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2006-03-22 (Queensbury ZBA Meeting 03/22/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MARCH 22, 2006 INDEX Area Variance No. 15-2006 Gary R. & Becky L. Hicks 1. Tax Map No. 289.17-1-7 Use Variance No. 14-2006 James Woods 2. Tax Map No. 303.20-2-38 Sign Variance No. 16-2006 Jacob C. Sabo, Jr. 3. Tax Map No. 302.8-2-15 Area Variance No. 86-2005 Bradford Neron 10. Tax Map No. 308.12-1-19 Notice of Appeal No. 1-2006 Brian Granger 11. Tax Map No. 309.10-1-61 & 309.10-1-60 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. 0 (Queensbury ZBA Meeting 03/22/06) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MARCH 22, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY JOYCE HUNT CHARLES MC NULTY LEWIS STONE ALLAN BRYANT RICHARD GARRAND, JR., ALTERNATE MEMBERS ABSENT ROY URRICO ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY MR. ABBATE-I was going to change the hearing a little bit this evening. Since you folks are here this evening, for the Sabo case, perhaps we will hear that first, unless there’s any kind of an objection? Okay, and that way there we’ll get it out of the way, not that it’s not important, but I’d like to carry on, Mr. Secretary, with a couple of administrative details, if I may. AREA VARIANCE NO. 15-2006 SEQRA TYPE: II GARY R. & BECKY L. HICKS OWNER(S): TAYLOR HILL PROPERTIES, LLC ZONING: WR-1A LOCATION: 88 ASH DRIVE APPLICANT HAS PARTIALLY CONSTRUCTED A ROOF OVERHANG TO COVER EXISTING RESIDENTIAL SIDEWALK. RELIEF REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS. CROSS REF.: BP 2005-135 RES. ALT; BP 2002-028 CANOPY; BP 2001-070 ALT.; BP 2000-273 ALT.; BP 2000-245 DOCK; BP 172 ADDITION LOT SIZE: 0.56 ACRES TAX MAP NO. 289.17-1-7 SECTION: 179-4-030 On Area Variance No. 15-2006, there was a telecommunications dated March 7, 2006 requesting a tabling of Area Variance No. 15-2006. If you have that communication, would you read that into the record, please. MR. UNDERWOOD-Do you want the one we just got tonight? MR. ABBATE-That’s all right. Whatever you have. MR. UNDERWOOD-I already put it in. MR. ABBATE-Okay. The communication is a matter of record, and I will open the public hearing for Area Variance No. 15-2006. Is there anyone in the audience, the public, who would like to comment on that particular Area Variance? If so, may I see your hand, please? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised. Do any members of the public wish to be heard regarding Area Variance No. 15-2006? Hearing none, I move that we table Area Variance No. 15-2006. 1 (Queensbury ZBA Meeting 03/22/06) MOTION TO TABLE AREA VARIANCE NO. 15-2006 GARY R. & BECKY L. HICKS, Introduced by the Charles Abbate who moved for its adoption, seconded by Joyce Hunt. 88 Ash Drive. Tabled to the March 29, 2006 hearing date. Duly adopted this 22 day of March, 2006, by the following vote: nd AYES: Mr. Underwood, Mr. Bryant, Mr. Garrand, Mrs. Hunt, Mr. Stone, Mr. McNulty, Mr. Abbate NOES: NONE ABSENT: Mr. Urrico MR. ABBATE-The vote is seven yes, zero no to table Area Variance No. 15-2006 to March 29, 2006 hearing date. Mr. Secretary, I have another one if I may, please. USE VARIANCE NO. 14-2006 SEQRA TYPE: UNLISTED JAMES WOOD AGENT(S): MARK DARIUS OWNER(S): MARK DARIUS ZONING: MU LOCATION: 156 RIVER STREET APPLICANT SEEKS RELIEF FROM THE ALLOWABLE USES LISTED FOR THE MIXED USE ZONE IN ORDER TO ADD AUTO SALES TO THE CURRENT AUTO REPAIR USE ON THE PROPERTY. CROSS REF.: BP 2005-903 C/O; BP 2004-886 C/O; BP 95-131 ADDITION; SPR 39-94; AV 62-1994 WARREN COUNTY PLANNING: MARCH 8, 2006 TAX MAP NO. 303.20-2-38 SECTION: 179-4-020 We have also received a communication, telecom, regarding Mr. Woods’ Use Variance No. 14- 2006. Do you have any correspondence on that? I believe it was a fax. MR. UNDERWOOD-Yes, we received that today. MR. ABBATE-Would you read that into the record. Would you be kind enough to read that into the record, please. MR. UNDERWOOD-“We have been retained, today, by Mark Darius with regard to this Use Variance application for real property located at 156 River Street in Hudson Falls, Town of Queensbury, New York. We apologize for the late request, but ask that the public hearing this evening, the application be adjourned to the end of the March 29, 2006 agenda. We intend to hand deliver a supplemental submission to the Zoning Board of Appeals no later than Friday March, 24, 2006. We believe that Mr. Darius has to substantially augment his submission in order for the Board to have a full understanding of his request for relief from the Zoning Ordinance. If you have any questions with regard to the foregoing, please feel free to contact the undersigned. Daniel Hogan” MR. ABBATE-Okay. Thank you, Mr. Secretary. I’m going to open the public hearing for Use Variance No. 14-2006. Is there anyone in the public who wishes to be heard concerning Use Variance No. 14-2006. PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised. Hearing none, I’m going to move that Use Variance No. 14-2006 be tabled. MOTION TO TABLE USE VARIANCE NO. 14-2006 JAMES WOOD, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 156 River Street. Tabled to the May 17, 2006 hearing date. New information will be submitted to the Community Development Department no later than the 15 of April. th Duly adopted this 22 day of March, 2006, by the following vote: nd AYES: Mr. Underwood, Mrs. Hunt, Mr. Garrand, Mr. Stone, Mr. McNulty, Mr. Bryant, Mr. Abbate NOES: NONE 2 (Queensbury ZBA Meeting 03/22/06) ABSENT: Mr. Urrico MR. ABBATE-The vote is seven yes, zero no to table Use Variance No. 14-2006, to the 17 May 2006 hearing date, and be a little more patient with me, Mr. Secretary, because I have a couple of other items. Mr. Stone has spoken to me today and has requested I give him some time prior to the hearing to make a statement. Mr. Stone, please. MR. STONE-Thank you, Mr. Chairman. For the record, I received an unsolicited e-mail from Kathy Bozony, Land Use Management Coordinator for the Lake George Association. For the record, further, I am both a member of the Lake George Association Board of Directors and sit on its Land Use Committee. Ms. Bozony relates some other thoughts on several decided variances requests that raised implications and questions for possible future variance applications. The operative words here are future. I immediately copied all members of the ZBA and members of the Community Development Department Staff. I wrote the following is of interest to us for future applications. I’ve also asked Kathy to submit this information and more to the PORC for future consideration in the Zoning Code. Subsequent to this distribution, I received a call from Craig Brown who said my actions could be misconstrued. I agree. I can only say I felt the concerns expressed by Ms. Bozony would provide ZBA members with questions to raise on the record in future ZBA actions, thus getting both questions and answers on the record. Thank you, Mr. Chairman. MR. ABBATE-Thank you, Mr. Stone, and I’m glad that Counsel for the Town is here this evening. It’s always delightful to see her, and I’m particularly glad that she’s here she’s here because I would like, for the record, to make the following statement. As Chairman, I respectfully advise the Board members that New York State Statutes make it clear and are unambiguous that Zoning Board of Appeals members are not permitted to engage in ex-parte communications. The Statutes go on to state that there will be no oral communications in which all participants are not present at the time it is made, or a written communication not served simultaneously on all participants. Ex-parte communication must also not be conducted with members of the Zoning Board of Appeals. Thank you, and, Counselor, if I have said anything in correct, would you correct me, please. MS. RADNER-I would just state that where ex-parte communication is made outside of the control of the Zoning Board of Appeals member, the appropriate thing to do is, as Mr. Stone has done, and reveal it on the record, so that everybody knows what that one Board member knows. MR. ABBATE-Thank you, ma’am. MR. STONE-That’s exactly what I did, I thought. MR. ABBATE-Yes, that’s exactly what Mr. Stone did. Thank you, Mr. Stone. I was going to change the schedule a little bit. Do we have folks here for the Granger hearing? Okay. Mr. Neron is not here this evening, that is Area Variance No. 86-2005? Okay. Then what we’re going to do, Mr. Sabo, would you be a little patience with me, and then what I’m going to do is move the schedule a little bit and ask to hear, is Granger here this evening, Mr. Granger? Okay. Good. What I’m going to do is ask the Secretary to read into the record Appeal No. 1- 2006. MR. GRANGER-My attorney is not here yet. MR. ABBATE-He’s not here yet. Okay. Then, guess what, let’s move back to Sabo, how’s that, for flexibility. SIGN VARIANCE NO. 16-2006 SEQRA TYPE: UNLISTED JACOB C. SABO, JR. OWNER(S): JACOB C. SABO, JR. ZONING: LI LOCATION: 294 BAY ROAD APPLICANT PROPOSES INSTALLATION OF A 12 SQ. FT. FREESTANDING SIGN IDENTIFYING “ADIRONDACK FINANCIAL AND PLANNING SERVICES”. RELIEF REQUESTED FROM SETBACK REQUIREMENTS. CROSS REF.: BP 2006-021 WARREN COUNTY PLANNING: MARCH 8, 2006 LOT SIZE: 0.23 ACRES TAX MAP NO. 302.8-2-15 SECTION: 140-6 JACOB SABO, JR., PRESENT STAFF INPUT 3 (Queensbury ZBA Meeting 03/22/06) Notes from Staff, Sign Variance No. 16-2006, Jacob C. Sabo, Jr. Meeting Date: March 22, 2006 “Project Location: 204 Bay Road Description of Proposed Project: The applicant proposes a 12 sq. ft. freestanding sign, at 8-feet high, which will read “294, Adirondack Financial & Planning Services”. Relief Required: The applicant requests 11-feet of front setback relief, where 15-feet is the minimum from any property line, per § 140-6. Parcel History (construction/site plan/variance, etc.): BP 2006-021: Pending, for the sign. Staff comments: It appears that the existing building is 10-feet from the front property line (see plot plan). This proposal will site the sign 4-feet from same. It is stated on the plot plan that the sign will be in the same visual line as the adjoining businesses, the one to the immediate North is the “Warren County Board of Realtors” sign (SV 19-90, approved 3/28/90), photo included with application.” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form March 8, 2006 Project Name: Sabo, Jr., Jacob C. Owner(s): Jacob C. Sabo, Jr. ID Number: QBY-06-SV-16 County Project#: Mar06-37 Zoning: LI Community: Queensbury Project Description: Applicant proposes installation of a 12 sq. ft. freestanding sign identifying “Adirondack Financial and Planning Services”. Relief requested from setback requirements. Project Location: 294 Bay Road Tax Map Number(s): 302.8-2-15 Staff Notes: Sign Variance: The applicant proposes to construct a 12 sq. ft. freestanding sign. The sign is to be located 4 ft. from the property line where 15 ft. is required. The information submitted shows the location of the sign and the text of the sign. The sign is to be in the same visual line as adjoining businesses. The plans also show the building is also close to the property line. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 3/10/06. MR. ABBATE-The petitioner is at the table. Would you be kind enough, please, to identify yourself, speak into the microphone. MR. SABO-Yes, my name is Jacob Sabo. I’m the applicant and owner of 294 Bay Road. MR. ABBATE-Okay. Now, what we’d like you to do, you’re not represented by Counsel. MR. SABO-No. MR. ABBATE-What we’d like you to do is explain to us, in your own words, exactly why you feel we should honor your request, and if any time during the entire hearing, if there’s something you don’t understand, stop us, raise your hand, and we’ll make every effort to explain it to you. MR. SABO-Okay. Sounds good. MR. ABBATE-Tell us why you feel we should honor your request. MR. SABO-Well, based on the location of the building, in relation to the front property line is nine and a half feet. The building was pre-existing. It’s been there since 1910, and it was affected by the zone changes. It’s been an office building since the early 60’s. I’m proposing to put the sign basically in a visual line with the existing businesses on the same property. In order to do that, I’m going to need about 11 foot of relief, in order to construct the sign, basically. MR. ABBATE-Okay. Again, if at any time during this hearing, you think of something that might help your case, stop us, okay. 4 (Queensbury ZBA Meeting 03/22/06) MR. SABO-Okay. MR. ABBATE-Thank you very much. Do any members of the Board have any questions concerning Sign Variance No. 16-2006? MR. MC NULTY-Mr. Chairman, I do. MR. ABBATE-Yes, please. MR. MC NULTY-Has anybody determined exactly where the front property line is? MR. SABO-The front property line is the inside of the sidewalk. MR. MC NULTY-Okay. It’s in coincidence with that? MR. SABO-Yes, it is. MR. MC NULTY-Okay. You’ve said that you’re going to put your sign roughly in line with some of the others that are on the street? MR. SABO-Yes. MR. MC NULTY-I did some measuring today. It looks to me like, yours is going to be four feet from the sidewalk. MR. SABO-Yes, correct. MR. MC NULTY-Blackburn Gallery down the street towards Glens Falls from you is six feet from the sidewalk. The Warren County Association of Realtors is seven feet, and the Cost Control and Leudemann sign is about six feet. So you are going to be closer to the sidewalk than the other signs. MR. SABO-Well, unfortunately, due to the width of the sign, and the building nine and a half feet. MR. MC NULTY-Right. You do have the disadvantage that your building is closer to the sidewalk and the road than any of the others. MR. SABO-Exactly, and the truth be told, there was existing signage here that I’m, that’s been there for 30 years. It was Allen Powers’ old CPA office, and then it was Mary Marcy’s Realty USA office, and then, you know, it’s been 18 months since there’s a sign. So I’m basically proposing to put a sign back to where there’s always been one. That falls in line with the existing businesses. MR. ABBATE-Okay. Any other Board members have questions? MR. BRYANT-Mr. Chairman. You state, Mr. Sabo, in your application, that the purpose of your sign is so that your clientele can identify the business. Wouldn’t a feasible alternative, because of the closeness of the building to the property line, wouldn’t a feasible alternative be a wall sign? MR. SABO-Well, that’s certainly an alternative, but that doesn’t give any maximum exposure from people traveling both ways on the road, one. Two, if you look at the picture that I enclosed with the package here, you’ll see, with the location of the window on the front of the property, the steps that go into the entrance, there’s really no location on the front of the building that I can put a sign. So that’s really not an option for me there. MR. BRYANT-Thank you. MR. ABBATE-Any other Board members have any questions for Mr. Sabo? MR. STONE-I did have a problem with your sketch. I mean, the front of the building is parallel to the sidewalk, and then you have a little stoop and the railings coming down. Is that what you meant by this front entrance? 5 (Queensbury ZBA Meeting 03/22/06) MR. SABO-Yes, that is a front entrance, yes. MR. STONE-I realize, but I mean it looked, you’ve got that going all the way out to the road. That’s not construction. MR. SABO-Hold on, let me get to the map. Are you referencing this? MR. STONE-I am, yes. MR. SABO-Okay. MR. STONE-I mean, you say front entrance. Really, that’s steps coming down. MR. SABO-That’s the steps that come down, and then a sidewalk that goes to the main sidewalk. MR. STONE-And you don’t show me how far that is from the sidewalk. MR. SABO-Well, from the front of the building to the sidewalk is nine and a half feet. That is scaled there, one foot for each block. MR. STONE-Okay. MR. SABO-If you count up there, you’ll see that’s nine and a half feet exactly from the side of the building to the inside of that sidewalk, which is where the property line starts. Now, if you look to the right, the other property line is my neighbor, which is Kubricky. That’s exactly 23 feet over. So I’d meet that variance, that 15 foot setback, and then on the other side is Warren County Association of Realtors, and that’s about 25 feet in. So the sign is from the front of the building, centrally located, and I’m just asking for the relief so I can put my sign up, so I can adequately advertise my business for the convenience of my clients and my future customers. MR. STONE-My only problem is, as Mr. McNulty pointed out, you’re leading the pack, compared to what your neighbors have, and I don’t think we ever like to go further than anybody else is. MR. SABO-The edge of the sign is going to be roughly one foot from the building. I can’t really, I guess I could go another foot and put it against the building, but aesthetically, first of all, am I going to deal with footings when I’m dropping that signpost down. So that’s why the one foot relief. I tried to minimize how much relief I was asking for. Basically that sign would come one foot from the building and stick in the ground. The sign is 36 inches wide. Well you see the specs in the application. I mean, we are limited in sign design. MR. BRYANT-Couldn’t the sign come off the building? Couldn’t the sign come off the building? In other words, you’ve got space between the window and the front entrance. Could you fasten a sign perpendicular to the face of the building? Or couldn’t you fasten a sign to the corner of the building, I mean, to the right hand corner? MR. SABO-Well, if you go to the corner, at either side of the building, then I need a variance for that side of, for that property line, because if you look at the edge of my building, versus the property line, it’s ten feet from this property line, okay, and then on the other side it’s about another ten feet. So if I go to either corner of the building, I’m going to need two variances, and then if you’re asking me to set back, I’ll be back behind my building. MR. BRYANT-Well, generally the Board is more apt to give a side setback than a front setback. I’m just questioning whether or not you could relocate the sign to make it, you’re never going to be compliant, but at least to make it more palatable. MR. SABO-If you look at the picture, I think that really helps a lot. You can see that, unfortunately, I have a shared driveway with the Warren County Association of Realtors, okay. Down the center of that driveway is the property line, and then you’ll see a section of grass. That’s about five feet of grass, and then there’s my walk, and then you’ve got a big window there, and then you go to the other corner of the property, it’s another 10 feet to the other property line. Basically, what I’m describing to put this sign is so I can adequately advertise my business. It’s a two sided sign, which is equivalent to what Blackburn Galleries 6 (Queensbury ZBA Meeting 03/22/06) has, what the Warren County Association of Realtors has. I’m within all the other requirements other than the setback, and unfortunately, if my building with further back, I could move it back, but I can’t. MR. STONE-Well, as Mr. Bryant points out, it could go on the corner of the building, be attached to the corner. Yes, you would need a variance, but it would be less onerous, to me, and it would still stick out fairly far. MR. SABO-What corner are you talking about? MR. STONE-The south corner. MR. SABO-The south corner, where the tree is? MR. STONE-It can stick out into the opening, but it would be attached at the wall itself. So that you would need less. I mean, that’s a possibility. Or it could be on the other corner. MR. SABO-I’m a businessman, okay. I’ve moved into the community. I’ve moved my agency from Glens Falls to Queensbury. I’m basically asking to put my sign back where there was a sign. I’m looking at doing it with minimum setback requirements. I’m on the center of my property. I’m asking the setback four feet from the sidewalk. I’m going to put an eight foot freestanding sign that’s going to be, you’ll see a picture of it, professional, and that’s all I’m trying to do is maintain a professional image of our building, and adequately advertise our agency, and I don’t really see the difference of mounting it to the building or having it stick in the ground. MR. BRYANT-Let me ask you one more question, please. MR. SABO-Okay. MR. BRYANT-The type of business, financial planning is what it is? MR. SABO-Yes, sir. MR. BRYANT-And you don’t have people walk in off the street. You basically have clientele that call you up or contact you through seminars. I mean, this is not like a convenience store that people are going to walk off the street to buy a pack of gum because they see the sign. MR. SABO-Well, to be honest with you, yes, you’re right, most of our business is through referrals and stuff, but we do get people that do stop, you know, I mean, it’s not unheard of. MR. BRYANT-Okay. Thank you. MRS. HUNT-I have a question. How far is the bottom step to the sidewalk? Do you have any idea? MR. SABO-That’s a good question. I will, I’m going to estimate, it’s probably, the bottom of that step is probably about four foot. It falls in line with where the sign would be. Between four and, well, let me see, it would be about five and a half feet, excuse me. So the base of the steps are about four feet from the sidewalk. MR. ABBATE-Any other Board members have questions for Mr. Sabo? All right. If there are no other questions, I’m going to open up the public hearing for Sign Variance No. 16- 2006, and those wishing to be heard from the public, would you be kind enough to raise your hand and I’ll recognize you and ask you to come to the table. Is there anyone in the public this evening who would like to comment on Sign Variance No. 16-2006? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised. Okay. I’ll move on to the next stage, and before I ask members to offer their comments, I would like to inform the public that the comments offered by Board members are directed to the Chairman only, and comments expressed by the Board members to the Chairman are not open to debate. I’ll now ask Board members to offer their comments on Sign Variance No. 16-2006, but again, before I start, I’d like to respectfully 7 (Queensbury ZBA Meeting 03/22/06) remind the members that precedence mandates we concern ourselves with the evidence which appears on the record to support our conclusions. And the evidence relied upon should be specifically stated. This is necessary for an intelligent Judicial review. Additionally, any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project, and due process guarantees that government ensure a fair and open process, and Board members make decisions on reliable evidence contained in the record of Board deliberations. Now, in the event any of you wish a motion to include a condition, please, please, clearly spell out those conditions so that the Board member introducing the motion may include your condition with clarity. Having said that, may I please turn to Mr. Underwood, please. MR. UNDERWOOD-I think the applicant’s pretty much stated the facts regarding the sign request. Previously there’ve been two other signs that were existing in approximately the same location as he’s proposing his sign, and I think it would be onerous of us to request him to not put his sign there. It’s essentially the same as what exists on all the other properties surrounding it. This house is located the closest of all those surrounding properties, but I don’t think that really should affect our judgment in this instance here. I think that we can grant this relief that he’s requesting. MR. ABBATE-Thank you, Mr. Underwood. Ms. Hunt, please. MRS. HUNT-Thank you. I have to agree with Mr. Underwood. I don’t know that the benefit could be achieved by any other means feasible to the applicant. I went past there four times before located it because nobody has the number on their buildings, and I was glad to see that you have the number there. I don’t think there’ll be an undesirable change to the neighborhood character or nearby properties. I think the sign is in keeping with the others in the area. I don’t think the request is substantial, considering the fact that the building is so close to the sidewalk. I don’t think there will be any adverse physical or environmental effects and it’s self-created only in the fact that Mr. Sabo wants a sign to advertise his business location. So I would be in favor. MR. ABBATE-Thank you, Mrs. Hunt. Well, let’s throw him right back into the fire, Mr. Garrand, our newest alternate there. Please. MR. GARRAND-Well, first off, I don’t see how any benefit can be achieved in any other way, how the applicant can put another sign of that size on this property, given the building, how close it is to the sidewalk. I don’t think it’ll cause any undesirable change in the neighborhood. The neighboring properties also have signs. I don’t believe the request is substantial, and I don’t think it’ll have an adverse physical or environmental effects on the neighborhood. I think it’s pretty consistent with the other buildings in the neighborhood. The difficulty is not self-created. I don’t think the applicant’s responsible for the construction of the building and responsible for the relief that he needs here. So I’d be in favor of it. MR. ABBATE-Thank you, Mr. Garrand. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I understand that this building is closer to the property line than the other surrounding buildings. However, regardless of where the sign would go, you’re going to need a variance, but I think the sign should go closer to the building, or another feasible alternative is a wall sign, a sign attached to the building. As Mr. McNulty pointed out, he took accurate dimensions of the adjacent signs, and this particular sign as proposed would be two feet closer to the property line than any other sign in the surrounding area. So, in my view, there are feasible alternatives. Even though those feasible alternatives will still require a variance, I would be opposed to the application as it stands. MR. ABBATE-Okay. Thank you, Mr. Bryant. Mr. McNulty, please. MR. MC NULTY-Well, two or three thoughts. I think we’ve thoroughly examined the alternatives, with some of the suggestions that have been made. I don’t particularly like the alternatives. I don’t like the idea of this sign being four feet from the sidewalk, either, but, taking it as a whole, I think the sign that is proposed is probably more in keeping with the neighborhood, given the other signs that are in the neighborhood, and this is a little different than an Area Variance. This is a Sign Variance, and it’s governed by the Sign Ordinance that’s in a different section of our law, and I’ve quoted it several times, and I don’t have it in front of me at the moment, but it says something to the effect that we really shouldn’t grant 8 (Queensbury ZBA Meeting 03/22/06) a variance for a sign unless the applicant would be deprived of practical use of that sign if he did not receive the variance, and I think this is a case in point where the applicant would be deprived of the use of the sign, if it were made compliant. If he certainly put this type of a sign beside his building instead of in front of it, at least one side of it would be hidden. So I think considering everything, even though I don’t like it being that close to the road, I think what’s proposed is probably the most practical, and I’d be in favor. MR. ABBATE-Thank you, Mr. McNulty. Mr. Stone, please. MR. STONE-I think our last two members have very clearly identified the problem that all of us face here. I tend to agree more with Mr. Bryant. I think there is a feasible alternative, not a totally satisfactory one, but I think the applicant could, having heard our comments, say maybe I can split the difference, maybe I can put it next to the building. Maybe I can, closer to the front of the building, or put it on the corner. I don’t agree with Mr. McNulty, that if you hung it from the corner of the building, you’re still going to have a two-sided sign, and it’s going to stay out about as far this one. Since there are some feasible alternatives, and although I understand Mr. Sabo’s desire to have the sign where he wants it, I just think there’s enough opportunity to put it in a more compliant, recognizing it’s not going to ever be compliant, and we know that, but I think he can be more compliant without hurting Mr. Sabo and his business. So I would reluctantly have to vote no. MR. ABBATE-Thank you, Mr. Stone. I would support the majority opinion of the Board. I think that Mr. Sabo has made an effort to comply as best as he possibly can with the Sign Variances, and I suspect that one of the Board members made a statement that self-created. Well, self-creation in itself is not, in itself required to be denied. That doesn’t defeat a particular application. You are starting opening of a new business, and I think what you have requested, quite frankly, is reasonable, and I would support the application. Moving on, the public hearing is closed for Sign Variance No. 16-2006. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an sign variance. Please introduce your motion with clarity. MR. STONE-Mr. Chairman, this is an Unlisted Action. MR. ABBATE-This is an Unlisted Action. Thank you, Mr. Stone. Please read that into the record. MR. UNDERWOOD-Does the action exceed any Type I Threshold in 6NYCRR Part 617.4. Yes or no? No. I would say no. Will the action received coordinated review as provided for Unlisted Actions in 6 NYCRR, Part 617.6? No, it won’t. Could action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems? MR. STONE-No. MR. UNDERWOOD-Aesthetic, agriculture, archaeological, historic, or other natural or cultural resources; or community or neighborhood character? MR. STONE-No. MR. UNDERWOOD-Vegetation or fauna, fish, shellfish or other wildlife species, significant habitats, or threatened or endangered species? No. MRS. HUNT-No. MR. UNDERWOOD-A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources? MRS. HUNT-No. 9 (Queensbury ZBA Meeting 03/22/06) MR. UNDERWOOD-Growth, subsequent development, or related activities likely to be induced by the proposed action? MR. STONE-No. MR. UNDERWOOD-Long term, short term, cumulative or other effects not identified? No. MRS. HUNT-No. MR. STONE-No. MR. UNDERWOOD-Other impacts? No. MRS. HUNT-No. MR. UNDERWOOD-Will the project have an impact on the environmental characteristics that cause the establishment of a Critical Environmental Area? MR. STONE-No. MR. UNDERWOOD-Is there, or is there likely to be, controversy related to potential adverse environmental impacts? MR. STONE-No. MR. UNDERWOOD-I guess that’s it. MR. ABBATE-Okay. MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THE PROJECT, AND, UNLESS THERE’S A CHALLENGE FROM MEMBERS OF THE BOARD, I ACCEPT THAT BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES, AS SUCH I MOVE THAT THE SHORT ENVIRONMENTAL ASSESSMENT FORM BE APPROVED, Introduced by Charles Abbate who moved for its adoption, seconded by Lewis Stone: Duly adopted this 22 day of March, 2006, by the following vote: nd AYES: Mr. McNulty, Mrs. Hunt, Mr. Garrand, Mr. Bryant, Mr. Underwood, Mr. Stone, Mr. Abbate NOES: NONE ABSENT: Mr. Urrico MR. ABBATE-In a seven yes, zero no vote, the Short Environmental Assessment Form is approved. I respectfully remind the members that that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant a sign variance. Please introduce your motion with clarity. In the event a member does not understand the motion as stated, please advise me and I will request that the motion be repeated a second time. The motion itself is not subject to debate. Any member not favoring the motion may exercise their right to vote no, and/or introduce a motion to deny. Is there a motion for Sign Variance No. 16-2006? MOTION TO APPROVE SIGN VARIANCE NO. 16-2006 JACOB C. SABO, JR., Introduced by Joyce Hunt who moved for its adoption, seconded by James Underwood: 294 Bay Road. The applicant proposes a 12 square foot freestanding sign at eight feet high which will read 294 Adirondack Financial and Planning Services. The applicant requests 11 feet of front setback relief where 15 feet is the minimum from any property line, per Section 140-6. The balancing test, whether the benefit could be achieved by other means feasible to the applicant. There might be other means that could be used, but I don’t think that they would serve the purpose that the applicant wanted. Will there be an undesirable change in 10 (Queensbury ZBA Meeting 03/22/06) the neighborhood character or nearby properties? I don’t think so. The sign will be like the other signs on either side of the building. Whether the request is substantial. Not considering the situation of where the building is and where the sidewalk is and the property line. The request will not have any adverse physical or environmental effects and the alleged difficulty really is self-created only in the fact that Mr. Sabo wants to identify his business. So I make a motion that we approve Sign Variance No. 16-2006. Duly adopted this 22 day of March, 2006, by the following vote: nd AYES: Mr. Garrand, Mr. McNulty, Mrs. Hunt, Mr. Underwood, Mr. Abbate NOES: Mr. Bryant, Mr. Stone MR. ABBATE-The vote for Sign Variance No. 16-2006 is five yes, two no. Sign Variance No. 16-2006 is approved. MR. SABO-Thank you, folks. MR. ABBATE-You’re welcome. AREA VARIANCE NO. 86-2005 SEQRA TYPE II BRADFORD NERON OWNER(S): BRADFORD NERON ZONING LI-1A LOCATION 11 EAST DRIVE APPLICANT PROPOSES TO REPLACE A 294 SQ. FT. MOBILE HOME WITH A 1,522 SQ. FT. DOUBLE- WIDE. RELIEF REQUESTED FROM SIDE AND REAR YARD SETBACK REQUIREMENTS. RES. SET FOR TOWN BOARD ON DECEMBER 19, 2005, BP 2001-153 MOBILE HOME AV 2-2001, TOWN BOARD RES. NO. 4, 2001 REVOCABLE PERMIT TO LOCATE A MOBILE HOME OUTSIDE OF A MOBILE HOME COURT. WARREN CO. PLANNING N/A LOT SIZE 0.15 ACRES TAX MAP NO. 308.12-1-19 SECTION 179-4-030 MR. ABBATE-Is Mr. Neron here for Area Variance No. 86-2005? Mr. and Mrs. Neron? Let me address this to the Zoning Administrator. Have you heard from Mr. Neron? I think this has been going since September of last year. I haven’t, and I would gladly, if you choose to table until next week. MR. ABBATE-I would. MR. BROWN-Call him tomorrow, tell him to be here next Wednesday. Give him one more chance. MR. ABBATE-Yes. This is what I’m going to do, then. MOTION TO TABLE AREA VARIANCE NO. 86-2005 BRADFORD NERON, Introduced by Charles Abbate who moved for its adoption, seconded by James Underwood: 11 East Drive. Tabled to the March 29, 2006 hearing. Duly adopted this 22 day of March, 2006, by the following vote: nd MR. BRYANT-Mr. Chairman, may I ask Staff a question? MR. ABBATE-You may ask Staff a question. MR. BRYANT-What is to prohibit us from just denying the application? MR. ABBATE-We can hear it this evening. You just can’t deny it, but we can hear it this evening. The applicant doesn’t have to be here. We can hear it, if that’s what you choose. MR. BRYANT-No, no. I’m just questioning. Because this has gone on, originally there was a variance in 2001, and now we’re in 2005, and he doesn’t show up, and it’s postponed, and now it’s been postponed again, and again, and it’s, you know, you schedule these meetings based on hearing so many cases a night, and now we have all these tablings, we’re here for an hour and we go home. I mean, I don’t mind that, but the reality is, you know, when do we say enough is enough. 11 (Queensbury ZBA Meeting 03/22/06) MR. BROWN-Well, obviously we didn’t know that Mr. Neron wasn’t going to show up tonight, and I think you asked the question, can the Board hear this, and could we deny it? Sure. Any decision you guys make it obviously discretionary. There’s no information presented. If you deny the request, he just has to re-submit and he can try again, but, like I said, I’d be happy to call him and tell him to be here next Wednesday or else, and give him what the alternatives would be. MR. ABBATE-The Zoning Administrator is correct. We can actually hear the case without the applicant being here, but, because of the standard of fairness, I would like to postpone this thing until May the 24 , and at that time, ladies and gentlemen, I can assure you we will th make a decision. MR. BROWN-March the 29. th MR. UNDERWOOD-Next week we’re going to do it. We’ll do it next week. MR. ABBATE-This is the 22. All right. Let’s do this, guys. Let me move this to March nd 29. How’s that? Okay. th AYES: Mr. McNulty, Mr. Stone, Mrs. Hunt, Mr. Garrand, Mr. Underwood, Mr. Abbate NOES: Mr. Bryant ABSENT: Mr. Urrico MR. ABBATE-The vote is six yes, one no to table Area Variance No. 86-2005 to the March 29, 2006 hearing date. So be it. NOTICE OF APPEAL NO. 1-2006 SEQRA TYPE: N/A BRIAN GRANGER OWNER(S): BRIAN GRANGER ZONING: MU LOCATION: 18 & 20 NEWCOMB STREET APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION THAT THE PROPOSED PARKING GARAGE /FACILITY IS NOT AN ALLOWABLE USE IN THE MU ZONE. CROSS REF.: NOTICE OF APPEAL NO. 6-2005 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.45 & 0.16 ACRES TAX MAP NO. 309.10-1-61; 309.10-1-60 SECTION: 179-4-020 PAULA BERUBE, REPRESENTING APPLICANT, PRESENT; BRIAN GRANGER, PRESENT MR. UNDERWOOD-Before I read the Staff notes, maybe we should read the letters in, that were sent in, just so those are on the record. MR. ABBATE-Please. MR. UNDERWOOD-This was a letter from January 3, 2006, addressed to Craig Brown, Town of Queensbury Zoning Administrator, RE: Tax Map No. 309.10-1-61, aka 18 Newcomb Street “Dear Mr. Craig Brown: After meeting with Susan Barden, she asked that I request a written determination from you regarding using the above referenced property as a parking lot, which is allowed under the mixed-use zone. Enclosed is a drawing of the above- mentioned property. We intend to use this property strictly and solely as a parking lot for parking/short-term storage of automobiles and light trucks only. Under the mixed-use zone, parking garage/facility is allowed. Per the zoning ordinance: A parking facility is defined as “a public parking garage or parking area.” A parking area is defined as “any place, lot, parcel or yard used, in whole or in part, for storing or parking three or more motor vehicles under the provisions of this chapter.” Please be so kind as to provide me a written determination of this use, at your earliest convenience. Sincerely, Brian E. Granger” There was a follow up letter to that, to Mr. Granger from Craig Brown, addressed from the Town of Queensbury. “Dear Mr. Granger: I am writing to you in response to your January 3, 2006 letter to me regarding the above referenced property. I have reviewed your inquiry along with the applicable sections of the Town of Queensbury Code and offer the following. The property in question lies within a Mixed Use (MU) zoning district within the Town of Queensbury. A parking garage/facility is listed as an allowable use in the MU district upon Site Plan Review and approval by the Town of Queensbury Planning Board. It is unclear in your letter if you plan to use the property at 18 Newcomb Street in conjunction with the property at 20 Newcomb Street or as a stand alone facility. Therefore, at this time, I can only confirm that a Parking 12 (Queensbury ZBA Meeting 03/22/06) Garage/Facility us is allowable in this zone, however, without more specifics relative to your intended use, I cannot determine whether your proposal fits this definition. If you intend to use the property at 18 Newcomb Street as the storage yard for your repossession business then my previous determination along with the findings of the Zoning Board of Appeals relative to your Notice of Appeal (File NOT.AP 6-2005) will apply. Should you have any further questions, comments or concerns please feel free to contact this office. Sincerely, Town of Queensbury Craig Brown Zoning Administrator” And there was another letter after that. This was addressed from Mr. Granger, back again to the Town of Queensbury Community Development Department. “Please consider this my letter to appeal the Zoning Administrator’s January 9, 2006 decision regarding 18 Newcomb Street to be used as a parking lot only. It is my position that a parking area is a permitted use by strict interpretation of our zoning ordinance. We are asking to use 18 Newcomb Street (see enclosed drawing) as a parking lot only. We intend to use this property strictly and solely as a parking lot for parking/short-term storage of automobiles and light trucks only, exactly as defined under an allowed use in the mixed use zone. A parking area under the mixed-use zone is allowed per the zoning ordinance. (See the enclosed copy of Table 2 “Summary of Allowed Uses in Commercial Districts” that was faxed to me on May 17, 2005 before I purchased the property). A parking facility is defined as “a public parking garage or parking area.” A parking area is defined as “any place, lot, parcel or yard used in whole or in part or storing or parking three or more motor vehicles under the provisions of this chapter.” The Court of Appeals has held that zoning regulations are in derogation of the common law and must be strictly construed in favor of the property owner. Enclosed is a Record of Resolution regarding Appeal No. 04-2005 for 19 Newcomb Street (Essential Towing), specifically, Mr. Abbate’s motion for its adoption. Specifically it states: 19 Newcomb Street. The issue at hand is Mixed Use zone retail business: 1. Strict interpretation of our zoning ordinance. 2. Non-conforming use rights. Counsel for the appellant cites NYS Court of Appeals case 440 East 102 Street Corp nd vs. Murdock 285NY as well as NY Real Property Practice 4 Edition, section 38:01 vol. 3 In th fact there is strong authority that requires zoning ordinances to be interpreted as written and not as supposed or as thought to intend. See attached for your reference. Also enclosed are comments from the neighbors. We are asking the board to look at the actual use of the property as a parking lot only. We do not repair, service, or sell any vehicles that would define us as automobile use under the zoning ordinance. Sincerely, Brian Granger” MR. ABBATE-Okay. I think we have Mr. Granger here this evening, do we not? And you have your attorney with you, Mr. Granger? All right. I see that Mr. Granger and Counsel are at the table. Would you folks be kind enough, please, to speak into the microphone and identify yourselves, please. MS. BERUBE-Yes. Paula Nadeau Berube, Bartlett, Pontiff, Stewart & Rhodes, P.C., for Mr. Granger. MR. GRANGER-Brian Granger, 63 Wincoma Lane, Queensbury. MR. ABBATE-Thank you. MR. BROWN-Mr. Chairman, just procedurally, if I could interrupt for one second. MR. ABBATE-Yes. By all means. MR. BROWN-Do we have an authorization form in our file for you to? I mean, you could just sign the existing application. I don’t know, did you list her in the beginning as the attorney? MS. BERUBE-I was just retained. MR. BROWN-Okay. Well, could we just add her and have you sign that just so we have a record. MS. BERUBE-Would you like me to do that now? MR. BROWN-That would be great, yes. MR. ABBATE-Yes, would you please do it before we proceed? Thank you so much. If you’re ready, please proceed. 13 (Queensbury ZBA Meeting 03/22/06) MS. BERUBE-Yes, sir, thank you. As has been recited, Mr. Granger is here to Appeal the Zoning Administrator’s denial, or his determination that he cannot say whether or not 18 Newcomb Street can be used as a parking area without having more specific knowledge about what it’s to be used for. That’s my understanding of what the letter actually says, but under the strict interpretation of the Code, which must be done in this case, it is clear that the definitions, as set forth in the Town of Queensbury Code, clearly provide that a parking facility is an allowed use under a multi use zoning district, which has been acknowledged by the Zoning Administrator in his letter, as read into the record, and that a parking facility is defined as a public parking garage or parking area. There is a definition for parking area in the Code itself which says that a parking area is any place, lot, parcel or yard used in whole or in part for storing or parking three or more motor vehicles under the provisions of this chapter. It seems clear to us that 18 Newcomb Street is being used, well, is being proposed to be used, exactly for that purpose, which is the storage or parking of three or more motor vehicles under the provisions of the chapter, and under the strict interpretation of the Code, which is mandated, as is acknowledged by this Board in the decision cited by the Chairman, it seems quite clear that this is a permitted use and my client should be allowed to use this premises for that use. I don’t know what relevance there is to whatever is happening on the adjoining parcel, and I’m not sure whether or not the Board wants to even get into that, but clearly, with regard to the Triumph Auto Towing Service, which was approved by this Board across the street, it was clear by the submissions of Attorney O’Connor on behalf of his client in that case that there just simply was no real definition of a towing service in the Code, and this Board, correctly so, I believe, determined that under strict application of what was in the Code, the Towing Service was to be allowed, and it was allowed, and in fact with regard to this Towing Service, there is temporary storage of motor vehicles, which is the same use that my client is using it for. I know that he was here before you a few months ago discussing some of these issues, even though the previous application was specifically for 20 Newcomb Street and not 18 Newcomb Street. So, here the application is strictly with regard to 18 Newcomb Street. Just to talk a little bit about what’s happened leading up to these events, I know that Mr. Granger was not represented by Counsel the last time he was here. He did try to represent himself. My client did purchase both parcels, after speaking with someone here at the Town Planning Board, speaking with Susan Barden, he made approximately $100,000 worth of improvements, between the cost of the parcels themselves and the improvements, in order to make this property suitable for the use that he intended to use it for. I know that after the last time Mr. Granger was here, it was recommended to him by several members of the Board, after reading the minutes, that he have a conversation, perhaps, with the Zoning Administrator to talk this over again and perhaps discuss the options of a Use Variance, with regard to the adjoining parcel. My client did take the Board up on that recommendation. He did make an appointment to speak with the Zoning Administrator. The Zoning Administrator did not speak with my client. He sent Mrs. Barden to speak with my client instead, and to relay a message that a Use Variance would not be granted in this case. So, even though 20 Newcomb Street, I’m sorry, 18 Newcomb Street is not on the table, these are the kinds of things that are leading up to us being back before you today, and I don’t know if we want to muddy the waters with the adjoining parcel, but it seems clear, under the strict reading of the Statute and the Code and the definition set forth there, that the application should have been granted and should be granted by this Board. I know that it is not protocol for the Board to accept further documentation on the evening of this appeal. However, since I was just retained today, I would like the Board’s permission to submit some additional documentation, specifically the last time we were here, the Chairman requested a copy of the 440 E. 102 Street case, which my client was not able to provide to the court at that time. nd That was recited by Mr. O’Connor. I do have copies of that case available for every member of the Board. I also have a copy of a more recent case, since that was actually a 1941 case, which, you know, may be questioned at this point. MR. ABBATE-Counsel, if you have some documents you’d like to submit into evidence, if it’s reasonable, fine, please submit it. MS. BERUBE-Thank you. I shall. So the first, I made 10 copies of this 440 E. 102 Street nd case, which is cited at 285 NY 298, for some reason the page of that case didn’t get relayed on the original submission. In addition, I have another court of appeals case called FGL & L Property Corporation vs. City of Rye, which essentially just also stands for the proposition that the Code has to be strictly enforced in accordance with this plan and natural meaning. So, with the Board’s permission, and I thank you for that permission, I would like to give those out. MR. ABBATE-Would you pass those out now, please. 14 (Queensbury ZBA Meeting 03/22/06) MS. BERUBE-Sure. Now, if it’s voluminous, there may be a possibility we will have to take time in order to assimilate this information, but we’ll see as time goes by this evening. MS. BERUBE-I understand that, sir, and we have no objection to that. MR. STONE-Mr. Chairman, may I add, just for clarification. 18 and 20, you don’t show on the map. The one in question is 20. MR. GRANGER-The one in question is 18. MR. STONE-Is 18, because the map doesn’t give a number. MR. GRANGER-The map is 18. MR. ABBATE-Okay. I would request the Board members do this for me, please. I would request that you not raise any questions. Because after Counsel has gotten done presenting her case, I’m going to ask the Zoning Administrator to present his case, and then that will be the time, guys, but at the present time, I would appreciate it if you wouldn’t interrupt. MS. BERUBE-I apologize. I was reading 20 Newcomb Street at the top of the letter. That’s why I was confused, because that’s actually Mr. Granger’s address, and that threw me off. He’s correct. It is 18. I apologize. MR. ABBATE-Would you like to pass those out, please. MS. BERUBE-I would. MR. ABBATE-Thank you. MS. BERUBE-In addition to that, Mr. Chairman, I did make a photocopy of the letter which Attorney O’Connor had submitted in support of the application for the Triumph Glass variance, I’m sorry, not the variance, of the Essential Towing and Recovery, which I think is owned by the same, it’s at the same location. I do have a copy of the letter which Mr. O’Connor submitted in support of his client’s application for that use, and in fact I believe that the Chairman noted in the minutes following the hearing in that regard that the arguments raised in that letter were very insightful and helpful to the Board and that they were relevant. MR. ABBATE-Would you pass those out now, please. Thank you. MS. RADNER-Mr. Chairman, just for the record, so that the Board members understand their charge here, Mrs. Barden is not here today. The statements that were quoted as being relayed Mrs. Barden would be hearsay, and I would urge you not to consider those as necessarily being true. As I believe all the members of this Board know, the Zoning Administrator does not have the power to grant or deny a variance. Only this Board has that power. I believe Mrs. Barden’s well aware of that fact as well. The case law that you’re being handed now isn’t technically evidence. It will become a part of the record. It is, however, legal analysis. It’s not evidence. MR. ABBATE-Would you be kind enough to submit your legal analysis into the record, please, to clear the record. Thank you. Thank you, Counselor. MS. RADNER-You’re welcome. MR. ABBATE-Would you also see that our Town Counsel receives copies, please. MS. BERUBE-Yes. MR. ABBATE-Thank you. MS. BERUBE-Although I didn’t have time to have these photographs reproduced, I thought it might be helpful to the Board, we do have four photographs of the property in question. I think it would be helpful for the Board to be able to look at these. 15 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-Please. MS. BERUBE-I can indicate for the record, while you’re generally looking at those photographs, that the building depicted in the photographs is the office, that’s used by my client, and the adjoining parcel, which largely is, I think in most of the photographs you see a fence in front of it. That’s the adjoining parcel. Shall I continue while you’re looking? MR. ABBATE-Yes, please do. MS. BERUBE-Okay. With regard to the Staff notes, and I know that the Zoning Administrator will give his position in a moment, there seems to be an issue raised there that, does a parking facility or a parking garage need to be for a public use, and he indicates that the answer is yes. So I’d just like to address that now if I could. There’s no provision, in the Code or in the definitions here, that a parking facility/parking garage needs to be used for public use. In fact, the Code is very clear, and that’s why I read it. The definitions provide that a parking facility is a public parking garage or parking area. I think that the Zoning Administrator is trying to indicate that the definition really is a public parking garage or public parking area. That, indeed, is not what the definition is. It says a public parking garage or parking area, and a parking area is its owned defined term and is a couple of definitions above that. It’s not a Parking Area, Private, as is indicated. There’s a definition for that. It’s not a Parking Area, Public. It’s, in fact, just a parking area, and a parking area, again, is any place, lot, parcel or yard used in whole or in part for storing or parking three or more motor vehicles, and that’s the use that’s being utilized by my client. So I just wanted to address that issue. MR. ABBATE-Okay. Does that conclude your argument at the present time? MS. BERUBE-Yes, it does. MR. ABBATE-Okay. Mr. Zoning Administrator, please. MR. BROWN-Sure. I noted, when the application was read, we didn’t read the Staff notes. Do you want to read those before I comment? MR. ABBATE-Yes, please. Mr. Secretary, would you be kind enough to do that for me, please, read the Staff notes into the record. STAFF INPUT Notes from Staff, Notice of Appeal No. 1-2006, Brian Granger, Meeting Date: March 22, 2006 “Project Location: 18 Newcomb Street Information Requested: Appellant is appealing to the Zoning Board of Appeals relative to January 9, 2006 decision made by the Zoning Administrator that the proposed “parking lot” use at 18 Newcomb Street is not an allowable use in the Mixed Use, (MU) district. Staff comments: The Zoning Administrator letter of January 9, 2006 confirms that a Parking Garage/Facility is an allowable use in the Mixed Use district. Unfortunately, the Granger letter of January 3, 2006 does not clearly indicate, (in the opinion of the Zoning Administrator), the intended use of the property at 18 Newcomb Street with respect to the property at 20 Newcomb Street which is owned by Granger as well. If the property is to be used as a stand alone parking garage/facility, such facility will need to be available for public access in order to be considered an allowable use in the Mixed Use zone. The unasked question at hand seems to be; does a parking facility/parking garage need to be for public use? The answer is yes. A parking lot associated with an allowable use is a requirement under the off street parking and loading requirements. As such, it is not unreasonable to conclude that there is no need to have a separate use listed for parking if not intended for public use, not directly associated with an allowable use. 16 (Queensbury ZBA Meeting 03/22/06) Further, if the parking use in question is planned to be utilized in conjunction with an “office only” repossession business use at 20 Newcomb Street this matter has been decided already by the Zoning Board of Appeals per Notice of Appeal 6-2005.” MR. ABBATE-Mr. Zoning Administrator, please. MR. BROWN-Thank you. I guess I would only expand a little bit on the, maybe offer an analogy with respect to the parking facility. As I stated in the notes, you know, every use that’s listed in all of our zoning tables, part of the development of that use is parking that’s associated with the particular type of use, based on square footage, number of seats in a restaurant, number of people in a church, there’s a parking calculation and a minimum parking requirement that’s required for every use. Specifically in the Mixed Use zoning district, and I believe at least one other district in the Town, maybe the Highway Commercial district, parking facility, parking area/parking facility is listed as a separate allowable use, which means you could have a standalone parking garage, which doesn’t have to be associated with any other use, which leads me to believe, and I guess I would have to agree that the appellant’s counsel has correctly identified my interpretation is that a parking area, the parking facility, is a public parking garage, and I would also read that as a public parking area. Within that definition, it doesn’t make sense to have a public parking garage and a non-public parking garage. You’d have to read both of them to be public to make the definition consistent. So, you know, my position is if you have a use in a zoning district, or in any place in Town, the use has to be an allowable use, and the parking that goes with it is then accessory to that use. If we had a trash recycling plant, and the parking that’s associated with that, you couldn’t have the parking for the trash recycling plant unless the trash recycling plant was an allowable use in that zone. So, if what we’re talking about here is a standalone public parking garage, I completely agree, as I stated in my letter. That use is an allowable use in the zone, subject to Site Plan Review. If it’s associated with a non- allowable use that’s in the Mixed Use zoning district, it’s not allowed. So, hopefully that clears things up. MR. ABBATE-Okay. All right. Counsel, do you wish to? Please. MS. BERUBE-Yes, sir. Again, as I’ve already stated. The definition says what it says. It says a, for parking facility, it says a public parking garage or parking area. If it was going to say parking area, public, there’s a definition for that, and the Code would so state. If it was going to say parking area, private, there’s a definition for that, and the Code would so state. The Code does not so state. It says parking area, and the parking area definition is very, very clear, and I’ve read it three times. MR. ABBATE-Read it again, please. MS. BERUBE-Okay. Any place, lot, parcel or yard used in whole or in part for storing or parking three or more motor vehicles under the provisions of this chapter. There are times when there is something that can be a parking area that is actually not a parking area, private or a parking area, public. That’s why there are three definitions. For example, if we take the Double A Provisions store, which I’m sure you’re familiar with, they actually have a parking lot on a lot across the street, which is for employee parking only, and there are more than three cars that are parked there. That’s a parking area. That’s not a parking area, public, because it’s not open to the public. There’s actually a sign which indicates employees only, all others would be towed. It’s not a parking area, private because private parking areas can only have three or less motor vehicles. So this is an example of a parking area. The people who drafted this Code knew what they were doing, and the Board is obligated to follow the terms of the Code. To me, it’s seriously that simple, and again, the argument that if it’s associated with a non-allowable use it’s not allowed, I don’t see where that is in the Code. For example, if Mr. Granger owned another piece of land up the street, and he decided to have an office there, does that mean he couldn’t use the other parcel he has down at 18 Newcomb Street as a parking area? I don’t understand how those two go hand and hand, and I don’t know where that is in the Code, that there is such a restriction. MR. ABBATE-Okay. You get one final rebuttal and then we’ll continue. MR. BROWN-Well, hopefully it won’t be a final rebuttal, but with the response to Counsel’s position on the Double A parking lot, that parking’s associated with an approved use in that zoning district, albeit it a use that’s not listed in the zoning tables as an allowable use. It’s been granted a Use Variance and the parking is accessory to that use. 17 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-Okay. All right. Thank you. All right now I’m going to continue on, both individual parties have had their say, and I’m going to proceed and ask if any of the Board members have any questions for either the appellant or the Zoning Administrator. Please, Mr. Bryant, I think you wanted to raise an issue. MR. BRYANT-Thank you. Just a clarification, Mr. Brown. When you talking about parking area/parking facility, I want to understand exactly your train of thought there, relative to that whole aspect. Are you saying that there’s a retail business already there, okay, and he has parking associated with that retail business which is an allowable use, okay. Now this parking area, if he only had that whole property was a parking area, then it’s an allowable use. However, having the retail business and a parking area, which are two separate uses, is that what you’re saying? MR. BROWN-I don’t think so. MR. BRYANT-Okay. MR. BROWN-Certainly, if you have, and if you said he has an allowable retail use there, which he doesn’t, but hypothetically, if there was an allowable retail use on the site, at 20, that’s the house parcel next door, if there’s an allowable retail use at 20 Newcomb Street, and the parking for that allowable retail use is at 18 Newcomb Street, that’s certainly fine. If one or the other parcels wants to be a parking, standalone parking facility, hey, this is Main Street’s parking garage, that’s an allowable use in that zoning district. If the use of that property for any kind of parking garage/parking facility, is associated with a use that’s not allowed in that district, the parking’s not allowed. If the use isn’t allowed, the parking’s not allowed. So, again, my position is that in order to qualify as a parking garage/parking facility, is the way it’s listed in the use table, that has to be a public facility, not private to a use, especially a use that may not be allowed. MR. BRYANT-So you’re saying that the repo business is not necessarily an allowable use in that district, and therefore, is that what Mr. Granger is appealing? Maybe he should be asking for a Use Variance. MR. BROWN-Well, that decision is a decision that this Board came to. I made the determination that was appealed to this Board, and the Board agreed with that determination. I’m not sure I can direct Mr. Granger what he should or shouldn’t appeal, but I think the issue at hand is, does it have to be public? I think that’s the issue that they’re trying to get to the bottom of here. MR. BRYANT-Okay. Thank you very much. MR. ABBATE-I have a question for Mr. Granger or Counsel. Is it your intention to use this property as an auto repossessing business? MS. BERUBE-I think that’s a simplistic way to put it, sir. MR. ABBATE-Then put it in a sophisticated manner. MS. BERUBE-Okay. Because specifically what we have here is we have an office, which is an allowed use in the Mixed Use zone, and we have this property, where these vehicles go back and forth. They don’t necessarily have to be next to each other. They happen to be next to each other, but our position is that both of those things are allowed uses, and in fact Mr. Brown has indicated to my client that an office is an allowed use in this zone, when discussing this very subject. So that’s my response in that regard. MR. ABBATE-Well, let me ask the question again. I just want a simple yes or no response. MS. BERUBE-Okay. MR. ABBATE-Is it the intention of your client to use this property as an automobile repossessing business? Yes or no? MS. BERUBE-Which property, sir? 18 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-The 18, 20? MS. BERUBE-It is my client’s intention to use 20 as an office building, and to use 18 as a parking area. MR. ABBATE-And in each of those cases, there is no intention of your client using this property as an automobile repossession business, correct? MS. BERUBE-That is my client’s business, yes, that’s my client’s business. MR. ABBATE-Well, no, it’s our business, too, because, if your client intends on doing that, we’ve already made the decision, I think it was 6-2006, is it not? MR. BROWN-No, I think she’s agreeing that that’s his line of work. MR. ABBATE-Yes, that’s his line of work. So, for the record, that is his line of work. All right. Thank you, folks. MR. MC NULTY-Kind of along the same line, the property that is requested for parking, that is not a separate business. MS. BERUBE-No, sir. MR. MC NULTY-Okay, because what I would ask the Staff, you know, if it were a separate business, if it were John Smith that owned that property, and he wanted to establish a parking facility and lease the use of it exclusively to another business, would that be allowed? MR. BROWN-It depends on what use you’re talking about using the property for. Again, the use has to be an allowable use. I can’t exhaust all the possibilities here. I think I’ve made it clear what my position is. MR. ABBATE-Let me ask you a simple question, then. The property that’s in question this evening is automobile repossession business. Is that an allowable use? MR. BROWN-Again, that’s been decided before. MR. ABBATE-And how was it decided? MR. BROWN-I’ve decided that in the Mixed Use zone, that type of business is not an allowable use, and this Board’s agreed with that position. MR. ABBATE-And I believe Variance No. 6-2006, if I’m not mistaken? MR. BROWN-I think it was an Appeal. MR. MC NULTY-2005. MR. ABBATE-2005. MR. BROWN-Appeal 2005. MR. ABBATE-I think this Board came to the same conclusion. MR. BROWN-Right. MR. ABBATE-Okay. MR. BROWN-But again, I don’t think we’re talking about, is an auto repossession business allowable. I think we’re focusing on, does it have to be public or not. MR. ABBATE-You can’t separate them both. MR. BROWN-Okay. I just want to make sure we stay on track. 19 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-All right. Any other Board members? I have a comment here I’d like to bring to the attention of Counselor. In the New York State Zoning Law and Practice in, Section 38-63, and the reason I raise that issue is because your client introduced that into the record, there’s a definition of Parking Garage and it’s defined as, Parking Garage is defined as open to the public, in which licensed motor vehicles used for personal conveyance or conveyance of passengers are parked. It also explains parking lots, in that same section, is defined as open lot are open which serves in whole or part as a parking area for buildings or uses not on the same lot which serves as a parking area for the general public and is not specifically related to any particular building use. Then it goes on to explain Parking Lot, Public is defined as a lot or parcel of land or portion thereof used solely for the parking of motor vehicles by the public for limited periods. Such parking may or may not require compensation, and shall be considered the principal use of such lot as area used for the parking of motor vehicles as an accessory use shall not be considered a public parking lot. Just for your information. Anybody else have any questions? MS. BERUBE-If I might, Mr. Chairman, however, the definitions that you’re reading, and I understand that you’re referring to something that was referred to in Mr. O’Connor’s letter, that’s not the definitions that are actually employed in the Town of Queensbury Code. There is, it’s not parking lot, it’s parking area, and in fact there are three separate and distinct definitions in that regard. MR. ABBATE-And those three are stated as the parking facility, parking area, and parking area, private. MS. BERUBE-And Parking Area, Public, yes, sir. MR. ABBATE-Okay. Thank you. Anyone else? MR. STONE-Well, let me just comment. It’s not really a question. I’ve been hung up, from the beginning, on the word “public”. I mean, I hear Counsel’s very erudite statement that public only applies to the first noun. In my understanding, I don’t know how else you would write it without redundancy. Public applies to both following nouns, both the parking garage or the parking area, in my judgment, and that’s what I think the Zoning Administrator is saying and I see no reason to dispute that. MS. BERUBE-I would agree with you, sir, if there wasn’t already three separate definitions. I would agree with you, sir, if there was not a specific definition that says parking area, and there wasn’t one that says parking area, public, and parking area, private. I would certainly agree with you that that would be a reasonable construction. However, under strict construction, which the Board is obligated to utilize, I don’t think that we can enforce that. MR. UNDERWOOD-If our Code, though, says parking area, private, then clearly parking area, private is a permitted activity, you know, I mean, I don’t think that we need to get hung up on whether it’s public or private. Certainly we have private parking located throughout the Town. We’re not going to negate people’s use of parking lots as private facilities, and I think that’s what needs to be addressed here this evening by Mr. Brown and all of us, just as a point of reference. MR. ABBATE-I’m just going to ask Town Counsel. Town Counsel, I think we need some clarification. MS. RADNER-The listed use is not parking area, as the allowed use in the commercial district. What is listed is parking garage facility, and that’s in the Summary of Allowed Uses in Commercial Districts. MR. UNDERWOOD-Do we have a parking garage facility located within our community? We don’t even have one in our community. MS. RADNER-That’s not the issue, though. If somebody wants to come to our Town and place one, they need to find places where it’s allowed, and that’s where it would be allowed. If you then turn to the Definitions that are in our Zoning Ordinance, they’re in alphabetical order and you’ve got parking area, parking area, private; parking area, public; parking facility. Parking Facility is the one that’s listed in the Table of Uses. The definition of Parking Facility reads, a public parking garage or parking area. Mr. Brown has made the interpretation that in that sentence it’s, the word “public” applies to both parking garage or 20 (Queensbury ZBA Meeting 03/22/06) parking area, and what Ms. Berube, if I can paraphrase for her, is urging you to do is to read into that, or parking area as defined as above. So that it puts it into the general definition of Parking Area rather than either of these separate ones, private or public. Mr. Brown’s interpretation is that that sentence stands alone and it’s a public parking garage or public parking area, that the adjective public applies to both. MR. ABBATE-Right, and for the record, I’d like to just state this, too. That the Zoning Administrator, Mr. Brown is limited to the enforcement of local laws and ordinances, as written. There is no room for discretion. MS. RADNER-Well, Mr. Brown, as the Zoning Administrator, is the individual charged, under our Town Code, with interpreting the Town Zoning Ordinance, and his interpretations stand unless appealed to and overridden by this Board. MR. ABBATE-Okay. Thank you, Counselor. MR. MC NULTY-Mr. Chairman, another question just occurred to me. MR. ABBATE-By all means, please. MR. MC NULTY-In the use of the proposed lot, how do the vehicles normally get to the lot? MR. GRANGER-Driving them. MR. MC NULTY-Okay. Individually driven in. How do they usually leave the lot? MR. GRANGER-Transport truck. MR. MC NULTY-Okay. So you’re going to have a transport truck picking these up. MR. GRANGER-Transport trucks come in after nine o’clock in the morning, Monday through Friday, and they have to be there before three o’clock in the afternoon. The driveway going to the parking lot is large enough for them to come in, too. So they’re not loading them in the street. MR. MC NULTY-Okay. MS. BERUBE-That one picture that I handed around, which was of a vehicle, I didn’t explain what that was. That’s actually the vehicle that’s the tow vehicle, so to speak. It doesn’t look like a tow truck. It’s something that’s actually kind of a two ton truck, I believe it is, and it’s a low-profile type of thing, not the kind of tow truck that you would normally talk about. MR. GRANGER-I’d like to back up and clarify a couple of things. We were here the last time, I wasn’t prepared, I’ll admit that. I don’t come before the Board. That’s why I have Counsel with me this time. You asked me to go back to the Zoning Administrator and see if I could work this out for an appeal. I asked to meet with Mr. Brown. Susan Barden met with me and said I don’t qualify for an appeal. The Zoning Administrator did not believe that I qualified for a variance because I couldn’t show hardship. Susan Barden asked me to write two letters, because they’re two separate parcels. Ask to use the office as an office. Ask to use the parking lot as a parking lot, and that’s what brings us here. Whether it’s a repossession business or not, I believe you have to look at the actual use of the property. Repossessions don’t occur on Newcomb Street. We go elsewhere to do it. So what’s the property used for? Twenty Newcomb Street is strictly an office. Not open to the public, no sign, no advertising, and 18 Newcomb Street is simply a parking lot to park cars short-term. That’s it, and under the zone to be required as automotive use, it says to repair, sell, or body work. I don’t do any of those things. So we’re looking at the actual use of the two parcels. Mr. Brown agreed, finally, that I could use 20 Newcomb Street as my office. So that’s where my repossession business office is. I’m asking you to use 18 Newcomb Street strictly and solely as a parking lot. I meet the permeability requirements, I’m only using about 48% or 52% of the lot on there. It’s set back off the road, and that’s what brings us here tonight. I’m doing exactly what you suggested, went back to the Town, looked at this, there were two separate parcels. I met with Mr. Brown, Mrs. Barden, and Tim Brewer on this, and that’s what brings us back here tonight. I believe, and a lot of other people believe, that have looked at this, other business associates and another attorney who’s looked at this, that I’m doing everything 21 (Queensbury ZBA Meeting 03/22/06) that’s allowed in the zone, and I’m, personally, having a tough time with this whole thing with the Town, based on the fact that I asked before I bought the property, and that’s documented not only by myself, but my realtor who represented me at the time also called up and asked. I didn’t believe that I’m doing anything that’s not allowed in the zone. I still note that. I didn’t believe it then when I bought the property, and we’re asking tonight, again, I’m asking to use 18 Newcomb Street solely and strictly as a parking lot that’s allowed in the zone, and under this Parking Facility, it says Public Parking Garage or Parking Area. It doesn’t say, “and”, it says “or”, and there’s a lot of parking lots in the Town that are not for the public use, employee parking lots or fenced off areas, and when we were here the last time on the appeal, it said it was to be under a Highway Commercial zone. I don’t want to be on Quaker Road with a fence full of cars. I want to be someplace where nobody sees us. MR. ABBATE-Okay. Help me out. Explain to me what it means by a fence full of cars. Are they cars in excess of three? MR. GRANGER-Yes. We’re parking approximately 20 cars. It fluctuates. MR. BRYANT-I want to ask you a question, Mr. Granger, relative to something you just said. You said that as far as 20 was concerned, that Mr. Brown had approved you having your office there. MR. GRANGER-He said, Mr. Brown said that I could have my office at 20 Newcomb Street. That’s not the issue. MR. BRYANT-That’s not an allowable use in the area. So how does that happen? MR. BROWN-Well, if it’s an office only, and there’s no vehicle activity there, other than telephone calls, faxes, e-mails, whatever, if it’s an office use only, that’s fine. That’s certainly an allowable use in that zone. The other aspect, from what I understand, and I don’t know that much about the business, or at least not as much as Mr. Granger, if the storage of vehicles, the dispatching of trucks, the pick up of cars, the returning of vehicles to the site, that’s not part of just the office use. Now that’s the storage part of it. MR. BRYANT-But that’s a separate lot. MR. BROWN-Well, even if it was on the same lot, if it’s just office only, that’s what. MR. BRYANT-Staying on that train of thought, now, okay, because part of the argument was that because it’s not an allowable use, therefore the parking area would not be allowed for that allowable use. Well, now you’re saying that that is an allowable use. It’s an office. MR. BROWN-The office portion of it is allowable. That’s correct. MR. BRYANT-Okay. So now the parking area should then be allowed because it’s an allowable use. MR. BROWN-For the employees, that’s correct. MR. GRANGER-My employees are the only ones that have access to that lot. MR. BROWN-But they’re not the only vehicles in that lot, and again, I don’t think that’s the issue that we’re talking about here. I’ll answer questions. MR. BRYANT-No, no, no. I want to be clear, because, frankly, the discussion of the or or the and, you know, Counsel is correct when you look at bouillon comparisons. The public can’t, when you use “or”, cannot be assumed on both sides of the equation, but if they used “and”, public would automatically be assumed. So in that respect, you’re correct. I think the issue is relative to what you said that the fact that it’s a non-allowable use that the parking would then be not allowed, and if now you’re saying that office, which an office is an allowable use, is copasetic, then it should, we should come to the conclusion that the parking area, then, is also allowed. MR. BROWN-Well, let me just go back to the analogy that I started with before. If you’ve got a trash recycling business, and you want to have the office facilities for that trash recycling business in a zoning district, if office use is allowed in that district, you can have the 22 (Queensbury ZBA Meeting 03/22/06) offices for that trash recycling business in that zone. Can you site the trash recycling plant in that zone? No. You can have the administrative offices there, but you can’t have the other portions of the use that are outside the office use. MR. BRYANT-Well, what makes the repossession area, I mean, it is a storage area, a parking area. So what makes that not a legitimate area? I’m not understanding. MR. BROWN-Well, again, the decision that was rendered last year and that was brought before this Board on appeal was, does an auto repossession business constitute an auto use. I decided that it did. Mr. Granger decided that he didn’t think that it did, brought it to this Board, and the Board agreed that it did constitute an auto use. MR. GRANGER-This is the question of the hour, which I’ve asked several times and can’t get a direct answer. What am I doing on that property that’s not allowed, and you can’t just say auto repossessions. Repossessions don’t occur on Newcomb Street. I have an office and a parking lot. So, specifically, Mr. Brown, what am I doing on that property specifically that is not the allowable portion? MR. ABBATE-Hang on for a second, no. It doesn’t operate that way. We don’t have debates on this thing. The Zoning Board of Appeals, it’s true, is an adversarial hearing, but that only pertains to the Zoning Board of Appeals members, you are not allowed to cross examine. MR. GRANGER-Okay. MR. UNDERWOOD-Here’s a question for you, Craig. If we have an apparent towing business that was permitted at Triumph Auto Glass. MR. BROWN-On a separate piece of property. MR. UNDERWOOD-On a separate piece of property, it has nothing to do with this operation. MS. BERUBE-Except that it’s across the street. MR. UNDERWOOD-Except it’s across the street. That involves bringing cars in. Removing cars off site. How is that any different than what we have here, in essence? I mean, this guy’s bringing cars back. He’s parking them there temporarily, and then he’s removing them, and I think that’s essentially what’s been established in the neighborhood already, in a previous instance, and I agree with what you’re saying, but I’m just saying, how is this any less benign than that, or any more malignant than that activity that’s occurring there? Is there a difference between them? MR. BROWN-Well, in my mind, no. With Essential Towing, my determination was that that use wasn’t allowed, either. That wasn’t backed up by this Board. I determined that Mr. Granger’s proposed use wasn’t allowed in this district. That one was supported. So the differences are based in this Board. My position’s been the same for both applications, that neither use is allowable in the Mixed Use district because they’re both auto uses. MR. UNDERWOOD-What do you do, though, I mean, what is Counsel going to say, though, in that regard? In other words, you’re permitting one guy on one side of the street to do something and the other guy on the other side you’re saying no? I mean, I don’t see how you balance that out legally. MR. BROWN-Just for the record, I’m saying no to both. MR. UNDERWOOD-I knew you did. MS. RADNER-Remember, your charge here tonight is to consider this application, and the issue before you tonight isn’t the request for the repo business. It’s solely the review of the determination that the parking facility can’t be allowed if it’s part and parcel of an auto repossession business. It’s a narrow issue. 23 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-And that goes back to the question I asked Counsel. Is it the intention of your client to use this property as an auto repossession business? And if it is, it’s not allowed. That’s what I said initially. MS. RADNER-That’s the determination Mr. Brown has made. MS. BERUBE-I think, though, that Mr. Underwood is completely correct. That there has to be some consistency, though. When the Board has already ruled that a towing service which allows temporary use and storage of automobiles is an allowed use, I don’t see how you can discriminate against my client and indicate that his is not an allowed use. MS. RADNER-But, Ms. Berube, that appeal was already before this Board and that was not, there was no further appeal taken from that determination. So that’s not the issue we’re on tonight. MS. BERUBE-I understand your position in that regard, except that my client did ask for that matter to be tabled, and his request in that regard was not granted. So while I appreciate your position, I’m just trying to make this thing right at this point. He was not represented by Counsel. He asked for the matter to be tabled. It went forward, and I do agree that technically his time to appeal that has run. However, when you look at it in conjunction with your own ruling, with regard to 4-2005, I just, I can’t see the difference. MR. UNDERWOOD-I would just ask one more question of Counsel, our Counsel. Mr. O’Connor, in his summation, his primary point, and this was the point that we decided, you know, in favor of overturning Mr. Brown’s determination at that point was, by strict interpretation, a towing service that does not do body or repair services is a retail business permitted in this zone, and it says, even if the towing service is determined not to be a permitted use under the present zoning classification of the property, one needs to look at what is actually on the site. Well, that was referring to Triumph Glass. So essentially, I want to know, if they’re not going to do body or repair services here, if they’re just strictly moving a car on site and removing it off site, I mean, I think you’ve established that the office is a permitted activity. So our point of review tonight is we have to make a determination whether or not parking is an allowed facility for that specific use, moving vehicles on and off. It would seem to me, in light of that fact, what is parking, all right. Parking is the moving of vehicles onto a site and later the removing of those vehicles off the site, in regards to whether it’s public or private. It doesn’t make any difference. It’s the same thing occurring over and over again. So, I don’t know, where does that put us at the present time? I don’t know. MR. BROWN-You may want to consider this. If Mr. Granger leaves the premises, another office use comes in there, an office use for an auto body repair shop, has their offices there, they don’t want to do any auto service or auto repair on the site, but they want to use his parking facility, once he constructs it, to park all of their half dismantled, half completed cars on the site, no repair, no service at all, just storage of those types of vehicles, I mean, that’s the potential that we’re looking at here. MR. UNDERWOOD-But that’s hypothetical. MR. BROWN-Sure. MR. UNDERWOOD-I mean, I think that he’s established that he’s taking cars from somewhere else, moving them here, later on he’s moving them somewhere else. I mean, that’s essentially it. I mean, we have to look at it in the narrow parameters of what’s proposed on site, and I think that that’s what we need to be clear on. MS. RADNER-You said that there was a question for Counsel, but I didn’t really hear one in there. MR. UNDERWOOD-Well, my only question would be this. They have established what they want to use the site for. All right. I think that we’re, I think that the way that Craig has analyzed it in his mind is fine with Craig, all right, but I think that in our own minds, we have to establish, what is the use of this site. I mean, whether it was used for parking for any purpose whatsoever, would parking be permitted in a parking lot if it was established on that site. Yes or no. MR. BROWN-Would parking be permitted? 24 (Queensbury ZBA Meeting 03/22/06) MR. UNDERWOOD-If it was a parking lot, it is a parking lot, I mean, t here’s no question that it’s a parking lot. MS. RADNER-Yes, that’s basically what the question comes down to tonight. Do you agree with his determination that it is something other than a parking facility by virtue of the fact that it’s going on in conjunction with the repo business. That’s the determination Craig has made, and you each have to look at the Code and look at the record and vote yes or no. MR. BROWN-And further, in my determination from Mr. Granger about the allowability of 20 Newcomb Street for the office business, I don’t have a copy of it in front of me. Maybe they have a copy of my determination letter. I’m fairly certain I was very specific that it was office use only, and I made a clear determination about parking of vehicles other than employee parking. That determination hasn’t been appealed. I was very explicit about the use of the office, or the property as office only, not for parking of any repossessed cars. MR. GARRAND-Question for Mr. Granger and Counsel. It says in your application, use 18 Newcomb Street as a parking area. It doesn’t say anything about parking facility. I just want to clarify that, it’s just a parking area. MR. GRANGER-Right. MR. GARRAND-Okay. So no public parking whatsoever? MR. GRANGER-No. MR. GARRAND-Okay. My next question is, what hours would you be expecting vehicles to come into this lot at? Sometimes the nature of your business. MR. GRANGER-Is the moonlight hours. MR. GARRAND-Yes, and that’s another consideration. MR. GRANGER-Okay. Let me give you the gist. I’m not a huge company, okay. We do repossess, 150, 200 cars per month. However, a lot of what we do is in the Albany area, and the auction is the one in Clifton Park. We don’t tow the cars all the way back up to Queensbury, turn around and tow them back down there three days later. So, basically, on a weekly basis, we bring in to that facility approximately 25 cars. Out of those, in the repossession business, 25 to 35% are voluntary. So that’s obviously done during the day. Occasionally, yes, we’re in there at night, but not all night long, not in and out. Maybe once, and that’s five days a week. During the weekends we do our work early in the morning hours. The trucks are already home with us at night. We go out in the morning, we come back at eight, ten o’clock in the morning, put a car away or two cars away, then we go home. So it’s a total, for the whole week, of a turn over of approximately 25 cars, and that’s it. I’m not coming in and out all night long. MS. BERUBE-And there is, as the record reflects, there are many statements from all of the adjoining neighbors who all approve of it, and don’t have any problems with the use. MR. ABBATE-That was submitted into the record previously, I do believe. MS. BERUBE-Yes, sir, and today as well. MRS. HUNT-I have a question. MR. ABBATE-Yes, by all means. MRS. HUNT-If the parking facility at 18 Newcomb Street was open to the public, that would be acceptable? MR. BROWN-That’s right. MR. MC NULTY-More of a comment than anything, but as long as we’ve been kicking around this whole thing. One thing that’s striking me, well, two things, I guess, one is we’ve established that a total repossession activity in this zone is not permitted. 25 (Queensbury ZBA Meeting 03/22/06) MR. ABBATE-Correct. MR. MC NULTY-Here we’re trying to piecemeal it to make it acceptable. I’m not sure where I go with that, other than I think that’s what’s happening. Second thing, it strikes me that the proposed activity for this parking lot, if you will, while not intense, closer approximates that of an auto dealership than it does a parking lot. If these cars were coming in individually driven and leaving individually driven, that would be one thing, but they’re coming in one at a time. They’re leaving on a car transport, and it strikes me that that may make this a little different than a normal parking lot. MR. ABBATE-Okay. Thank you. All right. If there are no more questions, I’m going to open this up to the public hearing and I’m going to request that any of the folks in the public who wish to comment on Appeal No. 1-2006, raise your hands. MR. UNDERWOOD-I have one piece of correspondence. I would remind you that we had numerous letters from the neighborhood that were sent in previously, and they were all in support of this, but this is the only one that we have received of recent vintage. This was received on February 14, 2006, from Century 21. “To Whom It May Concern: On or about May 1, 2005, Brian Granger called me at Century 21 Boyle Real Estate in Glens Falls. He asked if I would assist him in locating a property in the Mixed Use zoning areas of Queensbury. I located a property at 18-20 Newcomb Street. I verified the Mixed Use zoning on the Town website and I also called the Town offices. I spoke with Pam Whiting. She was very helpful and said Newcomb Street was zoned “Mixed Use”. I then read the definition of Mixed Use on the Town website. My understanding and ability to read such definitions appeared to verify my client’s intended use of the property to “park cars”. On or about May 2 or 3 I called Mrs. Whiting again to see if my understanding of Mixed Use was valid. She ndrd read the definition of Mixed Use and reviewed a summary of tables, I believe Section 179-2- 010 and 179-3-040, and letter “D” meaning “other”. Our conversation included the following uses: bank, corner store, day care and parking area, defined as use to park three or more cars/vehicles or store. I said my client planned to only park or store cars short term, meaning several days, on the property. Mrs. Whiting indicated that my client’s intended use of the property appeared to be within the definition. I had no discussion nor was it suggested that a written determination of use of the property was required. It appeared the stated intent of use of the property was clearly written within the definition of use. Thank you, Greg Boggia, Sales Associate” That’s it. MR. ABBATE-Okay. Thank you. I’m going to request Board members now to offer their commentary, and I’m going to respectfully remind the members that precedence mandates we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated. This is necessary for an intelligent judicial review. I’ll remind the folks here tonight that comments made by Board members are made to the Chairman, they are not going to be open or subject to debate. So, having said that, I’d prefer to ask for a volunteer first on this one. Do we have a volunteer? MR. MC NULTY-I’ll go. MR. ABBATE-Yes, Mr. McNulty, please. MR. MC NULTY-This is a tough one. As I mentioned earlier, in a sense we’re trying to piecemeal something that’s not acceptable in the area and make it acceptable. That bothers me a little bit. At the same time, where I was thinking earlier on, well, what happens if the applicant creates two separate corporations, and Corporation A, the office function, leases office space from Corporation B, the parking facility. It’s getting kind of silly if you actually have to go to that length, but I guess two places where I come down with this. One is the thing I mentioned about, I think this is a little different than a normal parking lot in that the cars aren’t leaving individually. They’re leaving on a transport, and it strikes me that this is leaning a little bit more towards automobile dealership type operation, and obviously our Code is not well written. You can argue what the English should be in it, what the interpretation should be, and some of the phrases we can make it work whichever way we want, which is a problem, but I think where I’ve got to come down is I’ve got to look at the general, what I believe is the general intent of the Mixed Use area, and it strikes me that, in this case, we’re back to our previous review of this, that automotive repossession operation, including this parking and storing of the repossessed vehicles is probably not what was intended to be included in this Mixed Use area, so, that coupled with the fact that it strikes 26 (Queensbury ZBA Meeting 03/22/06) me that a parking area or facility or whatever you want to call it that has the vehicles leave en masse on a transport truck does not equate to parking, whether it’s public parking or private parking. So I’m going to uphold the Zoning Administrator in this case, or vote against the appellant. MR. ABBATE-Okay. Thank you, Mr. McNulty. Mr. Underwood, please. MR. UNDERWOOD-Last time you appeared before us, I know that the vote, I believe it was, I can’t remember what the actual breakdown was, but I know that both Roy Urrico and I were in support of your application. I didn’t think, at that time, that there was anything in our Code that prevented repossession businesses. There’s nothing specifically written in the Code at the present time that reflects that. It was the opinion of the Board, at that time, that a repo business was not permitted. As Mr. Brown reiterated this evening, you can use that building as an office for any reason whatsoever, as long as it’s an office building, and that’s fine, and I think that we can, in this instance, look at it with eyes wide open as to whether or not this is going to have a negative effect on the neighborhood. The neighborhood down there, you know, is in a flux, all right. There’s a lot of businesses down there that come and go, that have come and gone over the years. It’s not the greatest neighborhood, and I think that as the improvements you’ve made on the site there reflect the direction that we would like to see the community go, as opposed to just letting it remain the same as it is and maintaining the status quo, but in this instance here, I think that, you know, you specifically explained to us this will be part of your repo business. It will be a storage facility for vehicles, short-term storage, and I can look at it with eyes wide open enough to see that it’s a parking facility. Whether it’s public or private is not my concern. I’m not going to go down and patrol it. I don’t think it’s the Town’s business to do that, either, and if you want to use it to park cars, that’s what a parking lot’s for. As you explained, it seems to have worked out well with the neighborhood down there. There doesn’t seem to be any problem with late night business operations waking people up, the few buildings, the few people that do live in that neighborhood down there, and I think that we can be a little bit more open-minded in regards to businesses in the community, ones that have a negative effect on the neighborhood and ones that have a positive effect on the neighborhood. I don’t really think that this has any negative effects on the neighborhood whatsoever. As you mentioned, you’re not going to be loading cars out on the street and blocking traffic or anything like that. You’re going to back the truck in. All that business is going to take place on your own property, and as far as I’m concerned, this is another ridiculous one. I think that we can err on the side of deciding in your favor, and I think that the Zoning Administrator has been wrong in this regard. He may be right in his mind, but I think I’m right in mine. MR. ABBATE-Thank you, Mr. Underwood. Mr. Stone, please. MR. STONE-I agree with Mr. McNulty. This is a very complicated issue. The last time we talked about this street on 19, we had a four, three vote. It was obviously not persuasive too strongly on either side. I think Mr. Brown has done a reasonable interpretation of our Code. I think the word “public” is a very important word, and I think it applies to both. I think it’s very simple. I see no reason to disagree with Mr. Brown on his interpretation. MR. ABBATE-All right. Thank you, Mr. Stone. Mrs. Hunt, please. MRS. HUNT-Thank you. I have to agree. This seems to be more of an automotive use than, which is not allowed, and I think the repossession operations does fit with the automotive use, and more than parking, just public parking or an office, and I would agree with the Zoning Administrator. MR. ABBATE-Thank you, Mrs. Hunt. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. Mr. Stone is correct when he says that this is a very complicated issue. When 19 Newcomb came before us, I wasn’t present, but I was here last time, and I did side with the Zoning Administrator. By the way, I do agree with your interpretation of the Code. I think public cannot be applied on both sides of the fence there. So I think you’re right in that regard. When we talk about the actual allowable use versus, I think that’s what makes it complicated, because when we made the determination that a repo business, and you were right, you weren’t really very prepared, and you weren’t very persuasive, but you make the point that there’s no repossession taking place on Newcomb Street. Repossessions are done, you know, wherever, and then the vehicles are brought back or taken out and so forth and so on. So, in essence, what you’re having there is no more than 27 (Queensbury ZBA Meeting 03/22/06) a towing business, which is what was allowed on the 19 Newcomb Street. So, we come to the question of, is that question of non-allowable use still a valid question, and in my view, I don’t think it is. So I’m going to side with the appellant this time around on this issue, because I think you’re correct in that the determination issue is not really an issue. MR. ABBATE-Okay. Thank you, Mr. Bryant. Mr. Garrand, please. MR. GARRAND-I agree with Mr. Bryant on this one. When I look at this, I see 18 Newcomb Street as a parking area. I’m not going to assume what’s going on in the office, and like the applicant stated previously, most of the activity goes on outside the office. So, I’d be inclined to agree with the applicant on this one. MR. ABBATE-You’re in support of the appellant? MR. GARRAND-Yes. MR. ABBATE-Okay. All right. It is a difficult one. The Zoning Administrator made a statement that if the parking use in question is planned to be utilized in conjunction with an office only, repossession business, used at 20 Newcomb Street, this matter has been decided already by the Zoning Board of Appeals, per Notice of Appeal No. 6-2005, and I certainly agree. It would appear that, in this instance, it’s a question of weighing. Weighing the interpretation of how the law is written, granted that there are instances in which I would agree, I think Mr. McNulty made a statement that we need more clarity, perhaps, in the writing of the zoning, but, barring that, we simply must address what we have on the books, if you will, and I would tend to, based on what I’ve heard and the fact that I’ve asked the question three times about whether or not Mr. Granger is going to utilize that property for a repossession business, which is not an allowable use, I would support the Zoning Administrator’s decision. Now, that’s not the vote, of course. For the Board members, having heard the testimony of the appellant, having heard the testimony of the Zoning Administrator, is there a motion for Appeal No. 1-2006, to do, A, support the appellant’s challenge to the Zoning Administrator’s decision, or, B, to uphold the Zoning Administrator’s decision? Is there a motion? I’ll say it again. We’re going to, we’re viewing Appeal No. 1- 2006. So the question is two parts. Number One, do we support the appellant’s decision to the Zoning Administrator’s decision, or, two, do we uphold the Zoning Administrator’s decision? And on those two points, gentlemen, ladies, is there a motion? MOTION TO UPHOLD THE ZONING ADMINISTRATOR’S DETERMINATION IN REGARD TO NOTICE OF APPEAL NO. 1-2006 BRIAN GRANGER, Introduced by Lewis Stone who moved for its adoption, seconded by Joyce Hunt: 18 Newcomb Street. Zoning: Mixed Use. Appealing the Zoning Administrator’s determination that the proposed parking garage/facility is not an allowable use in the MU zone. I move that we uphold the Zoning Administrator’s decision. Duly adopted this 22 day of March, 2006, by the following vote: nd AYES: Mr. McNulty, Mrs. Hunt, Mr. Stone, Mr. Abbate NOES: Mr. Garrand, Mr. Bryant, Mr. Underwood ABSENT: Mr. Urrico MR. ABBATE-The vote is four to three to uphold the Zoning Administrator’s decision. The case is closed. Thank you, ladies and gentlemen. This hearing is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 28