Loading...
02-18-2015 (Queensbury ZBA Meeting 02/18/2015) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 18, 2015 INDEX Area Variance No. 88-2014 McDonald's 1. Tax Map No. 302.6-1-48, 49 Area Variance No. 85-2014 Bill Oehler 2. Tax Map No. 239.20-1-19 Notice of Appeal No. 1-2014 John Wright BPSR 5. Tax Map No. 288.12-1-4 Notice of Appeal No. 1-2015 William Crowell 15. Tax Map No. 239.12-2-64 Area Variance No. 6-2015 Warren County c/o Martin Auffredou 25. Tax Map No. 288.-1-51, 49 Area Variance No. 7-2015 J. H. Land Development, LLC 29. Tax Map No. 278.-1-14, 18 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. 1 (Queensbury ZBA Meeting 02/18/2015) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 18, 2015 7:00 P.M. MEMBERS PRESENT STEVEN JACKOSKI, CHAIRMAN ROY URRICO, SECRETARY JOHN HENKEL MICHAEL MC CABE RICHARD GARRAND HARRISON FREER, ALTERNATE ANDREW ALLISON, ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN STENOGRAPHER-SUE HEMINGWAY MR. JACKOSKI-Welcome, everyone. I'd like to call this evening's meeting to order for the Queensbury Zoning Board of Appeals. For those of you who haven't been here before, it's actually quite a simple process. There is an agenda on the back table and some information about how we conduct our meetings. I will call each application up to the table. I will read the application into the record. We'll ask the applicant questions. We'll convene as a Board. We'll discuss the matter. We'll ask for public comment, and we'll take our actions accordingly from there. We do have some housekeeping to attend to this evening. So, I'd like to start with that, and that would be a motion to approve the meeting minutes of Thursday, January 22nd APPROVAL OF MINUTES January 22, 2015 MOTION TO APPROVE THE MEETING MINUTES FOR THURSDAY, JANUARY 22, 2015, Introduced by Richard Garrand who moved for its adoption, seconded by John Henkel: Duly adopted this 18th day of February, 2015, by the following vote: AYES: Mr. Freer, Mr. McCabe, Mr. Allison, Mr. Urrico, Mr. Garrand, Mr. Henkel, Mr. Jackoski NOES: NONE MR. JACKOSKI-The next item we have on this evening's agenda is a little bit more housekeeping is the further tabling request for Area Variance No. 88-2014, the McDonald's at 819 State Route 9. MR. MC CABE-I'll make a motion to table Area Variance No. 88-2014, `tit. MR. BROWN-One of the March meetings. They should be the same as this month, 18 and 25. One of those. MR. MC CABE-So until March 18tH ADMINISTRATIVE ITEMS: FURTHER TABLING REQUEST FOR AREA VARIANCE NO. 88-2014 MCDONALD'S 819 STATE ROUTE 9 MOTION TO TABLE AREA VARIANCE NO. 88-2014 MCDONALD'S, Introduced by Michael McCabe who moved for its adoption, seconded by John Henkel: Until March 18th with the documentation to be to the Zoning Board by two weeks prior. Duly adopted this 18th day of February, 2015, by the following vote: MR. JACKOSKI-Is two weeks prior the correct language? MR. BROWN-Yes, that'll work. I mean, typically the submittal deadline is the 15th, which was a couple of days ago. So if you want to give them an extended deadline, we can work with that. 2 (Queensbury ZBA Meeting 02/18/2015) We'll just, we'll make the resolution say the first meeting, because I'm not sure of the date. You picked the date. MR. MC CABE-1 know the date. MR. BROWN-It's definitely the 18 th? MR. MC CABE-Yes. MR. BROWN-Okay. MR. MC CABE-Unless you move it to a Thursday. MR. BROWN-Okay. 18 it is. AYES: Mr. Freer, Mr. Allison, Mr. Urrico, Mr. Garrand, Mr. McCabe, Mr. Henkel, Mr. Jackoski NOES: NONE MR. JACKOSKI-Thank you. OLD BUSINESS: AREA VARIANCE NO. 85-2014 SEQRA TYPE II BILL OEHLER AGENT(S) BILL OEHLER OWNER(S) GREGORY R. FRANCIS, SR. ZONING WR LOCATION 2930 STATE ROUTE 9 APPLICANT HAS REVISED PLANS FOR REMOVAL AND TO REBUILD A NEW 684 SQ. FT. ATTACHED PORCH AND DECK AREA WITH STAIRS. RELIEF REQUESTED FROM MINIMUM SIDE AND SHORELINE SETBACK REQUIREMENTS. RELIEF REQUESTED FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. PLANNING BOARD REVIEW IS REQUIRED FOR THE CREATION OF HARDSURFACING AREAS (DECKS, PORCHES) WITHIN 50 FT. OF THE SHORELINE OF LAKE GEORGE. CROSS REF SP 72-2014, BP 14-400, BP 02-647 WARREN COUNTY PLANNING DECEMBER 2014 ADIRONDACK PARK AGENCY ALD LOT SIZE 0.92 ACRE(S) TAX MAP NO. 239.20-1-19 SECTION 179-6-050 BILL OEHLER, PRESENT STAFFINPUT Notes from Staff, Area Variance No. 85-2014, Bill Oehler, Meeting Date: February 18, 2015 Project Location: 2930 State Route 9 Description of Proposed Project: Applicant has revised plans for removal and to rebuild a new 684 sq. ft. attached porch and deck area with stairs. Relief requested from minimum side and shoreline setback requirements. Previous proposal was for a 1,238 sq. ft. removal and replacement deck. Relief requested for the expansion of a nonconforming structure. Planning Board review is required for the creation of hardsurfacing areas (decks, porches) within 50 ft. of the shoreline of Lake George. Relief Required: Parcel will require area variances from Section 179-3-040 Dimensional requirements for the WR zone and Section 179-13-10 Continuation for expansion of a nonconforming structure. Side Shoreline Required 25 ft. 50 ft. Proposed 11.2 ft. 24.4 ft. (upper)/22 ft. (lower) Relief 13.8 ft. 25.6 ft. upper deck/ 28 ft. lower deck Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. The proposed project may be considered to have minimal to no imoact on the character of the neighborhood and nearby properties. 3 (Queensbury ZBA Meeting 02/18/2015) 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Feasible alternatives maybe limited as site access from the rear of the home to the Lakeshore is on a steep rock filled area. Where any construction proposed on the site may need a variance. 3. Whether the requested area variance is substantial. The relief requested may be considered moderate to substantial relevant to the code. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. The project maybe considered to have Limited impact on the environment or the neighborhood. The applicant's,plans show the new deck area to be anchored to the rock surface to improve stability. 5. Whether the alleged difficulty was self-created. The difficulty may be considered self- created. Staff comments: The applicant has revised plans for removal of a deck and to now replace with a smaller deck system. In addition the applicant has removed the enclosed porch from the proposal and to maintain an open deck as currently exists. The original proposal was for a removal and replacement of 1,238 sq. ft. deck areas and is now for a 684 sq. ft. deck project. The new decking is located too close to the south side property line and the shoreline. The shoreline setback for the upper deck is 24.4 ft. and the lower deck is for 22 ft. requiring relief from the 50 ft. shoreline setback. The applicant has indicated the decking allows the owner to access the shoreline from the existing house. The plans show the elevation and location of the new decking. The applicant has indicated the new decking will be anchored to the existing stone to provide support. The existing vegetation is to remain and is proposed not to be disturbed to assist with stormwater management on the site. The applicant also proposes additional plantings that are native and have a strong root base-phlox and irises. MR. JACKOSKI-Thank you. Would the applicant join us at the table? MR. OEHLER-Good evening, everyone. I'm Bill Oehler. I'm here for Gregory Francis who was here a month and a half ago on the proposed project that you just mentioned. The new project, I spoke to the owner and he was in compliance with making, removing the roof system, which we had an issue with the porch and also making the deck, that second level deck, smaller, and not replacing any other decks that are there, and also just putting some vegetation along the shoreline. So we're more or less conforming with what's there and replacing what is exactly there. MR. JACKOSKI-Okay. Any questions from Board members before we do re-open the public hearing? Seeing none, is there anyone here in the audience who'd like to address this Board concerning this particular application? PUBLIC HEARING OPEN MR. JACKOSKI-Seeing none, I will keep the public hearing open and seek comment from each of the Board members. I'll start with Andy. MR. ALLISON-1 have no comments. MR. JACKOSKI-Harrison? MR. FREER-No comments. MR. JACKOSKI-Rick? MR. GARRAND-1 would hope that, should there be any future work done on the lower deck that the Board seriously consider asking the applicant to remove the lower portion of the deck that's closest to the shoreline, but overall, I think the modifications made were what we were looking for. MR. JACKOSKI-Okay. John? MR. HENKEL-Yes, I'd also say it's definitely a 100% improvement compared to a lot of the hardsurface that they had with the roof on the one porch and then of course the deck closest to 4 (Queensbury ZBA Meeting 02/18/2015) the lake. So I'd say it's definitely a good compromise and good for the neighborhood and the environment, the whole deal. So I'd be in favor of it. MR. JACKOSKI-John? I'm sorry. Mike? MR. MC CABE-The property's kind of a severe slope. There's not a lot of options. I believe this option will improve the property and will be good for the neighboring properties. MR. JACKOSKI-Roy? MR. URRICO-Yes, I think the modifications are good. I think it makes the variance better, too. MR. JACKOSKI-Okay. Having polled the entire Board, and having their feedback, I'm going to c close the public comment period, and I'm going to seek a motion. PUBLIC HEARING CLOSED MR. MC CABE-I'll make a resolution. RESOLUTION TO: Approve, Area Variance No. 85-2014, Bill Oehler for Gregory R. Francis, Sr., 2930 State Route 9, Tax Map No. 239.20-1-19 The Zoning Board of Appeals of the Town of Queensbury has received an application from Bill Oehler for Gregory R. Francis, Sr. for a variance from Section(s): 179-6-050 of the Zoning Code of The Town of Queensbury. Applicant has revised plans for removal and to rebuild a new 684 sq. ft. attached porch and deck area with stairs. Relief requested from minimum side and shoreline setback requirements. Relief requested for the expansion of a nonconforming structure. Planning Board review is required for the creation of hardsurfacing areas (decks, porches) within 50 ft. of the shoreline of Lake George. SEAR Type II - no further review required; A public hearing was advertised and held on Wed., December 17, 2014 and Wed., February 18, 2015; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find as follows: 1. Will an undesirable change be produced in the character of the neighborhood or will a detriment to the nearby properties be created by the granting of the requested area variance? There is not an undesirable change to the character of the neighborhood nor a detriment to nearby properties because the improvement will enhance the appearance of the property. 2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance? Feasible alternatives are limited by the physical configuration of the property. 3. Is the requested area variance substantial? The requested variance is not substantial because most of the building already exists with the relief required. 4. Will the proposed area variance have an adverse impact on the physical or environmental conditions in the neighborhood or district? There is not an impact on the physical or environmental conditions of the neighborhood or the district. 5. Is the alleged difficulty self-created? The alleged diffl'cultyis self-created but not considered to be a detriment. Based on the above findings I make a MOTION TO APPROVE Area Variance No. 85-2014, Bill Oehler for Gregory R. Francis, Sr., Introduced by Michael McCabe, who moved for its adoption, seconded by John Henkel: As per the resolution prepared by staff with the following: A. The variance approval is valid for one (1) year from the date of approval; you may request an extension of approval before the one (1) year time frame expires; 5 (Queensbury ZBA Meeting 02/18/2015) B. Final approved plans in compliance with an approved variance must be submitted to the Community Development Department before any further review by the Zoning Administrator or Building & Codes personnel; C. Subsequent issuance of further permits, including building permits are dependent on receipt of these final plans; D. Upon approval of the application; review and approval of final plans by the Community Development Department the applicant can apply for a building permit unless the proposed project requires review, approval, or permit from the Town Planning Board and/or the Adirondack Park Agency, Lake George Park Commission or other State agency or department. Duly adopted this 18th day of February 2015, by the following vote: AYES: Mr. Freer, Mr. Allison, Mr. Garrand, Mr. Urrico, Mr. McCabe, Mr. Henkel, Mr. Jackoski NOES: NONE NOTICE OF APPEAL NO. 1-2014 SEQRA TYPE N/A JOHN WRIGHT BPSR OWNER(S) NORTH HIGH REALTY-ANDREW LIUCCI ZONING CI LOCATION 1519 STATE ROUTE 9 APPELLANT IS APPEALING THE ZONING ADMINISTRATOR'S DETERMINATION REGARDING A DETERMINATION THAT A STRUCTURE AT 1519 STATE ROUTE 9 HAS NOT BEEN DISCONTINUED FOR RESIDENTIAL OCCUPANCY. OWNER OF PROPERTY MAINTAINS STRUCTURE FOR USE AS RESIDENTIAL OCCUPANCY AND HAS NOT BEEN DISCONTINUED FOR LONGER THAN 18 MONTHS THAN APPELLANT CLAIMS IN THEIR APPEAL. CROSS REF AV 56-2013 (DETERMINED AV NOT REQUIRED); BP 1372 YR. 1971 SIGN WARREN COUNTY PLANNING N/A LOT SIZE 1.15 ACRE(S) SECTION 179-13-020; 179-14 STAFFINPUT Notes from Staff, Notice of Appeal No. 1-2014, John Wright BPSR, Meeting Date: February 18, 2015, Project Location: 1519 State Route 9 Information Requested: Appellant is appealing to the Zoning Board of Appeals relative to an October 9, 2013 determination from the Zoning Administrator regarding the residential occupancy of the property at 1519 State Route 9. Staff comments: First, Standing: Was the appeal taken within the appropriate 60 day time frame and is the appealing party aggrieved? The appeal was filed within the required timeframe. The Zoning Administrator determination was filed in the Town Clerk's Office on December 18, 2013. The Notice of Appeal application was signed on January 29, 2014 and filed with the Town on January 31, 2014. It would appear as though the appellant has met the required timeframe for filing. Is the appealing party aggrieved? On March 26, 2014, this Board found that the appellant did not have standing to appeal the above referenced decision. This ZBA decision was subsequently challenged by Lumberjack. On January 20, 2015, Warren County Supreme Court Justice Krogmann found the ZBA decision to be "...arbitrary and capricious..." and remanded the matter to the ZBA for further review. Second, Merits of the argument. The issue at hand is section 179-13-020, Discontinuance. Which reads: if a non-conforming use is discontinued for a period of 18 consecutive months, such use shall be deemed to be abandoned and further use of the property shall conform to this chapter. The appellant asserts that the residence was not occupied for several years and they offer information relative to utility costs and usage. The Town Zoning Administrator position, as noted in the referenced October 9, 2013 determination letter, asserts that the utility billing information supplied by the property owner was sufficient to show that the use was continuous and uninterrupted, and as such, may be 6 (Queensbury ZBA Meeting 02/18/2015) continued. As noted in previous findings by the ZBA, complete discontinuance is difficult to prove. Occupancy of the building for 1 day every 18 months preserves the right of the use. Further, there has been no indication of any active abandonment of the building as a residence. The Zoning Administrator is unaware of any physical alterations to the building to convert it from a residence to any other use. Using the appellants logic a house may be considered discontinued if it sets vacant for a period of time while either on the market, for sale, or vacant while settling an estate. This logic is not sound." MR. JACKOSKI-Okay. Welcome. MR. WRIGHT-Thank you, Mr. Chairman, and good evening. Many of you here on the Board tonight were here last year when we first brought this Appeal. A couple of you were not, so unfortunately for the rest of you I'm going to give basically the same presentation I gave last year but with a couple of added items of information that we've acquired and submitted to you in the last month or so. The issues of timeliness and standing are resolved. The issue before the Board tonight is simply whether this nonconforming use was abandoned under the definitions of the Town Code, and because it's a residential use in a commercial zone, it's important that the Board keep in mind what the definition of a residential use is, and that's laid out in Section 179- 2-10, and it says that a residential use is the use of a structure or parts thereof as a permanent place of dwelling, and that's important because part of the Staff Notes and I believe part of the Zoning Administrative reasoning here is a belief that a use, one day out of every 18 months would carry on the nonconforming use, but by definition that's not the case. You can't use a structure as a permanent place of dwelling one day out of 18 months. It doesn't work that way by definition. So what this Board needs to determine was whether anyone in the time period we've identified from 2008 to 2012, occupied this premises as a permanent place of dwelling. We've given you affidavits from the listing agent who had the property listed from August 2010 to October 2012. That's Betty Duffy, and she tells this Board that during that time period there was no one occupying the residence. She never had to get permission from anyone to go and show the property. She never encountered anyone when she was showing the property. She actually had discussions with the Zoning Administrator about the permissible uses of the property, and she was told that the property couldn't be used as a residence without a variance. So certainly as of 2012, prior to the sale, Mr. Brown's determination was that the residential use had ceased. So what changed, as indicated in the Staff Notes, was that the property owner, after taking title in October 2012, provided a National Grid electricity usage summary to the Zoning Administrator, and that is what the determination is based on. In my prior Appeal I presented to the Board some printouts from the government agencies about the average usage for a residential dwelling in New York or anywhere else in the country, and the usage at this property was about one twelfth, it was a mere fraction of what a normal single family dwelling would use. There simply is no way anyone was living there. In the meantime, what we've provided you is not just my analysis of government information, but we gave you a report from a firm named Cost Control Associates. They're located on Bay Road here in Queensbury, and what they do is analyze utility bill. That's their job. That's their business, and the individual named Alison Levin who provided that report to the Board has been doing that job for I believe about 17 years, and she cited government standards and her experience that said there's no way any person could have been occupying that structure as a permanent place of dwelling during the time period reflected in the National Grid billing. She compared it more likely to a couple of 60 watt bulbs being on, you know, a couple of lights being on. Because the house was on the market, certainly the electricity stayed hooked up, but that doesn't mean someone was occupying it as a permanent place of dwelling. Beyond the listing agent and the utility information, both of which point to the fact that nobody was living there, we have the affidavits of Mike and Mary Giella who operate Lumberjack Pass, the mini golf business right next door. They never saw cars going in and out, people going in and out for an extended period of time in excess of two years while the property was on the market, and if all that's not enough, you now have an affidavit from Linda Catone. Linda Catone is the daughter of Peggy Christowski who used to live at the property. She was the executor of Ms. Christowski's estate after Ms. Christowski passed, and what Linda Catone tells this Board is that Ms. Christowski lived at the home alone until March 10 of 2008. That she moved out on March 10 2008 and never returned. That Ms. Catone's job, part of her duties, after that March 10 of 2008 move out, was to check on the property. She did it on about a weekly basis from 2008 through 2012, and she never encountered anybody living there. After Ms. Christowski's passing, no one ever had Linda Catone's permission to live there because the estate attorneys had advised her not to allow it. So there's no evidence anyone was ever living there for any period of time, even one day. So the only possibility of anybody living there was someone squatting without the executor's permission, and somehow evading any notice by both the executor and the listing agent, and anybody who could have done that wasn't using it as the permanent place of dwelling. The logic that we've employed is not our logic. It's a function of the definitions in Queensbury's Code. Where the use is discontinued for 18 months or more, or the nonconforming use is 7 (Queensbury ZBA Meeting 02/18/2015) abandoned, the definition of a residential use requires it to be used as a permanent place of dwelling. One day out of 18 months isn't good enough, and there's no evidence that that even happened here. So we think that this record compels only one conclusion, and that is that this property was vacant for over four years. The sworn statements prove it, and the utility billing information the Zoning Administrator relied upon actually proves the opposite, it proves that the determination was faulty, and so we're asking this Board to overturn it. Thank you. MR. JACKOSKI-Are there any questions from Board members at this time before I ask Craig for his comments? Okay. So I'd like to hear from the Zoning Administrator. MR. BROWN-Thank you. I don't have a lot new to add. Obviously this, we didn't really get into the merits of the discussion last time, but, you know, the determination I made was that, you know, it's very difficult, and this Board has faced this challenge in the past, very difficult if not impossible to prove complete discontinuance. Where is the evidence to prove that somebody didn't live there? There's some speculation. There's some utility bills that say this looks like this, but, you know, I think an analogy somebody on this Board may have used before was, you know, without a camera on the property 24 hours a day, you know, seven days a week, 365, how do you know that somebody didn't? You know, were the neighbors there all the time to confirm that nobody was living there? I'm not sure the Giella's were there watching the property 24 hours a day 7 days a week, not that they should have to, but, you know, my position's the same, you know, you could probably argue that the nonconforming use is discontinued for a period of 18 months, such that it shall be abandoned, is a little bit in conflict with the residential use definition that says the property has to be used as a permanent place of residence or permanent place of dwelling. In those cases where there's some confusion, I tend to lean and be a little more conservative and go with, you know, the rights of the property owner in this case. So, you know, that kind of played into the decision, too, but, you know, at the end of the day, I just didn't have enough proof that it was discontinued permanently and completely. MR. JACKOSKI-I understand that. Thank you. Any questions for Craig at this time? MR. FREER-So, Craig, what you're telling us is that it's, what I heard you say I think, is that it's impossible to prove that the thing has been abandoned. So I don't understand why we even have that in our Code if we can't use it. MR. BROWN-Well, I think it's probably a, something that's been in the Code for a long time. I think it's there as a tool to, for a property that, say a commercial property or say this residential property has been converted from the residence to, you know, some sort of commercial use, there's a clear discontinuance of the residential use. After 18 months of operating the commercial use, you can't now go back and say, I kept it looking like a house, I had a business in here, so I want to go back to a house. Well, you can't do that. You've clearly discontinued the residential use. So I don't know if that answers your question or not. MR. FREER-Well, that's a good example. MR. BROWN-Okay. MR. FREER-But, you know, we're making, we're trying to make a determination about an abandonment, and your initial comment was that it was impossible to prove. So I was questioning. MR. BROWN-Okay. MR. JACKOSKI-And I think that we should seek public comment and then have discussion among the Board members. We do have a public hearing scheduled for this evening, unless Mr. Wright would like to add anything concerning Craig's comments. MR. WRIGHT-Just while it's fresh in the Board's mind, when you're construing a zoning code, you need to do it in such a way that it gives effect to every provision in the zoning code. To take the Zoning Administrator's position that you could hardly ever or never prove an abandonment, I think, Mr. Freer, this is what you were getting at, essentially would eliminate that provision from the Code, and the other thing I want this Board to be cognizant of, and I know this is in my letter from 2014, but I'll remind you of it now, is that the definition of commercial use in the zone, in the zoning code, doesn't have a permanency factor to it. It's simply, and I'll paraphrase, the use of a structure or property for commercial activity. No timeframe on it. That permanent language does make it into the residential use definition, and we all have to assume that the Town Board knew what it was doing when it put that requirement in there, and to ignore that language in the definition of residential use is to basically alter the zoning code. If there are problems with the definition, that's for the Town Board to address, and if there are problems with the abandonment requirement, that's also for the Town Board to address, but tonight this Board's job is to take the 8 (Queensbury ZBA Meeting 02/18/2015) zoning code as it's written and apply it, and I think that we made the record pretty clear that no one was occupying this place as a permanent place of dwelling. It is difficult, and I've been before this Board on some of the commercial uses in the residential zone, very difficult to prove that they didn't come one day out of 18 months, and perform some commercial use, whether it's fix a commercial truck or whatever it is, which does make it very difficult to prove on the other side. When you're trying to prove a residential use, it's easier, because someone needs to be there as a permanent resident, with some intent to stay there for the foreseeable future, and the way you prove that is you have the people in control of the property, whether it's the property owner or the executor of an estate that owns the property, who frequently checked on the property, say that they were monitoring it and no one was living there, and if someone was, they were doing it without the property owner's permission. That's the proof, and we've got an expert who analyzed the utility billing and is telling you there's no way. There's no way someone could have been occupying it as a permanent place of dwelling. So that's how you prove it, and I think we've done that. MR. JACKOSKI-Of course they could live off the grid. Correct? MR. WRIGHT-1 suppose so. MR. JACKOSKI-There is a way. Okay. MR. URRICO-Could I ask another question of Craig? Is there a difference between abandonment and being unoccupied in the way the Town looks at things? MR. BROWN-Yes. I think there is. Abandonment is, you know, I made a reference in my Staff Notes of active abandonment. You made some changes to the dwelling or the structure or the business to be something other than its original use. So in order to actively abandon something, you know, you want to change this residence into a business. If it's just vacant, unoccupied, what was the term you used unoccupied? Somebody's on vacation, somebody's traveled to Europe for a couple of years, you know, using the definition residential use, the use of the structure or parts thereof as a permanent place of dwelling. Mr. Wright would have you believe that you can't go on vacation for a week, you have to be there every single day, you can't leave the building for four months and go to Florida for winter. That's not permanent, you're using it temporarily. It's still a residence. So there isn't really a timeframe there. It says permanent, but how do you define permanent? It's permanently a house. You don't have to permanently occupy it, I guess. MR. JACKOSKI-I guess you could say intended for permanent use. MR. BROWN-Right. MR. JACKOSKI-If I'm traveling Europe for two years, it's still my house. It's still part of the, but that's the intended use. MR. WRIGHT-Right, and certainly this record just reflects that that, no one was traveling, no one was coming back. It was just unoccupied. MR. HENKEL-Now does your client, every day during the 18 months, has he been there to check on this? He's not there all the time either, right? He's not there every day. MR. WRIGHT-Well, they live in Queensbury, and I think what he said on the last meeting, I went and talked to him, he goes and checks the mail every day, and, Mike, you can speak. MIKE GIELLA MR. GIELLA-Yes, I do check the mail every day. MR. WRIGHT-So, yes, they are there every day, and, you know, Linda Catone was there once a week. MR. JACKOSKI-I do have a public hearing scheduled for this evening. I'd like to open that public hearing, or public comment I should say. Is there anyone here who'd like to address this Board concerning this application? Please, sir, and if you could state your name for the record. PUBLIC HEARING OPENED BOB MC NALLY MR. MC NALLY-Members of the Board, my name is Bob McNally. I'm an attorney representing Andy Liucci who owns the property in question. I wanted to point out a few things that we 9 (Queensbury ZBA Meeting 02/18/2015) believe establish that this has always been a residence, and it was always maintained as a residence, and that Craig Brown's decision should be affirmed. Now you're charged, as John Wright said, with enforcing, basically, the zoning code of the Town of Queensbury. Under Section 179-13-20, a nonconforming use is discontinued for 18 months results in an abandonment, and it's our position that there was no discontinuance of that use. It was a residence. It was always maintained as a residence, and it was kept as a residence. It was never converted to a commercial use, and in fact that is both truth factually as a matter of law. Now, abandonment, under Town Law Section 179-2-10 has to be shown by some clear evidence of intent, and not by mistake, not by accident, not by inadvertence. There has to be some act or omission which demonstrates the person intends to abandon that residential use, and the plaintiff bears the burden of proof to show that there was that intent, and that has not been done. Now in this instance, Mary Christowski didn't take a vacation, and she didn't go away. She went into a nursing home, and that happens to people across this Town, and she maintained that house, and the estate maintained that house, for the two years that she was in that nursing home. It was maintained with electricity. It was never shut off. The furniture was there, just as before. The beds, the kitchen table, the television. The place was meant for her to return. It was her house. It was a single family residence, and that's the way it was for the two years she was in a nursing home until she died on May 2, 2010. At that point, the estate obviously became the owner of that property, and once again, the property was never converted to any commercial use. There was no showing of any intent whatsoever to change it from a residence. In fact, if you look at the listings which were submitted on this application, they show that it is sold as a one family residence, and a commercial residential use. So the broker, Mrs. Duffy, certainly represented to the public that it was still being used as a residence, or at least maintained as a residence. That use has never changed with respect to the back property. The electric issue, I think, demonstrates unequivocally that there was no abandonment. If you look at the numbers, every month there was a bill, every month the electricity was on, and while certainly no one was living there full time, during the 18 months or any 18 months in question, there is definite proof that someone was there on an occasional basis. In June 2010, you had 323 kilowatts. You have 104 kilowatts in October 2010, and on and on and on and on and on. So occasionally people were coming in to that property and they were staying there and they were maintaining it, and they were mowing the lawn. The driveway was plowed, the property was maintained as best that they could until a sale could be affected. Now, in this case, the report by Cost Control, I believe, is not determinative of this whatsoever. On the second page of the February 11, 2015 Cost Control report, and I'm looking at the second paragraph of the analysis, Ms. Levin advises that the usage is not indicative of property that is being used as a permanent place of dwelling. She says nothing about the occasional use, the one day in 180 days, and that's what they have to show. They have to show that it wasn't used during that entire period at all. Any singular use is sufficient, and the electric usage, she does not affirm or state even that people were not there on an occasional basis. If you look at the last, the third paragraph in that analysis, she notes, there are a few months with slightly higher usage. However these do not follow a typical residential pattern in the Northeast. Well, of course it doesn't. The property was being sold. It was maintained as a single family residence. People were there from time to time to keep it that way, and make sure it was kept that way, and no one would use a full time, permanent type of electric usage that was there otherwise, and the property was also heated during this period of time and maintained. We've submitted Mr. Strainer's affidavit, Dave Strainer, and he states that he was the person that showed this property on numerous occasions, and on each and every occasion he was required to call Ms. Duffy to make sure that there was no one on the property ahead of time, and he would not have done that and she would not have asked him to do that unless it was occupied from time to time, and this is in the critical 18 months before the purchase certainly, and certainly between the time of the death, when the property was first listed, and the time of the ultimate purchase. I also ask that this Board to use its commonsense. This is a single family, one family residence in a busy, commercial zone, but it has always been the dollhouse property in the front, and it has always been the single family residence in the back, but for her illness, that use has never changed, but for her death, that use has never changed, but for the market for selling houses in this area was devastated in 2008, resulting in extensive delays in selling the property as single family residence, it was still maintained as a single family residence. In the context of a pre-existing, nonconforming use, the Town Code requires a clear intent to abandon or relinquish that pre- existing use. The intent must be shown by some overt act or failure to act that carries the implication that that owner neither claims nor retains any interest in the building or use that's the subject matter of the abandonment. In other words, the applicant has to show that there was intent that they wanted to, that they desired to abandon the use. They've not done that in this case. I think that Mr. Brown's decision is appropriate in this case, both as a matter of justice and a matter of law, under the facts of this case. It's unusual, it's different. It's not the kind of thing that you see every day, but I think that ultimately it's a just decision, particularly from my client's perspective, who purchased this, and only after the fact was he confronted by Mr. Giella's assertion that the residential use had been abandoned. Before that time he was not aware of it and certainly the listing showed that it wasn't abandoned. So I ask that you decide in Mr. 10 (Queensbury ZBA Meeting 02/18/2015) Brown's favor, that you affirm Mr. Brown's decision and you find that the use has not been abandoned. Okay. Thank you. ANDY LIUCCI MR. LIUCCI-I'd also just like to mention when Mr. Wright was mentioning about Mr. Giella's there every day, but last winter his driveway was never plowed all winter, and this year, right now, I don't know if he did it today, but as of yesterday there's tons of snow there, there's like four or five feet from the road to his mailbox, at least three or four feet out, and there's no way anybody can get in there and take that mail. If it was me, I would actually have my mail forwarded to my house in the wintertime, but in the wintertime, there's no way that they could possibly be there and see things that are going on and I don't know about in the past, but I know since I've been there, there's no way, and there's no footprints, and there's nothing to show that that mail has been looked at. Last year and this year. Also I've spoken to Mark Christowski, Mrs. Christowski's son, and there was some dynamic in the family that wasn't working in their family and he was not at the closing and nobody ever mentioned to him, but he did come to the house one day and I met him and he did give me the keys to the house, and he brought me in. This was after the closing, and he said that he stayed there periodically because there was stuff going on, he was concerned about stuff being taken out of the house, and I know he was working on a project in the house while he was refinishing a desk for himself, and he showed me that, and I walked through the house and he gave me keys to the house, this was after the closing. MR. JACKOSKI-Okay. Would you be able to recite for me the section of the code that addressed intent to abandon? MR. MC NALLY-I'm looking at Town Code 79-2-10C. MR. JACKOSKI-And would you repeat it for me, the relevant part? MR. MC NALLY-Okay. I don't have it in front of me per se. I paraphrase it in my memorandum that I submitted, and it basically defines abandonment in the context of a preexisting, nonconforming use as a occurring only where there is shown, and I quote, an intent to abandon or to relinquish, end quote, a preexisting use, and this intent must be shown by, quote, some overt act or some failure to act which carries the implication that the owner neither claims nor retains any interest in the building or use that is the subject matter of the abandonment, end quote. Thank you. MR. JACKOSKI-Mr. Brown, would you like to? MR. BROWN-No, I was just going to give you the section. It's in the definitions. It's 179-2-10, and it's the first listed definition, abandonment. MR. JACKOSKI-And how do you understand that as it relates to this particular case. MR. BROWN-Yes, I think Mr. McNally's paraphrase was, you know, obviously quotes from the definition. I can read it to you if you want the whole thing, but he got 90% of it. If you're asking me my interpretation of that, I would say that if you don't change the structure, you don't have an overt act, you don't convert it, there's no active abandonment, you don't change it, the intent is to keep it as is. It may not be occupied, to answer Mr. Urrico's point from before, occupied versus abandonment. It's unoccupied, but it's not abandoned. MR. JACKOSKI-Thank you. Mr. Wright, I'll give you a chance to respond to that as well. All right, thank you, sirs. I appreciate it. Is there anyone else here this evening who would like to address this Board concerning this application? Are there any written comments? MR. URRICO-No. MR. JACKOSKI-I'm sorry. Please, if you wouldn't mind coming to the table, Marilyn. MARILYN STARK MRS. STARK-I'm Marilyn Stark. My name is Marilyn Stark and I live at 1545 State Route 9, for the last 39 and a half years, along with my family. We go, we travel Route 9, north and south, particularly south, past the property in question and also the Lumberjack Pass, several, several times throughout each and every day of every year. During this timeframe, we have noticed enormous growth in the area. We have witnessed a lot of issues going on in the area, and I will have to tell you that we knew Peggy very, very well throughout her tenure at this property, and I do want to say that the property was occupied. We can testify to that. At certain times 11 (Queensbury ZBA Meeting 02/18/2015) throughout the year we have witnessed vehicles going in and out of the property. There have been lights on in the property overnight, and also inside the house and also outside the house. Why do I say this? Because we go, George and I go out to eat practically every single night of the year. I don't cook. So when we come home it's between eight and nine, sometimes even ten o'clock at night. We have witnessed lights on at that particular time. George has plowed the driveway for the occupant. Also we have noticed that Lumberjack Pass does not come to collect their mail during the winter. They're only open four months out of the year, and the reason I know they don't come is, Number One, the driveway isn't plowed ever. They only come in the fall and take their chain off and check their property and their mail at that particular time. In the winter I specifically look to see footsteps in front of their mailbox. Now why do I do that? That's kind of odd for me to do that. It's because we have to pay the money every single month, and we were instructed by the Federal court to pay them on their home address because they don't accept mail at that address, on their roadside address. I have not seen, during any snowstorm, anyone going up and down in their area to pick up their mail. Okay. Now we have five adults in our family. David is here tonight. He operates and manages the Mohican Motel and our sons George and Michael manage, operate Comfort Suites. They have, all of us have many different hours throughout the day and night that we're all on duty. We're called in for different reasons late at night, one, two, three a.m. in the morning. There have been people at the house, and because we've seen lights on, not just me, but the rest of our family. MR. JACKOSKI-Okay. Thank you. MRS. STARK-Thank you. MR. JACKOSKI-Is there anyone else here who'd like to address this Board? DAVID STARK MR. STARK-David Stark, Mohican Motel, 1545 State Route 9. MR. JACKOSKI-And, Mr. Stark, if you could, if you have extra to add, you don't have to reiterate what's already been said. MR. STARK-Yes. I do a lot of the plowing. Usually midnight, one, two, three, four in the morning. I've plowed that property many times, just to help them out, the neighborly thing to do. There's people there. I see activity there. It's not abandoned. Okay. MR. JACKOSKI-Okay. MR. STARK-Just to let you know. That's all. MR. JACKOSKI-Thank you. MR. STARK-Thank you. MR. JACKOSKI-Is there anyone else? Mr. Stark? Mr. Stark, I'll give you the same guidance. If you have something to add to the record, if you wouldn't mind. You don't have to reiterate anything that's already been said. GEORGE STARK MR. STARK-My name is George Stark. I live at 1545 State Route 9 since November 4, '76. Residential house and a commercial property. Okay. In 1985 1 bought my first truck with a plow. Peggy used to, I don't know how many people know Peggy, but she was a little bitty woman. She'd be out there shoveling, by hand. So when I'd see her, I'd say Peggy, back up, and I'd go in and I'd plow her out, and this happened six, seven eight times a year. When Peggy went in the nursing home, I continued to do it because her son continued to live there until he died. Okay. After the place was put on the market, I still continued to do it, so Strainer or whoever was showing the house could get in there. Andy bought the house, Liucci. I did it a few times. He made other arrangements. That was the end of me plowing that property, other than plowing my own property and the Comfort Suites now also. I'm a full time neighbor. Andy's a very good neighbor. I hardly ever see him. His daughter and their son-in-law lives there with their daughter and they're having another child. I don't see what the problem is. He put a lot of money in this place. Which you all know that he fixed up the inside and everything. He doesn't bother anybody. All I know is what I did on the property, plowed it, to keep people so they could go look at it or whatever or live there or whoever. I know the kid lived there, Peggy's son. After Peggy went in the nursing home, he continued to live there. I know that, because I'd see him coming in and out with the granddaughter. That's all I can say. 12 (Queensbury ZBA Meeting 02/18/2015) MR. JACKOSKI-Okay. Thank you. Mr. Strainer, and I think this is the last public comment. DAVID STRAINER MR. STRAINER-Well, I'll be short and sweet. I was the selling agent of that property. Every time I called Betty to make an appointment to show it, she said she had to make sure that the son, Mark, was not going to be there. As they told you before, there was furniture, beds, dishes, plates, silverware, everything a house would have. So I don't know where Ms. Duffy comes up with her information to say that I never, that she told me that no one was living there. Why would I make this up? I knew the son's name was Mark. I didn't know him before this. So, you know, that's what the story was. Every time I went to show the property, I had to call her and she had to get back to me to let me know that Mark wasn't there. So, thank you. MR. GARRAND-Was anybody ever there when you went there? MR. STRAINER-No, not once. MR. JACKOSKI-Was there ever food in the house? MR. STRAINER-You know, I never really looked. I don't go, you know, when you're showing a house you don't go through people's cupboards to find out if there's food or if there's stuff in the refrigerator, at least I don't, but there was garbage. I don't know who left the garbage or what, but I couldn't tell you if there was food, honestly. So, do you have any other question? MR. JACKOSKI-No. MR. STRAINER-Okay. Thanks. MR. JACKOSKI-Did we know whether there was written comment or not? MR. URRICO-No. MR. JACKOSKI-No written comment. I'll give one last chance. Is there anyone who has to address this Board at this time? Otherwise we're going to try to move forward here. Mr. Wright, if you could join us back at the table. Maybe if you could help me, so I understand. So Mark was the son of Peggy and the brother of Mrs. Catone? MR. WRIGHT-The brother of Linda, I believe, yes, and if you look at Linda Catone's affidavit that Linda says that in March of 2014, she was contacted by the property owner's attorney, and she was asked whether anyone had been living in the home during the period it was for sale, and she told the attorney that, no, it had been vacant, and that the attorney had also spoken with the brother who had, I think, given the attorney the same information. That's all. MR. JACKOSKI-Do you know when the brother passed away? MR. WRIGHT-Well, there are two brothers, by the way. Mark is still living, but if you look at, I don't know when the other brother passed away, but if you look at Linda Catone's affidavit, what she says is that Peggy was living in the home alone in March of 2008, and then she moved out, leaving it vacant. That's what Linda Catone, the executor of the estate, and the daughter of Peggy, says in her affidavit. MR. JACKOSKI-When you spoke with Mrs. Catone, did she make any reference at all to a family spat, shall we say, regarding the estate or the property? MR. WRIGHT-Only in so far as, I believe she made reference to there were family members, perhaps Mark, that weren't happy that they weren't allowed to live there, and I think that same brother told Mike that same information, he wasn't allowed to live there, and that was the issue. MR. JACKOSKI-Okay. I'll let you address the things that were brought up briefly during the public hearing. MR. WRIGHT-Okay. I just want to briefly address the Stark's comments. Mrs. Stark assures this Board that it was, that the property was occupied, but I'll just go back 11 months ago, on March 26 of 2014, Mrs. Stark was here and addressed this Board and she said during the for sale duration, the property became vandalized and used for a dumping ground for nearby commercial debris and became a wasteland for spring cleanup of landscaping, trees, etc., and then she went on to say how the new owners have done great things, but she told you the last time that it became a wasteland while it was listed for sale, and even Mr. Stark, in his comments, acknowledges that after, at least after Ms. Christowski passed away, he was only plowing so 13 (Queensbury ZBA Meeting 02/18/2015) that the real estate agents could have access to market the property. Section 179 that we're dealing with the abandonment section, states that where a use is discontinued, it's deemed abandoned. So it's a specific definition in and of itself of what abandonment means. There's no requirement for intent in this Section. It's a more specific definition that says, regardless of what abandonment means elsewhere in the Code, where a nonconforming use is discontinued for 18 months or more, it's deemed to be abandoned. So that's what we're asking the court to look at, or asking the Board to look at, rather. MR. FREER-It's in the same Section, so, what you just quoted is in the same definition that the first sentence says it has to have intent. MR. WRIGHT-It's in a separate sub section. But nonetheless, Mr. Freer, here's what I'd also say. The listings that we provided the Board are headed Warren County commercial listings. Both, and that was, there were two different listings and they're both commercial. That's an overt step to classify the property as commercial, whether the listing made reference to a residence or not. The property owner, and later the executor, could have allowed somebody to live there. They could have rented it out. They could have allowed the son to live there and they did not. That's an overt act, which shows an attempt to abandon the use. They could have used this property as a home and they didn't, and that's, I think, very clear by this record. I think the property owner acknowledged here that no one was living there full time. I think Mr. McNally said that no one was living there full time. They believe people were there on occasion. I don't know who or when. Linda Catone doesn't know who or when, and I don't think this Board could conclude who or when. People may have been there on occasion viewing the property because it was listed for sale, but what we know from Betty Duffy's affidavit is that she was asked to sign a document. She was asked by Mr. Strainer to sign a document stating that the property had been occupied, and she wouldn't do it, and that she told Mr. Strainer that Craig Brown had advised her that a variance would be necessary. So she was very clear with the potential buyer that this property had not been occupied for a number of years as a residence. The executor tells you that she made a decision based on advice from her counsel to not let people live there. That's intent, and so we're asking the Board to overturn Mr. Brown's determination. Thank you. MR. MC NALLY-Mr. Chairman, I know that you've spent a lot of time, and this committee. John has indicated that I had conversations with Mark, and I'd like to just reference those conversations. MR. WRIGHT-1 said an attorney. Whether it was Mr. McNally, if it was you, I don't know, if you want to tell us about it. MR. JACKOSKI-Yes. I don't remember Mr. McNally's name being mentioned directly. We appreciate your comment, Mr. McNally. MR. MC NALLY-All right. MR. JACKOSKI-Okay. So I am going to, at this time, request info from the various Board members on what their thoughts are. I do want to emphasize that the, we have established standing through the courts. The matter in front of us is whether or not we uphold the decision of the Zoning Administrator or not, and it has to do with the Use Variance, whether a use variance should have been granted or could be granted in the future. So, I've already pre- determined, I'm going to start with Rick. MR. GARRAND-Thank you very much, Mr. Chairman. The Code is ambiguous on this and I think, honestly I think it should be clarified. I think we should talk to the Town Board and get a little clarification on this. Because the way the Code is written on this, any failure to act in such a manner can deem a property abandoned. I mean if somebody, hypothetically, goes into a nursing home, they pay their bills, they leave the house, it gets rezoned commercial, they're gone for 18 months and they get out. Their house is in a commercial zone. They've, basically, according to the Code, abandoned that use for 18 months. I think we really should go to the Town Board and just say, you know, we need some clarification on this. There are some circumstances whereby, you know, people are going to leave their homes, whether it be vacation, illness, you know, it's part of an estate or something like that. Competent financial evidence has shown that nobody's actually lived here. I mean, there isn't even enough electricity used here over this period in question to cover a refrigerator. You go to the Code, I mean, the Code says here abandonment, some failure to act that carriers the implication that the owner neither claims nor retains any interest in the building. We have no way to read somebody's mind on this. I mean, we just need some clarification in the Code that can allow for different circumstances. 14 (Queensbury ZBA Meeting 02/18/2015) MR. BROWN-1 mean, I could offer you clarification if you want. I think, if you're asking me what my opinion of failure to act or an intent to failure to act would be, you know, you don't pay the mortgage, you don't pay your light bill, you don't pay your taxes, you don't pay your water bill. You're not claiming any interest in the property. You're not acting on it. I mean, you're not, you know, paying the bills. MR. GARRAND-Well, couldn't failure to act also simply mean you didn't move in or you didn't rent it? Nobody living there, failure to act. MR. BROWN-Well, that goes to occupancy, not the use of the building. It's still, the intended use of the building is for residence. If you don't do anything to change that, just because it's unoccupied, again, this is my opinion and my interpretation of what the Code says. Just because you don't occupy it doesn't mean you've expressed an intent to abandon that as a residence. You just aren't living there at the time. It's a fine line, I understand that. MR. GARRAND-1 agree. I agree that the intent may not be there. MR. BROWN-But I think an overt inaction is you don't pay the bills. MR. GARRAND-Yes that would be an overt action. MR. BROWN-Right. MR. JACKOSKI-Hang on. I want to give Mr. Wright the opportunity, because we've allowed Craig to respond. So we need to let Mr. Wright respond. MR. BROWN-Sorry, I didn't mean to start something here. MR. JACKOSKI-Just trying to balance it. MR. WRIGHT-Yes, no, I think that what Mr. Garrand says is on point, in that, under the Code, the failure to use the property as a residential use, either moving in or renting it that is a failure to act, clearly. So I think we've got both overt acts and failures to act, both evidencing intent that this property was going to be converted, or at least not used as a residence, converted into a commercial use. I would just echo what Mr. Garrand said that the Code, as written, is pretty clear. MR. JACKOSKI-So, Mr. Garrand, I would like to know if you are in favor or against Mr. Brown's decision. MR. GARRAND-At this point, I would overturn Mr. Brown's decision, but I would also like to add that, you know, a Use Variance might be in order for cases whereby the Code is ambiguous and issues like this should have been addressed when the Code was written. MR. JACKOSKI-Okay. Roy? MR. URRICO-Yes. I think the Code could be clearer, but I'm not looking at it as being ambiguous. I'm looking at it as being a list, as giving a number of options that would be a clear indication of abandonment, and saying an intent to abandon or to relinquish and some overt act, or some failure to act which carries. It goes on and on, but the bottom line, to me, is that there has to be a clear intent to abandon this property, or any property, and to me, that has not been shown. So I would be in favor of Mr. Brown's opinion. MR. JACKOSKI-Harrison? MR. FREER-Yes. I agree with Roy. I'm reading it over, and the nonconforming use that is abandoned for 18 months, that doesn't seem to be a compelling case made here that this was abandoned. So I support Mr. Brown's interpretation. MR. JACKOSKI-Mike? MR. MC CABE-1 see no evidence of abandonment. I support Mr. Brown's decision. MR. JACKOSKI-John? MR. HENKEL-Yes, this is a tough one. All the Board members have brought out some good points, and I think the Code does have to be a little clearer on it, but I would definitely side with Mr. Brown at this time. 15 (Queensbury ZBA Meeting 02/18/2015) MR. JACKOSKI-Andy? MR. ALLISON-1 would agree with Mr. Brown's assessment as well, and I'd say, for the other Board members who are struggling with it, that you sort of look at this in a different light and sort of flip the tails and say what if this was a business that was operating in a residential district, and for some reason that business owner, whether it's because he runs a summer business or he doesn't get business in the winter, wants to shut that business and go away and come back and re-open that, we wouldn't say that he was abandoning that use just because he's not present there, and I think that the key things are that there was no overt action to actively abandon the property. It was, and the property was maintained. MR. JACKOSKI-So you're in support of Mr. Brown? MR. ALLISON-Yes. MR. JACKOSKI-Okay. So I'm going to close the public hearing. PUBLIC HEARING CLOSED MR. JACKOSKI-And I am going to seek a very simple motion. Go ahead, Harrison. RESOLUTION to Deny Appeal No. 1-2014, John Wright, Principal Attorney, Bartlett Pontiff Stewart& Rhodes, P.C. Regarding property owned by North High Realty -Andrew Liucci, 1519 State Route 9 / Tax Map No. 288.12-1-4 The Zoning Board of Appeals of the Town of Queensbury has received an application from John Wright, Principal Attorney, Bartlett Pontiff Stewart & Rhodes, PC representing Mike Giella - Lumberjack Pass from Section(s): 179-13-020, and 179-14 of the Zoning Code of The Town of Queensbury in order to appeal the Zoning Administrator's determination regarding a determination that a structure at 1519 State Route 9 has not been discontinued for residential occupancy. Owner of the property maintains the structure for use as residential occupancy and that it has not been discontinued for longer than 18 months than the appellant claims in their appeal. SEAR Type is not applicable- no further review required; A public hearing was advertised and held on Wednesday, February 18, 2015;_ Upon review of the application materials, information supplied during the public hearing, and upon consideration of the applicable criteria of the Queensbury Town Code and Chapter 267 of the NYS Town Law and after discussion and deliberation, we find as follows: 1. The Appeal was filed within the required 60-day timeframe. 2. The Appealing Party is aggrieved and were found to have standing. 3. The merits of the argument as provided by the appellant with responses from the Zoning Administrator have been considered. It is our finding that the positions offered by the appellant are not sufficient to warrant overturning the Zoning Administrator's decision at hand. Based on the above findings I make a MOTION TO DENY Appeal No. 1-2014 JOHN WRIGHT, Bartlett Pontiff Stewart & Rhodes, P.C., Introduced by Harrison Freer, who moved for its adoption, seconded by Michael McCabe: Duly adopted this 18TH day of February, 2015, by the following vote: AYES: Mr. Urrico, Mr. Henkel, Mr. Allison, Mr. Freer, Mr. McCabe NOES: Mr. Garrand, Mr. Jackoski MR. JACKOSKI-Thank you. MR. WRIGHT-Thank you for your time, gentlemen. NEW BUSINESS: 16 (Queensbury ZBA Meeting 02/18/2015) NOTICE OF APPEAL NO. 1-2015 SEQRA TYPE N/A WILLIAM CROWELL AGENT(S) JOHN J. HENRY&WHITEMAN OSTERMAN & HANNA LLP OWNER(S) WILLIAM CROWELL ZONING WR LOCATION 4 HOLLY LANE APPELLANT IS APPEALING THE ISSUANCE OF BUILDING PERMITS AS A RESULT OF THE AREA VARIANCE APPROVAL FOR THE CONSTRUCTION OF TWO NEW SINGLE-FAMILY DWELLINGS (COTTAGES). VARIANCE RELIEF WAS GRANTED TO ALLOW FOR TWO RESIDENCES ON THE SAME PARCEL. APPELLANT BELIEVES THE INCREASE AND ENLARGEMENT OF A NONCONFORMING PROPERTY USE REQUIRES A USE VARIANCE IN ADDITION TO THE ALREADY APPROVED AREA VARIANCE. CROSS REF BP 2014-587; BP 2014-588; BP 2014-589; SP 24-2014; AV 25-2014 WITHDRAWN; SP 24-2014 WITHDRAWN; AV 36-2013; BP 98-652 SEPTIC; BP 98-070 RES. ALT.; BP 98-071 RES. ALT.; BP 98-069 DOCK REPAIR WARREN COUNTY PLANNING N/A LOT SIZE 0.42 ACRE(S) TAX MAP NO. 239.12-2-64 SECTION 179-14 WILLIAM CROWELL, PRESENT STAFFINPUT Notes from Staff, Notice of Appeal No. 1-2015, William Crowell, Meeting Date: February 18, 2015 "Project Location: 4 Holly Lane Information Requested: Appellant is appealing to the Zoning Board of Appeals relative to a November 26, 2014 issuance of a building permit. Staff comments: First, Standing: Was the appeal taken within the appropriate 60 day time frame and is the appealing party aggrieved? The appeal was filed within the required timeframe. The Zoning Administrator approved the building permit in question on November 26, 2014. The Notice of Appeal application was signed on January 9, 2015 and filed with the Town on January 16, 2015. It would appear as though the appellant has met the required timeframe for filing. Is the appealing party aggrieved? The appellant is a nearby property owner approximately 300 feet northerly from the Roberts property. Appellant does not offer any details regarding any real or potential harm to him or his property relative to the issuance of the building permit. Second, Merits of the argument. The issue at hand is the appellants' disagreement with the issuance of the building permit. The appellants' papers do not offer any details, supporting documentation or claims of any sort that refer to the improper issuance of the building permit other than taking the position that a Use Variance rather than an Area Variance should have applied to this project. It is the position of the Zoning Administrator that this is an untimely argument, as the determination that Area Variances were required was issued on March 17, 2014 and the 60 day time in which to appeal such a determination has long since run out. In response to the appellants' untimely argument of Use Variance versus Area Variance: The underlying use; Single Family Dwelling is an allowable use within the Waterfront Residential (WR) district. The issue of how many of this "allowable use" is a reviewable as an Area Variance just like as a request for multiple garages or sheds would be and have been reviewed by this Board. In the referenced Brock v. ZBA case, the underlying use; Marina, was not an allowable use within the zoning district at that time, as such, a Use Variance was the proper mechanism to use to consider relief. The 2014 ruling in Colin Realty Co. LLC v. Town of North Hempstead, 24, NY3d 96 (2014) the issue was whether a parking variance was a Use or Area variance. To paraphrase, the Court found that: "...area variance rules apply..." "...so long as the underlying use is permitted in the zoning district." While not an exact parallel to this matter, the core premise is the same. In this case, the underlying use, Single Family Residence, is an allowable use in the zoning district, an Area Variance for the number of such allowable uses was the proper variance to be considered. Town Law Section 267(1) defines and distinguishes between area and use variances as follows: "Use variance shall mean the authorization by the zoning board of appeals for the use of land for 17 (Queensbury ZBA Meeting 02/18/2015) a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations, while "area variance shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." Care should be taken to not get into a debate of the 2014 ZBA decision as the determination, decision and time to appeal have passed, unchallenged." MR. JACKOSKI-Okay. If you could please join us at the table. Go ahead. MR. CROWELL-Okay. Thank you, Mr. Chairman. My name is William Crowell. I'm the person who filed the Notice of Appeal. I'm representing myself this evening. Let me just go through, I think, I'll start, first, with some of the Staff comments and just try to respond to those and then try to get into the detail by doing that. So, thank you for recognizing that our Appeal was within your required timeframe. The next issue, is the appealing party aggrieved. I would indicate to you that, just by virtue of the fact that my property is located within 300 feet, that that alone gives me standing and gives me the ability to raise the issue before you tonight. In terms of, do I have any practical harm? The answer to that I believe is yes. I think you might recall I did appear in an application by the Roberts for, I think it was their third application for a variance, and I did indicate that my concern was that this property, being a nonconforming use, if it was allowed to be expanded, it would become a situation where it would, at some point, be very much available as a rental property, and as a consequence, concern about traffic, concern about parking, concern about changing the neighborhood because it's zoned single family residential, and also concern about increased pressure on the environment in terms of the lake. So I think, you know, clearly there are issues that create harm, but at its core here, the issue is, as the Staff comments indicate, was an appropriate variance issued. So, let me make this distinction, which I don't know is really appreciated, at least in the response. So what we are challenging here is the fact that a Use Variance was not issued. When Mr. Brown reviewed the building permit, he has an obligation as a Zoning Administrator to make sure, before the building permit is issued, it's in conformance with the zoning code of the Town of Queensbury. So what our allegation is, is that he should not have issued, allowed the issuance of the building permit because a use variance was not given. Now, we are not here to dispute the issue, issuance of the other variances, the area variances that went with this, there was setback, there were other things that were provided, and the Zoning Board, you folks made that decision, that's fine. What we're basically saying is that as a matter of law, as a matter of the Town Code, there should have been a use variance issued. So why do I say that in terms of the Town Code? Well, in terms of the Town Code, as we look at Attachment Two to the zoning, we look at the Waterfront Residential district and we find that single family dwelling is a permitted use. We look and see that a townhouse is not a permitted use. We look and see that a two family is not a permitted use. The only permitted use is a single family dwelling. When we look at the general regulations in Article 4, 179-4-010, residential design requirements, if you look at C, entitled use regulations, and you look at 6, it specifically says, principal buildings in residential zones, in areas zone for single family dwellings, and then it lists all the various, you know, Waterfront Residential, etc., a maximum of one single family dwelling may be constructed per lot, regardless of lot size. A maximum of one, not two, not three, one single family dwelling may be constructed regardless of lot size. It also goes on to say that construction of additional single family dwellings shall require subdivision approval, etc., etc. The other thing that I think demonstrates conclusively that it's a statute is under the same Article 4, 179-4-010, if you look at 3, under G, Waterfront Residential design, it talks about conversions of seasonal residence. The conversion of a dwelling structure that has been previously used for seasonal purposes to a year round residence shall be considered a change of use. So, again, I think the Code makes the case clearly that a single family, one single family dwelling, is the use. I mean, let's just step back and look at this, I think, from a practical point of view from the Zoning Board's point of view. If, as it's suggested here, that the issue of how many allowable uses, in other words, how many single family dwellings can you put on any lot when the zoning code says one? If that becomes an issue that you, as the ZBA, can make a determination any time that an individual comes to you and says I want to put another house up on my lot, and I'd like to make an application to you for a variance. Frankly, you know, if this is granted, I have to think about converting my garage and coming back to you and saying, I want a variance. My neighbor just got a variance. He now has two homes on his lot. I want to do the same thing. I don't want to be left behind, you know, I'm going to want to increase the value of my property, too. Or, and this is not limited to the Waterfront Residential situation. You have people that, in the Town, live in subdivisions. The subdivisions are zoned for one family. If a neighbor has a large lot, even if they don't have a large lot, for whatever reason, they decide they want to put another house on, they can come back to the Zoning Board, under this rationale, and say, we would like to put another house on the lot, and as long as they meet the test which is set forth in the statute, set forth in the Queensbury Code with respect to a variance, an area variance, then you're going to have to give them that opportunity. So, you know, I think this is, what I'm trying to point out is that this is an issue that not just relates to me or other people on Holly Lane. This is an issue that is very 18 (Queensbury ZBA Meeting 02/18/2015) important for the Town. You're going to have a potential drastic increase in density. Think about how many people might come to you at some point and say, we want to add another house to our lot. I mean, you know, you have a construct, and again, I would argue that the construct is very clear. One house for one lot. To me, that's a use. The idea that it could be considered a variance, and you don't, when you change a use like that you don't need a variance, a use variance is just, I mean, the real difference between the area variance, the area variance is for dimensional or physical requirements, right, so your setback, you know, your side lots, etc. This is for the use of the land. It couldn't be any clearer. When you're saying we want to put more than one dwelling, that's for the use of the land. We have a situation here where there was a prior nonconforming use. It was demolished. I think that, you know, when you look at the Brock case, there's clearly a remedy here. I mean, it, as was pointed out, is not something, it's commercial property, but it was still a nonconforming use that was expanded, just as here, and the courts said, well, wait, you can't just do that, you need a use variance. When you're increasing, when you look at the statute with respect to nonconforming uses, when you expand or increase the minimum shoreline, not the minimum shoreline, excuse me. When you expand or increase and enlarge with respect to any degree, you need a variance. So my, it doesn't specify in your, in 179-13-010E, it doesn't specify what type of variance, but again, commonsense, we're talking about adding an additional home. That is a use. It's not a physical expansion. It's not dimensional. It's a use, and as a consequence, I would argue very strenuously that you need a use variance. With respect to the fact that, you know, the argument is untimely, again, I would say that it's very timely from the point of view that the building permit has to be reviewed by the Zoning Administrator to determine compliance with the statute, with 179, the zoning code. That's what we're challenging. We're not challenging the Board's decision in terms of granting area variances. What we're saying is there's a variance that's missing. So what's the remedy? The remedy is fairly simple. All the Board has to do, just as was done in the Brock case, come back and say, look, we need to take a look at a use variance. You need, as the applicants, to make the case for the use variance. So let me just talk for a minute about the situation with the property. Now we have a situation, again, where you've got the lot, and there were two prior nonconforming uses. They've knocked those down. They've put up one house, now, and there's a lot behind it. So again, you know, my concern relates to where are we going with this property. You've got two houses scheduled to be put up on the first lot. There's a lot immediately behind it with no development. So that owner can come back to you and say, well, I'd like to put up another house. In fact, he can come back and use your decision tonight to say, I'd like to put up two houses, maybe three. There's no limitation if it's just like an accessory use. So I think that there is an opportunity here for this to be looked at again by the ZBA, and looked at from the point of view that there does need to be a use variance. Again, and, you know, the court of appeals case that was cited, Colin Realty, it really, I think, you know, as this pointed out, it really isn't on point What the case talks about is in a situation of a restaurant and it was a prior nonconforming use and the courts have always had trouble making a decision as to parking, does parking require an area variance or a use variance. Well, the court of appeals said it requires an area variance, but in their conversation about this situation, of what, basically what the court said is that an area variance is an authorization to use land in a manner which is not allowed by dimensional or physical requirements, again, dimensional or physical. That is not a use. So I really don't see that case as having a direct impact. I think that, again, pretty much covers it in the sense that there is a remedy here. The remedy is simple. The Zoning Board should ask that the permit, the building permit be held, rescinded and the parties can come, the party can come back and make an application to the Zoning Board for a use variance, and again, you know, I think it's very important to note that this case has major significance for the Town of Queensbury, not just for 20 Holly Lane, not for Holly Lane in general, but if you, as a Zoning Board, are going to put yourselves in a position of making decisions every time that somebody wants to add a house to a lot, and you're going to do that on the basis of an area variance versus a use variance, again, you're going to have a major impact on density throughout the Town and, you know, frankly, if you can allow this to happen in a Waterfront Residential district, right on the lake, and allow two houses to be on an undersized lot, and allow somebody, why could anybody, say I have a five acre lot and I want to put another house on it or two acre lot, whatever it is, how is anybody going to be in a situation where you're going to be in a position not to grant them a variance? So, again, it changes the whole zoning scheme of the Town of Queensbury. Thank you. MR. JACKOSKI-Thank you, sir. Mr. Brown? MR. BROWN-Thank you. Just first a correction. In my notes I reference a March 17, 2014 determination letter. That actually was December 11, 2013. So a few months even prior to that. Again, we're apparently not challenging that determination, but what it does lead to is the determination of area variance, use variance was considered prior to the issuance of building permit. It was considered way back in 2013 when we reviewed the application, determined that the proposal to construct two houses on one property was an area variance. It was an area variance for a couple of reasons. One, the underlying use, single family dwelling, is allowed in the zone, and also an area variance, and I'm pretty sure, I don't have the area variance folder in 19 (Queensbury ZBA Meeting 02/18/2015) front of me, but I'm pretty sure it was framed in the Staff Notes and advertised as a density variance, which is a dimensional requirement that says you need two acres of land per dwelling. In this case you don't have four acres to support two houses. So it was a density relief for lot size. So another indication that's, in my mind, pretty clear that this is an area variance. Fall back on, you know, 267 of Town Law that says if the use is allowed in the zone it's an area variance. If the use is otherwise prohibited, in this case it isn't prohibited, if it is prohibited it's a use variance. That's not the case here. So I don't know what else I can add to it. Unfortunately it just seems pretty straightforward. I get the argument from Mr. Crowell, but I guess we just don't agree. MR. JACKOSKI-So I'd like to hear, again, the determination that on a larger parcel, let's say it's 10 acres, would 5 single family homes be allowed on that parcel? MR. BROWN-If this Board granted an area variance for that, then, yes. MR. JACKOSKI-Because it's the density issue. MR. BROWN-Because it would be a density, lot size issue, yes. Again, the underlying use, single family dwelling, is allowed in that district. How many of them this Board wants to allow on that property, that's a determination you guys have to make. If it's not going to be in character of the neighborhood or it's going to be too much relief, it's too substantial relief, then it doesn't pass muster, but in my opinion that's an area variance determination for this Board. MR. JACKOSKI-Thank you. Any questions from Board members of either Mr. Brown or Mr. Crowell at this time? I do have a public comment period scheduled for this evening. I'm going to open that public comment period. Is there anyone here who'd like to address this Board concerning this particular application? Mr. Wright. We are trying to keep to a three minute limit. PUBLIC HEARING OPENED JOHN WRIGHT MR. WRIGHT-All right. I think I can do it. Good evening, Mr. Chairman. For those of you who don't remember me, I'm John Wright with Bartlett Pontiff in Glens Falls, here on behalf of the property owner, Pamela Roberts. To my right is Dennis MacElroy. He's the engineer who handled the application through the application process. I've got Duane Daigle to my left who is the contractor who's been doing the work for the Roberts since the issuance of the demo and building permit. So the first thing I want to address is timeliness. The determination that's being challenged here really isn't the issuance of the building permit at all. It's the determination by Mr. Brown that only area variances were required, and that determination was made back, I believe, in December 2013. Is that right, Mr. Brown? MR. BROWN-Yes. MR. WRIGHT-So what they've done, what the appellant has done is wait throughout the entire variance process. Our clients came to this Board in reliance on Mr. Brown's determination, invested money in engineering fees, got all the way through, received this Board's approval, obtained a demo and a building permit in November of 2014, invested money in demolishing the structures and starting to re-build at least one of them, and these appellants waited 51 days from the issuance of the permit, watched all of this happen, and then filed their Appeal after the structures had been taken down and one had been at least partially re-built. So, it's untimely in that they're trying to improperly extend the 60 day period to challenge the December 2013 determination regarding whether a use variance is even necessary. So we'd submit that, as of February of 2014, this Appeal was untimely. Secondly, even if it was timely, it lacks merit. The Staff Notes covered this. Use variances deal with the purpose for which the property or structure is being used. Area variances deal with dimensional and physical requirements. The number of homes is a dimensional quantitative requirement. Single family dwelling is the use. That's the purpose for which these structures are being used. Each of them is a single family dwelling. Each of them falls within the permitted use on the property. The issue is whether there can be two of them or one of them, and this Board has already granted that Area Variance. So if others in the Town want to build another house on their property, yes, they could come to this Board and ask for a variance, and that's what this Board is for. Do I think there's a heck of a lot of people, you know, in a lot of the subdivisions in this Town that I've seen that could fit or would want to fit another house on their property? No. I mean, I don't think you're opening the floodgates, and even if you were, again, that's what this Board is for is to grant area variances where a property owner wants relief from dimensional and physical requirements. I do want Mr. Daigle to detail for you the dates on which he got his permits and the work that he did, just so it's in the record. So, Mr. Daigle, if you would just summarize that for the Board. 20 (Queensbury ZBA Meeting 02/18/2015) DUANE DAIGLE MR. DAIGLE-We applied to the, well, the first thing I did is come to Queensbury to make sure I knew what I was doing because I'm used to Washington County and they were great at helping me out. So we got the demo permit November 14th, and we waited to do anything until we got the building permit. Because we didn't want to tear them down and not get a building permit. We got the building permits November 26th, started the demo work December V. Then we set the first house January 6th, and the foundation went in the 15th of December, roughly, and Mr. Roberts has got, with the demo and everything, probably $240,000 in the place already. MR. WRIGHT-And again, just, that all happened before this Appeal was filed, and the property owner, the appellant sat there and watched it happen. So, not only is it untimely from the perspective that they needed to challenge this back in the end of 2013 or 2014, but it's untimely in that our clients had a valid building permit, and they invested a heck of a lot of money, pursuant to that validly issued building permit, and at the time Mr. Brown issued the permit, he really had no choice but to do so. This Board had granted all of the required relief. It had all the approvals and it was really an administerial act at that point that he had to do. So I'm happy to say I'm on Mr. Brown's side on this one. I think the Board needs to uphold it and deny the Appeal. MR. JACKOSKI-Thank you. Are there any Board comments? Craig, do you want to respond? MR. BROWN-No, unless there's questions. MR. JACKOSKI-Okay, Board members, any questions or comments? Any other public comment at this time? Is there any written comment? MR. URRICO-Yes. "As the owner of 6 Holly Lane, which is directly next to the Roberts' property on 4 Holly Lane, I fully supported the original variance granted to the Roberts family. I continue to support it. Therefore, I wish to reject Mr. Crowell's appeal to nullify the variance which allows the Roberts to replace their existing buildings with nearly identical structures as the original one. If a "Use" variance is all that is needed to proceed, please grant it and let the Roberts get on with replacing what has existed for years. For more than 70+ years that I am aware of, there existed two structures on the 4 Holly Lane property. It is the largest lot in the cove and has easily supported the two small cottages. The Roberts have chosen to replace these structures with better foundations as well as sturdier construction, and, to do it without impacting the adjacent neighbors. Any alterations being proposed will not result in a structure or a configuration that will be seriously out of place in the neighborhood. By replacing the existing buildings with the planned structures, one could merely think the Roberts had "remodeled". Compare the original plot with the new plan and you will see they are nearly identical. My family has had lakefront property for more than 100 years. I have seen many changes in this neighborhood in my 66 years and many have not been favorable. The Roberts have chosen to keep their choices to the minimum change. It is refreshing to see a family with respect for the close neighbors and for the small cove we all share. Please grant the Roberts the right to continue on their original path. Sincerely, Florence E. Connor 6 Holly Lane, Lake George, NY 12845" And there's one more. "Dear Mr. Brown: I have been a year round resident at 15 Brayton Lane for the past 42 years. I spent my childhood summers on Holly Lane. There have always been two cottages at 4 Holly Lane. Pam and Bill Roberts have owned this property for the past 20+ years. They are seasonal residents. I live directly across the Lane from the Roberts. I wish to express my support of their building project especially since building permits have been granted and work has begun. The buildings will not be taller than the pre-existing structures, will have 6' foundations as opposed to full foundations, and will not be year-round residences as claimed by the Appeals attorney. Lynn S. Gauger" That's it. MR. JACKOSKI-Okay. Thank you. I'm going to leave the public comment period open for a moment here, and seek thoughts from the Board members. The first question I want to ask you is, is this Appeal timely, and when do you determine that Craig Brown determined that a use variance was not required because it his responsibility to look at the issuance of building permits, to confirm that all the appropriate variances are in place. We must go back and determine when he actually made the decision that a use variance was not necessary and look at the timeline accordingly as to when this Appeal was filed and when other letters were issued. So first things first. Was this Appeal timely filed? I'm going to start with Rick. MR. GARRAND-1 don't believe the Appeal was timely filed. I think challenging the building permits is an effort to circumvent the original intent of appealing the Zoning Board's decision. If an appeal was to be done, it should have been done after the Zoning Board had made its determination. So I don't believe the appeal is timely. 21 (Queensbury ZBA Meeting 02/18/2015) MR. JACKOSKI-Andy? MR. ALLISON-1 don't think the Appeal is timely either, for the same reasons Rick just stated. MR. JACKOSKI-Harrison? MR. FREER-I don't, I can't disagree with Rick, but it's almost a tossup in my mind, that we have, trying to figure out when all of the paperwork is complete, in terms of, we've been over this property and this thing several times. I think an old motion we had determined what variances were required occurred a long time ago, so I guess I don't think it's timely. MR. JACKOSKI-Roy? MR. URRICO-Yes. I agree with fellow Board members. I do not think it's timely. MR. JACKOSKI-Mike? MR. MC CABE-1 don't think it's timely, but I would hate to have this case come back to us because somebody else ruled that it was timely and that it wasn't the proper notes in the file, and I'd just as soon get to the approval or disapproval of the Appeal and stop it right here and now. MR. JACKOSKI-John? MR. HENKEL-It was not timely. MR. JACKOSKI-Given that the majority of the Board believes that it was not a timely Appeal, I believe we, therefore, don't have standing, but I'm going to seek clarification from the Zoning Administrator. MR. BROWN-Yes, I think if there's anything that we could learn from the last Appeal was that, you know, if there was a way to be cautious about timeliness, it's probably better to err on the side of timeliness and hear the Appeal and if you want to decide on the merits, that's probably the route to go. I think I find myself in a weird position here, in kind of agreeing that it's timely because the determination to issue the building permit is technical an action that the Zoning Administrator has made. That time clock for 60 days, you can challenge that. That's clear in the Code that any action, determine, decision that I make is challengeable for 60 days. The issuance of a building permit, if you challenge that within 60 days, you're timely. Was the Appeal that was submitted supporting the issuance of the building permit? No, I don't think it was. I think that it supported whether a use variance or an area variance was needed, which is an older determination, and if I could just explain that real quick for you. In my opinion, if you're going to appeal the issuance of the building permit, the appeal would be framed as such that the claim is that the building permit application doesn't match the area variance application. So when you guys approved an Area Variance, if I issued a building permit that wasn't consistent with what you guys approved, that's more of a supporting documentation of it for appealing the building permit. That's not what happened here. The building permit, I'm sorry, the Appeal was filed under the guise, in my opinion, under the guise of appealing the building permit, but was supported with an argument for use variance versus area variance. It's a fine line. MR. GARRAND-But it goes back to your first determination. MR. BROWN-Right. MR. GARRAND-Which was way back when, which would not be timely. MR. BROWN-Correct, but that's not what the Appeal was. The Appeal was issuance of the building permit, and the Appeal was taken within 60 days of my decision to issue the building permit. The decision was predicated on consistency with the variance application, but that's why, at the end of the notes I said let's try not to get into a debate over area variance versus use variance because that ship has sailed. So, I mean, it sounds like you've made up your mind on timeliness, but I would just like to offer, I think it was timely because the determination to issue the building permit was within 60 days of when the Appeal was filed, and then if you want to talk about the merits, I think I would agree with Mr. McCabe, that's probably a safer route to take, but the decision is yours. MR. JACKOSKI-I'm going to re-poll the Board, given the enlightenment that Mr. Brown chose to provide us. Again, it's on public record that the Zoning Administrator himself believes that this is a timely Appeal. We don't necessarily have to agree with it, bu9t we do want to address it. I'm going to try to go in the same order. Rick? 22 (Queensbury ZBA Meeting 02/18/2015) MR. GARRAND-Thank you. Timeliness for the building permit, yes, there is timeliness for the building permit, but it goes against the whole gist of the Appeal that the applicant has filed. So with respect to the building permit, it is timely, which would grant him standing, but that's for the building permit only and not the variance or the question of the use variance or any of that considered. MR. JACKOSKI-Okay. Andy? MR. ALLISON-1 think given what Craig has told us, that, yes, it was timely, but I think they did not provide the right information with the Appeal to argue anything against the building permit. So I think although it was timely, we should probably hear the Appeal. MR. JACKOSKI-Harrison? MR. FREER-Okay. If he says it's timely, I guess we don't want to challenge that and we should move to the merits. MR. JACKOSKI-Roy? MR. URRICO-I'm not really sure what we're talking about here right now. Are we talking about the merits? MR. JACKOSKI-No, what we've got to be careful of is what Mr. Brown suggested to us was, because he is involved in the review process and issuance of building permits, that is a determination by him that the building permit could be issued. He made that determination. Therefore this Appeal of the building permit determination is timely, because that's how this Appeal was phrased. It wasn't phrased regarding use variance or area variance. It was strictly whether or not Craig Brown determined properly that a building permit was issued. MR. URRICO-So now we're discussing our first round, and then we're going to discuss a third round? MR. JACKOSKI-That's correct. MR. URRICO-Can we just get to the third round? MR. JACKOSKI-Eventually. Process. MR. URRICO-Okay. I agree with the Zoning Administrator. MR. JACKOSKI-Okay. Mike? MR. MC CABE-1 agree with the Zoning Administrator. MR. JACKOSKI-You started all this, Mike. MR. MC CABE-Yes, and I'm sorry. I also agree with it. MR. JACKOSKI-So now we've determined that we have a timely Appeal, and the next question is whether or not this party was aggrieved, and whether or not he has standing, and has he demonstrated. MR. GARRAND-Do you think he has standing? MR. JACKOSKI-That's the issue. So I'm going to go back to the Board now and determine whether or not you believe he's aggrieved and has standing for this Appeal on the issuance of a building permit. Does anybody want to discuss it a little further? MR. GARRAND-I'll go. It's pretty cut and dried. I think, being that he is a close proximity resident, that he does have standing, that he is aggrieved, I'm sorry, that he is aggrieved. MR. JACKOSKI-Harrison? MR. FREER-I agree that he's within 500 feet of this whole mess, we should assume that he has standing, or is aggrieved. MR. JACKOSKI-Andy? 23 (Queensbury ZBA Meeting 02/18/2015) MR. ALLISON-1 agree, he is aggrieved. MR. JACKOSKI-Mike? MR. MC CABE-1 believe he has standing. MR. JACKOSKI-John? MR. HENKEL-I also agree he has standing. MR. JACKOSKI-Roy? MR. URRICO-Yes, I believe he has standing. MR. JACKOSKI-We're getting there, folks. We apologize. Now we have standing. Now we've heard the arguments of the case. I just want to go slowly here because I still have public comment period open. Correct? I haven't closed it yet. We're still polling the Board, okay, because I may want to have some more public comment. MR. BROWN-1 think that you left it open, yes. MR. JACKOSKI-The merits of the case, should the building permit have been issued, and was it pre-determined that a use variance was not necessary, and was it appropriate that a use variance was not necessary? MR. GARRAND-Are you polling us? MR. JACKOSKI-Yes, we're polling. Rick, do you want to go first again? MR. GARRAND-I'll go first again. I have to concur with the Zoning Administrator on this one, for Appeal 1-2015. MR. JACKOSKI-Okay. Roy? MR. URRICO-I agree. I support the Zoning Administrator's decision. MR. JACKOSKI-Harrison? MR. FREER-1, too, support the Zoning Administrator's decision, and the whole notion of the argument, I find, of Mr. Crowell, was specious in that there were always two structures on this property and his argument that if we do this we'll allow people to come in and add additional structures without use permits doesn't apply here. MR. JACKOSKI-John? MR. HENKEL-Yes, I would also agree with Harrison, and I agree with the Zoning Administrator's decision on the permit, yes. MR. JACKOSKI-Mike? MR. MC CABE-1 believe it's pretty straightforward that this required an Area Variance and that was the determination that we made and therefore I agree with the Zoning Administrator. MR. JACKOSKI-And, Andy, I don't think I got you yet, did I? Go ahead. MR. ALLISON-1 agree with Mr. Brown. MR. JACKOSKI-And, Roy? MR. URRICO-You had me already. MR. JACKOSKI-All right. So I got everybody. There's too many yeses on my little chart. MR. URRICO-I'm still a yes. MR. JACKOSKI-All right. I'm going to close the public hearing, and I am going to seek a motion. I guess I'm not going to close the public hearing. BRIAN HOGAN 24 (Queensbury ZBA Meeting 02/18/2015) MR. HOGAN-No, you're not. I drove all the way down here, you guys have got to listen to me. My name is Brian Hogan. I live at 34 Holly Lane, which is down the street from where this construction project is going on. I'm not a lawyer or anything like that. The whys and wherefores, I kind of understand where you guys are going with this. A little bit of history on where I live. I've grown up coming to Lake George all summers. I've lived on Holly Lane for about 15 years. Prior to that my family used to come and stay at some of the houses on Holly Lane because we've got friends that live there. The Roberts property, prior to this, has been a rental property, and, you know, it's one of the typical arrangements where you've got a house or a camp and then there's a secondary building that was a garage, usually converted to some type of living facility. I had one of these on my property. There's three other ones on the street as well, and when I was originally looking at re-doing my home, I went to the Town and I asked them about that structure. I was informed that I could not keep the garage with the living space in it because it was not an allowable use. My next door neighbor was thinking of re-doing his home. He has the same exact situation. He's got a house with a garage with actually an apartment over the top of it. He was informed of the same thing. If he was going to re-do his house, he could not leave the garage with the living structure above it. He had to get rid of it. My understanding is this is the way we have tried to move within the lake to try to mitigate some of this usage and try to return some of the character of the lake to single family usage, try to keep things in a little more perspective in terms of the pressure that's on the lake. Now, I believe the Roberts knew that, and as you guys have probably seen in the past that when people have something that's a little outside of the norm that looks like you're not going to approve, you hire somebody. You hire an engineer. You hire Mr. Lapper. I've seen his name a million times, and what do these guys do? They come up with a scenario whereby they're going to get what they want from you guys, and I saw a three step approach here. The first step was I'm only going to modernize the properties I have. Okay. You can do that, you know, that's a reasonable use, we'll let you improve that. Second step, come back and say, geez, this is not really what, a cost effective use. We'd like to just tear down the properties. Are you okay with that? Third step, going to come back to you the third time. Well, we were looking at our plans since we tore it down the last time. We'd just like to make it a little bigger. What do you guys think of that? Well, you know, eventually somebody look at these things, you know, I don't read the stuff that comes in from you guys all the time. I expect you guys to look at that stuff. That's your job. Mr. Crowell took the time to read that and he said, holy Jesus, what's going on here. First they wanted to modernize it. I was kind of okay with that. Then they wanted to tear it down, that's not really that, and re-build, you really need to change your use. Well, for Christ sake, it says right here, principal building in residential zones, an area zoned for single family dwellings, a maximum of one single family dwelling may be constructed per lot, regardless of lot size. That's cut and dry. You're changing the use. Now, are the Roberts' getting burned by this a little bit? Yes, probably they are because, you know what, now they've issued a demolition permit, and once you've emptied that lot, okay, by issuing a demolition permit, all the other stuff is out the window, my areas, everything else. I have no issue, now, where I've got something that's a self-made, you guys call it a self-made hazard or whatever it's called. MR. GARRAND-A self-created. MR. HOGAN-There we go, self-created. That's disappeared. You've got an empty slate. So realistically, Craig, I think you should have gone in at that point and said, you know what, you want to tear this place down, that's not a single family use anymore. That's a two family use. You've got two houses on one property. That's not one family. That's two family, and if they say it's going to be for one family, it doesn't matter, you know, eventually somebody's going to buy it and they're going to use it for two families. They're going to rent it out. Personally, what I don't like about it is I've got a lot on one side of the lake that's got two houses on it, that can be rented out separately, and now I've got another house that can be built on the other side of the road. So I've got two cottages, using one piece of shoreline, and I don't like that. Just from my personal perspective, I don't need to have three separate rental properties. For the guy that owns it, you can make a decent rental income off of having three houses on there, but, I'll tell you, that's not why I move to Lake George, and that's not why I built my property there, and I don't like the fact that it can affect my property value. I don't want to drive down there on 4t" of July weekend and have 25 cars on Holly Lane. Have you guys looked at Holly Lane? Okay. It's probably 15 feet narrower than a regular road, and let me tell you something, there's no place to park a car, and if they build a house across the road from that and give those guys lake access, it'll be a zoo down there. It's a messy situation where you guys are sitting right now, because you've kind of gone down this road, but I think you look back at your notes and stuff, you'll find that there was no real determination made about a use variance, and I think you really needed to do that. I think as a way out of this, and I don't know if you can do it, maybe talk to the Roberts and say, hey, you've got this second house, it's a put together, you know, pre-made house that they bought from someone that they're going to drop on it, you know what, drop it across the street. You're well within your rights to have one house on one property, one house on the other property. You want to rent the thing out, let people go across the street and use the lake, by all means, that's a permitted use. That's how most of the neighbors are. If you look 25 (Queensbury ZBA Meeting 02/18/2015) down that street, they've got one house on one side, they've got a garage with an apartment above it on the other side. MR. JACKOSKI-Mr. Hogan, we've gone past the three minutes. You're reiterating discussions that were had in other meetings prior. MR. HOGAN-1 apologize. I wasn't at those meetings. MR. JACKOSKI-But you had the opportunity to show up. MR. HOGAN-Absolutely. MR. JACKOSKI-So is there anything else that you want to add to this particular application? MR. HOGAN-No, you know, I need you guys to. MR. JACKOSKI-We are doing our job. Mr. Lapper doesn't always get a yes from this Board. I can assure you that. MR. HOGAN-All right. Well, thank you very much. MR. JACKOSKI-And I'm going to close the public hearing. PUBLIC HEARING CLOSED MR. JACKOSKI-Can I seek a motion, please, from a Board member? RESOLUTION TO: Deny Appeal No. 1-2015, William Crowell, represented by John J. Henry & Whiteman Osterman & Hanna LLP, regarding property owned by William & Pamela Roberts at 4 Holly Lane, Tax Map No. 239.12-2-64; The Zoning Board of Appeals of the Town of Queensbury has received an application from William Crowell represented by John J. Henry & Whiteman Osterman & Hanna LLP from Section(s): 179-14 of the Zoning Code of The Town of Queensbury in order to appeal the Zoning Administrator's determination decision: Appellant is appealing the issuance of building permits as a result of the Area Variance approval for the construction of two new single-family dwellings (cottages). Variance relief was granted to allow for two residences on the same parcel. Appellant believes the increase and enlargement of a nonconforming property use requires a Use Variance in addition to the already approved Area Variance. SEAR Type is not applicable- no further review required; A public hearing was advertised and held on Wednesday, February 18, 2015;_ Upon review of the application materials, information supplied during the public hearing, and upon consideration of the applicable criteria of the Queensbury Town Code and Chapter 267 of the NYS Town Law and after discussion and deliberation, we find as follows: 1. The Appeal was filed within the required 60-day timeframe. 2. The Appealing Party is aggrieved and were found to have standing. 3. The merits of the argument as provided by the appellant with responses from the Zoning Administrator have been considered. It is our finding that the positions offered by the appellant are not sufficient to warrant overturning the Zoning Administrator's decision at hand. Based on the above findings I make a MOTION TO DENY Appeal No. 1-2015 William Crowell, Introduced by Michael McCabe, who moved for its adoption, seconded by John Henkel: Duly adopted this 18TH day of February, 2015, by the following vote: AYES: Mr. Freer, Mr. Allison, Mr. Garrand, Mr. Urrico, Mr. McCabe, Mr. Henkel, Mr. Jackoski NOES: NONE MR. CROWELL-Mr. Chairman, could I just ask that when the record is put together for this, that since the Zoning Administrator mentioned all the determinations, that all the determinations be included in the record. Thank you. 26 (Queensbury ZBA Meeting 02/18/2015) MR. JACKOSKI-Yes, I don't know that we'll do that. I mean, the record speaks for itself. We do type out exactly the recordings here. MR. CROWELL-Well, I just wanted to make the request that the full record include all the Roberts' applications, just not the last application or whatever. MR. JACKOSKI-If that is our standard protocol, we'll do that, sir, but I have received your request. Thank you. MR. CROWELL-Thank you. AREA VARIANCE NO. 6-2015 SEQRA TYPE II WARREN COUNTY c/o MARTIN AUFFREDOU AGENT(S) MARTIN AUFFREDOU OWNER(S) WARREN COUNTY ZONING RR-5A LOCATION GURNEY LANE APPLICANT PROPOSES SUBDIVISION OF A 39.85 ACRE PARCEL INTO TWO LOTS OF 8.18 & 31.67 ACRES. LOT 1, 8.18 ACRES REQUIRES RELIEF FOR LOCATION OF AN EXISTING BUILDING (WESTMOUNT) FOR SIDE AND REAR YARD SETBACKS. ALSO, RELIEF IS REQUESTED FOR A LOT WITH LESS THAN 400 FT. OF ROAD FRONTAGE. LOT 2, 31.67 ACRES REQUIRES RELIEF FOR LOCATION OF TWO EXISTING BUILDINGS - SOUTH BUILDING FRONT AND SIDE SETBACK; NORTH BUILDING REQUIRES REAR SETBACK RELIEF. VARIANCE RELIEF IS REQUESTED FROM SETBACK REQUIREMENTS AND MINIMUM ROAD FRONTAGE REQUIREMENTS FOR THE RR-5A ZONE. CROSS REF SUBDIVISION 2-2015 PRELIMINARY/FINAL STAGE WARREN COUNTY PLANNING FEBRUARY 2015 LOT SIZE 39.85 +/-ACRE(S) TAX MAP NO. 288.-1-51, 49 SECTION 179-3-040 MARTIN AUFFREDOU & LARRY PELTROWITZ, REPRESENTING APPLICANT, PRESENT STAFFINPUT Notes from Staff, Area Variance No. 6-2015, Warren County c/o Martin Auffredou, Meeting Date: February 18, 2015 "Project Location: Gurney Lane Description of Proposed Project: Applicant proposes subdivision of a 39.85 acre parcel into two lots of 8.18 & 31.67 acres. Lot 1, 8.18 acres requires relief for location of an existing building (Westmount) for side and rear yard setbacks. Also, relief is requested for a lot with less than 400 ft. of road frontage. Lot 2, 31.67 acres requires relief for location of two existing buildings - south building front and side setback; north building requires rear setback relief. Variance relief is requested from setback requirements and minimum road frontage requirements for the RR-5A zone. Relief Required: Parcel will require area variances as follows: Lot 1 Lot 2 Lot 2 Lot 1 South bui ding North building Road frontage Side Rear Front Side Rear Required 75 ft. 100 ft. 100 ft. 75 ft. 100 ft. 400 ft. Proposed 55.8 ft. 55.3 ft. 69.8 ft. 21.7 ft. 14.2 ft. 387.2 ft. Relief 19.2 ft. 44.7 ft. 30.2 ft. 53.3 ft. 85.8 ft. 12.8 ft. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. The ,proposed,project may be considered to have minimal to no impact on the character of the neighborhood and nearby properties. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Feasible alternatives may be considered limited due to the location of the existing buildings and the lot ,proposed to separate the health facility property from the remainder of the,parcel. 3. Whether the requested area variance is substantial. The relief requested may be considered minimal relevant to the code. 27 (Queensbury ZBA Meeting 02/18/2015) 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. The relief requested may be considered to have minimal to no environmental or physical imoact on the neighborhood. 5. Whether the alleged difficulty was self-created. The difficulty may be considered not self- created as the buildings pre-existed to the zoning and lot lines in place. Staff comments: The applicant proposes a two lot subdivision where each lot requires variance relief due to the proposed subdivision line. The lots currently exist as Lot 1 at 8.18 acres containing the health facility building and associated parking. Lot 1 requires side and rear setback relief and road frontage relief. Then Lot 2 is 31.67 acres where there are two existing buildings to remain. The applicant has indicated buildings on each parcel are to remain and no changes to the site are proposed." MR. JACKOSKI-Mr. Henkel has requested that he be recused, given his employment of his wife at the West Mount facility. So Mr. Henkel's going to recuse himself. Welcome, gentlemen. It's a straightforward application, fairly simply. Is there anything you want to add at this time, or simply seek questions from the Board? MR. AUFFREDOU-1 think that, let me just introduce our team here, Mr. Chairman, and good evening, everyone. My name is Martin Auffredou. I'm the Warren County attorney. To my left is Dave Barris. He's our surveyor who's prepared the survey and the maps. To my right is attorney Larry Pelchowitz. Larry is our special counsel at the County. We have a very complex contractual arrangement with a proposed buyer of the West Mount Health facility, and Larry has provided tremendous expertise and guidance in that. So the three of us are here this evening before you. I agree with the Chairman that the application is fairly straightforward. We agree with the Staff comments and analysis. I certainly, at this time, am willing to entertain any questions that you may have. We did obtain a favorable recommendation from the Planning Board last night. They conducted SEAR review, and we hope to be back in front of the Planning Board next week for Preliminary and Final subdivision. So thank you. MR. JACKOSKI-Thank you. Are there any questions at this time from Board members before I open the public comment period? I know we've all reviewed the application. Seeing and hearing none, I'll open the public comment period. Is there anyone here who'd like to address this Board concerning this particular application? PUBLIC HEARING OPENED MR. JACKOSKI-Seeing no one, is there any written comment? MR. URRICO-No, there is not. MR. JACKOSKI-At this time I'll poll the Board on the application. Mike? MR. MC CABE-Other than the relief being requested on the Lot Number Two, north building, which is excessive in my mind, but I don't see any other reasonable answer to it. So I'll agree with the project. MR. JACKOSKI-Roy? MR. URRICO-1 think the balancing test weighs in favor of the applicant. MR. JACKOSKI-Rick? MR. GARRAND-1 agree with Roy. I think the relief requested is minimal relative to the Code. MR. JACKOSKI-Harrison? MR. FREER-Well, except that Mr. Auffredou said he looks forward to the Planning Board next week, after tonight, I can't think that that makes much sense, but I agree with it. It makes sense. MR. JACKOSKI-Andy? MR. ALLISON-1 agree with the applicant. MR. JACKOSKI-I am going to close the public comment period. 28 (Queensbury ZBA Meeting 02/18/2015) PUBLIC HEARING CLOSED MR. JACKOSKI-I'm going to seek a motion, and we do want to go through the criteria for this particular variance. MR. GARRAND-I'll make the motion. RESOLUTION TO: Approve , Area Variance No. 6-2015, Warren County, 1340 State Route 9, Tax Map No. 288.00-1-51 and 49. The Zoning Board of Appeals of the Town of Queensbury has received an application from Warren County c/o Martin Auffredou for a variance from Section(s): 179-3-040 of the Zoning Code of The Town of Queensbury. Applicant proposes subdivision of a 39.85 acre parcel into two lots of 8.18 & 31.67 acres. Lot 1, 8.18 acres requires relief for location of an existing building (Westmount) for side and rear yard setbacks. Also, relief is requested for a lot with less than 400 ft. of road frontage. Lot 2, 31.67 acres requires relief for location of two existing buildings - south building front and side setback; north building requires rear setback relief. Variance relief is requested from setback requirements and minimum road frontage requirements for the RR-5A zone. SEAR Type II - no further review required; A public hearing was advertised and held on Wednesday, February 18, 2015; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find as follows: 1. Will an undesirable change be produced in the character of the neighborhood or will a detriment to the nearby properties be created by the granting of the requested area variance? The proposed project maybe considered to have minimal to no impact on the character of the neighborhood and nearby properties. 2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance? Feasible altematives maybe considered limited due to the location of the existing buildings and the lot proposed to separate the health facility property from the remainder of the parcel. 3. Is the requested area variance substantial? The relief requested may be considered minimal relevant to the code. 4. Will the proposed area variance have an adverse impact on the physical or environmental conditions in the neighborhood or district? The relief requested maybe considered to have minimal to no en vironmental or physical impact on the neighborhood. 5. Is the alleged difficulty self-created? The difAculty maybe considered not self-created as the buildings pre-existed to the zoning and lot lines in place. Based on the above findings I make a MOTION TO APPROVE Area Variance No. 6-2015, Warren County c/o Martin Auffredou, Introduced by Richard Garrand, who moved for its adoption, seconded by Harrison Freer: As per the resolution prepared by staff with the following: A. The variance approval is valid for one (1) year from the date of approval; you may request an extension of approval before the one (1) year time frame expires; B. Final approved plans in compliance with an approved variance must be submitted to the Community Development Department before any further review by the Zoning Administrator or Building & Codes personnel; C. Subsequent issuance of further permits, including building permits are dependent on receipt of these final plans; D. Upon approval of the application; review and approval of final plans by the Community Development Department the applicant can apply for a building permit unless the proposed project requires review, approval, or permit from the Town Planning Board and/or the 29 (Queensbury ZBA Meeting 02/18/2015) Adirondack Park Agency, Lake George Park Commission or other State agency or department. Duly adopted this 18th day of February 2015, by the following vote: AYES: Mr. Urrico, Mr. McCabe, Mr. Garrand, Mr. Allison, Mr. Freer, Mr. Jackoski, NOES: NONE RECUSED: Mr. Henkel MR. AUFFREDOU-Thank you. AREA VARIANCE NO. 7-2015 SEQRA TYPE UNLISTED J.H. LAND DEVELOPMENT, LLC AGENT(S) NACE ENGINEERING OWNER(S) J.H. LAND DEVELOPMENT, LLC ZONING MDR: LC-10A LOCATION 321 STATE ROUTE APPLICANT PROPOSES AN ADDITIONAL 72 CAMPSITES ON A 42 ACRE PARCEL. THE APPLICANT PROPOSES TO COMBINE LOTS. RELIEF REQUESTED FOR PERMEABILITY IN THE LC-10A ZONE. CROSS REF MULTIPLE LISTINGS WARREN COUNTY PLANNING FEBRUARY 11, 2015 LOT SIZE 98.89 ACRE(S) TAX MAP NO. 278.-l-14, 18 SECTION 179-3-040 TOM NACE & LUCAS DOBIE, REPRESENTING APPLICANT, PRESENT STAFFINPUT Notes from Staff, Area Variance No. 7-2015, J.H. Land Development, LLC, Meeting Date: February 18, 2015 "Project Location: 321 State Route 149 Description of Proposed Project: Applicant proposes an additional 72 campsites on a 42 acre parcel. The applicant proposes to combine lots. Relief requested for permeability in the LC-10A zone. Relief Required: Parcel will require area variances as follows: Permeability Required 95% Proposed 89.94% Relief 5.06% Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. The ,proposed,project may be considered to have minimal to no impact on the character of the neighborhood and nearby properties. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Feasible alternatives may be considered limited due to the de velopment of the parcel with hard surfacing pro viding access to the individual sites. 3. Whether the requested area variance is substantial. The relief requested may be considered minimal relevant to the code. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. The variance may have minimal ,physical or environmental impact on the site. The applicant has completed a stormwater ,pollution,pre vention,plan and storm water management report that is being re viewed by the Town designated engineer. 5. Whether the alleged difficulty was self-created. The difficulty may be considered not self- created as the zoning recently changed to allow campgrounds through special use ,permit and the area requirements remained unchanged. Staff comments: The applicant proposes to develop an existing 42.27 acres parcel into 72 RV/campsites. The project includes merging this parcel with an existing 55.56 acre parcel that currently has 150 30 (Queensbury ZBA Meeting 02/18/2015) sites for Ledge View Campground Facility. Relief is requested for the development of the impermeable surface for the campground sites and drives where permeability is required to be 95% of the site in the LC-10 acre zone. The applicant proposes to utilize an existing well for water service and install septic systems to accommodate the number of sites to be developed. The applicant has indicated the site arrangements allow for RV's to pull through to maneuver through the site. The project is subject to Site Plan review and Special Use permit." MR. URRICO-And the Planning Board, based on limited review, did not identify any significant adverse impacts that cannot be mitigated with the current project proposal, and that recommendation was approved unanimously last night. MR. JACKOSKI-Welcome. Again, a fairly straightforward application. Feel free to identify yourselves and if you'd like the Board to ask you questions or did you want to discuss the project? MR. NACE-Okay. For the record, Tom Nace and Lucas Dobie Engineering and Patty Green, part owner of the Park. First of all, I'm not going to repeat everything I say 10 times. I realize it's late. I don't have anything really to add. It's a fairly straightforward project. I'd field any questions you have. MR. JACKOSKI-Board members, are there any questions at this time? MR. GARRAND-With respect to stormwater control, is the stormwater being diverted away from areas where the sewage is going? MR. NACE-Yes, absolutely. There's a 25 foot requirement. MR. GARRAND-That property is kind of on a high plateau. MR. NACE-It's sloping down into a low swale that runs through the property, but, yes, we're trying to handle stormwater as close to point of generation as we can. So where the slope runs, each site will have a swale right below the paved or stone area for the trailer pad, and that swale will infiltrate the stormwater right there. MR. GARRAND-And the sewage is completely separate. Now are they going to have like one leaching area for multiple units? MR. NACE-1 believe there's a total of like eight. Is that right, Lucas? Eight leaching areas for the entire 72 sites. MR. GARRAND-And it's going to be like beds somewhere? MR. NACE-Yes, as shown on the plans. MR. FREER-Did you guys look at like permeable pavers somewhere to get you so you didn't have to get a variance? MR. NACE-For this type of application permeable pavement is probably not the greatest thing. We have, the sites are going to be stoned. They're not going to be paved, but they're going to be stoned. We're treating the stone as if it's permeable because the regulations say we have to, but in reality a lot of the stormwater will actually infiltrate right on the site into the stone. MR. JACKOSKI-For marketing reasons is it just that for users of this, the stone is more natural and they don't want to be parking on a parking lot of blacktop? Is that what you're? So when this is all said and done, are all of the sites going to be on one parcel? MR. NACE-Yes. The existing parcels will be combined. I think it's like 98. something. MR. JACKOSKI-Any other questions at this time before I open the public comment period? MR. MC CABE-Just, do we have to make a SEAR type? MR. JACKOSKI-Yes. MR. MC CABE-Are we in a position to do that? I'm not sure we have enough information to declare this a Neg Dec or? 31 (Queensbury ZBA Meeting 02/18/2015) MR. JACKOSKI-Well, you have the application in front of you. You have the comments from the Town's Engineer. You have the comments from the applicant's engineer. What more are we going to get? MR. HENKEL-There is a stream that runs right through that whole front. MR. NACE-Not a stream, no. It's just a swale. In the spring when things are very wet, it may be wet for a couple of days after a hard rain. During the summer it rarely sees any water at all. MR. HENKEL-So it doesn't lead to culvert that goes underneath 149? MR. NACE-No, that flows the other direction. That flows northeast. MR. HENKEL-Okay. MR. JACKOSKI-I have to go back to Mike to make sure Mike's okay with this. MR. MC CABE-Yes, I mean, the problem I have is, like it is, it's a high plateau. It seems like everything runs down in the valley there, and, yes, I couldn't make a, determine which way it ran. My fear was that it ran toward Glen Lake. MR. NACE-Up the hill, at the sites it runs left to right, okay, and it's very gentle. It's all good sandy soil, and eventually it stores into the soil. MR. MC CABE-It's kind of hard to get down there this time of the year. MR. JACKOSKI-So, Staff, can you confirm for us that you're unaware of any concerns that our Town's engineer had concerning the stormwater? I mean, they've got open items with the Town engineer, correct? MR. BROWN-1 cannot answer that question. I don't have the Planning Board file in front of me. You guys were at the Planning Board last night? MR. NACE-That is correct. They did not have any issues. MR. BROWN-Yes, I think they issued a positive recommendation on the variance. So they didn't identify anything worthy of the record. MR. NACE-That's how we reviewed the Town Engineer's comments. We have not responded to them because that would be presenting new information to you, but we are sure that we can respond to them adequately with engineer design. MR. JACKOSKI-Are there any other comments or questions from Board members? Opening the public comment period. There's no one here in the audience to address the Board. Is there any written comment? PUBLIC HEARING OPENED MR. URRICO-There is no written comment. MR. JACKOSKI-Okay. Thank you. MR. GARRAND-No engineering concerns whatsoever with this? MR. BROWN-1 believe there's some engineering comments. I haven't read them. I'm not familiar with them. It sounds like they're minor. MR. NACE-They're mostly technical. MR. BROWN-Okay. MR. JACKOSKI-But again, if we identify this and approve this, they've got to work through the engineering process. The engineer won't sign off until they're satisfied. MR. NACE-That's correct. We still have to go to the Planning Board next week. MR. BROWN-That's correct. MR. JACKOSKI-We're doing SEAR. It's an Unlisted action. 32 (Queensbury ZBA Meeting 02/18/2015) MR. GARRAND-Do any members of this Board have any qualms or any concerns they want addressed here tonight, as far as SEAR goes or any items on the sheet, on the SEAR form? MR. JACKOSKI-We're using the Short Form. It's the standard scenario. I mean, what concerns? MR. MC CABE-It's just that it's very difficult for me to envision where this runoff is going to go, but if everybody else is fine with it, I'm not going to. MR. JACKOSKI-Right, but the applicant has identified for us where it is going to go. It is not going toward Glen Lake. It is not flowing under a culvert into, under 149, and it's basically going to be maintained on the site on the sandy soils. MR. NACE-That is correct. It will all be infiltrated. None will leave the site. MR. JACKOSKI-Okay. I'm going to poll the Board real quickly here. Then we'll close the public comment period and do SEAR. Rick? MR. GARRAND-This is an issue about permeability. Underneath these units they're not going to have total impermeability. They're going to have crushed stone on these sites, and water will infiltrate through there. A lot of the sites in there, the water just runs off the top of the campers and just infiltrates. Everything I've ever seen in there, and it infiltrates pretty well in this area. My concern was where the stormwater would go in this area. Even in heavy rain events, you don't see too terribly much stormwater in this area of the Park. There's a lot of trees in there. My concerns were pretty much that stormwater and the septic system here might be in close proximity, but the applicant has allayed those concerns. So I'd be in favor. MR. JACKOSKI-Harrison? MR. FREER-Looking at the test and the criteria that we are supposed to apply here, I think that this is minimal impact and I would support this variance. MR. JACKOSKI-Mike? MR. MC CABE-In terms of permeability, I don't have any problem with granting the five percent relief. MR. JACKOSKI-John? MR. HENKEL-Yes, I have no problem with the 5.06% relief either, and there's other campgrounds, two other campgrounds on 149. So it definitely fits in to the neighborhood. So I'm definitely for the project also. MR. JACKOSKI-Andy? MR. ALLISON-1 think the relief requested is reasonable. MR. JACKOSKI-Roy? MR. URRICO-Yes, I think the permeability request is very minimal and I would be in support of it. MR. JACKOSKI-Okay. I'm closing the public comment period. PUBLIC HEARING CLOSED MR. JACKOSKI-And seeking a motion concerning SEAR. MR. GARRAND-I'll make a motion for SEAR. BASED ON THE INFORMATION PROVIDED AND AN ANALYSIS OF THE ABOVE AND SUPPORTING DOCUMENTATION THIS BOARD FINDS THAT THE PROPOSED ACTION WILL NOT RESULT IN ANY SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACTS. SO I WOULD GIVE THIS A NEGATIVE DECLARATION AREA VARIANCE NO. 7-2015 J.H. LAND DEVELOPMENT, LLC, Introduced by Richard Garrand who moved for its adoption, seconded by Harrison Freer: 33 (Queensbury ZBA Meeting 02/18/2015) Duly adopted this 18th day of February, 2015, by the following vote: AYES: Mr. Urrico, Mr. McCabe, Mr. Henkel, Mr. Allison, Mr. Freer, Mr. Garrand, Mr. Jackoski NOES: NONE MR. JACKOSKI-Can I have a motion for the application itself, Area Variance No. 7-2015. RESOLUTION TO: Approve , Area Variance No. 7-2015 J.H. Land Development, LLC, 321 State Route 149, Tax Map No. 278.00-1-14 and 18. The Zoning Board of Appeals of the Town of Queensbury has received an application from J.H. Land Development, LLC for a variance from Section(s): 179-3-040 of the Zoning Code of The Town of Queensbury. Applicant proposes an additional 72 campsites on a 42 acre parcel. The applicant proposes to combine lots. Relief requested for permeability in the LC-10A zone. The request is for proposed permeability of 89.94 where 95 is required. Therefore the relief requested is 5.06%. The SEAR was determined a Negative Declaration. A public hearing was advertised and held on Wednesday, February 18, 2015; Upon review of the application materials, information supplied during the public hearing, and upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find as follows: >. Will an undesirable change be produced in the character of the neighborhood or will a detriment to the nearby properties be created by the granting of the requested area variance? The proposed project maybe considered to have minimal to no impact on the character of the neighborhood and nearby properties. 2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance? Feasible altematives maybe considered limited due to the development of the parcel with hard surfacing providing access to the individual sites. 3. Is the requested area variance substantial? The relief requested may be considered minimal relevant to the code. 4. Will the proposed area variance have an adverse impact on the physical or environmental conditions in the neighborhood or district? The variance may have minimal physical or environmental impact on the site. The applicant has completed a stormwater pollution prevention plan and stormwater management report that is being reviewed by the Town designated engineer. 5. Is the alleged difficulty self-created? The difAculty maybe considered not self-created as the zoning recently changed to allow campgrounds through special use permit and the area requirements remained unchanged. Based on the above findings I make a MOTION TO APPROVE Area Variance No. 7-2015, J.H. Land Development, LLC, Introduced by Mr. McCabe, who moved for its adoption, seconded by Mr. Henkel: As per the resolution prepared by staff with the following: A. The Lots will be combined prior to issuance of the building permit for the proposed new structure. B. The variance approval is valid for one (1) year from the date of approval; you may request an extension of approval before the one (1) year time frame expires; C. Final approved plans in compliance with an approved variance must be submitted to the Community Development Department before any further review by the Zoning Administrator or Building & Codes personnel; D. Subsequent issuance of further permits, including building permits are dependent on receipt of these final plans; 34 (Queensbury ZBA Meeting 02/18/2015) E. Upon approval of the application; review and approval of final plans by the Community Development Department the applicant can apply for a building permit unless the proposed project requires review, approval, or permit from the Town Planning Board and/or the Adirondack Park Agency, Lake George Park Commission or other State agency or department. Duly adopted this 18th day of February 2015, by the following vote: MR. JACKOSKI-This is conditioned on the statement that the lots will be combined as requested by the applicants. MR. MC CABE-I'll change my motion to add an additional requirement that the lots are combined. Before issuance of the building permit. Should that be added? MR. BROWN-Yes, well, there really isn't a permit to be issued here. Are there any building? There's a building to be constructed? Okay. Yes, that's fine. AYES: Mr. Urrico, Mr. Freer, Mr. Allison, Mr. Garrand, Mr. Henkel, Mr. McCabe, Mr. Jackoski NOES: NONE MR. JACKOSKI-Congratulations. MR. NACE-Thank you. MR. JACKOSKI-Any other business in front of the Board at this time? Okay. MOTION TO ADJOURN THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF FEBRUARY 18, 2015, Introduced by Michael McCabe who moved for its adoption, seconded by Richard Garrand: Duly adopted this 18th day of February, 2015, by the following vote: AYES: Mr. Urrico, Mr. Henkel, Mr. McCabe, Mr. Garrand, Mr. Allison, Mr. Freer, Mr. Jackoski NOES: NONE MR. JACKOSKI-We're adjourned. RESPECTFULLY SUBMITTED, Steven Jackoski, Chairman 35