also includes a whole lot of new SEQRA findings that are completely unnecessary because you've already made your SEQRA determination. They're just redundant and unnecessary, but I don't care. MR. BREWER-Okay. Anything else from anybody? somebody care to make a motion? Okay. Would MOTION TO APPROVE SUBDIVI S ION NO. 2-1994 FINAL STAGE PYRAMID COMPANY OF GLENS FALLS, Introduced by Craig MacEwan who moved for its adoption, seconded by Roger Ruel: As submitted in written form, with the modification of moving the J.e. Penney footprint 27 feet to the north. " WHEREAS, Pyramid Company of Glens Falls (the "Applicant") submitted an application for approval of a Preliminary Subdivision Plan on March 30, 1994 (as amended and supplemented, the "Preliminary Application") and an Environmental Assessment Form and related materials (as amended and supplemented, the "EAF") to the Town of Queensbury Planning Board (the "Planning Board") for the subdivision of certain parcels of land, as more particularly shown on one of the plans submitted in the Application which plan was prepared by Northeast Land Surveyors and Land Development Consultants, P.C., entitled "Aviation Mall Subdivision Plan Prepared for the Pyramid Company of Glens Falls" dated March 17, 1994 (as amended and revised the "Preliminary Subdivision Plan"); and WHEREAS, the Planning Board, 1994 established itself as the by Resolution dated April Lead Agency for purposes 26, of -- 5 - \-. ../ uncoordinated SEQRA review of the Applicant's Application and engaged in review of the Applicant's Application; and Preliminary Preliminary WHEREAS, the Planning Board, at a scheduled public hearing on April 26, 1994, notices of which were duly published, posted and rnailed, considered the Applicant's Preliminary Application and by Resolution dated April 26, 1994, approved by the Applicant's Preliminary Application and Preliminary Subdivision Plan and concluded that the proposed subdivision and the preliminary approval thereof, minimizes or avoids adverse impacts to the nia x i mum ex ten t p r act i cab Ie; and WHEREAS, the Applicant submitted an application for approval of a Final Subdivision Plan on April 28, 1994 (as amended and supplemented, the "Pinal Application") to the Planning Board for the subdivision of certain parcels of land, as more particularly shown on the "Aviation Mall Subdivision Plan Prepared for Pyramid Companies of Glens Falls" dated March 17, 1994 and last revised April 27, 1994 (as amended and revised the "Final Subdivision Plan"); and WHEREAS, the Applicant seeks to subdivide the same parcels of land assembled in connection with the Aviation Mall Shopping Center into ten (10) parcels, as described in the Final Application and as shown on the Pinal Subdivision Plan; and WHEREAS, the public hearing period for the Applicant's proposed subdivision was officially closed on April 26, 1994; and NOW, THEREFORE, IT IS HEREBY RESOLVED, that the Planning Board rees tabl ishes i tsel f as the Lead Agency for purposes of uncoordinated SEQRA review of the Final Application; and that the Planning Board determines and concludes that based on the record before the Planning Board, the information set forth in the Applicant's EAF and Preliminary Application, the Applicant's Final Application, the approved final site plans and the Preliminary and Final Subdivision Plans that the subdivision of the subject parcels is an unlisted action as defined in 6 NYCRR Part 617.2(kk) and that no potential negative environmental impacts will result from granting the subdivision approval requested by the Applicant in the Final Application. IT IS HEREBY FURTHER RESOLVED that the Planning Board makes the following findings, determinations and conclusions: 1. The Planning Board hereby incorporates by reference the Applicant's Preliminary Application and the Resolution which approved the Applicant's Preliminary Application to subdivide 56.57+/- acres of land generally involving the expanded Aviation Mall. The Applicant is the owner of contract vendee of said land. 2. The requirements of Article 8 of the Environmental Conservation Law and 6 NYCRR Part 617 have been met with respect to the Preliminary and Final Applications. The Planning Board and the Town Engineers have considered the full EAF, submitted with the Preliminary Application, the prior SEQRA review of the 106,000+/- SF GLA expansion to Aviation Mall, which included comprehensive review of among other things, a Traffic Impact Study, a Drainage Report and a Soils Report, the Site Plan approval for the 106,000+/- SF GLA expansion, the March 15, 1994 Site Plan modification which reduced the Expansion to 105,000+/- SF GLA and the March 15, 1994 Planning Board SEQRA Findings of no potential negative environmental effect in connection with the Site Plan modifications. The Planning Board hereby adopts and incorporates by reference those portions of the above referenced documents relevant to the issuance of this subdivision - 6 - '.'... .~ 'OW/ approva 1 . ~ 3. The Planning Board also adopted and incorporates by reference the previous SEQRA findings, and determinations and conclusions in connection with the previous site plan approvals and modifications and the prior Preliminary Subdivision approval, which concluded that approval of the Preliminary Application will have no adverse environmental impacts. 4. Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, this action minimizes or avoids adverse environmental impacts to the maximum extent practicable. 5 . The r i n a I Sub d i vis ion P I ani sin sub s tan t i a I a g r e em en t with the Preliminary Subdivision Plan. The only variation between the Final Subdivision Plan and the Preliminary Subdivision Plan is that the Final Subdivision Plan indicates that Parcel 7, the "New JC Pen n e y ," i s sit u ate d a p pro x i ma tel y t wen t y - s eve n (27) fee t to the north of where it is situated on the Preliminary Subdivision Plan. The Planning Board determines that the above modification is minor in nature. 6. The minor modification contained in the Final Subdivision Plan as described in paragraph 5, does not change or alter the conclusion that the proposed subdivision, if granted, wi 11 not have any adverse env i ronmental impacts. IT IS HEREBY FURTHER RESOLVED that the Planning Board waives the requirement for a second public hearing since it hereby determines that the Final Subdivision Plan is in substantial agreement with the Preliminary Subdivision Plan and that it wouLd not be in the public interest to conduct such a hearing. IT IS HEREBY FURTHER RESOLVED that the Final Application to subdivide the parcels of land making up Aviation Mall, as depicted in the Final Application, and on the Final Subdivision Plan, is approved and that subdivision is hereby granted. This approval is granted, notwithstanding the recommendation of the Warren County Planning Board based on the findings, determinations, conclusions and resolutions set forth in this resolution. IT I S HEREBY FURTHER RESOLVED that because the proposed subdivision does not involve construction of a residential subdivision, all improvements to be located on the subdivision real property have been previously approved by the Planning Board during 1994 modification to said approval, which among other things, reduced the SF GLA to 105,000 SF GLA. Specifically, the Planning Board adopts the prior site plan approvals' findings which concluded that the site plan approval and modification thereto had no potential adverse environmental impacts. 2. The granting of the site plan modification as depicted in the Application and on the modified Site Plans would not have any additional potential environmentat impacts. 3. Consistent wi th social, economic and other essential considerations from among reasonable alternatives thereto, this action minimizes or avoids adverse environmental effects to the maximum extent practicable. 4. The requested modification to the Site Plän Approval is minor in nature and does not require a public hearing. IT IS FURTHER HEREBY RESOLVED that after careful consideration of the Application, the Planning Board hereby approves and grants - 7 - "- -../ the modification to the Site Plan Approval, as set forth in the Application. IT IS FURTHER HEREBY RESOLVED that all conditions to the Site Plan Approval have been satisfied. IT IS FURTHER RESOLVED that the Zoning Administrator is hereby authorized to sign the modified site plan submitted to the Planning Board. The Applicant shall present the above-referenced Site Plan to the Zoning Administrator for his signature within 30 days of the date of this Resolution. Duly adopted this 3rd day of May, 1994, by the followIng vote: AYES: Mr. Obermayer, Mrs. LaBombard, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Stark, Mr. Brewer NOES: NÖNE MR. MACEWAN-Are you ready for the next one? MR. BREWER-Yes. MOTION TO APPROVE SITE PLAN NO. 1-91 PYRAMID COMPANY OF GLENS FALLS, Introduced by Craig MacEwan who moved for its adoption, seconded by Roger Ruel: As written modification presented, with the modification of the J.C. Penney store moving 27 feet to the north. WHEREAS, Pyramid Company of Glens Falls (the "Applicant") has submitted to the Town of Queensbury Planning Board (the "Planning Board") an application (the "Application") to modify its January 22, 1991 Site Plan Approval, as modified by Resolution dated March 15, 1994 (that site plan approval, as extended and modified, is herein referred to as the "Site Plan Approval"); and WHEREAS, the modification includes moving the new JC Penney's store twenty-seven (27) +/- feet to the north; and WHEREAS, the above mentioned Application consists of the following: l. Letter from Applicant to Planning Board dated 5/3/94 2 . Sheet EP-l, Site Plan, revised 4/29/94 3. Sheet sp·- 3, Layout and Striping Plan, revised 4/29/94 4. Sheet SP-4, Layout and Striping Plan, revised 4/29/94 5 . Sheet SP-7, Grading, revised 4/29/94 6 . Sheet SP-8, Grading, revised 4/29/94 7 . Sheet SP-ll , Utilities, revised 4/29/94 8. Sheet SP-12, Utilities, revised 4/29/94 9 . Sheet SP-19, Sediment and Erosion Control, revised 4/29/94 10. Sheet SP-20, Sediment and Erosion Control, revised 4/29/94 1 1 . Sheet SP-24, Profiles, revised 4/29/94 NOW, THEREFORE, IT IS HEREBY RESOLVED that the Planning Board establishes itself as lead agency for purposes of an uncoordinated State Environmental Quality Review Act ("SEQRA") review of the Applicant's Application and that based upon the record before the Planning Board, the Planning Board concludes that the requested site plan modification constitutes an "unlisted action" as defined by 6 NYCRR Part 617.2(kk) and that no potential environmental impacts will result from granting the site plan modification requested in the Application. IT IS HEREBY FURTHER RESOLVED that the Planning Board makes the following findings, determinations and conclusions: - 8 - ~ '- J 1. The Planning Board incorporates by reference the relevant portions of the previous SEQRA-related approvals associated with the 106,OOOr/- square foot gross leasable area ("SF GLAtI) expansion to Aviation Mall, including the January 22, 1991 site plan approval and the March 15, 1994 site plan review of the expansion, and none of the improvements are to be dedicated to the Town upon c omp let i on the r eo f, ( but rat her will be mQ i n t a i n e din private ownership by the Applicant and operated as part of the extended Aviation Mall), the Planning Board hereby waives the requirement that the applicant post a construction bond. IT IS HEREBY FURTHER RESOLVED that the Zoning Administrator shall sign the Final Subdivision Plan and upon such signing, the Applicant is authorized to file said plan with the Warren County Clerk's Office. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mrs. LaBombard, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Stark, Mr. Obermayer, Mr. Brewer NOES: NONE MR. PIAZZOLA-Thank you very much. SITE PLAN NO. 12-94 TYPE: UNLISTED LUCAS WILSON OWNER: SAME AS ABOVE ZONE: MR-5 l.OCATION: END OF WALKER LANE, OFF BAY ROAD PROPOSAL I S TO CONSTRUCT THREE ( 3) FOUR (4) UN I T APARTMENT BUILDINGS. CROSS REFERENCE: SP 22-93 TAX MAP NO. 60-7-14.1 LOT SIZE: 1.467 ACRES SECTION: 179-18 BRUCE CARR, REPRESENTING APPLICANT, PRESENT; LUCAS WILSON, PRESENT MR. BREWER-Okay. I guess the major question we're here for is an answer from our Attorney, as to whether they have color of title, I think was the metaphor you used. MR. SCHACHNER-Yes, that is the phrase we use, and I guess the first part of my report, and perhaps the only part, perhaps not, but the first part of my report is that the exercise that the Board asked me to engage in, and you'll recall it was my expression at the meeting two weeks ago, that I did not think it was appropriate for the Board to get into this level of detail and dispute about real property title matters, and I guess the main part of my report is that, my research of this issue confirmed, double confirmed, and tripled confirmed that it's not appropriate for a town planning board to take on the burden of trying to sort out competing real property title claims. I don't think it's appropriate for a town planning board to do that for a nwnber of reasons, not the least of which is that I think that the Town Planning Board is being put in a position of having to act as judge and jury of what, in essence, amounts to competing real property claims among private parties, and again, I just want to state that I know I'm new as your counsel. I will, obviously, abide by your instructions to the best of my ability, but I think I mentioned this at the previous meeting, and I want to reiterate that 1 don't think it's an appropriate level of inquiry for a town to get into. I think that we have a fear, l would have a fear, and I think you all know that I represent several other Planning Boards besides, and I have a fear that the floodgates will be opened to our Boards having to act as judge and jury about real property title disputes, which I simply think is inappropriate. MR. OBERMAYER-I agree. MR. STARK-Such is the case, then the arguments by the two lawyers don't hold water, right? The arguments by Mr. Phillips and Mr. O'Connor don't hold water. We have to go by what Mark says, right? - 9 -- -- ~ MR. BREWER-He didn't say that they don't hold water. MR. STARK-Well, but, we have to. MR. BREWER-I guess what the question is, in my mind, Mark, is if we have an application,· and the phrase "color of title" has to be proven to us, I guess l want to know if he has met that condition. That's just my opinion. I don't know what everybody else's is, because I don't want to sit here and go through meeting after meeting after meeting after meeting and give an approval or a denial if he doesn't meet the criteria to come before us. MR. SCHACHNER-Right. I understand that, and I certainly don't mean to nor will I quarrel with the Board on this, but just to put it in a perspective, I guess I feel compelled to point out that one of the contentions that seemed to be raised by those who think the applicant does not have title, or color of title, was that by somehow approving something that this Board or any other Board would thereby be allowing a private party to engage in something which that private party did not have the right to engage in, and I simp I y t h ink t hat's f I a t I y i n cor r e ct. T hat's simp 1 y not the case, and the analogy I'll use is, I could make an application, tomorrow, to construct an amusement park on the property across the street from here on Bay Road, and if you were to entertain that application, because I produced a deed showing I had the title to the proper ty, but it turns out I didn't, but you granted the approval, I would not be able to construct an amusement park on the property, because nothing you do or don't do will change whether somebody does or does not have the real property rights to pursue an application, and I think to the extent that it's been characterized otherwise, that you've been put in a position, you've been kind of put on the spot, because I think it's been characterized to you that you shouldn't go and allow somebody to do what they don't have the right to do. If they don't have the right to do it, then w he the r you a II ow them, w he t he r you i s sue a p approval or do not issue an approval is immaterial as t.o whether they're allowed to pursue the activity. If they don't have the right to do it, because they don't have the real property interest that's necessary to do it, then you can grant them all the approvals in the world. It does not allow them to carryon the activity, because nothing you do or say will grant somebody real property rights that they don't have. MR. BREWER-But, again, I'm going to say, it says on our application, owner of premises located at Walker Lane. So, to me, he would have to own the property to be able to do anything on it. Maybe I'm wrong. I don't know. MR. SCHACHNER-No. You're absolutely correct, that an applicant has to own the property or have a certain type of real property interest in order to do anything. That's absolutely true. What I'm saying is that, if they don't own it, or have sufficient interest, and I'm speaking generically now, not about this applicant, then they can't do it, ~egardless of whether this Board approves something or not. That's all I'm saying. I'm speaking from the legal policy standpoint, of I would hate to see this Board or any ot.her Board in the horns of a di lemma on a monthly or weekly basis, where you're having to be judge and jury to decide over real property disputes. Obviously, the Board should· and does require some showing of ownership, and in fact what I think the practice is, and Jim can amplify this if I'm incorrect, but I think the practice is for this Board and this Planning Department to require a copy of a real property instrument to be submitted with an application, showing that an applicant has appropriate real property interest. Is that a fair summary? MR. MARTIN-Yes. MR. SCHACHNER-And I think that most appl icants do that. I think that thi& applicant did that also. This applicant did produce a - 10 - .,- '-.../. cop y 0 far e a I pro per t y doc um en t t hat, 0 nit s fa c e , and i f you don't know anything else about the facts, seems to indicate that this applicant does have the requisite ownership interest. Once you delve into it further, it's not nearly so clear, and all I'm trying to say is that, as a matter of legal policy, I don't think that this Board or any other municipal board should get into it in more detail than the ini tial bare bones showing. MR. PALING-But you've also said that the recourse of either party is the same, no matter what we decide, and I think that what we were trying to do is take the shortest way, and if it's probably one way or the other, we were going to go in that direction, that is at least as far as the title was concerned. The other way, well, but if it doesn't make any difference, why don'-'t we go our way? MR. SCHACHNER-I followed everything you said until the "why don't we go our way". I didn't understand that. MR. PALING-Because it doesn't change what either .party has as recourse. MR. SCHACHNER-Correct. That's true. MR. PALING-Then why are we so hung up as, if we get an opinion, that the title is probably one way or the other, then we could act, but without that opinion, we can't do anything, 1 don't think. MR. SCHACHNER-Okay. I understand your view. MR. OBERMAYER-Okay, but the Queensbury having to pay our lawyer to decide who between the various property owners themselves. tax payers shouldn't be has the property. It's to mitigate it amongst MR. SCHACHNER-Yes, and that's part of my opinion here. You're right. I don't disagree with anything you've said, but the bottom line is, some party or another is going to be potentially aggrieved by your decision. Okay. If you decide that, for whatever reason, to grant this application, presumably, there are those who will feel aggrieved, and they have an avenue to address those grievances, among them, litigation, in which case, the judge and jury can be a judge and jury, or one or the other. By the same token, if you denied the application, again, presumably, and I'm not speaking on anyone's behalf. I've not consulted privately with any of the counselor anything else, but presumably the applicant might feel aggrieved, and if the applicant feels strongly enough about it, the applicant can go to court, and I guess all I'm saying. and I'm agreeing with the last comment, is that I don't think it's appropriate for, and I don't care if it's me or anybody else, and I don't care if it's Queensbury or any other Board, I don't think appropriate for a municipal board to get into this level of inquiry, because it's really a dispute between private parties. MR. PALING-Then you're telling them that they should go to court with this and settle it and then come back to us? MR. SCHACHNER-I'm not tell ing you anything. your decision. It's up to you. It' s MR. BREWER-Okay. I want to find out what the Board wants to do, whether we want to know whether he has a legal standing or he doesn't, or do you want to get into it or don't you? MR. MARTIN-Tim, do you want to read this letter into the record from the Dorlons? MR. BREWER-Wait, just one minute. - 11 - ~ ~ ..,,/ MR. STARK-Did you ask Mr. dock, or for his property? Shaffer to produce his title for his No. .. MR. BREWER-The point that I think is trying to come across here is Mr. Wilson has got a piece of property he wants to develop, and there's people that are contesting it, saying that he doesn't have a legal right to go across their property, and I guess the question to us was, does he have a legal right? MR. STARK-Well, he's got a deed that says he does. This guy has a deed that says he doesn't. We have to go with what the applicant says. MR. BREWER-And we asked our Attorney to look at the deeds and see if it was legal or not. MR. STARK-And he says that this guy came up with a deed, which he did, fine. Lets proceed. MR. BREWER-Okay, if that's what you want to do, that's fine. MR. STARK-That's what 1- would like to do. MR. OBERMAYER-That's what 1- would like to do also. MR. BREWER-Okay. Cathy? MRS. LABOMBARD-} guess so, yes. MR. MACEWAN-Proceed. MR. RUEL-I want to see proof of ownership before we review the application. MR. PALING-I haven't changed. I'd like to proceed with it, but I'd like to have an opinion as to title, but I guess we're not going to get that. MR. BREWER-Why? MR. RUEL-You're saying the same thing I did. MR. PALING-Are we going to get color of title comment or? MR. SCHACHNER-If you ask me for it, you'll get it. MR. OBERMAYER-I don't want to answer it. precedent. think it sets a MR. MACEWAN-I don't, either. MR. SCHACHNER-I don't mean to sound facetious in that. I mean, some members don't think I should be asked, if I understand the situation ·correctly, some members don't think I should be asked that question, and some do, and it's up to your Board. MR. MACEWAN···What do you feel? What do you want to do? MR. BREWER-I don't want to get in the middle of ,a legal battle. MR. MACEWAN-That's where we're headed. MR. BREWER-Well, I don't think we are. I think if we ask our Attorney a question, we have the right to get the answer, and I think that's what the time was that we gave him, was to answer the question, and I think that we should get an answer, otherwise, we asked him to do something that wa·s useless. I mean, two weeks ago, everybody agreed to ask the Attorney to answer the question and now, two weeks later, some of the members of the Board don't want to know the answer. - 12 - ,. "- '-.,/. MR. MACEWAN-It wasn't one of mY concerns. MR. STARK-We don't decide questions of law. MR. BREWER-Then what the hell did we ask the Attorney to investigate it for? MR. STARK-We shouldn't have. MR. BREWER-But· we did, that's the point, I'm saying. point. Tha t 's my MR. OBERMAYER-We argued not the same issue two weeks ago, whether we should even ask him or not. MR. BREWER-But ultimately we dId ask him to do it, and I think it's only fair that we should get the answer, whether we like it or don't like it, or we take his advice or don't take hIs advice. Just because he answers us doesn't mean we have to do what he says. MR. MACEWAN-I think, in all fairness, as it was left, we tabled this pending, there was, like, six or seven comments that ~ were to address regarding some questions of engineering and site plan that we had asked him, and in the meantime, it was requested by a couple members of the Board for Mark to look into the legality of the color of title. That's basically how it was left. MR. BREWER-I don't think so. I think everybody on the Board agreed to have Mark come up with an answer for us. MR. WILSON-Color of title, and we have a deed, so that's color of title. MR. BREWER-But I think, Mr. Wilson, I think in all fairness, you said you had color of title. The opposing people said you didn~ have color of title. So we said, Mark, take all the documents, you give us an answer if he does have color of title. Now the Valentes and Mr. O'Connor are waiting for us to read a letter, and I guess everybody else is. So we'll read the letter, and then I guess, it's!'!!y opinion, I'd like an answer. MR. PALING-If we were having any kind of undue Influence on either party, I wouldn't go along with any kind of a color of title search or opinion, but no matter what we say, they still have the same recourse, and I don't see what the harm is to go ahead with an apparent or color of title opinion and make our decIsion, and then either party can contest it as they wish. MR . STARK - Tim, he' s bee n her e for 0 v era He's done everything we've asked him to do. to him to proceed? year, Okay. back and for th. Don't we owe it MR. OBERMAYER-Does it really matter? MR. BREWER-We can proceed, George. Nobody proceed. All we're asking for is an answer. couldn't proceed. said we couldn't never said that we MR. OBERMAYER-The answer isn't go to effect the outcome though, is it? MR. BREWER-It mayor may not. That's up to you. MR. OBERMAYER-Why do we need to know the answer? MR. BREWER-Because I think it's only fair that we question, why shouldn't we get an answer? All right. the letter and then we'll open up the comment, and then if we want the answer. I don't want to be here until o'clock at night not doing anything. asked the Lets read we'll see 10: 30, 1 1 - 13 - '-- ./ " MR. STARK-I say lets proceed. MR. BREWER-Okay. Could you read the letter out loud, please. MR. PALING-What letter is this, Tim? MR. MARTIN-This is a letter addressed to me, and it came to Mark via Dennis Phillips, and its from the Dorlons who were the original owners of all this property, and they speak to the various conveyances that went on. The letter's self-explanatory. MR. SCHACHNER-Yes, and before you read the letter, if we're going to get into the reading of letters and I guess it's probably appropriate that any letter that's been submitted to me be read, and I 'm not even sure I have them here, but I assume that the counsel have the letters they've submitted. I think I've received letters from each of the counsel, since the last meeting, even though I thought we indicated that we weren't going to ask for additional documents, and for what it's worth, I didn't find any of the letters particularly enlightening. I mean, none of the letters changed my analysis. MR. MARTIN-This Board knows any letter that's passed along, even if it's addressed to me, and it's on a subject that's before this Board, I always put it in the packet to have read into the record. MR. SCHACHNER-Right. All I'm saying is, if we're going to read one, let s rea d them a 11, w h i chi s fin e . MR. STARK-Are we going to read them all? MR. BREWER-I guess, it's only fair. MR. SCHACHNER-Something that's been submitted to me as counsel is not part of the record, that's my point. It's up to you, Mr. Chairman, but for starters, since we're looking at a likelihood of some sort of formality beyond this proceeding, I would certainly encourage all speakers to be on the record, and I would encourage you, obviously, if you request somebody to speak, let them speak, and if not, don't let them speak. MR. BREWER-Okay. All right. George, please read the letters. MR. STARK-Okay. This is a letter to Mark Schachner, regards Lucas Wilson, Town of Queensbury Planning Board, "Dear Mark: Enclosed please find a letter written by John H. Dorion, Jr. in connection with the above. The letter is self-explanatory, but I direct your attention to the statement made by Mr. Dorion on page 2 of the letter, for they are relevant to the 'color of authority' issue discussed before the Planning Board. Sincerely, Dennis J. Phillips" The letter is as follows: "Mr. James H. Martin, Executive Director, Mr. Scott Harlicker, Susan Cipperly, Planning and Zoning Office, Town of Queensbury Office Building, Dear Sirs and Madame: It has come to my attention that some question has arisen as to the ownership of a strip of land measuring 35 x 200 feet, which is the subject of a quit claim deed dated September, 1993, executed by my sister Martha Dorion Mitchell, and me, to Lucas Wil~on, which covers a portion of land known as Walker Lane. In order to put the question in its proper perspective, a little background explanation is necessary. In June of 1984, my sister and I deeded two parcels of land of 0.777 acres and 1.074 acres, respectively, to Betty-Jane Baxter and Richard Hughes, which parcels constitute the 1.467 acre tract now owned by Lucas Wilson. At the time we conveyed this 1.467 acre tract, I believed that Baxter & Hughes had access to the property from Bay Road over Walker Lane. In September 1985, my sister and I conveyed to Valente Builders, Inc., 56 acres of land then known on the tax roles as parcel 61-46-1, which deed included 'the land known as Walker Lane' adjoining the 56 acre tract. In August of 1986, I received a letter from an attorney representing John P. Wright and - 14 - '....... .--..,.1 Edward Cimmino (who were then the owners of the property deeded to Baxter and Hughes) complaining of an iron gate across Walker Lane which was denying them access to their property from Bay Road. At that time I examined the copies of the numerous deeds in my possession and concluded that title to the strip of land known as Walker Lane between the 1.467 acre tract and the property to the South was vested in Valente Builders, Inc., subject to the rights of the owners of land adjoining Walker Lane to the use of same. Because of my concern as a grantor of the 1.467 acre parcel that the current owners might have an access problem to it, my sister and I gave a deed to Wright and Cimn1ino in effect conveying to them what we had conveyed to Hughes and Baxter, adding this time a right of way over Walker Lane which I enjoyed as an owner of an eleven acre tract lying to the North of W.alker Lane, at the same time retaining my rights of access to such eleven acre tract. I assume that this deed was filed for record in Warren County. Not having heard anything further on this matter, I assumed that the problem of access had been resolved. In September of 1993, however, I received a call from a Bruce Carr who represented Lucas Wilson, who by now had become the owner of this 1.467 acre tract, and Mr. Carr informed me that he was planning to build a 4-unit apartment on the 1.467 acre tract, but that Mr. Wilson was having trouble getting approval of the pro j ect because of a lack of access to said property over Walker Lane from Bay Road. He told me. that he had done some research on the problem and felt that I was still the owner of a 35 x 200 foot strip extending from the Lucas property to the portion of Walker Lane that becomes a public road. I told him it was my belief that Valente Builders, Inc. was the owner of this property by virtue of my deed to it in 1985. I also pointed out that this problem of access had arisen be.foreand that I thought that it was resolved. Feeling responsible for an access problem that might have arisen as a result of the deed from my sister and me to Baxter & Hughes in 1984, I told Mr. Carr that I would consider a quit claim deed to assist him in proving to the planning commi s s ion tha t he had acces s over Wa I ker Lane to his proper ty, but that it was still my belief that Valente was the owner of the strip in question. I asked him to send me maps of his property and an explanation of his problem. As a result, Mr. Carr sent me maps and a quit claim deed and easement, asking that I sign one of them to help him resolve his access problem. It must be explained that a quit claim deed is a conveyance of whatever interest in property the grantor may have, and conveys nothing if the grantor has nothing to convey. With this in mind, I agreed to the execution of the quit claim deed, realizing that I probably had nothing to convey, but at the same time hoping to settle the issue of access which first surfaced in 1985. The purpose of my letter to the Planning Commission is to explain why my sister and I executed the quit claim deed, and to help resolve the issues of access and title. Although I believed that I had no ownership interest in the 35 x 200 foot strip in question, I did believe that I had a responsibility to assure access to the 1.467 acre parcel that I originally conveyed to Baxter and Hughes in 1984. Respectfully your s , John H. Dor lon, Jr." MR. BREWER-Thank you. Okay. Cathy, would you read the other two letters that we have, please. MRS. LABOMBARD-This is a letter to Mark Schachner from Bruce Carr, "Dear Mark: In furtherance of the Board's request to you for an opinion whether Lucas S. Wilson can establish color of title to the property located at the end of Walker Lane, I enclose the following documents for your use and review: A. Deed from John H. DorIon and Martha DorIon Mitchell to Valente Builders, Inc. recorded October 29, 1985 together with a survey map of the premises being transferred dated September 12, 1985 and recorded October 29, 1985. Schedu Ie" A" des cd bes by me tes and bounds the 56. lOa acres as shown on the simultaneously filed map as well as stating the Valente Builders obtains the right, title and - 15 - ~ ~. ../ interest of DorIon/Mitchell in and to the lane known as Walker's Lane. Walker's Lane, as it existed at the time oft ran s fer, i s s how non the ma p w h i c h was file d wit h this deed and recited in the deed as being the property being transferred by the deed. As way of history on Walker's Lane, the Town of Queensbury acquired Walker's Lane as it exists today through prescription in 1963. There was never any deed to the town nor was there any eminent domain proceeding by which the town obtained title. I believe the reference in the Valente deed to title to Walker's Lane was a protection in the event the town's 1963 action was held inval id, Valente would still own access to the property. B. Deed from Valente Builders, Inc. to the Town of Queensbury recorded December 30, 1987. This deed dedicates Bayridge Drive to the Town of Queensbury. Of interest is the description of the property which states the point of beginning is distance 'measured along the northerly line' of the property transferred in 1985 to . Valente Builders. This deed was executed by Valente Builders and notarized by Dennis Phillips, whose firrn I assume prepared the deed for the conveyance. C. Deed from Wright and Cimmino to Wilson recorded March 10, 1993. This deed contains a right of way to Walker Lane and then over Walker Lane to the Bay Road. It does not state that Walker Lane bounded the property but that there was an intervening parcel of land between Mr. Wilson's property and Walker Lane. D. Deed from John H. Dorion and Martha Dorion Mitchell to Lucas Wilson recorded September 8, 1993. This transfers the property located between Mr. Wilson's property and the end of Walker Lane. It is a description of the property over which Mr. Wilson's right of way crossed to allow him access to Walker Lane. E. Portion of Tax Map No. 60 for the Town of Queensbury with copy of deed reference card from the Warren County Tax Service attached. In September 1993, I requested that the tax service department review the situation to arrive at their own determination of who owns the property and should be taxed. Prior to September, the tax maps for this area indicated that Walker Lane went through nearly to Country Club Road. The tax service personnel have independently determined that Mr. Wilson does own the par c e I i n que s t ion and h a v ere vis e d the i r ma p s accordingly. wòuld also request that you discuss this issue with Paul Dusek. Mr. Dusek had done a great deal of research 011 this issue when Mr. Wilson was applying for the variance which was granted. His conclusion was that Mr. Wilson presented enough color of title for the ZBA to issue its variance. Thank you for your assistance on this matter. Should you desire any further information, my files are open to you. Very truly yours, Bruce·G. Carr" This is to Mar k Schachner, r egar ding Lucas Wi 1 son, Queens bury PI anni ng Board, from Little & O'Connor, "Dear Mark: Our last COIlUTIents on the above appl ication regarded a need for a lot owner to have actual ownership frontage on a road. I refer you to section 179-70 under zoning code, which states in part 'every principal building shall be built upon a lot with frontage upon a public street.' The essence of that clause is that the lot must have frontage on a street. I do not believe that there is any question that that has been interpreted in the past to mean actual ownership. I refer to the number of cases on Glen Lake where the Zoning Board and the Zoning Administration have held lots to be non-conforming, solely - 16 - \..." .,. "- ..J because they were within a right-of-way system and had no actual frontage on a Town road. That section is further amplified in 179- 70b and again in that section, if you look at it closely, it states in part' the minimum frontage on a public road for such use shall be ... I Again, it is not talking about a right-of-way to a public road. It is my position that what you should be looking for should be color of title for ownership, and not a right-of-way. I am not sure why the applicant did not also ask the Zoning Board of Appeals for a variance from the General Town Law section, as well as for a variance from .179-70b. Very truly yours, Little & O'Connor BY: MICHAEL J. O'CONNOR, ESQ." To Mark Schachner, from the firm of McPhillips, Fitzgerald & Meyer, "Dear Mark: In order to complete your file, enclosed please find a copy of the warranty deed dated September 10, 1985 from John H. DorIon, Jr. and Martha Dorion Mitchell to Valente Builders, Inc, which deed was recorded in the Warren County Clerk's Office on October 29, 1985 in Book 675 of Deeds at page 1020. On the first page of the deed, the recital is ma d e t hat the pro per t y be i n g con v eye d to Val en t e B u i Ide r s, I n c . i s 'the same property deeded to John H. Dorion by warranty deeds from Ambrose Genier dated June 14, 1971 and July 6, 1973, and respectively recorded in the Warren County Clerk's Office in Book 536, pages 228-229, and in Book 570, pages 11-13 of the deed records ... I We point this language out to you because it shows that Valente Builders, Inc. was conveyed the ownership of Ambrose Genier, and this ownership is shown the map produced by Bruce G. Carr at the Planning Board meeting the other night. Please understand that the argument of Bruce G. Carr before the Zoning Board of Appeals was that his client 'owned' the 33 feet by virtue of a 1993 quit claim deed. On page 3 of the deed into Valente Builders, Inc. is the express language that states as follows: 'Also all the right, title and interest of the parties of the first part in and to the lane known as Walker's lane, adjoining the premises above referred to on the north subject to right of way already granted to various persons to the use thereof.' The parties of the first part referred to in this sentence are John H. DorIon, Jr. and Martha DorIon Mitchell. These are the same parties me n t ion e din 'de e d ref ere n c e ' numb e r 2 0 nth e mo s t r e c e n t ma p before the Planning Board, wherein it is recited that John H. DorIon, Jr. and Martha DorIon Mitchell conveyed to Lucas S. Wilson dated September 3, 1993 and recorded the Warren County Clerk's Office on September 8, 1993 in Book 893 of deeds at page 252. To the extent that this later conveyance conveys any interest in Walker Lane by quit claim, it is our position that no 'color of aut h 0 r i t y , i s pre s en t due tot he simp I e fa c t t hat the Do r I an s conveyed all of their ownership interest in Walker Lane to Valente Builders, Inc., in 1985. The conveyances should be put side by side, and it is our opinion that it does not take a judge to reach the determination that the 1993 deed gave nothing to Lucas Wilson. In this case, we do not believe that 'color of authority' is at issue. Mr. Wilson cannot establish title ownership to any portion of Walker Lane and he has not fulfilled his obligation to obtain a determination to the effect that his proposed private driveway would be as wide as 33 feet. Sincerely, McPHILLIPS, FITZGERALD & MEYER Dennis J. Phillips" And there's some enclosures here, and "P.S. We are not disputing that Lucas Wilson has a deeded right of way, as per a copy of his deed enclosed, but we do dispute that Mr. W i Iso n be c am e an 0 w n e r 0 f the rig h t 0 f way so as t 0 h a v e a predicate for a variance from the ZBA. Mr. Wilson has the burden of proof on the ownership issue, not Valente Builders, Inc." MR. BREWER-Okay. With all that read, what does the Board want to do? MR. STARK-Tim, we haven't asked an attorney, before Mark came here, or Dusek, to check on the validity of anybody else's deed in that last year. MR. BREWER-We haven't ever had this situation. MR. STARK-I understand that, but now in the future are we going to - 17 - ~ -../ ask Mark to check on everybody's deed that comes in here, because somebody might come up and say, well, it's not valid? MR. BREWER-No. MR. STARK-I mean, that's not what Mark's here for. MR. BREWER-Well, you can look at it two ways, George. Are we going to make people go to court when we could settle something right now? MR. MACEWAN-It's not our job to settle that. MR. BREWER-I'm just asking. I'm not saying we should or shouldn't. MR. STARK-Proceed. If any party wants to, you know, whether to pass it or not pass it, it's fine, but proceed, and if they want to go to court, that's their prerogative. MR. BREWER-Okay. MR. PALING-I guess I've got one other question. Could we proceed _ and ignore the title situation totally? MRS. LABOMBARD-That's a good question. MR. STARK-It's not up to us. MR. PALING-It's not up to us to make a legal decision. MR. BREWER-A legal decision it's not, but I guess I'm still stuck on the thing that he has to show color of title, just to use that as a phrase, because everybody's been using it. He says he has. They say he hasn't. We asked our Attorney, has he shown color of title. I think we owe it to ourselves, after two weeks of waiting, to find out if he has proven color of title to find out if he has. I f he has n ' t, i t ma k est h e de cis ion e a s y . I f he has, i t ma k est he decision easy. It. can go either way. I don't know what the answer is yet. MR. PALING-Then why don't we get the color of title? MR. BREWER-That's what I've been trying to do since twenty minutes after seven, Bob. MR. PALING-Then why don't we get a color of title opinion and proceed. MR. BREWER-All right. Then lets do that. MR. MACEWAN-Poll the Board. That's two that want to do it. MR. BREWER-Roger wants to do it. MR. RUEL-Yes, I'll go on that basis. MR. BREWER-Craig? MR. MACEWAN-No. MR. BREWER-Cathy? MRS. LABOMBARD-How long is it going to take? MR. BREWER-It's going to take about 30 seconds for them to answer us. Has he proven the burden, yes or no. I mean, it's that simple. MR. RUEL-Why didn't we get that answer earlier? - 18 - ~ ~ MR. BREWER-Because he had to have time to research it. MR. RUEL-No, I mean this evening. MR. STARK-How are we going to get it in 30 seconds? MR. BREWER-Because he's done the research for the last two weeks. MR. STARK-I say proceed. MR. BREWER-Proceed and what, get the answer, or don't get the answer? MR. OBERMAYER-No, we don't need the answer. MR. BREWER-Okay. Cathy? Do you want to get the answer or not? MRS. LABOMBARD-I do, I want the answer. MR. BREWER-Okay. MR. MACEWAN-Get the answer then. MR. BREWER-Okay. Mark, can we have the answer? MR. SCHACHNER-Our review of the real property document seems to indicate that the grantor previously granted that which he proported to grant later to another party. That's a lawyer's way of saying that we don't see how the applicant has demonstrated appropriate interest. Now, that's not a definitive opinion. I did not do an exhaustive search in which I left no stone unturned, again, because I don't think that was appropriate, and your marching orders to me were not to do that. Remember ~hen I said, look, the most I'd be comfortable doing is just a preliminary examination. That's all I've done. I don't think it's going to be deemed binding. If there li litigation on anybody, I don't think that it's going to be deemed binding, but to the best of our knowledge, based on a review of the real property documents that h a v e bee n s u bm i t t ed, i t I 00 k s I i k e the a p pI i can t , w hat the applicant says they got had already been given to others. Does that make sense? MR. BREWER-Okay. Now what do we want to do? MR. SCHACHNER-By the way, for what it's worth, none of the correspondence that was submitted after the last meeting had any bearing on that determination whatsoever. MR. BREWER-Thank you. MR. SCHACHNER-I mean, in terms of our opinion. MR. BREWER-Okay. I I 11 let everybody comment, brief. Do you want to go first, Bruce? difference to us. Okay. Mike? but please keep it It doesn't make any MICHAEL O'CONNOR MR. O'CONNOR-I'll be very brief this evening guys, and lady. For the purpose of your record, I'm Michael O'Connor from the firm of Little & O'Connor. I'm here on behalf of Steve Pinchuk who owns the premises inu-nediately adjacent to the site of this site review. I don't necessarily disagree, although my head may be nodding at different times, and you may be thinking I'm disagreeing with what Mark has given you as advice, or what Jim Martin has given you as advice. Jim Martin began, well, let me go back to what Mark said. Mark said you're not going to be judge and jury on who owns that site, and we're not asking you to be judge and jury of who owns that site. That is something that probably is going to be decided in another forum. We're asking you to look at this application as - 19 - ',,- ." ,.,.,. to, and with the standards, that you look at every application, and as you look at every element of every application. This fellow has come in and said that he has ownership. We have disputed that. I think, right there, it raises it to a different level, you make a comparison as to other cases, whether or not you have or whether you're going to get into this argument. When it's legitimately raised, I think it's your obligation to answer that question. I represent Steve Pinchuk. I-Ie is a tax payer in this Town, the same as Mr. Wilson. He has the same rights of Mr. Wilson, under your Zoning Ordinance, and under your Site Plan Review. You can't simp I y d i s r" e gar d his rig h t s . You h a v e an 0 b I i gat ion to a bid e by his rights, as much as you do the applicant's rights. There's no presumption here that somebody, because they're an applicant, is given the weight of burden of proof or weight of evidence. It's supposed to be a flat playing field, and both parties, if they raise an issue, are supposed to address that issue. I'm not asking for your judicial opinion, as to whether or not, who owns that. I'm saying, has he raised it to the level of the color of title tha t 's necessar y for your app Ii ca t ion, per your s tandar ds? Jim Martin says that he asks everybody for a legal document to show that they have title, or that they have the right to proceed. Is that a hollow question? Is he just supposed to ask a question and. say, thank you, next question? I think it's supposed to mean something. If what's offered doesn't come near, even a color of title, which Mark has indicated, then the applicant's got to do something else. I think you've got to table this until the applicant gets a court order that proves that he has what he claims he has, and I think that's the way that you should proceed if you're going to protect everybody's rights, under the Ordinance. I n par tic u I a r, 0 nth i son e , a 1 i t tie d iff ere n t t h an ma y b e 0 the r applications, is that there's a condition that was put upon the applicant to get here, and unfortunately there was a little passing of the buck when that condition was put on. That was put on by the ZBA. He went in. He asked for a variance from the requirement that he had 50 feet frontage ownership on the road, and I haven't heard anybody dispute that. MR. BREWER-I don't think it says ownership in the variance, Mike. MR. O'CONNOR-Jim Martin, talking right-of-way here? are we talking ownership, or are we From now on, we don't need ownership? MR. MARTtN-Frontage has been interpreted to mean ownership. MR. 0' CONNOR-AI ways has been. I can get you 20 cases that have been decided by this Board or by the ZBA. MR. BREWER-It just says, and grant relief 17 feet from Section 179- 70b, which requires the minimum frontage on a public road to be the width of the right-of-way for a public collector road. MR. O'CONNOR-Minimum frontage on a public road is also has always been determined to be ownership. MR. BREWER-There's no period after that, Mike, to be the width of the right-of-way for a public collector road. MR. O'CONNOR-I can give you ZßA decisions. MR. BREWER-I'm just saying, the sentence doesn't end there. MR. O'CONNOR-Okay, but I don't think you can apply new standards. I:f that's a question, if you have a question of interpretation, then you also have the obligation to send it to the ZBA, if that's a legitimate question of interpretation. MR. BREWER-Okay. MR. O'CONNOR-But I can give you Mozel. I can give you Zack. You know them all, guys. I've been here before. - 20 - ',,- ...... '-../ MR. MACEWAN-May I ask a question of you, just for my own peace of mind. If it was determined that they, indeed, had legal right-of- way to this property, would you still be here representing your client opposed to this apartment building? MR. O'CONNOR-Yes. MR. MACEWAN-Okay. MR. O'CONNOR-There's a world of difference between right-of-way and ownership, particularly when you're trying to construct what is, in essence, going to be a private town road. There's also a world of difference as to what is the right-of-way. Look at the instruments that is going to come up, and that's another argument that's going to be (lost word). MR. MACEWAN-Let me rephrase the question. If there was no doubt that he had legal frontage, and it was no problem with this piece of property at all, would you still be here opposed to him building an apartment house there, or three apartment houses? MR. O'CONNOR-I don't think I'd have grounds to be here. I'm just trying to exercise the rights that we have under the Ordinance. Every parcel, simply because it's classified a particular zone, may not be developable as classified. Under Article V, which is your obligation under Site Plan Review, and I'm not lecturing you. I'm telling your counsel not to lecture you, so I won't lecture you. You look at Article V, there are certain standards that have got to be met. That's all I'm looking at. So, basically, I think you've got the answer, and the opinion of your counsel that there is not a color, a title of ownership, I don't think you can proceed. MR. BREWER-Okay. MR. O'CONNOR-I don't think you can proceed with an approval. DENNIS PHILLIPS MR. PHILLIPS-My name is Dennis Phillips. I represent Valente Builders, Inc. I'm not going to add anything to wt1.at Mike has said. I basically concur in his thinking on this. My only point is that I think that the proper procedure for the applicant in this case would be to obtain a definition of the right-of-way first. Obviously, our position is that he does have a right-of-way. To me, his obligation should be to get a definition of a right-of-way. Once he's defined that right-of-way, either by agreement with the parties, or by court order, he then would be in a pqsition to go back to the Zoning Board, and ask for a variance relative to a right-of-way, as an access for whatever he wants to do with that property. However, there is no rule that says that a right-of-way can blossom into a subdivision road, without some agreement or interpretation of that. So I think he's got the cart before the horse here, in terms of being before this Board. I would recommend that until he straightens that out, that this Board table the ma t t e r, be c a use I don' t t h ink he' s rea d y to be her e . So, wit h that, the Zoning Board of Appeals did pass the buck to a certain degree, but in doing so, I think that they shifted the burden to him, and they basically said by condition, it's time for you t6 go out and get your property affairs together, and once you get your affairs together, in such a way that they can be defined, then you'd be ready to appear before the Planning Board and ask for Site Plan Review. I don't think he's ready to do that yet. Thank you. MR. BREWER-Thank you. Anyone else? DAN VALENTE MR. VALENTE-I'm going to make this pretty short. My name is Dan Valente from Valente Builders. I know you guys have been through a lot, and I've been through a lot for a year. The Zoning Board's - 21 -- ',- /' -./ been through a lot, but I hope the one thing that we're all going to learn from this is that something's going to have to change in this Town. The law's going to have to change, that when there is a discrepancy on a piece of property, it shouldn't go forward, at the Zoning Board level or the Planning Board level. So the Town doesn't have to waste all its time, until this thing is cleared up, because common sense should prevail here. Thank the Lord, I can afford to fight this thing, and I'm going to fight it until I die. That's how adamant I am about this particular situation, because if I couldn't afford it, and this particular individual did build on that particular piece of property, on that road which I own, and I didn't have thc financial wherewithal to back myself up, he'd actually steal it, wouldn't he? MR. BREWER-Danny, do you have title insurance? MR. VALENTE-I have title insurance on that road. MR. BREWER-Could your title insurance company help you? MR. VALENTE-We have title insurance on that property. MR. BREWER-Isn't that what that's for, though, if there's a problem with the title? MR. VALENTE-That's right. MR. BREWER-So why is it your expense? I '01 just asking a question. MR. VALENTE-Well, spent over $3,000 so far, okay, and if this Planning Board sees fit to go ahead and grant this approval, I only have one other legal recourse to stop the individual, and that can cost another who knows what. The point being is we have a law on the books in this Town that says if there is, someone comes up and says, well, I own this property, and another person says, I own this property, let them hash it out. Let them get it straightened out before they have to come before the Town Planning Board or Zoning Board and Ilave all these attorneys involved. We're making the attorneys rich on this. I mean, really, it just makes comnon sense. I'm not looking for anybody to do me any favor. I just want conmlOn sense to prevail, and I don't look to the Planning Board to make a dec i s i on on who owns the proper ty. I'm jus t saying, hey, let us handle it. Let us hash it out, but if you give him an approval, I only have one recourse left. That is the difference. He should be coming after me. He's the applicant looking for it. I'm not looking for anything here. I just want to be able to keep what I've been paying for, and as far as the tax map goes, I'll explain that whole thing real quick to you. The reason they're going on the southerly boundary is because when the Town took the property of Walker Lane over from use, John DorIon had to give seven and a half feet, and I had to give seven and a half feet from Baybridge, so we could have a 50 foot Walker Lane, up to where it ends, up at that particular, where Baybridge Drive starts. The line that looks like the right-of-way, I went to the County Clerk, just like Mr. Carr did, and it's funny how I got a different interpretation than he did. Because I said, how come there isn't a tax map number, just like Mr. Carr had, and they said to me, Dan, all right-of-ways in the Town don't have tax map numbers, and I said, are you sure? And this is the person who's in charge of that division, and I never knew that before myself, until I went and asked, but that's basically it. I'm asking the Board, I'd like to see you table it, to be honest with you. I don't want to see anybody make a decision on this. We're just going to have to go forward. There's got to be a way to change the law in the Town so this doesn't happen to somebody else. Thank you. MR. BREWER-Okay. Can I ask one question, and you don't have to answer me if you don't want to. What is the big fear with this building? He came a year ago proposing one building, and all we've had is people against it. What is the fear with the guy building - 22 - '-, \....-- , J "'-fi' a building? . MR. VALENTE-Okay. This remember just the letter past week or so, we got a asked him to explain what wanted only four units. is what the fear is. Okay. that you got from John H. Dorion. letter from him, because I called had happened. You read that, it I f you In the him and said he MR. BREWER-He did. MR. VALENTE-Wait a minute. You've got an application in front of you for twelve. The intent of this applicant was always twelve units. It was trying to slide in on four, and he'd get the other eight later. We forced the issue, because we knew what the applicant really wanted. Now, as a developer, and I'm supposed to be the big developer in this Town, according to some people, I have to put all my cards on the table before this Planning Board and before the Zoning Board, before I get one approval for anything. When a small developer supposedly comes in here, everybody lays down and dies. Hey, look, the rules should be the same for both of us. I'm not asking this guy to do anything that I don't have to do, but what I'm asking the Board to do, what I'm asking his attorney to do, is to tell the truth. The reason you've got twelve units in front of you is because of Valente Builders. You didn't get it because of Mr. Carr and his voluntarily giving you the information, and that's the reason we are fighting this the way it is, and also, I have a lot more at stake in this community than a lot of other people do, because this particular twelve unit apartment house is between two major subdivisions which I'm heavily invested in, and there's 64 people living in one of them right now, and another thing the Planning Board doesn't know, that this applicant tried to ask me to put a road through my upper end subdivision so he could have back access to his property, which they never brought up, but the bottom line here is, that's the reason why I'm opposed to it. The cards weren't on the table from Day One. If they had come to me and said, hey, is there something we could work out, at that time, there was. Now, I don't know. I'm real upset about the whole situation. I'm sorry everybody had to be put through this, and that's just the way it is, but that's the reason I'm upset about it. MR. BREWER-Okay. Thank you. Is there anyone else who'd like to comment over here? Okay. Bruce? MR. CARR-Bruce Carr, Fitzgerald, Morris, Baker, Firth, attorney for the applicant, Lucas Wilson. First off, our intention was four units at a time, to come back before site plan each time we wanted to increase. We never said that we didn't want to build twelve units. Mr. Brewer, I think you'll back me up on this. The only reason we have twelve units before this Board now is because at the February meeting, this Board requested to see all twelve units. We did the engineering. We put it all before the Board. We came to this Board with an application for four units. Back at that first meeting before the Planning Board, they requested us to do all twelve at once. So, as for cards on the table, we have always said we had the right to build twelve, but all we want to do is start off wit h f 0 u ran d see how i t go e s, and wa i tun t i I the ma r k e t ' s there, and that is still our intention, is not to build all twelve at 0 n c e . It's to b u i I d them 0 n eat a time to see i f th e ma r k e tis there. There's been a lot saying here about equal playing fields and fair for everybody. Well, Mr. Stark, 1 think, has said it correctly. No one has had to go through the title questions that this applicant has had to go through, and the Zoning Board and their attorney, Paul Dusek, at the time, was satisfied that we had enough color of title to be granted a variance. So now you've got one Town Attorney saying there was enough color of title, he was heavily involved in it, at the Zoning; Board level. The Zoning Board that made the decision tl1at the access to this property was sufficient to warrant the project going forward, as opposed to another attorney for the Town saying, well, color of title might -- 23- '-.- ~ not be there. I'd like you just to look at the project before you, based on what every other applicant has had to show this Town, and that's access to the property, get the proper variance, which we've done. We've shown it was 33 feet by a map, from 1954, and we'd like you just to judge the project. The title question has been beaten to death. It was beaten to death at the Zoning Board, and they gave us a variance. This project has been before this Town for one year. I think it's time for the Town to make a decision on the project, and if it has to go to court, because it's going to have to go to court whether you deny or approve it, but if it's a title issue, it has to go to court, then let that be, but at least have us, so we don't have to come back, unless we're told we don't own the pfoperty. I mean, if you tell us that we're tabled until we go to court, we'v~ got to go to court anyway. ,. MR. BREWER-Okay. Is that it? MR. CARR - I jus t t h ink you h a vet 0 j u d get h e pro j e c t, and not get into areas that your own counsel, at the beginning, told you that really wàsn't a Planning Board issue, and think is setting a dangerous precedent. MR. BREWER-Okay. I 'rn going to ask the Board what we want to do. Do we want to make a motion to approve, deny? Do we want to table it? What do we want to do? MR. STARK-Tim, originally, last year, remember down in the Conference Room over here, the main concern was not the title, or anything at that point. I t was the type of people that were going to li ve in thi s apar tment and all, you know, you remember that. Then, all of a sudden, it became the title, okay. MR. BREWER-I think that's when the attorneys got involved, and the attorneys came up with that. MR. STARK-Okay. approval. As far as I 'm concerned, take a vote, for MR. BREWER-Okay. Jim? MR. OBERMAYER-Lets vote. MRS. LABOMBARD-If it's tabled, then would it be tabled until you come back from court? MR. STARK-Gee, that'll be three years. MR. BREWER-Well, we don't know. We can approve. Deny. MR. STARK-So, if you table does it take to get an Whatever. it, it's going to be, what? How long answer in court, two, three years? MR. BREWER-Either way, nothing's going to happen, George. If we approve it and they go to court, nothing's going to happen. If we deny it, nothing's going to happen. If we table it, nothing's going to happen until they go to court and settle it. MRS. LABOMBARD-If we deny it, they won't have to go to court. MR. BREWER-You're right, if you deny it, but is that appropriate? MR. STARK-Tim, poll the Board. MR. BREWER-I've got to know what you want to do. MR. STARK-Ask everybody else what they want to do. forward and get a vote. say go MR. BREWER~Craig, what do YOU want to do? - 24 -- '\......-- '>/ MR. MACEWAN-Go forward. MR. RLJEL--I don't suggest approval or pos t ponemen t or be i ng tab I ed un t 11 resolved. denial, but such time as rather ei ther ownership is ~ MR. BREWER-Bob? MR. PALING-Well, I suggest that we vote on it, one way but have with.in the motion a disclaimer or denial participating in any way regarding a decision of title, vote only have to do with everything else; or another, tha t we' r e and let our MR. MACEWAN-Which it would anyway. MR. PALING-Yes, but I'd like to say it, because there's been so much conversation, I'd like to make sure that no one gets the idea that we're trying to make a legal decision. MR. STARK-You could put that in the motion. You can put anything you want in the motion, that we're not deciding the issue of title. MR. PALING--That's right. We're only deciding, I ;~ess, however you put it, ass u bm i t t ed, but wit h 0 uta n y 0 pin ion a s tot i tie, the n take a vote on it in that way. MR. BREWER-I don't know. I've got mixed emotions. I don't know, I feel bad for the applicant because he wants to build the units, and on the same hand, I've got feelings towards the people that are proving that he doesn't own the land. I don't know. I hate to see anybody in court over a situation, and I hate to have us be the judge about it, but if the variance states what it states, and it says that it should have frontage, which means ownership, via Jim Martin, he doesn't have ownership, I think it should be settled before we proceed. That's just my opinion, and I'm outnumbered by four. MR. PALING-Well, we may be saying the same thing, really. Those two are pretty close to one another. think it may accomplish the same thing. MR. MACEWAN-I guess the simplest way to put it is, do you want to forge ahead, as a Board, to put this thing to a vote, either approve or not approve the site plan, or do you want to stop dead in ollr tracks right here, and let them resolve their legal issue, who has ownership? That's the simplest way to put it. MR. OBERMAYER-Maybe we should do that. MR. BREWER-That's what's going to happen. I've got that's what's going to happen, anyway. It's probably we're setting, and maybe we're going to get ourselves but, I mean. to believe a precedent in trouble, MR. CARR-But will we gain? MR. BREWER-What will we lose, Bruce? MR. CARR-You're going to hold it on your site plan. I mean, are you complaining about the project, or the title question? MR. BREWER-That's part of it, to me. That's part of it, and we're going to decide. So no more questions and answers from anybody, okay, please. That's illY feeling. I want to make a decision, one way or another. I told you mY feelings. If somebody wants to make a motion to approve or deny, feel free to. I'm not going to, but remember, we had things that we wanted done last week. Lets make sure they're done if you're going to make a motion to approve. MR. MACEWAN-Yes. There's questions that have to be asked, if - 25 - '- --- you re going to forge ahead. MR. BREWER-Well, we asked them about the hedges. that on the map. We asked about. He did adjust MR. MACEWAN-The playground, which is on there. MR. BREWER-The playground. MR. STARK-He agreed to do whatever we asked him. MR. MACEWAN-Well, before you get into that, find out what the heck everybody wants to do, instead of just going around in circles. MR. BREWER-I just went through it twice, Craig, and nobody will give me a straight answer. I want to wait until we get an answer to find out if the property is theirs or not. That's illY answer. MR. RUEL-I feel exactly the same way. MR. MACEWAN--There's two. MR. BREWER-Bob? MR. PALING-Well, I would like to vote on it, but with an exception i nth ere t hat we r e IlIa kin g no a t temp t to ma k e any d e cis ion regarding title. MR. MACEWAN-Okay. So you want to approve or disapprove the site plan as it is right now, and forge on ahead? Is that what you're saying? MR. PALING-With the disclaimer. Right, yes. MR. MACEWAN-Two to one. I want to go ahead. MRS. LABOMBARD-I want to go ahead, with the site plan like it is, which includes three apartment buildings. MR. BREWER-Okay. Jim? MR. OBERMAYER-I want to go ahead. MR. BREWER-That's four. George? MR. STARK-I want to go ahead. MR. MACEWAN-That's five. Five to two wants to go ahead with this thing, and let the issue of the legality to the. MRS. LABOMBARD-All right. Wait a minute. Lets get something straight for the record. As I look at this, I'm going to be voting on whether or not we're going to aJ low, I see, one, two, three, four unit buildings on this map. Now, should we vote yes, I want to ma k e sur e t his i s s t r a i g h t for the r e cor d , the n doe s the applicant have to come in two more times to get Building Two and Three, or will this include all three? MR. BREWER-All three. It's a done deal. MRS. LABOMBARD-Now, was this all three to begin with? MR. BREWER-It doesn't make any difference. In the beginning it was one apartment building. Then the issue came, they fought back and for tho r w hat eve r, the i s sue c am e up a b 0 u t the r 0 ad. Tom e, t hat's part of it. Their variance was granted, on the assumption that they had road frontage. Road frontage has been defined by Jim Martin who is the Zoning Administrator to mean ownership of property. I don't see the project going forward or stopping dead until the issue's settled anyway. So why, in my opinion, should we .. - 26 - · ~' . .",---- J go any further until it's done? MRS. LABOMBARD-Because it would save, if by chance this is voted down, then it would save the parties involved, the Valente party in one respect, of going to court. MR. BREWER-I think you've met, everything we've asked you to do on the site plan you've done. Okay. I don't have a problem with that. The problem I have is that's part of the application, it's become part of· the application now, the issue of, I'm not going to ask anymore questions. I'm just stating my opinion. MR. STARK-Tim, it was five to two to proceed. ~. MR. BREWER-Fine. Do whatever you want to do, George. MR. STARK-Craig, do you have a list of the conditions, concerning the hedges and so on? MR. MACEWAN-They're all spelled out in the minutes of the last meeting. They're allan there. As he noted, everything, as far as the landscaping plan is all noted on there. The play area is noted on there. He's addressed the Rist-Frost comments. The building has bee nor i en tat e d . The 0 n I y t h i n gin e e d to h a v e c I ear i n my mind is I need to know what kind of agreement you established with the Town Water Department for your hydrant flushing program. MR. WILSON-I spoke with Mr. Flaherty, and he said that he would speak to Mr. Martin and Scott concerning that and he had no problems. MR. MACEWAN-Have you heard from Mr. Flaherty on this at all? MR. HARLICKER-They didn't want ownership of the hydrant, and it would be fine to work out a flushing schedule with the Water Department. MR. MACEWAN-Acceptable to you? MR. HARLICKER-Yes. MR. MACEWAN-The second thing I guess that you kind of struck a nerve with me on is that you made the comrnent you were going to build one unit, to see how the market is, before you build any more units. That was not the impression you gave us here the last time. MR. WILSON-Well, I think if you remember back before that, you made me do the segmentation, which clearly shows that I had to do aLl the engineering for all three, and that is why I had site plan approval for all three buildings. MR. MACEWAN-I may be wrong on this, cOlrunent to the effect that, well, I've money for the engineering. I'm going the uni ts, as I go along here, and relatively short period of time. but I tho ugh t you ma de the gone ahead and paid all th1s to go ahead and put up aLl get t hem a 11 up w 1 t hi n a MR. WILSON-Well, I guess I would stand corrected on that. I really plan on just putting one up. MR. MACEWAN-How do you plan on addressing the landscaping, which is critical to approval of this? MR. WILSON-Okay. Craig, I plan on doing the landscaping, putting all the trees up, first thing, so by the time I got to the second or third buildings, the trees would clearly be so high. MR. MACEWAN-For the entire parcel? You plan on landscaping for the first unit. -- 27 - ~ -- MR. WILSON-Right. For everything. MR. MARTIN-That's a good point to be raised. You're committed to the entire landscaping plan, even though you'll only have one bu.ilding.~ MR. WILSON-Exactly. MR. BREWER-Lets make a motion if we re going to make a motion. MR. STARK-Is there a time frame for completing the landscaping? MR. MACEWAN-He would have to have the landscaping done prior to being issued a CO, right? MR. MARTIN-The only exception I'd make to that is if the CO comes up, like in February, or something like that, then I usually give until like May 15th, or something like that, to get the planning completed the following spring, and that's a temporary CO, issued until that time. MR. O'CONNOR-I'd ask one thing. Does the Board understand, in voting affirmatively, that it's overruling its counsel's opinion that the appl i cant has not met color of ti t1 e? MR. CARR-Mr. Brewer, I'm just saying, I'm not making a statement. MR. BREWER-You're right. All right. No more. MR. STARK-How does Bob want his disclaimer worded in the resolution? MR. MACEWAN-I don't, personally, think it even needs to be mentioned in there, because it's not this Board's position to interpret, under the advice of our attorney, is not to interpret the legality of a title. That's not what this Board is here for. So I don't think it's even worth putting in to the resolution, if you indeed pass it. MRS. LABOMBARD-I agree. MR. BREWER-But if he wants to put it in, let him put it in. MR. HARLICKER-There's a Short Form that you might want to go through, before you make a decision on the. MR. BREWER-I thought we already did it. I '01 sorry. MR. HARLICKER-It hasn't been signed yet. MR. MARTIN-You haven't dOlle the Environmental Assessment on this. MR. MACEWAN-Yes, we did. MR. BREWER-I'm sure we did. MR. MACEWAN-It's been done. Believe me I remember, I read it. MR. HARLICKER-Okay. MR. BREWER-Well, lets make sure. MR. PALING-And clarify the Rist-Frost report. Is that all going to be compl~ed with? MR. CARR-I believe it has been. MR. PALING-It has been. Okay. thought it had been. Yes. MR. MACEWAN-If it hasn't been, it will be at the time they start work. - 28 - ~ I '.J MR. PALING-Okay. MR. RUEL-I have a question for the attorney, Mark. In the zoning manual, under Article XV, Chapter 179-111, Page 18067. MR. MARTIN-Tim, I'd advise you to re-do the SEQRA, because the old form is for the four unit building. MR. BREWER-Okay. MR. RUEL-Do you have that Page? MR. SCHACHNER-Yes, do. Section 179-111, on Page 18067. MR. RUEL-Can I read it? "Any permit or approval granted under this Chapter, which is based upon or is granted in reliance upon any ma t e ria 1 m i s r e pre s en tat ion 0 r fa i 1 u r e to ma k e a ma t e ria 1 fa c tor circumstance known, by or on behalf of an applicant, shall be void." Does this have any standing here? .. MR. SCHACHNER-I'm familiar with the provision. your question, Roger. I don't understand MR. RUEL-It says here that any approval granted shall be void if it is granted in reliance upon any material misrepresentation or failure to make a material fact or circumstance known, in this case, ownership. MR. SCHACHNER-Right. MR. RUEL-Failure to make ownership known, at this time, makes the approval, if granted, makes it void, that's what it says. MR. SCHACHNER-If there's been a material misrepresentation, then according to this section, any granted approval would be void. That's correct. MR. RUEL-Right. So now, there is quite a question about ownership, right, and possibly some misrepresentation, possibly. MR. PALING-Not misrepresentation. MR. RUEL-Well, what is it, then? Does this particular Chapter have any validity towards this application? MR. SCHACHNER-If misrepresentation, you feel then it could, there's I suppose. been a material MR. BREWER-I think misrepresentation is, intention of misleading. MR. RUEL- It doesn't say that. mean, misrepresentation without necessarily knowing misrepresenting. It's just that, in this case, we with ownership, all right. So that, this says problem, it becomes void. Doesn't it? it could be that you are have a problem if there is a MR. PALING-Well, this is George's point, that we don't need to. put it in as a disclaimer. If we just approve or disapprove, that that's going to be in effect anyway. MR. MACEWAN-That's correct. MR. RUEL-Yes, I know, but why are we bothering to go through an exercise when actually the application should not have been taken in in the first place? MR. BREWER-I they didn't anybody. don't agree with that, Roger, because, potentially, realize, well, I'm not making any statements for - 29 - "- ~ .., MR. MARTIN-I t' s not my job, as a Planner, to look into the legali ty of a deed. I can assure you of that, and I will not do that. It's not my r 0 let 0 dot hat. A I be ita qui t c I aim de e d 0 r w hat, I'm not an attorney. I can't speak to that. I have no background to do that. I don't have the background or the experience to do that. So I'm not going to make that judgement or determination. MR. RUEL-Okay. If I come to you with an application, I'll say, yes, this is my property, you accept it and that's it, and then we go on that basis. MR. MARTIN-Yes, and if I see a deed. MR. RUEL-All right, until someone else comes along and says, no, it isn't your property, and then it becomes a legal battle. MR. MARTIN-Or if somebody with some legal background will dispute that, or, that's their realm. That's not my realm to do that. MR. RUEL-Well, how come we can't get an answer now? MR. BREWER-We did. MR. MAR TIN - H e did g i ve you a n an s w e r . He g a v e you his 0 pin ion t hat he does not think it's adequate color of title. He said that flatly. MR. BREWER-Quarter after seven he said it. We've got to do a SEQRA. If we're going to go to a motion, we have to. MR. MACEWAN-Do you want to do the SEQRA? MR. BREWER-Yes. RESOLUTION WI-IEN DETERMINATION Or- NO SIGNIFICANCE IS MADE RESOLUTION NO. 12--94, Introduced by Craig MacEwan who moved for its adoption, seconded by Roger Ruel: WHEREAS, there application for: is presently before LUCAS WILSON, and the Planning Board an WHEREAS, this Planning Board has determined that the proposed project and Planning Board action is subject to review under the State Environmental Quality Review Act, NOW, THEREFORE, BE IT RESOLVED: 1. No federal agency appears to be involved. 2. The following agencies are involved: NONE 3. The proposed action considered by this Board is unlisted in the Department of Environmental Conservation Regulations impl..ementing the State Environmental Quality Review Act and the regulations of the Town of Queensbury. . 4. An Environmental Assessment Form has been completed by the applicant. 5. Having considered and thoroughly analyzed the relevant areas of environmental concern and having considered the criteria for determining whether a project has a significant environmental impact as the same is set forth in Section 617.11 of the Official Compilation of Codes, Rules and Regulations for the State of New York, this Board finds that the action about to be undertaken by this Board will have no - 30 - '--- --J significant environmental effect and the Chairman of the Planning Board is hereby authorized to execute and sign and file as may be necessary a statement of non-significance or a negative declaration that may be required by law. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mr. Stark, Mr. Obermayer, Mrs. LaBombard, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: NONE MR. BREWER-Okay. A motion's in order. MR. MACEWAN-Does anybody else have anymore questions for the applicant? Does anybody want to make a motion? MOTION TO APPROVE SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by George Stark who moved for its adoption, seconded by Craig MacEwan: Duly adopted this 3rd day of May, 1994, by the following vote: MR. STARK-The stipulations, how would you want that read in, Craig? MR. BREWER-I think all conditions have been met. I think all the conditions that we had for the site plan were met, wi~h the trees, and the radius. There is, he has to set up a schedule for the hydrant flushing. MR. MACEWAN-Which is being done right now with the Water Depar tment. MR. BREWER-To be approved by Mr. Martin. MR . MAR TIN - I w 0 u I d rat her h a vet hat a p pro v e d by Mr. F I a her t y , what's ever acceptable to him. MR. MACEWAN-Which you've already stated that it would be dO'ne. MR. BREWER-They said they would agree to it. AYES: Mr. MacEwan, Mr. Paling, Mr. Stark NOES: Mr. Obermayer, Mrs. LaBombard, Mr. Ruel, Mr. Brewer MR. BREWER-Now, I think, I don't feel right about having a motion on the tabl e to approve, and then deny it. It's!!!y opinion that if we're going to deny an application, we should deny it on the merits of the application. I would go on the record to make a motion, can we make a motion to rescind that motion and a motion to table all in one, or not? That's mY recommendation. Then it, to me, it doesn't put the applicant, going through the whole thing again. What we've essentially done, George, is deny the project, and I don't think that's right. If we're going to deny a project, I think we should deny the project on the merits of the project. MR. CARR-That's right. I would like that on the record, as to why the project was denied. MR. BREWER-That's mY opinion. I would want to rescind that motion to approve, vote on that, and then make a motion to table, and then it doesn't put the applicant through the expense of filing for a new application, new maps, new everything allover again. That's my reconul1endation, and then if the problem is solved, then he can come in, one meeting, bang, he can get an approval or a denial. MR. STARK-Can I ask a question? You voted no because of the color of title? MR. BREWER-Exactly. - 31 - '......- MR. STARK-Cathy, did you vote no for that? MRS. LABOMBARD-That, I had many reasons why I voted no. MR. STARK-I just wondered what they were, that's all. MRS. LABOMBARD-Do I have to tell all the reasons why voted no? MR. BREWER-No. You don't have to tell him anything. MRS. LABOMBARD-Then I'd rather not answer that question. MR. BREWER-Okay. Mark? That's fine. Do we have to make two motions, MR. SCHACHNER-Is your question, can you make in one motion, a motion to rescind and to table, can you do it in one motion versus two? Is tha t your ques t i on? Yes. You can do it in one if you want, or you can break it up. It makes absolutely no difference legally whether you do that in one or two motions. MR. BREWER-Okay. Can I make a motion to do that? MR. MARTIN-Yes, you're a sitting member. MR. BREWER-All right. MOTION TO RESCIND THE PREVIOUS MOTION TO APPROVE. AND TABLE TI-IE APPLICATION OF SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Timothy Brewer who moved for its adoption, seconded by Tabled until the legal problems are solved. MR. BREWER-Therefore, it wouldn't put the appl icant through the expense of re-applying, and whatever. Is that acceptable to you? MR. CARR-No, it is not. ownership? You want it cleared up as to title MR. BREWER-Yes. MR. CARR-Okay. I just want it on the record. MR. BREWE~-That would be my motion, so that you wouldn't have to go through the application process allover again, the only reason for it. MR. RUEL-Tim, I think you forgot the word "approval". You want the motion to say "approval of", right? MR. BREWÈR-To rescind the approval motion that was just made, and to make a motion to table the application. MRS. LABOMBARD-Well, then why did we even bother doing it? MR. BREWER-Because the mot ion was made to approve, and it was denied, and I think I'm right in saying the way I said it. MR. STARK-Cathy, we voted five to two to proceed. MR. BREWER-To deny it. You made a motion to approve a project, and you denied it by voting no. MRS. LABOMBARD-No, we didn't vote to proceed. We voted to either approve the project or to deny the project. MR. BREWER-No. You made the motion to approve the project. It was denied. MRS. LABOMBARD-Right, five people did not approve it. - 32 - \~ --.../ MR. BREWER-Correct, so, therefore, the project is denied. MR. CARR--Mr. Brewer, may I just make a comment? May we suggest, we would be willing to accept a conditional approval of this project pending a court action as to title, which then means it doesn't have to come back before this Board, and you get your result that you want. MR. STARK-Okay, Tim, poll the Board on that question. MR. PALING-Yes. I think you're going to have to poll us on that, because there's evidentally reason for voting no, other than title. MR. BREWER-Well, I want to end this discussion. to make the motion that I made. just would like MR. STARK-Wait a second. MR. BREWER-No, I want to make the motion I made, George. MR. STARK-Tim, he said that's not acceptable. MR. BREWER-I don't want anymore comment, please. MR. STARK-He said he would go on going before the Board. MR. BREWER-Okay. Fine. a second? I guess not. I'm making the motion I made. I guess it goes nowhere. Do we have MR. STARK-Okay. Would you poll, as the Chairman, poll the Board to see if that's acceptable to the Board, on Mr. Carr's ~uggestion? MR. BREWER-The motion would be to what? MR. CARR-You're making us go to court, so all I'm saying is make our approval conditioned on getting court approval of the owner of the property. MR. BREWER-And then the other side's going to say, well. MR. CARR-We have no other recourse, except court. MR. BREWER-If we approve, Bruce, then it goes to court anyway. So what difference does it make if we table, until it happens? That's all I'm trying to get across. MR. CARR-Yes, because if you table us, where are we going to go? Where do we have to go if you table? MR. OBERMAYER-I agree with that. MR. CARR-We go to court. that's fine. I mean, you're sending us to court, and MR. RLJEL--You're going to court anyway. MR. CARR E x act 1 y . T hat's w hat I' m say i n g, but i f t his Boa r d has some other issue as to the project, than the title, tell us now, so we can address it. If it's only the title issue, then that's not really, you want us to go to court to get it cleared up, other than that, the project's okay. I mean, that's all I'm asking. MR. PALING-I think that's only fair. MR. RUEL-That's the motion. That should be the motion. MR. BREWER-Okay. One more comment, Mike, and then that's it. MR. O'CONNOR-I offered, understanding what an as a concession to the applicant, applicant goes through to make an - 33 - ',- ------ application, earlier, to him consent to a tabling. If he does not con s en t to a tab I i n g, and we get i n t 0 a t i met a b I e pro b I em , it' s going to be thrown back against you and against the Town. strongly object to tabling, and ask you to stand on the motion you made. We suggested that Mr. Carr made is not as simple as what he would have it sound, and not intentionally. He said, he goes to court and gets court approval, there are, then he automatically has the right to go ahead with the building. Court approval of what? I envisioned, first, that we have a complaint here, to settle the ownership of that real property. They are going to counter claim (lost word) that they own it, under the quit claim deed. Secondly, if they don't own it, they have a right-of-way. We will respond that says that even if they have a right-of-way, it is going to be between the two monuments, which are 16 feet apart, and not 33 feet, which is a world of difference between what the ZBA was thinking about and talked about, and they then are going to have to go back to the ZBA before they get back to this Board. I would just say, keep this application open, without prejudice to the Town, but if it's going to be prejudice to the Town, we could spend the next four hours trying to find out what is meant by court approval. MR. BREWER-No, we can't. I understand what he said, title of ownership. If somebody wants to make that a motion. MR. STARK-Would you poll the Board? I would I ike to make a motion to rescind the pr ior motion for approval, and then make it conditional on getting proper color of title. MR. BREWER-What's the difference in, what I just said is the same thing, isn't it? MR. MACEWAN-No. You're tabling the whole application. MR. STARK-They don't want to table. MR. BREWER -Okay. Do you wan t to do that, Jim? anything different, Jim? Do you have MR. OBERMAYER-No. MR. BREWER-Cathy? Craig? MR. MACEWAN-He wants to rescind that motion and make a motion with the condition that it's approved pending his outcome of the legality~of the title. Is that what you're saying? MR. STARK-That's what I'm saying. MR. MACEWAN-I don't want to do that. MR. BREWER-What do we want to do? MR. MACEWAN-I'm telling you, from the advice that our attorney gave us from the very get go of this whole thing, was that it's not this Board's policy or undertaking to determine the legality of a title, and that's exactly where I was coming from when I was approving your site plan. I didn't take that into consideration then, and I'm not t a kin g i tin t 0 con sid era t ion now, be c a.u s e qui t e f ran k I y I've come to the opinion that I think what's happening here is whether you do or you don't have clear title to this property, the neighbors are out and out not in favor of this one way or the other, whether you do or don't have legal right to the land, and I'm basing it on the fact that I thought your site plan, you've met all the conditions that were asked of you. You've met all the conditions that the neighbors have put upon you, originally. I thought you did a nice job on your site plan, and that's what I was approving, based on your site plan alone. I didn't take into consideration your right-of-way, and I still won't, and that's where I'm coming from. - 34 - '-.-. , -.-/ MR. BREWER-Okay. Does anybody have any other ideas, or do we want to leave it as a denial? I don't feel comfortable with that. MR. MACEWAN-You guys voted on it. You guys don't feel comfortable with it. You voted on it. Live by it. MR. BREWER-I will live by it, but I don't think it's the way to turn down an application. I don't think that's the proper way to do it. That's just my opinion. Maybe you guys think it is. I don't. MR. MACEWAN-l didn't do it. MR. BREWER-And I told you the reason I voted no. Roger, do you have any other comments, or ideas that you want proceed with? MR. RUEL-No. MR. BREWER-Bob? MR. PALING-I don't feel comfortable at all with the denial, unless we so state what the reasons are, beyond the legality, and the legality doesn't enter into it, and I'd entertain any motion which would either table it or allow it to be postponed until legality can be cleared up, but if there's other issues, maybe we should bring those out and clarify them before we proceed. MR. BREWER-I don't have any other issues. That's my issue. MR. PALING-Well, then why was the vote five to two? MR. MACEWAN-Because everyone felt that there was significant question as to the legality of the right-of-way. MR. PALING-We have no right to participate in that kind of a. MR. MACEWAN-Absolutely. You're one hundred percent. Our attorney advised us of that, and our attorney also said that he took a preliminary look into the legality of the deeds and tt1e titles and everything else, and based on his cursory look into it, that he felt there wasn't enough color of title, but he also said it wasn't our position to be taking that into consideration, and we just open up the floodgates. MR. PALING-Then we cannot deny this on the basis of title search. If it's being denied, it's got to be for some other reason. MRS. LABOMBARD-As I can recall, right before we took the vote, we all concurred that it would be at, we would vote on the site plan as is in front of us, and that was it, and then we all voted, yes or no, and we voted no, and now I don't know why, we could keep voting here, three or four or ten times tonight, until everybody keeps changing and is happy. I mean, we took one vote. Why can't we just leave it as that? MR. PALING-Why was it a negative vote? MR. BREWER-If that's what you want: to do, then that's what we'll do. MRS. LABOMBARD-Pardon me, Bob? MR. PALING-Why was it, don't we owe it to the applicant to tell him why he was turned down, if it has nothing to do with title? MR. BREWER-That's what I said when I said I wanted to rescind the motion. MRS. LABOMBARD-Has he asked us why? I haven't heard him. Have you come right out and asked us? - 35 - "- -- MR . CARR - Yes . I ask e d you a que s t ion , i f the r e . sad e n i a Ion something other than title, we would like to know the reason. MR. MARTIN-Tim, I think you can recall, and maybe Craig, people who have been on the Board longer, I remember when 1 was on the Board, and it was clearly stated to me then, and I think Mark will back me up on this, that when you're making denial of an application, you should clearly cite the Section of the Code in which you're making that denial, and that's typically contained in 179-38b, when it's been done in the past, and I remember that was instructed to me, as a member of the Board, when we vote no. MR. BREWER-I agree with you one hundred percent, but that's not the case that took place here tonight. MR. MARTIN-Well, that's why I raised the point. MR. BREWER-The motion was to approve, and it was denied with that motion, and I said that I don't feel comfortable, if we turn down an application, I think we should have a reason to turn it down, and I was willing to make a motion to rescind that and make a motion to table until the situation was solved, and the applicant said no. I asked for a second, and didn't get a second. So we can't vote on it. MRS. LABOMBARD-And I also can recall that, I think it was Mr. O'Connor said that when he came up to talk at the beginl1ing of the this meeting, that some parties would be happy and some parties would not be happy. So now we're going to just sit here and worry about, and now the applicant's unhappy. Well, we also have some people that are happy. If we sit here and deliberate this more, now we're"goirig to get, the opposite situation will hold. MR. CARR-But I think we have the right to know why we're unhappy. MRS. LABOMBARD-If that's what the law says, then you probably do, then you absolutely do. So we could start with George and go right down the~line. Is that what you'd like? MR. BREWER-George voted yes. Jim, give me a reason why you voted no. MR. OBERMAYER-The title, specifically the title. MRS. LABOMBARD-The title and the fact that there are an of people that have given me some very good reasons shouldn't go through. awful lot why this MR. CARR-Could you enumerate those reasons? The project, that's what we'd like to get to is why the project. MRS. LABOMBARD-And I know that I'm going backwards, and I know that this has been okayed by the Zoning Board. However, when I drive up there alone and I look at the density, and I look at the peopJe involved, and I've lived here all my life, I just can't handle it. MR. CARR-Okay. It's density. MRS. LABOMBARD-Bu tit's air eady been okayed, bu to, we 11, it' s zoned an MR - 5 , s 0 yo u h a v en ' t done any t h i n gill e g a I on t his p I an , basically. I'm a neophyte at this, but I can tell you, I can walk the property and say, wow, I can't believe you're going to put all that stuff on that little piece of land. MR. OBERMAYER-I have the same sentiments as Cathy, but it is zoned that way, and I feel that you have a right to do that. MR. BREWER-Not necessarily. MRS. LABOMBARD-What do you mean, not necessarily? - 36 - -.../ ,,----,. MR. BREWER-Just because it's zoned that way doesn't mean it has to be appropriate for that amount of units. I mean, read Article V. I can give you a perfect example. MRS. LABOMBARD-That's my reason. I could live with one dwelling, one apartment house, but I can't let three go. MR. BREWER-Okay. Craig? MR. MACEWAN-I voted yes for it. MR. BREWER-Roger? MR. RUEL-You want to know why I that Article XV, Chapter 179-111. That's it. voted no? It was predicated on You asked me to quote a Chapter. MR. BREWER-Okay. Bob? MR. PALING-I voted yes, and it isn't five to two, it's four to three. MRS. LABOMBARD-It was four, three, not five, two. MR. BREWER-Are you happy with that, Bruce? I mean, those are the answers you got. MR. PALING-Well, wait a minute. Can we still rescind that motion? MR. BREWER-Sure you can. You can rescind it. MRS. LABOMBARD-What do you mean? Rescind what motion, Bob? MR. PALING-The motion that was made, because based on this rationale of it getting too crowded, nobody can build up there now. If someone else comes before this Board and says that they want to build an apartment across the street or down the road, I don't see on what basis we could let them do it. MR. BREWER-Why can't you? MR. PALING-Because we just turned this applicant down. MRS. LABOMBARD-Every case is different. Square One. Eve r y cas e .... s tar t s from MR. BREWER-I think, what are we doing? We're done with the issue? MR. STARK-No. Bob said he wanted to make another motion. MR. BREWER-Do you want to make another motion? MR. PALING-I'll 1..LY to make a motion. MOTION TO RESCIND TIlE ORIGINAL MOTION ON SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Robert Paling who moved for its adoption, seconded by George Stark: And that a new motion be allowed to be made. Duly adopted this 3rd day of May, 1994, by the following vote: MRS. LABOMBARD-And what is going to be the outcome of the new motion? MR. PALING-It's going to be the one that I want to make originally, because two of you, at least, have said, and three really, that it's the legality, the title, that you're involved with, and I'd like to make a motion that would satisfy that. - 37 - ~ '-./ MR. BREWER-What is the motion? Go ahead. MR. PALING-All right. Well, can I get my first motion? Okay. I'll be glad to tell you what I think my motion would be. I would make a motion that we approve Site Plan No. 12-9~, in that we make, because of the controversy and discussion over this, that we make it known that the Board enters into no opinion of the legality of the title. That we're voting on the merits of the plans and specifications as submitted. Nothing else. MR. BREWER-To me, that's part of it, Bob, because it was an issue that was brought up as a site plan, and that issue was asked of our attorney to come up with an answer. MR. PALING-That's my motion. making a judgement in that. I don't think we have any business MRS. LABOMBARD-But you made that motion originally, and we denied it. MR. PALING-No. motions out. I didn't make a motion. Well, now I've got two MR. BREWER-You want to approve it? MR. PALING-I want my first motion acted on. MR. RUEL-The first one to rescind, right? MR. PALING-Right. " MR. RUEL-And the second one. MR. PALING-Well, just one at a time. time. I hope I can do one a t a MR. BREWER-We can make a motion to rescind. AYES: Mr. Stark, Mr. Obermayer, Mr. Ruel, Mr. Paling NOES: Mrs. LaBombard, Mr. MacEwan, Mr. Brewer MR. PALING-It's rescinded? MR. BREWER-It's rescinded. The motion is rescinded. MR. MARTIN-I want to check something with Mark, before you go any farther. Mark, I've got a question for you. There's a motion to rescind that's currently on the floor, it's been made and seconded. Does a motion to rescind a previous resolution resulting in a denial, does that need a unanimous vote of the Board to be acted on? MR. SCHACHNER-No. MR. BREWER-I mean, we can go on all night long. I'm going to make a motion to rescind this motion. MOTION TO APPROVE SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Robert Paling who moved for its adoption, seconded by George Stark: And that the Board make note, as part of this motion, that we are not giving any opinion in regard to title of the strip known as Walker Lane. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mr. Obermayer, Mr. MacEwan, Mr. Ruel, Mr. Paling, Mr. Stark NOES: Mrs. LaBombard, Mr. Brewer - 38 - '\---........I MR. BREWER-I'll make a motion to rescind it again. I mean, we can debate this all night long. MR. MACEWAN-That's what it is. It's a debate on differences of opinion, as to how extensive we should go regarding legalities of documents, and that's it in a nutshell. MR. PHILLIPS-Could I ask a question of your counsel, a public question of your counsel? MR. BREWER-Yes, I guess. Why not. MR. PHILLIPS-I'm very confused, I think, like everybody else is. I have two questions. The first question is, is it necessary, in order to have standing, for purposes of applying to a Planning Board for Site Plan Review, do you have to show color of title? MR. SCHACHNER-I think it's totally inappropriate to be asking questions of your counsel. MR. BREWER-Okay. MR. PHILLIPS-The reason I say that is that you have a, I think it's a legal opinion, that the applicant has not raised his level of title in this property, or his interest in this property, to the point where he even has that color of authority. Nobody wanted to ask that question, but you did ask that question, and he rendered an opinion. From mY point of view, I'm looking at it from this side of the table, that is dispositive of the issue. I mean, whether you want to render a legal opinion or not, relative to an a p pro valor d i sap pro val, you' ve got 0 n e , and it' s a ma t t e r 0 f record. So basically by making this, by rescinding that previous motion, and going ahead with this motion, you basically are going counter to what is in the record, relative to this color of title issue. So, you just reversed yourself, flip flopped, in terms of what you did before, too. MR. RUEL-He's right. MR. BREWER-I'm going to make a motion, one more time, to rescind t hat, and ma k e a mo t ion t hat wet a b let his un t i I the d i s put e i s settled. MOTION TO RESCIND THE PREVIOUS MOTION TO APPROVE. AND TO TABLE SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Timothy Brewer who moved for its adoption, seconded by Roger Ruel: Until the dispute is settled. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mrs. LaBombard, Mr. Ruel, Mr. Brewer NOES: Mr. Stark, Mr. Obermayer, Mr. MacEwan, Mr. Paling MR. BREWER-I guess the wants to make a motion. project's approved, unless somebody Is everybody happy with that? else MR. PALING-No, nobody's happy with it. MR. RUEL-Nobody's happy. LIZ VALENTE MRS. VALENTE-Can I ask a question? I didn't say one thing tonight, okay. I could not believe the flip flopping I've seen, and we've spent a lot of time. All we ask of you people was to table this and let a judge settle this. By approving his project, he can get a building permit tomorrow, can he not? - 39 - ""'--/ MRS. LABOMBARD-That's right. MRS. VALENTE-Okay. You are forcing me to slap that man with a lawsuit tomorrow. Your idea, sir, I'm sorry, was totally inappropriate, by saying, without putting a condition, saying, if we approve the project, Mr. Brewer, I understand where.YQ1! were coming from. Let the man have his project approved if he wants it, but you have to settle it first. You have an attorney that gave you color of title, the determination based on what he felt he saw, before Mr. Dorion even faxed that letter explaining to you how he got the quit claim deed, okay, and I'll tell you, I do not understand how this Board can sit there and vote yes and approve a project without saying and stipulating, you must settle the color, the title ownership. Now, tomorrow, if that man shows up with a bulldozer, I don't know what I'll have to do. MR. VALENTE--I' 11 have to call the police and slap him with an injunction. MRS. VALENTE-And this is, and I'll tell you, if this escalates to anything worse than it is already, I will hold this Board accountable, and the Town. I'm sorry. MR. O'CONNOR-The appl icant asked each Board member, polled each Board member, as to the reasons for voting. I would like to, on the record, poll each Board member as to why they voted contrary to the opinion of Mr. Schachner, that this applicant has not met the burden of color of title. MR. BREWER-Okay. George? MR. SCHACHNER-You certainly have no obligation, nor did you have any obligation to the applicant, by the way. You have no obligation to do that. It's just purely discretionary. MR. STARK-They're allowed to have three apartment bui Idings. You're not asking me that. MR. O'CONNOR-I'm asking how you overruled your own counsel's opinion that this application did not rise to the standard of color of title. MR. STARK-Okay. Mark Schachner also said that we shouldn't get into that point of law. If it's an allowed use, it's an allowed use. Vote on the merits of the project. MR. O'CONNOR-I don't mean to argue. I'm just going to ask, my question, I guess, the second part was, I understand both parts of his opinion, but once he has given that opinion, which you were very reluctant to ask, you've got a new ball game, guys. You're wasting taxpayer's money. Could I poll the rest of the Board? MR. BREWER-Sure you can, Jim? MR. OBERMAYER-I was very confused over it also, on the color of title, and it's zoned that way, and I voted because it was zoned that way, because the project, the developer took everything into account. MR. O'CONNOR-Basically disregarding the question of color of title. MR. OBERMAYER-I would like to not conunent anymore. MR. O'CONNOR-If you would, Mr. Chairman, Cathy voted yes, you voted yes. Mr. MacEwan, could I ask you the same question? MR. MACEWAN-Based on the information that I ascertained from our attorney, whose Number One position was that it's not this Board's position to enter into any legal decisions of whether a validity of a document is legal or not. Based on that information very early - 40 - -.'. ~ ....J on, I did not want to hear, for my own benefit, and if you recall the vote, I voted no, not to hear his opinion on whether the easement was legal or not. MR. O'CONNOR-But once you heard it, how did you overrule it? MR. MACEWAN-I did not take it into consideration. I still haven't. MR. SCHACHNER-Mr. Brewer, you know, if the Board wants to respond to Mr. O'Connor's question for input, I don't have any problem with that, but I don't think it's appropriate for Mr. O'Connor to be allowed to cross examine the Board members. I think that's going a little beyond. MR. BREWER-All right. Lets just ask the question, Mike, and then we'll answer it or not answer it. MR. O'CONNOR-That's the question I just asked of the Board members to respond. MR. BREWER-Okay. Roger, any response? MR. RUEL-Well, the record speaks for itself. I voted no, and it was on the opinion that ownership should have been resolved before the application was reviewed, and I still stand that way. Tabling it, to me, meant that the legality of the ownership should be resolved. MR. BREWER-But you voted to approve the project. MR. RUEL-Yes, well, the project, as it stood, and the conditions from the last meeting were all met, and as far as 1 was concerned, the project, aside from the legality of ownership, seemed okay to me, and therefore, I voted no, strictly on that discussion on ownership. MR. O'CONNOR-I think you voted yes? MR. RUELhNo. I voted yes on tabling. I voted no. MR. BREWER-Okay. Bob? MR. PALING-Okay. voted, felt, strictly on the merits of the project, and I think that any opinion that the legal counsel gave to hear, meant two things to me. One, we're not going to be bound by it. We couldn't be. We weren't allowed to go in that direction, but I was hoping it might have some influence on the applicants as to whether they should pursue this further or not. MR. O'CONNOR-My argument, I guess, is you have a basic threshold question before you get to the merits of the question, and you have to (lost words). MR. BREWER-But, Mike, also, I'll stick up for the Board, because, probably we're supposed to go with the opinion of the attorney, but it doesn't necessarily mean we have to because he gives us his opinion. I mean, I've gone against the opinion of the attorney. I mean, we did when we asked for the information. MR. O'CONNOR-What was your reason? I didn't hear a reason. MR. PHILLIPS-I do respect the flexibility of this Board. I'm going to ask you to be flexible once again. I would ask that you rescind the approval, and I'm not asking you to table, because I don't think you want to do that, but I would ask that you rescind the approval and, in doing so, at the same time, condition the approval, by providing that no building permit will issue relative to this property, and no construction activity will take place relative to this property until the applicant resolves the ownership issue and the easement issue. I'm not asking you to -- 41 - "--..' disapprove, but I'm asking you to make this applicant do his job. Make him do wha t the Zoni ng Board wan t ed you to do. Make him do what I think his obligation is to do. So I don't think I'm asking anything unreasonable here, and I think that this is a case unlike any ~ ever been involved with before. I can't imagine that Mike has bee n i n v 0 I v e din too ma ny, but t his i sac a s e 0 f fir s t impression here, and so I think we should proceed cautiously, and I would ask that this approval be conditioned, so that we don't have a fight over there on Walker Lane. MR. BREWER-Okay. Sir? RICHARD WILSON MR. R. WILSON-My name is Richard L. Wilson. I'm speaking on behalf of the applicant. I think, as this proves, this has been going on now for over a year. The appl icant has taken and met all your en gin e e r i n g que s t ion s . He' s ma d e all the c h a n g est hat we r e appropriate. I'm not a lawyer, and I've never had six months study to be one. I feel the applicant has met your conditions, and I think it's really foolish, we don't have the financial resources that Mr. Valente does, but we've got the determination that we are' going to go through it, and we are going to keep at it, and I just work for a contractor, and I think it's even foolish to think that we're going to go out tomorrow and get a building permit, and go up there and start construction work when we've got to go out and borrow the money and then have an injunction put against us so we can't work. We don't have all those resources. When we go to work, we've got to build the buildings and get people into them, living in them, and we don't claim to have the finances, but we're not going to go out and borrow money and start construction, and build on it. I think that's foolish to even bring it up. I mean, it's strictly borrowed money. So, we know we're going to have to go to court. That we will do. MR. BREWER-Okay. I think it's, in mY. opinion, only fair that we get everything settled before anything happens. Maybe I'm wrong, ma y bel 'm not. I don' t k now. DAN VALENTE, JR. MR. VALENTE, JR.-My name's Dan Valente Jr. say that, on the approval, this was all based Variance said, on the condition that he ownership of this land. Correct? I would just like to on the Variance. The must show proof of MR. BREWER-It doesn't say specifically he must show ownership of the I and. MR. VALENTE, JR.-Right. On approving this project, almost legally saying that he does own this land, according to your Variance, on the condition? MR. BREWER-According to the Variance he has. MR. VALENTE, JR.-The Variance was passed, on approval of the two things. They're just saying that they don't want to get into the legality of it, but based on this Variance. MR. O'CONNOR-Color of title is not legality. Color of title is the application. MR. BREWER- I 'm going to, advice and rescind the conditioned upon. for the last time, motion, and make a take Mr. Phillips mo t ion t hat it' s MR. MACEWAN-You can't rescind it. You've got to poll the Board to see if they want to rescind it. MR. BREWER-Why can't I make a motion? I'll make a motion that we - 42 - ~..'''.~ -...../ rescind the motion to approve. MOTION TO RESCIND THE MOTION TO APPROVE. AND APPROVE SITE PLAN NO. 12-94 LUCAS WILSON, Introduced by Timothy Brewer who moved for its adoption, seconded by Robert Paling: On the condition that the legality of the color of title is proven before construction, before a building permit is issued. Duly adopted this 3rd day of May, 1994, by the following vote: AYES: Mr. Obermayer, Mrs. LaBombard, Mr. Ruel, Mr. Paling, Mr. Brewer NOES: Mr. Stark, Mr. MacEwan MR. STARK-The project Is approved now, Tim? MR. BREWER-The project is approved, wIth the condition that the color of tItle be proven before construction can begin. MR. MACEWAN-Before a building permit Is issued. MR. RUEL-Before a building permit Is issued. MR. MARTIN-Wait a minute, now. I've just got a little question here, as the ZonIng Administrator who's going to be looking at this color of title stuff. Now, when he comes in with hIs, I want some specific answers from this Board as to what you define that to be. Do you mean a court action or a court ruling or title Insurance? What do you mean? Because I'm not having that on mY. shoulders if this building permit shows up. MR. BREWER-Title insurance is sufficIent. MR. MARTIN-Title insurance is sufficient. decision of this Board? Is that the unanimous MR. BREWER-To me it is. If he's got title insurance on that right- of-way to build a road on that right-of-way, then that's sufficient, I think. MR. O'CONNOR-But title insurance for ownership. That's what we're talking about here. We get very confused between ownership and right-of-way. MR. MARTIN-I want to make sure we re clear on this. MR. O'CONNOR-And I don't mean to speak for you, but n~ understanding of everything that's been before you, there's a claim of ownership by quit claim deed, and you're going to ask for it. I asked for it five months ago. Why don't they get a tItle policy, if they think they have such good title, and they never have. MR. BREWER-All right. guess what I, I'm takIng from you, Jim, that minimum frontage on a public road is ownership. MR. MARTIN-Right. That's the way it's always been interpreted. MR. BREWER-Okay. I'm taking from Mark that he hasn't proven ownership of that property to build a road on. MR. MARTIN-It's his opinion what's been supplied so far is not. MR. BREWER-My question that 1 want answered is, doe'"s he have a right to put a road on that piece of property? That's all I want to know. If he has a right to put a road on that piece of property, then let him go ahead and do it. If he doesn't, then he can't do it. - 43 - --- MR. OBERMAYER-Does he have the ownership, though? MR. BREWER-Yes, well, he has to prove ownership, because the variance specifically says, I move that we grant relief of 17 feet from Section 179-70b, which requires the minimum frontage, keep in mind that minimum frontage means ownership, and that's what the Variance is all about. So he has to have ownership of that. MR . MARTI N - So 0 w n e r s hip i s de fin e d as t i tl e ins u ran c e i n d i cat i n g ownership over that property, or a court order, or something of that nature. MR. MACEW~N-Or a court decision. MR. PALING-Either one of the two. MR. MARTIN-Are those your only two options that are available for this applicant to get a building permit, title insurance indicating ownership on that property, or a court order to that effect, that he owns the property? MR. BREWER-Would that be sufficient, Mark? If he had title insurance on that piece of property, for him to go there tomorrow and put a road on piece of property? MR. SCHACHNER-To be quite honest, people make mistakes in title insurance, too. There's no way that I can express a definitive answer, but I would be comfortable representing the Planning Board or the Zoning Administrator, what he's looking for is guidance, and what I think has just been expressed, correct me if I'm wrong, Jim, but what he's looking for is guidance so that he knows whether that condition is fulfilled or not, when somebody comes knocking on his door to issue a certificate of occupancy, or, I'm sorry, a building permit, and what 1 understand the Board to be saying is a title insurance policy, and/or a court order stating that the applicant has ownership over the parcel in question, and, frankly, I'm going to address questions from the Board, not from the audience. MR. BREWER-Yes. Now I guess what I'm saying is, a hypothetical situation is, two kids playing in the street. There's a ball there. The teacher comes along. One of the kids says, that's mY ball. The other kid says, it's tHY ball. The teacher says, prove to me who's ball it is. The kid goes home and gets a receipt. It's his ball. I want some kind of a receipt saying that guy can build a road on that land. MR. SCHACHNER-Well, but in all fairness, Mr. Brewer, I think you want more than a receipt, because the applicant's going to say, here's our deed. The applicant's going to say, the deed is my receipt. MRS. LABOMBARD-Well, then, what should we get from them, Mark? Tell us. What should we get from them? MR. SCHACHNER-No, appropriate. think the two things you've expressed are MR. BREWER-All right, then, those two things are appropriate, title insurance. MR. MARTIN-Indicating ownership, or a court order. MR. BREWER-And/or a court order indicating ownership. MR. SCHACHNER-Those are appropriate. MR. OBERMAYER-I would like our attorney to please state that. MR. SCHACHNER-Those are appropriate. - 44 - "---' -..I MR. MARTIN-Is that the exact form? Did I speak correctly? MR. SCHACHNER-Sure. MR. BREWER-That's fine with me. MR. O'CONNOR-That's a compromise, on my part, that I'm willing to live with. MR. BREWER-Whether you're willing to live with it or not, Mike. MR. O'CONNOR-Let me explain this. There's some titie insurance companies that will insurance anything, okay, that's unfortunate, but if they put their name on a paper, they've got something that they've got (lost word), and the other issue J might comment, if you had this all set up, Mr. Martin, when you have any offer of dedication in a subdivision, there are standards as to what the a p p lie ant m us t s u bm i t for P a u I D use k, as Tow n At tor n e y, to S how that the person has ownership of that strip of "land that he dedicates on every road that you guys accept, and the Town is going to take. MR. BREWER-That's not a dedicated road. MR. SCHACHNER-That's totally wrong, and, frankly, you're hurting your own case, because if that's all that's needed, then the quit claim deed is probably sufficient. MR. O'CONNOR-The Town of Queensbury, Mark, insurance, without exception. requires title MR. MACEWAN-Yes, but you're talking about a dedicated road. MR. SCHACHNER-Okay, not the real property instrument. MR. MACEWAN-Mike, you re talking about it, for a subdivision, you're talking about a dedicated road to the Town of Queensbury. This isn't a dedicated road. This is a road by use. MR. SCHACHNER-No. This he's just making an analogy, Craig. MR. MARTIN-Okay. So we're clear on this? MR. BREWER-Yes. MR. MARTIN-And I would like the motion amended and re-voted upon, with that as clear. MR. BREWER-Okay. MOTION TO AMEND MOTION OF APPROVAL FOR SITE PLAN NO. 12-94 LUCAS. WILSON, Introduced by Timothy Brewer who moved for its adoption, seconded by Robert Paling: To include those two items that Jim has indicated, title and/or proof of ownership, a court order stating ownership. insurance proof of Duly adopted this 3rd day of May, 1994, by the following vote: MR. CARR-Mr. Brewer, who makes the decision if the "and" in and/or applies? MR. BREWER-Mr. Martin. MR. MARTIN-If I'm hearing this, it's one or the other. If the applicant comes forward with a title insurance policy that indicates ownership, then that is sufficient, and then it will have met the requirements of this motion. - 45 - "-- '-J- MR. SCHACHNER-Or if the applicant has a court order. MR. BREWER-Yes. MRS. LABOMBARD-So then it's an "or". MR. SCHACHNER-Yes, you could do it that way, either or both. MRS. LABOMBARD-Now wait a minute, I've done enough logic in math, that it's either and or, or. MR. MARTIN-I would prefer it be one way or the other, yes. MRS. LABOMBARD-It can't be and/or. MR. RUEL-No, just or. MR. BREWER-What if he comes in with both? MRS. LABOMBARD-If he comes in with both, that's fine. MR. BREWER-All right. Lets leave it and/or, all right. AYES: Mr. Stark, Mr. Obermayer, Mrs. LaBombard, Mr. Paling, Mr. Brewer NOES: Mr. MacEwan, Mr. Ruel MR. CARR-Mr. Brewer, I want a clarification as to the and/or. I mean, if we have title insurance and a court order, or do we have title insurance, QL a court order? MR. BREWER-You can come in with both, Bruce, or one. MR. SCHACHNER-It's either or both. MR. BREWER-Either or both. All right. We've got one more item, you said? MR. MARTIN-Mr. Sinclair. Mr. Sinclair has submitted his $25, and we do have a, we have a court action with him that is still open, but what I need from this Board, I'm told by Mark is, that if we're going to rehear this application, then you need to rescind your previous motion. MR. PALING-Is this Service Master? MR. BREWER-Yes. Okay. So we've got to rescind the motion? MR. MARTIN-He has submitted his $25. That's in hand, but in order for you to rehear this application at one of your May meetings, I need you to rescind your previous motion, when it was for approval and was denied. MR. BREWER-So if we rescind that motion, that means there's no motion made. MR. MACEWAN-That's right. That means he can just continue on going as he's going on and never show up again for another two years. MR . MART IN -N 0 . Hew i II court action with him. purposely. be in in May, and we still have an It's not closed. We kept it open open MR. MACEWAN-Why can't that motion stay in effect until he appears here in May and we get it resolved? MR. MARTIN-My understanding from Mark is, he has no standing to come back. You have to rescind it to. - 46 - ~ ,-.. . \..-- '-" MR. MACEWAN-Well, I think he has a lot of standing to want to be back here, because if I remember, when we denied that motion, it effectively put him out of business. Is that not correct? MR. MARTIN-Right. MR. MACEWAN-So he has all the incentive in the world to be here. MR . MAR TIN - Rig h t . T hat's why I I eft the co u r t act ion 0 pen wit h him, because that's my leverage over him. MR. MACEWAN-My opinion is we just leave things as they are. - MR. BREWER-What happens if we do leave things the way they are, Jim? MR. MARTIN-According to what I'm told, then we have no basis to accept a new application from him. MR. BREWER-We didn't ask him for a new application. the time to advertise for another public hearing, We just wanted I thought. MR. MARTIN-Yes, to re-open the matter. MR. BREWER-Yes, and we kept it, we waived the application, so that he wouldn't have to submit a new application. MR. MARTIN-So you want to hold off rescinding the motion until the night of? MR. MACEWAN-I don't understand that. If he has no basis for a new application, if he's no longer in existence, business wise, up there, it would be to his advantage to get on the agenda with a new applipation to open up his business. MR. BREWER-No, no, Craig, at the last meetilìg, we waived the application element of it so that he could come back and get it straightened out. MR. MACEWAN-It was a modification, wasn't it, basically? MR. BREWER-No, it was a whole new application. MR. MARTIN-Yes, we didn't require him to submit advertising the matter. , a, we re just re- MR. BREWER-So, if we just leave it as it is, Jim, then. MR. MARTIN-I think, maybe you can rescind that night, but we'll be scheduling a public hearing. He's going in knowing that you may not. MR. STARK-Is he meeting us halfway on this? what we asked him to do? I mean, is he doing MR. MARTIN-He submi tted the advertise the public hearing. $25, and I we re in a position to MR. STARK-Okay. He's showing a little bit of faith anyway, right? MR. BREWER-Yes. MR. OBERMAYER-He did show up at the last meeting. It was two years later, but. MR. BREWER-So, all we have to do at the next meeting is rescind the motion to approve, that we denied, and make a motion to approve, if things work out. MR. MARTIN-Well, no, whatever new motion you have, but in order to - - 47 - -- entertain any new action on this, the first step is you have to rescind your. MR. STARK-What I want to know is, did he show you a title to that land, and is that a good title, seriously. Now we've got to ask every single applicant. MR. MARTIN-He's on the tax rolls as the owner. That's usually as far as we go. .' MR. OBERMAYER--Put him on the schedule, and if he shows up, we'll rescind it. MR. MARTIN-That's the will of the Board. MR. MACEWAN-Tha t 's the will of the Board. MR. BREWER-All right. Meetings for May, site visits, 5/12, which is a Thursday, because there's that conference Wednesday night, correct? MRS. LABOMBARD-Yes. MR. BREWER-That's a mock site plan review at ACC. Jim, what time is that, 6:30 or 7? MR. MARTIN-It's usually 6:30, but I can clarify that. I would say, call the office tomorrow to clarify that. MR. BREWER-All right. The meetings will be May 19th and May 26th. I've got one item, curiosity, how about the contract for the Olive Garden, the parking lot? MR. MARTIN-It will be started before they are here before you. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Timothy Brewer, Chairman - 48 - ..'. ., ":,1