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2006-04-19 (Queensbury ZBA Meeting 04/19/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 19, 2006 INDEX Area Variance No. 8-2006 David R. & Sally N. Kelly 1. Tax Map No. 239.15-1-3 Notice of Appeal No. 2-2006 Jeffery Greene 2. Tax Map No. 297.9-1-3 Area Variance No. 46-2005 Jean M. Hoffman 8. Tax Map No. 227.17-1-9.11 Area Variance No. 26-2006 Ronald Morehouse 13. Tax Map No. 308.16-1-73 Area Variance No. 22-2006 Chris C. Carte d/b/a The Wood Carte 16. Tax Map No. 296.09-1-3, 4 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 04/19/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 19, 2006 7:00 P.M. MEMBERS PRESENT JAMES UNDERWOOD, ACTING CHAIRMAN ROY URRICO, ACTING SECRETARY ALLAN BRYANT LEWIS STONE RICHARD GARRAND, JR., ALTERNATE MEMBERS ABSENT CHARLES MC NULTY CHARLES ABBATE JOYCE HUNT ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-SUSAN BARDEN TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY MR. UNDERWOOD-Before we get underway this evening, we are short membership this evening, and we’re only going to be seated with five of us here. So anybody who is appearing before us this evening, if you would rather table and wait for a full Board to render its decision, you also have that option to do so, but if you’re comfortable with us five that are here this evening, we’re more than happy to listen to what you have to say. Before we get underway, we have a couple of tabling motions that we need to go through. AREA VARIANCE NO. 8-2006 SEQRA TYPE: II DAVID R. KELLY, MD & SALLY N. KELLY AGENT(S): JONATHAN C. LAPPER, ESQ. OWNER(S): DAVID R. KELLY & SALLY N. KELLY ZONING: WR-3A LOCATION: 8 ROCKY SHORE DRIVE APPLICANTS PROPOSE DEMOLITION OF THE EXISTING 1,892 SQ. FT. TWO-STORY SINGLE-FAMILY DWELLING AND TO REBUILD A 2,662 TWO AND ONE-HALF STORY SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM SHORELINE SETBACK REQUIREMENTS. CROSS REF. BP 2002-854 DEMOLITION; BP 2002-855 DOCK; BP 2004-094 BOATHOUSE; SPR 57-2002; AV 8-2003; SPR 9-2003 WARREN COUNTY PLANNING: FEBRUARY 8, 2006 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.89 ACRES TAX MAP NO. 239.15-1-3 SECTION: 179-4-030 MR. UNDERWOOD-The first one was a letter that was received by fax on the 11 of April, th and we’re going to open the public hearing for Area Variance No. 8-2006. Is there anybody here that wants to comment on that? PUBLIC HEARING OPEN MR. UNDERWOOD-Okay. Seeing that there isn’t anybody who wants to comment, I think that we’ll just table that. MOTION TO TABLE AREA VARIANCE NO. 8-2006 DAVID & SALLY KELLY, Introduced by James Underwood who moved for its adoption, seconded by Richard Garrand: Until the July 2006 hearing date. Duly adopted this 19 day of April, 2006, by the following vote: th 1 (Queensbury ZBA Meeting 04/19/06) AYES: Mr. Bryant, Mr. Urrico, Mr. Stone, Mr. Garrand, Mr. Underwood NOES: NONE ABSENT: Mr. Abbate, Mrs. Hunt, Mr. McNulty MR. UNDERWOOD-Okay. NEW BUSINESS: NOTICE OF APPEAL NO. 2-2006 SEQRA TYPE N/A JEFFERY GREENE AGENT(S): STEPHANIE DI LALLO BITTER, ESQ. & JONATHAN C. LAPPER, ESQ. OWNER(S): JEFFERY GREENE ZONING SR-1A LOCATION 270 MEADOWBROOK ROAD APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S DETERMINATION THAT ONE ACCESSORY STRUCTURE IS PERMITTED IN THE SR-1A ZONE. SPECIFICALLY, THE EXISTING BARN ON THE PROPERTY IS DETERMINED TO BE ONE ACCESSORY STRUCTURE, WHILE THE PROPOSED STORAGE SHED WOULD CONSTITUTE A SECOND ACCESSORY STRUCTURE FOR THIS PARCEL. CROSS REF.: BP 93-069 SFD; BP 2003-081 DEMO OF GARAGE; BP 2003-082 3-CAR DET. GARAGE WARREN COUNTY PLANNING N/A LOT SIZE 2.02 ACRES TAX MAP NO. 297.9-1-3 SECTION 179-5-20(d) KARLA W. BUETTNER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Are you the petitioner, applicant? MS. BUETTNER-I am. My name is Karla Williams Buettner, and I am the third representative from Bartlett, Pontiff for Jeffrey Greene. Before I begin, though, I was told I had to inform the Board that Stephanie Bitter did have her baby, and that it was a little girl, and mom and baby are doing well. Not that that has any bearing on the application at all. MR. UNDERWOOD-Right. MS. BUETTNER-As a background, Mr. Chairman, my client purchased the property at 270 Meadowbrook Road from his father in the Year 2000. For his entire life, the property has had two uses, Agricultural and Residential. In 1980, a horse barn was placed on the structure. It houses horses, cows, sheep, farm animals and feed for those animals. In October of 2005, I believe it was October of 2005, my client applied for a building permit to place a 12 by 34 shed on the property. The shed is to be used under the Codes definition for small machines, for tires, for his lawnmower, his snow blower, and would be accessory to the residence on the property. The barn is an accessory use to the agricultural use of the property, which is farming. Now in January of 2006, Zoning Administrator Brown wrote to my client and indicated to him that a storage shed would be one too many accessory uses because the barn is an accessory use to the residence. He cited no section of the Code saying he was only entitled to one accessory use. The property is located in SR-1A, which permits agricultural uses. It also permits residential uses. Now the agricultural use is permitted with a site plan review, but it’s our contention that the agricultural use was grandfathered in. The Staff notes cite a section of the Code purportedly for the proposition that only one accessory use or structure is permitted. However, if you were to actually read the entire section that they cited, which is 179-4-10C(5), that actually defines when and where accessory uses and structures may be permitted. It does not state only one is permitted. Based on that and based on the fact that a barn is an accessory use to agriculture, the storage shed is an accessory use to residential, two separate principal uses we’re appealing from the Zoning Administrator’s determination, and I would respectfully request that this Board use its power and reverse Zoning Administrator Brown’s determination that my client needs an Area Variance in order to place the shed on this property. MR. STONE-Mr. Chairman, should we read the Staff notes in? MR. UNDERWOOD-Yes. Do you want to do that, Roy? I’m sorry about that. STAFF INPUT Notes from Staff, Notice of Appeal No. 2-2006, Jeffrey Greene, Meeting Date: April 19, 2006 Appellant is “Project Location: 270 Meadowbrook Road Description of Proposed Project: 2 (Queensbury ZBA Meeting 04/19/06) appealing to the Zoning Board of Appeals relative to January 24, 2006 decision made by the Zoning Administrator that the existing additional storage building on the property requires an Area Variance. Staff comments: Per 179-4-010, C, 5, “An accessory use or accessory structure shall be permitted….” This statement refers to a singular structure. In this case, the principal use of this parcel is residential. As such, the barn shall be considered accessory use structure to the principal use. The majority of the “farm” lands appear to be located on an adjoining property owned by Greene, which also appears to have additional multiple accessory buildings. No commercial or agricultural approvals have been issued for the property. Additionally, an inspection of the site revealed two additional accessory structures on the subject property. While these may be pre-existing non-conforming, they are also accessory structures and further establish the requirement for relief for the “new” existing shed.” MR. UNDERWOOD-Do any members have questions for the appellant or the Zoning Administrator? MR. BRYANT-Okay, Mr. Chairman, thank you. I’m not quite understanding, maybe you can help me. According to the Staff notes, it almost sounds like there are two pieces of property, there’s one single lot? MS. BUETTNER-Mr. Greene owns a few pieces of adjoining property, but we’re just asking to put the shed on one parcel, which is about two acres. MR. BRYANT-Well, the barn, the house, the garage, and all 18,000 other accessory structures, they’re all on one lot, is all I’m asking. MS. BUETTNER-No, that’s not correct. There is a barn. There is a garage. There is a house, and I believe there might be a small chicken coop. MR. BRYANT-There are three red storage buildings. There is another white building in the back. There’s also one of these furnace structures behind the house. I mean, there’s quite a bit of activity on that lot, and I’m just curious as to whether or not that’s all one lot. MS. BUETTNER-I can’t answer, I’ve not seen the property, but I know that on the property, from what the applicant has informed me, is simply the garage, the house, and the barn. He owns other property in the back on which there are other structures, but not on this particular lot. MR. UNDERWOOD-They’re contiguous lots. MR. BRYANT-But I can’t identify where the lots are. If you look at the house, there’s a detached garage. Immediately to the right of that, there’s a red shed. It’s an oversized shed. It has like a barn door, and then behind it you’ve got the barn. Behind the barn you’ve got another three red buildings that look like they’re up on slats that you can pick them up and move them around, and then you’ve got a white thing way in the back, and then you’ve got the thing behind the house that’s the furnace or whatever. Do you know what I’m talking about? So I just want to know what the difference is. MR. BROWN-Is that a question for me or Counsel? MR. BRYANT-Whoever can answer it. MR. BROWN-I can answer some of those questions. Where the cursor is on the screen here, that’s the barn that’s on the property. This is the house, the garage. That red shed you talked about is right in this area next to the driveway. Then you’ve got the barn. MR. BRYANT-I don’t see the cursor. Sorry. MR. STONE-I don’t, either. 3 (Queensbury ZBA Meeting 04/19/06) MR. BROWN-Is it not showing up on there? Let me go up to the screen. This is going to be the house, the barn. The red shed you talked about is on the side of the driveway, right in here, and then this is probably the outdoor furnace you’re talking about. MR. BRYANT-Well, no, the outdoor furnace is right behind the house. MR. BROWN-Right in here? MR. BRYANT-Yes. There’s a little deck and then it’s just beyond that about 10 or 15 feet. MR. BROWN-Okay. So that’s probably in this area. MR. BRYANT-Yes, and then back there is like three little buildings. MR. BROWN-Yes, and then if you go further, while this isn’t a survey, it’s a pretty close representation of where the property lines are. There’s another property that Mr. Greene owns that’s back here which is probably the pasture land where the livestock, and there’s at least two, I’m not so sure what this is, at least probably two other structures, that’s several parcels out. MR. BRYANT-Okay. So the one’s, way, way in the back. MR. BROWN-The ones way, way in the back appear to be on a separate parcel. Again, it’s not a survey, but they appear to be on a separate parcel. MR. STONE-But can you have accessory structures if you don’t have a primary structure? MR. BROWN-Well, you’re not supposed to, the way the Code’s written. When they were placed there, I don’t know. They may be pre-existing nonconforming, you know, located that way. MR. STONE-Okay. MR. BRYANT-So the basis of the argument is not two lots. It’s two uses, basically. MS. BUETTNER-Yes. MR. BRYANT-Okay. MR. GARRAND-A question for Counsel. If you’re citing 179-4-010C(5), has a permit been issued for an agricultural use? MS. BUETTNER-No, the agricultural use is grandfathered in. MR. GARRAND-Okay. MR. URRICO-But it currently is a residential area, SR-1A. MS. BUETTNER-It is, which permits the agricultural uses, with a site plan review. MR. URRICO-For anything? I mean, for any new structure? Does it still get referred to as an agricultural use? MR. UNDERWOOD-You have to have a certain acreage, I think. MR. BROWN-Is the question what qualifies as an agricultural use that requires approval by the Town? Is that a question? MR. URRICO-More or less, yes. MR. BROWN-Okay. There’s really no thresholds for a farm. If you’re going to keep animals, there are certain thresholds that have been established, you know, number of acres per animal, basically for horses, and that’s a site plan review approval that’s necessary for that. So this may very well be, and I believe that it is, a pre-existing nonconforming agricultural use. I think it’s, and I can explain more if you want, but just to answer this 4 (Queensbury ZBA Meeting 04/19/06) question, my position is it’s the accessory use to the principal use of the property, which is residential. MR. UNDERWOOD-Any other questions? All right. To meet the obligations of Public Officers Law Sec: 3 for a fair and open process, the public hearing is open for Notice of Appeal No. 2-2006. Anybody wish to comment on that? MR. STONE-Has the Zoning Administrator made whatever case he wants to make? MR. BROWN-I can certainly give you more if you want. In making my decision, there were two basic definitions that I relied on, one, the definition of principle use, and that talks about the primary use of the property, and I think in this case you have to pick one or the other, and it’s either the residence or the agricultural use, and my reliance is based on what’s in the field. It’s a house. There’s a barn on the property, but that’s the second definition you rely on, I relied on, and barn is defined as a place where you keep all the nuts and bolts that go along with the farm, and if you read the end of the barn definition, it says as an accessory use. So the barn is an accessory use either to the principle agricultural use or to the principle, in this case residential use of the property. MR. UNDERWOOD-My only question would be, you know, if you travel around, out into Washington County, just over the line, it’s very hard to imagine a farm that doesn’t have numerous outbuildings, you know, for equipment, cows, whatever the purpose happens to be. MR. BROWN-Sure. MR. UNDERWOOD-And I’m thinking in this instance here with the very few instances in this community where we do have agricultural things like that, it’s not something that’s going to trigger like a landslide of many of these appearing before us. MR. BROWN-No, I wouldn’t disagree with that. I think what you have to mix in this, is this what, you know, you would call a working farm? Is this a dairy farm? Is this a poultry farm? It probably doesn’t rise to the level of a working farm where you’re going to expect, you know, barns to be the principle or closer to the principle use of the property. In this case, it just isn’t. The majority of the farmland is a separate parcel. The barn happens to be located on this parcel, but I just don’t think it, my opinion, my determination is it’s not a principle use on the property. MR. STONE-The other point that I heard and I want to make is we blithely talk about site plan review. Neither a variance or site plan review approval is automatic. That’s why we have the Boards, and just saying, well, it needs site plan review, there’s many a trip between the old cup and lip until you get site plan approval. So it’s not, we can’t blithely just say, well, we need site plan approval. That’s, you’ve got to go through the process and satisfy the Planning Board, obviously, that this, in fact, is approved by the Planning Board, acceptable to the Town of Queensbury. MR. BROWN-Well, it hasn’t been approved by the Planning Board. MR. STONE-It hasn’t, I know that. MR. BROWN-There’s a potential in this zoning district to have an agricultural use established, if you go through that process. MR. STONE-Yes, but even that isn’t automatic. MR. BROWN-No, that’s correct. MR. STONE-That’s all I’m saying. MR. BROWN-Okay. MR. STONE-I remember when I started on this Board, I used to hear, all you need is a variance. Well, you need to convince the Board that you should be granted a variance, and it’s a very different. 5 (Queensbury ZBA Meeting 04/19/06) MR. UNDERWOOD-Craig, on the other side of the road, you have The Girl Scouts there, and, I mean, that’s also considered SR-1A over there, is it not? MR. BROWN-Yes. MR. UNDERWOOD-So, I mean, how about their outbuildings and all their accessory uses? I mean, if you’re going to balance it out. MR. BROWN-Well, that’s a different use. That’s a group camp, and that is, again, a use that’s subject to site plan review, and through site plan review you may gain those additional buildings. A majority of the buildings, if not all the buildings there, are pre-existing buildings. I know the administration building went through some revamp in the recent past, but again, that’s, not to make light of it, it’s a site plan review use, and you can gain those buildings through that review. MR. UNDERWOOD-Is there anybody in the public who wishes to comment on this this evening? You have to approach the microphone and identify yourself and make your comments. PUBLIC HEARING OPENED SELENA DORISKI MRS. DORISKY-I’m Selena Doriski, and I live next door. I think it’s very unsightly where he put it. If it’s going to be a place for machinery, and lawnmowers and so on and so forth, couldn’t he have moved it in the back somewhere where we haven’t got to get out and look out the window and see French Mountain and it’s beautiful, and then you look over there and see that long ugly looking thing sitting there. I’m the neighbor. I join his property, and I’m not very happy with it. MR. STONE-Where are you, in relation to there? MRS. DORISKI-I’d be right in the little ranch house next door. MR. STONE-North or south? MR. BROWN-Just immediately south. MRS. DORISKI-South. MR. STONE-South, okay. MRS. DORISKI-Of all the locations he had to put it, if he’s got two acres, couldn’t he have, if it’s going to be used for lawnmowers and accessory tools and stuff, couldn’t he have hid it a little better than he did? MR. BRYANT-But he hasn’t built it yet? MRS. DORISKI-Well, what’s there now? MR. BRYANT-Just a barn and the accessory structures, right? MRS. DORISKI-And the shed. MS. BUETTNER-The shed is there. MR. BRYANT-Is that the shed? Okay. MRS. DORISKI-I saw you today over there. MR. BRYANT-You did? MRS. DORISKI-Yes, I did. MR. BRYANT-And I was snooping around. 6 (Queensbury ZBA Meeting 04/19/06) MRS. DORISKI-You were peeking in the window. (LOST PART OF TAPE) I’m his father. We built all that south. We built where they live. We built the barn, (lost words) barns are pole barns we built. We had, my grandson liked to drive cars. He learned to drive. He has his license now, and we were going to put the shed down in back. We’ve had so many break ins. We had to call the wrecker to come get them, but we know who they are, but we couldn’t prove it. They broke the windshields, broke the glass, and I said to my son, we might better put this up here. We put it down there where the lawnmowers, we have a lot of stuff, and we like everything inside, but they break in, and we know who it is, but we can’t prove it, but and all those barns are not on one lot. We bought one down from Fort Ann way back in the 40’s. My father cut corn on all that property, farmed it, and we bought it and we raised chickens and turkeys and pigs. We raised a lot of them, beef cattle, horses, but I think we’d like to put it down back, but the sheriff says to me, don’t lock your door, because they’re going to break everything, and he’s right. You might better leave them open and let them go in. It’s ridiculous, and my grandson who’s learning to drive, and they smashed the windshields, and we called up in the west end come and get them. Of course my grandson’s got a car, a pickup now, he just turned 18, but we want to do what’s right. That’s my motor home. I keep it on Rhode Island Avenue, but I’ll probably never use it again. Because we’ve gone by. That’s all I’ve got to say. MR. UNDERWOOD-Thank you. Anybody else want to comment? I don’t think there was any correspondence, was there, Roy? MR. URRICO-No. MR. UNDERWOOD-Okay. At this time I would now like to ask the Board members to offer their commentary, and I respectfully remind members that precedence mandates that 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 a Judicial review. MR. BRYANT-Before that, Mr. Chairman, could I ask a question? MR. UNDERWOOD-Certainly. MR. BRYANT-I’m really confused now. MS. BUETTNER-Well, I hope to aid in un-confusing you. MR. BRYANT-I hope you do, because the letter that Mr. Brown wrote to your client clearly states that before he can grant a building permit for the structure, that you would have to go before the Zoning Board of Appeals to get a variance. MS. BUETTNER-Yes. MR. BRYANT-Okay. Now, based on the last testimony, the building already exists. How did that happen? I don’t understand, when you don’t have a building permit. MS. BUETTNER-Let me clear that up. My client purchased the shed, pre-assembled shed, from a company in Greenwich who informed him, no, no, you’re not going to need any variance, any building permit in Queensbury. Now, whether he should have listened to this individual or not is not before the Board, but that’s what happened. He listened to this individual from where he purchased the shed, put the shed on the property, and then said, well, maybe I should see if I need to get a building permit to have the shed there. MR. UNDERWOOD-When was the shed erected? MS. BUETTNER-It was last year. I don’t know the exact time. MRS. DORISKI-It was November, around Thanksgiving weekend. MR. BRYANT-Prior to the letter being issued? 7 (Queensbury ZBA Meeting 04/19/06) MS. BUETTNER-Yes. MR. BRYANT-So, in other words, the shed now exists and then you apply for a building permit? MS. BUETTNER-Yes. Does that help? MR. BRYANT-It does, thank you. MS> BUETTNER-Okay. MR. UNDERWOOD-Well, I guess we’ll go through the group here and see. I guess we’ll start with Mr. Stone. MR. STONE-Thank you, Mr. Chairman. This, as always, when it’s an appeal of a decision made by the Zoning Administrator, is relatively clear cut. Did the Zoning Administrator make a correct decision or did he not make a correct decision based upon the Zoning Code of the Town of Queensbury. In my judgment, looking at his argument, looking at the Zoning Code, I would find that he made the right decision. Which only means that you have to come, the applicant has to come before us and make a case for this particular structure on the property. It doesn’t say that you can’t. It doesn’t say that we would grant one. It merely you’ve got to follow the process. In my judgment, the Zoning Administrator made a correct determination. MR. UNDERWOOD-Okay. We’ll go to Mr. Urrico next. MR. URRICO-Yes. I’m in agreement with Mr. Stone. I’m in agreement with the Zoning Administrator, and I would like to see that supported. MR. UNDERWOOD-Okay. Mr. Garrand? MR. GARRAND-I think Mr. Stone made a valid point. Getting approval on this expos facto, this probably should have been done beforehand. A residential area, it is allowed, according to Staff, one accessory structure, and I think it’s already exceeded that. So I’d be inclined to agree with the Zoning Administrator’s decision. MR. UNDERWOOD-Mr. Bryant? MR. BRYANT-Thank you, Mr. Chairman. I just want to touch on a couple of issues of your argument. When you talk about the two uses, I could agree with you somewhat in that area. However, as your neighbor said, I was snooping around, and there’s only one stall, it looks like, for one horse, or something, in that barn. So by no stretch of the imagination can that be the principle use of that whole parcel, okay. I mean, if it was a barn full of cows or a barn full of chickens, then you could probably argue that it is indeed a principle to the agricultural aspect. The other thing that troubles me is all the other structures you have on the property. I mean, if we were to accept the residential aspect of the property, and the agricultural aspect, so you’ve already got the accessory structure, the agricultural, even if you don’t count that as an accessory structure. At the very least, you have at least four more accessory buildings on that property, on that one line. So I really have a problem with this whole thing, and I agree with Mr. Stone that you have to go through the process. So I do agree with the Zoning Administrator in his determination. It’s not a principle use and you need a variance. MR. UNDERWOOD-A question I would have for you, Craig, is there any possible solution to this, as far as a consolidation and removal of some of those structures? Would that have any bearing on this, as far as working out a workable solution for these people, or are you going to make them tear this place down if we back up what you’re saying here? MR. BROWN-No. If you support the determination that I made, that directs the applicants to come before the Zoning Board again with a variance application, and will the structures have to be removed? That remains to be seen in how you iron out the variance request. MR. UNDERWOOD-Sure. All right. It does not appear that there’s going to be any kind of support for your appeal here, so I’m going to leave it up to you here. We can deny this, your 8 (Queensbury ZBA Meeting 04/19/06) appeal, and basically it looks like it’s going to be a unanimous decision, you know, backing the Zoning Administrator here in this respect. So either that, or I guess you can do a tabling motion, but there’s no tabling involved here tonight. I mean, we’re either going to deny it or we’re going to approve it. So it looks like we’re going to deny it. So at that point, I think you’re going to have to go back into the Town and speak with the Zoning Administrator about putting it on the docket with us again and then try to work out a solution that’s going to be acceptable to everybody at that point in time. MS. BUETTNER-Okay. MR. UNDERWOOD-So I guess what I’m going to ask for is a motion to deny the appellant’s challenge to the Zoning Administrator’s decision. Does somebody want to make that? MOTION TO SUPPORT THE DECISION MADE BY THE ZONING ADMINISTRATOR IN CONNECTION WITH NOTICE OF APPEAL NO. 2-2006 JEFFERY GREENE, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: In such that the Zoning Administrator has ruled that a pre-constructed building on this property is, in fact, an accessory structure and therefore the proper procedure for a possible variance must be followed. Duly adopted this 19 day of April, 2006, by the following vote: th AYES: Mr. Urrico, Mr. Garrand, Mr. Stone, Mr. Bryant, Mr. Underwood NOES: NONE ABSENT: Mr. Abbate, Mrs. Hunt, Mr. McNulty MS. BUETTNER-Thank you. MR. UNDERWOOD-Yes, thank you. AREA VARIANCE NO. 46-2005 SEQRA TYPE: N/A JEAN M. HOFFMAN AGENT(S): WILLIAM J. KENIRY, ESQ. OWNER(S): JEAN M. HOFFMAN ZONING WR-1A LOCATION 159 CLEVERDALE ROAD APPLICANT REQUESTS RE-HEARING ON PREVIOUSLY DENIED AREA VARIANCE NO. 46-2005. APPLICANT HAS CONSTRUCTED AN 1,170 SQ. FT. BOATHOUSE WITH 978 SQ. FT. SUNDECK AND SOUGHT 3.5 FT. OF RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENTS FOR SUCH STRUCTURES. CROSS REF. AV 46-2005; SPR 38-2005; AV 90-2004; SPR 50-2001; SUB. NO. 15-2003; AV 91-2001; SPR 15-2001; AV 30-2001; SUB. NO. 14-1999; AV 60-1999 WARREN COUNTY PLANNING YES ADIRONDACK PARK AGENCY YES LOT SIZE 3.43 ACRES TAX MAP NO. 227.17-1-9.11 SECTION 179-15-050 WILLIAM J. KENIRY, REPRESENTING APPLICANT, PRESENT MS. RADNER-Can I give you a little background here? MR. UNDERWOOD-Certainly. MS. RADNER-As many of you will recall, there’s some history here, and there are a number of actions that are pending before the Supreme Court, two before Judge Aulisi, one before Judge Kroggman, all relating to the approvals that may or may not exist here, may or may not be needed. Without getting too much into the detail here, we’ve got what is an admittedly over-built sundeck. It does not comply with the approvals that were granted, and that’s been contested. The refusal to grant the permits for it has been contested and they’re before the Supreme Court. It’s been pending there for some time. Judge Aulisi, before whom two of the actions are pending, has had a number of conferences where he has tried to reach a meeting of the minds with the parties. He has encouraged a resolution of the case, because that is what Judge Aulisi likes to do, he likes to get things off the court docket, and whenever possible he encourages the parties to reach an amicable solution. Having reviewed pictures of the dock, having heard from the applicants about what happened, having heard from the Town, through myself as your Counsel, and through the Zoning Administrator, Judge Aulisi is hopeful that the matter can be resolved at the Town level without the courts having to make the determination. Judge Aulisi does not have the power to direct you folks to grant a 9 (Queensbury ZBA Meeting 04/19/06) re-hearing, and he understands that. He does not have the power to direct anyone on this Board how to vote, if a re-hearing is granted. What is going to happen tonight is Mr. Keniry is here to try to, I’m sorry, Attorney Keniry is here to try to convince you to allow a re- hearing and to convince you that there are additional facts which might change how you view this request for a variance, and so there is nothing new, so to speak, nor does there need to be. There’s a common misperception that in order for you to re-hear a matter, you have to find that there’s new evidence. That is not the case. There may be new facts, new to you, that weren’t presented before that could sway or change your opinion, or it may just be that there’s more information that can now be presented. You are not required to find that there’s new evidence. If you are persuaded that you wish to re-hear it again, which is all that you’re going to be asked to decide tonight, if you want to re-hear it again, all of you have to agree that you want to re-hear it. If any one of you does not wish to re-hear it, then this ends. We go back to court, and it’s up to Judges Aulisi and Kroggman to make the decision. All you are asked to do tonight, though, again, is to decide whether or not to re-hear. MR. UNDERWOOD-Okay, before we continue on, I just want to read something here, and this was from our Chairman. The Enabling Acts provide that any member of the Zoning Board of Appeals may make a motion to hold a re-hearing to review any order, decision, or determination of the Zoning Board of Appeals not previously re-heard. However, to succeed, the motion requires a unanimous vote of all members of the Board then present. Secondly, while presenting your line of reasoning for a re-hearing, please be advised that the request for a re-hearing should state the points believed to have been misapprehended or overlooked in rendering the past decision, and also state all other grounds upon which the re-hearing is sought. In addition, the re-hearing, if granted, will only be on the written record, and the counselor please be mindful of the fact that a re-argue of the appellants original position only reaches the level of another oral hearing, and will not reach the threshold for re-hearing. At this point in the proceedings, I would also respectfully request that Board members withhold any comments, dialogue or questions while counsel is presenting his argument, and when counsel has concluded, I will seek questions from the Board members. Okay. Go ahead. MR. KENIRY-Thank you, Mr. Chairman, members of the Board. I did prepare, and first thing, preliminarily, I agree with the remarks of your Counsel tonight, and one of the things that I think fairly should be emphasized is we are asking, and we must obtain, in order for us to move on to the next step, if you will, a unanimous vote, which we understand and we appreciate is a tremendous burden that’s on us. However, we accept that burden because we’ve been directed to do this by the Court, and we certainly intend to comply with the direction of the court. I did prepare a very brief, and I did it in an outline form, and I think it’s probably consistent with what your Chairman’s direction is, a sort of advisory memo of points. Would it be permissible for me to just simply hand each of you that one sheet at this time? MR. UNDERWOOD-Certainly. MR. STONE-Thank you, sir. MR. KENIRY-It’s not intended to be in some fantastic prose. Your Counsel has also asked that I identify myself. Bill Keniry, and Ms. Hoffman is here with me tonight. Preliminarily, with respect to the standard on new evidence, one of the things that I ask that you please at least consider is that you have, and maybe I should just give you a minute to read through that. You have the ability, or the power, if you will, under the Statute, to grant the re- hearing in really two ways. In the first instance, you have the power to grant a re-hearing based simply on your discretion, and that is exercising your judgment, and simply put, that is what we’re seeking to appeal to this evening. We’re asking that you exercise your judgment, that you agree to let us proceed to the next step, and that is come forward with our evidence. Alternatively, and as a separate ground under State law, you also have the ability, the power, if you will, to grant the request for permission for a re-hearing based upon a finding of new evidence, and that is the one that your Counsel correctly points out that is typically the knee jerk reaction that a lot of people think that the Zoning Board has as the exclusive basis upon which to grant the re-hearing. We are asking that you consider either of those, or both, for that matter, in connection with making this decision. Specifically, and your Counsel has mentioned the proceedings, we have received a direction that the Board is desirous of taking the testimony and hearing the proof, specifically with respect to the contractor, and as a result, we have gone forward and secured that testimony for you. I realize that the purpose of tonight is not for purposes of taking proof or taking evidence or any of that nature, and that it’s only if we obtain the unanimous vote that we move, then, to the second stage of that 10 (Queensbury ZBA Meeting 04/19/06) public hearing, but I wanted you to have an understanding of how serious and sincere we are with respect to your requirement, and Mr. Creed and his father are here with us and in the audience tonight, so that you would know that I have followed through with respect to the requirement that’s been imposed on me, in terms of securing that testimony for you. I don’t believe that there will be any requirement of a subpoena, and I’ve talked to your Counsel about that, as far as securing the testimony of witnesses. I’ve gotten them to agree to participate in the proceedings. My point there is that if you are looking for that, as your new evidence, you have that, and you will be able to rely on that testimony in making your determination, and I respect what your Chairman has said. Although I am prepared to address each and all of the five factors. I don’t think that that’s the purpose of tonight because in a simple way, you don’t really need to hear more from lawyers. That testimony, however, I believe you will find to be significant and relevant with respect to the particular points that you had on your minds when you had considered our prior applications, specifically with respect to the factor of self-created hardship. What we’re really asking is that you keep an open mind. We would be prepared to come forward with additional proof, although it’s my understanding that that is the primary focus of what is sought, we would be prepared to present additional proof with respect to the view shed and any other proof with respect to other properties relative to this subject property, and I think I make mention in a general way on the why grant the re-hearing, that that would be part of the proof. One of the things, and two of the members, is believe Mr. Urrico and Mr. Stone, questioned me directly and pointedly and fairly at the last hearing about the subject of precedent, and I appreciate, and you’ll recall we had some dialogue about that circumstance, and I do adhere to the dialogue and the discussion that we had in that I do believe that every piece of property and every project stands on its own merit in that it’s unique, and I know you judge the projects on that basis, but I felt that it was a significant enough point for you all that it was worthy of doing a little bit more research. So I went to the statutory section on zoning and planning, and specifically there’s a section in the practice commentaries, it’s not the law, but it’s what commentators on the law talk about, and we studied, that talks about the subject of consistency, and I think consistency is the subject that was on your minds. The case law on the subject of consistency actually dates back to the 20’s, and what I’m about to tell you is to give you some, and it’s been followed consistently, is to tell you that you do have an awful lot of power in this regard. If I may, I’d like to just quote from the Practice Commentary, because I do think that the quote is illustrative of the question, or illustrative of the answer that I gave in our last dialogue, and that is this, and it’s commenting about a Zoning Board of Appeals. Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through its exercise. The Board may refuse to duplicate previous error, it may change its views as to what is for the best interest of the Town. It may give weight to slight differences which are not easily discernible, and I submit that this is a case that has those differences slight, maybe greater, depending upon a particular person’s view or how each of you individual members may weigh the evidence. In any event, I have suggested to you before that I believe, and I think our proof has shown, that the project is unique by its nature, and that is what our proof, what our proof has addressed and also would address, in the event of a re-hearing. We believe that we can offer you sufficient proof that you can sufficiently distinguish this project. As I mentioned, I am prepared to proceed with respect to each and all of the five factors, but I do want to obey the direction of your Chairman by way of his letter, and so to some extent, in the interest of brevity, I think I should probably stop. I believe that with that proof you will have an opportunity to engage in the balancing test that is contemplated with respect to applying those five factors in a re-hearing, and I’d just like to finally thank you for the opportunity to comment this evening, but also just emphasize, we do recognize that we have a significant burden here, in that we need each and all of you present tonight to vote unanimously in order to have the opportunity to come forward with that proof, and I’d just thank you for your time. MR. UNDERWOOD-Okay. Thank you. Board members, at this time, please be mindful of the fact that we’re concerned with two questions here this evening, Number One, did the appellant present a compelling argument for a re-hearing, and Number Two, the Board is required as relevant whether the petitioner acted in good faith reliance on a then valid building permit. Do any Board members wish to address counsel at this time? MR. BRYANT-I have a question. Can I ask one question? MR. UNDERWOOD-Sure. MR. BRYANT-Relative to your reference to the contractor. 11 (Queensbury ZBA Meeting 04/19/06) MR. KENIRY-Yes, Mr. Bryant. MR. BRYANT-I was looking through the minutes. Just refresh my memory. The contractor did not testify at the last hearing. MR. KENIRY-That is correct. MR. BRYANT-Ad this was an issue of contractor error? MR. KENIRY-That is correct. MR. BRYANT-Okay. You’ve answered my question. Thank you very much. MR. UNDERWOOD-Anybody else? Okay. At this time, we’re going to open up the public hearing, and public comment will be limited to five minutes, and you may submit into the record any documentation you may feel relevant. However, I must advise you that any documentation you wish to submit must be provided to the appellant to offer them a complete opportunity to analyze and refute the information contained in that document. Those wishing to be heard please raise your hand so I can recognize you. MR. KENIRY-I’m just not clear on the procedure. This is public comment as opposed to a public hearing? MS. RADNER-Chairman Abbate listed it as being set for public hearing. Public hearing, again, is not on whether or not to grant the relief. It’s on whether or not to grant the re- hearing and he thought it would be helpful to have comments from the public and that’s about all I can tell you about that. MR. KENIRY-Okay. MS. RADNER-I do believe there are people who want to speak. So you’re going to have to give up the table for that. MR. KENIRY-Yes. MR. BRYANT-Before you do, can I just ask Counselor a question? MS. RADNER-Certainly. MR. BRYANT-As far as the public commentary is concerned, it should only be restricted to the issue at hand tonight, and that is whether or not to grant the re-hearing. It has nothing to do about approval or the project in general or problems? MS. RADNER-That’s correct. If you decide to grant the re-hearing, it will be published for a public hearing. The public will again have an opportunity to speak on the merits of granting or denying the variances that are sought. MR. BRYANT-Okay. Thank you. MR. KENIRY-And that is correct, because our understanding was that there was not a public hearing. Our understanding, procedurally, was that you all had to make that determination in the first instance, and then the public hearing would occur on the merits of the application. MR. BRYANT-See, I agree with you somewhat, you know, as long as the public comment is restricted only to the possibility of re-hearing it or not re-hearing it, but I don’t want to discuss the project. PUBLIC HEARING OPENED MAGGIE STEWART MS. STEWART-Maggie Stewart from Assembly Point, and I think my comments probably are pre-mature because I was going to discuss the project. So I think that I’ll hold off. I can 12 (Queensbury ZBA Meeting 04/19/06) give you this letter, but I’ll hold off until you decide what you should do about the hearing and I oppose it, actually. MR. UNDERWOOD-Does anybody wish to address her at all? No? Okay. Anybody else? LEIGH BEEMAN MRS. BEEMAN-My name is Leigh Beeman. I’m Mrs. Hoffman’s neighbor to the north, and I do believe that all parties acted in good faith when they built this dock, and I certainly would favor a re-hearing. I know I can’t comment on anything else, but I do believe they acted in good faith. Thank you. MR. UNDERWOOD-Thank you. Anybody else this evening? All right. I guess you guys can come back up. MR. KENIRY-Mr. Chairman, obviously we have not had an opportunity to see what the letter may or may not contain, but I certainly would like an opportunity to respond at some point. MR. UNDERWOOD-Yes. I don’t think that we’re going to look at the letter either, until we do make our decision here this evening, but we’ll furnish you with a copy of that at that time. MR. KENIRY-Thank you. MR. UNDERWOOD-Yes. Okay. The public hearing is now closed. PUBLIC HEARING CLOSED MR. UNDERWOOD-And members of the Board, the only issue to determine is the following. Did the appellant present a compelling argument for a re-hearing, and secondly, further, the Board is required to consider as relevant whether the petitioner acted in good faith reliance on a then valid building permit. So I think that all we’re going to do is I’m going to seek a motion for a re-hearing on Area Variance 46-2005. Does someone want to make that motion? MR. BRYANT-I’ll make that motion, Mr. Chairman. MOTION TO RE-HEAR AREA VARIANCE NO. 46-2005 JEAN M. HOFFMAN, Introduced by Allan Bryant who moved for its adoption, seconded by Richard Garrand: 159 Cleverdale Road. In the interest of fairness, with the Counsel’s statement that the contractor would testify if this was re-heard, and this was, as stated in the original minutes, an issue of contractor error. I think it would be very valuable. Duly adopted this 19 day of April, 2006, by the following vote: th MR. STONE-As the maker of the motion in question, I feel very strongly that we should not open the public hearing. That doesn’t mean I’m going to vote that way yet. Let me talk. Because I think this subject has been thoroughly aired, not once, but at least twice we have discussed it. We’ve put forward some compromises, as I recall. I am not in favor of endless re-arguments. I don’t think it benefits anybody. As I said earlier, in a previous hearing, a variance is not a God given right. It must be earned. It must be argued for and proved that there is a benefit to the applicant, versus a detriment to the community. I don’t want to be, however, the person. MR. BRYANT-Mr. Chairman, a point of order. We have a motion. MR. STONE-And this is why I’m saying, this is an explanation of my vote. MR. BRYANT-Can I respond? MR. UNDERWOOD-Certainly. MR. BRYANT-If Mr. Stone was allowed to talk. Let me tell you, Mr. Stone, why I disagree with you. Okay, and I’ve got to say that initially I voted on your side in this issue. There 13 (Queensbury ZBA Meeting 04/19/06) was a big discussion by the applicant during the time about contractor error, and we hear cases on top of cases on top of cases on top of cases, where a contractor makes a mistake and then the owner of the property is left holding the bag, and even though it’s always been my opinion that that’s a civil matter and has nothing to do with this Board, this is completely an issue that was never addressed. The contractors were not to be found during the last hearing. We didn’t hear why we came with this position. So, in all fairness, I think that I know your feelings. I read your motion again tonight, and at the time I agree with you 100%, but I see no reason, I’d like to hear what the contractor has to say. How did we get to this point, and maybe we can learn something from that. Even if, down the road, we don’t agree with the application, we might learn something from the contractor. So, I’ve got to really strongly disagree with you. MR. STONE-You can’t disagree with me because I haven’t said anything yet. MR. BRYANT-Well, you did. MR. STONE-No, I didn’t. MR. BRYANT-Okay. MR. STONE-No, I did not. I specifically avoided the issue and I was about to say, in the interest of fair play, reluctantly, I would not be the first no vote, but I certainly don’t think it’s the right thing to do, because I think we should let it happen, because we certainly have the right to review the information. So I would say yes. MR. BRYANT-Thank you for clarifying that. AYES: Mr. Stone, Mr. Bryant, Mr. Urrico, Mr. Garrand, Mr. Underwood NOES: NONE ABSENT: Mr. Abbate, Mrs. Hunt, Mr. McNulty MR. UNDERWOOD-I believe the re-hearing will be scheduled for the 17 of May 2006, on th the docket at that point. MR. KENIRY-Very well. Thank you all very much. MR. UNDERWOOD-We thank you for your time, too. MR. KENIRY-We appreciate your consideration. Thank you. AREA VARIANCE NO. 26-2006 SEQRA TYPE: II RONALD MOREHOUSE OWNER(S): RONALD MOREHOUSE ZONING LI LOCATION 32 MINNESOTA AVENUE APPLICANT PROPOSES TO REPLACE EXISTING 720 SQ. FT. MOBILE HOME WITH A 1,680 SQ. FT. MOBILE HOME. RELIEF REQUESTED FROM MINIMUM FRONT AND REAR YARD SETBACK REQUIREMENTS OF THE LI ZONE. (IN ADDITION, TOWN BOARD APPROVAL IS NEEDED FOR PLACEMENT OF A MOBILE HOME OUTSIDE OF A MOBILE HOME OVERLAY ZONE.) CROSS REF. TOWN BOARD RES. NO. 192 OF JULY 25, 1978 FOR MOBILE HOME OUTSIDE OF MH PARK WARREN COUNTY PLANNING N/A LOT SIZE 0.29 ACRES TAX MAP NO. 308.16-1-73 SECTION 179-4-030 GARFIELD RAYMOND, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 26-2006, Ronald Morehouse, Meeting Date: April 19, 2006 “Project Location: 32 Minnesota Avenue Description of Proposed Project: The applicant proposes to replace a 720 sq. ft. mobile home with a 1,680 sq. ft. mobile home. Relief Required: The applicant requests 10-feet of front setback relief, where 50-feet is the minimum, and 14- feet of rear yard setback relief, where 30-feet is the minimum, relief per § 179-4-030, for the LI-zone. 14 (Queensbury ZBA Meeting 04/19/06) Parcel History (construction/site plan/variance, etc.): TB resolution no. 192, 1978: Approved 7/25/78, authorizing permit to locate a mobile home outside of a mobile home park. Staff comments: The 10-feet of front setback relief sought to site the mobile home 40-feet from the front property line, would be set back 1-foot further than the existing 39-foot setback. However, the existing rear setback is a compliant 39-feet and the proposed is 16-feet. The immediate neighborhood is characterized by lots of approximately the same size (.25- acres), many with mobile homes. This property is located just outside a designated Mobile Home Overlay District. Town Board approval is required for placement of a mobile home outside of a Mobile Home Overlay District.” MR. UNDERWOOD-Okay. MR. RAYMOND-My name’s Garfield Raymond. I’m here on behalf of Ronald Morehouse. I don’t have any real major comments on this. I think attached to the papers that Mr. Morehouse filled out is a photograph of the home that he wants to put in there. I’m sure that most of you are familiar with this area. The area is basically comprised of mobile homes and has been mobile homes for a long period of time, of which everyone is upgrading to double wides, and with the restrictions that we had in the past, it basically is kind of limiting. The home that is being sought to replace the existing is definitely improving that area. All you have to do is drive down there and you would see. The one comment I would make, though, is that we have 39 feet up in the front. There was already a variance needed in order to put that home in that, because it didn’t comply with the front setbacks anyway. By putting the home at the location where he wants to put it would leave approximately 14 feet in the back, as it relates to the setback, but there is some maneuverability there. If the Board feels appropriately, that can be shifted a little bit further in the front, but I believe that the best configuration that they came up with is what they have here. I know that he’s talked extensively with the Building Department about this, and I don’t believe that they have opposition to it. We weren’t aware, when he filled out the application, he was informed under the belief that he didn’t need Town Board approval because there was a pre-existing home that’s there, and now we just found out this evening that that is, in fact, going to be required. So I don’t know what your pleasure would be as to whether or not you want to rule on this subject to Town Board approval or whether you’d rather have us go to the Town Board first and get approval there and then come back here. It’s up to you. MR. UNDERWOOD-I would just make the comment, I think that we’ve, you know, previously had these before us on numerous occasions and it probably is not relevant for us. I mean, if these have been approved by the Town Board in that neighborhood before. So I don’t see that there probably would be a hang up with that. MR. RAYMOND-I would indicate to you that Mr. Hatin has gone and inspected the home, and he has no problems with the home itself. MR. UNDERWOOD-Sure. Okay. Do any members have questions? MR. STONE-Is this going to be a new double wide? MR. RAYMOND-It’s not a brand new one, but it’s fairly new. I think the year is, what, 2003? Dave has that down. MR. STONE-Okay, and what’s the existing? How old is that? MR. RAYMOND-The existing is probably a 1980, 1970 something. MR. BRYANT-The existing is gone. MR. RAYMOND-Taken right off. 15 (Queensbury ZBA Meeting 04/19/06) MR. BRYANT-They’ve already put the footing, or whatever you’re doing there. MR. RAYMOND-Right. They’ve gone in and done some groundwork for it. Yes, because he had to put in some kind of foundation, way to anchor it. You didn’t have to do that before. MR. BRYANT-In the back yard, where you’re seeking the majority of the relief, is that wooded area part of the lot, or does that belong to the lot behind you? MR. RAYMOND-I believe that that’s the lot behind, isn’t it? Yes. MR. BRYANT-Is there housing behind there? MR. RAYMOND-Logger’s Equipment. There’s a business that’s there. MR. BRYANT-Okay, because I tried to look around. I couldn’t. MR. RAYMOND-Yes. There’s a commercial enterprise on the other side, but I would say that it would be very consistent with the neighborhood. MR. UNDERWOOD-Anybody else have a question? All right. Would those wishing to be heard, I guess we’re going to open the public hearing. Is there anybody that wishes to comment on this application this evening? I don’t see anybody out there. I don’t think there was any correspondence with that, was there? MR. URRICO-No, no correspondence. PUBLIC HEARING OPENED MR. UNDERWOOD-All right. Before I ask members to offer their comments, I’d like to inform the public that the comments offered by the members are directed to the Chairman only, and the comments expressed by Board members to the Chairman are not open to debate. I would now ask members to please offer their comments, and I would remind you that precedence mandates that 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. I guess I’ll start with Mr. Garrand. MR. GARRAND-Certainly. Looking at this project, I can only think that it would be an improvement, putting a newer home on this lot. Trying to upgrade to a larger home, I don’t see any other feasible alternative to the homeowner, given the constraints of the lot sizes in this neighborhood. There are other double wides in the neighborhood that I have seen there, and I don’t think it’ll adversely effect the character of the neighborhood at all. I think, if anything, it’s an improvement. Is the request substantial? Given what you have to work with, it’s debatable. The difficulty, I don’t believe, is self-created. I think the lot is basically the only limiting factor with regards to this home. Therefore I’d be inclined to approve this. MR. UNDERWOOD-Mr. Urrico? MR. URRICO-I essentially agree. I believe the applicant has met the test, and I would be in favor of it. MR. UNDERWOOD-Okay. Mr. Bryant? MR. BRYANT-Mr. Chairman, as I look at the project, I agree somewhat with Mr. Garrand and Mr. Urrico. The front setback I really have no problem with. The rear setback, I have some major concerns, simply because as you look at the sketch that you provided, your sewer’s going to basically be up against the foundation. You’ve got really not a lot of room for your leach field. I’m wondering if, I know the house is already built. You’re buying an existing house. I know you can’t do anything with the house. I really don’t want you to move it forward, but I’m just wondering if that’s the house for that lot. I have a real problem with the rear setback, and I would not approve it as presented. 16 (Queensbury ZBA Meeting 04/19/06) MR. UNDERWOOD-Okay. Mr. Stone? MR. STONE-I agree with the first two members of the Board. I think if we follow the test that we’re challenged to follow, certainly the benefit to the applicant is much stronger than the detriment to the community. This is a unique neighborhood in the Town of Queensbury. Everything that is being done in recent times has been an effort to upgrade it, and I certainly applaud the property owners. I applaud what they’re doing in terms of making this a better neighborhood. I think the concern that’s been expressed by one of my colleagues about the lot behind and the location of the septic system, just because we might grant relief doesn’t mean that the Building Department is going to find it’s an acceptable building lot, in terms of where the septic is and where the lines are. So I am not uncomfortable with approving this thing. I think it is certainly going to improve the neighborhood. It’s not going to be undesirable in any way. It’s going to be desirable, and I think the balancing test certainly is in favor of the applicant. I would approve it. MR. UNDERWOOD-I, too, would agree with the majority of the Board members here this evening. I think it’s important for us to maintain affordable housing in Town, and certainly that part of Town if it’s upgrading to the double wides from the single wides. I think that’s a good thing. I think there are legitimate concerns about the sewer in the back and the septic system being that close, but at the same time, we have to keep in mind, you know, what’s in back of there, and there isn’t another septic system located nearby. So I don’t think it’s going to have any effect at all, and it’s sandy down there. So not a problem. So I guess I’m going to ask for a motion from someone here, to approve. MS. HEMINGWAY-Mr. Chairman, did you close the public hearing? MR. UNDERWOOD-Excuse me. I forgot to close the public hearing. PUBLIC HEARING CLOSED MR. UNDERWOOD-All right. I guess I’ll make the motion, then. MOTION TO APPROVE AREA VARIANCE NO. 26-2006 RONALD MOREHOUSE, Introduced by James Underwood who moved for its adoption, seconded by Lewis Stone: 32 Minnesota Avenue. The applicant is proposing to replace a 720 square foot mobile home with a 1,680 square foot mobile home, and they are specifically requesting 10 feet of front side setback relief where 50 feet is the minimum, and 14 feet of rear yard setback relief where 30 feet is the minimum, and that’s, again, per Section 179-4-030 for the Light Industrial zone present. It’s recognized that they will have to get a Town Board resolution approving this upgrade, but having previously achieved that with the Town Board, we do not feel that that will be an issue. So that’ll be up to you to obtain that from the Town Board in the future. The slight increase in the setback on the front side of the house towards the street side seems minimal to us, and even though it appears to be a large amount of setback relief on the rear portion of the property, it’s basically reflective of the fact that the lot is a very small narrow lot. So there’s not much you can do about that, and weighing the benefit to the applicant, I think that we can approve this project as requested. Duly adopted this 19 day of April, 2006, by the following vote: th AYES: Mr. Urrico, Mr. Garrand, Mr. Stone, Mr. Underwood NOES: Mr. Bryant ABSENT: Mr. Abbate, Mrs. Hunt, Mr. McNulty MR. RAYMOND-Thank you. MR. UNDERWOOD-You’re welcome. AREA VARIANCE NO. 22-2006 SEQRA TYPE II CHRIS C. CARTE D/B/A THE WOOD CARTE OWNER(S): CHRIS C. CARTE ZONING HC-INT. LOCATION 1063 STATE ROUTE 9 APPLICANT PROPOSES AN APPROX. 400 SQ. FT. “ADIRONDACK STYLE” ENTRY ADDITION. RELIEF REQUESTED FROM FRONT AND SIDE YARD SETBACK 17 (Queensbury ZBA Meeting 04/19/06) REQUIREMENTS OF THE HC-INT. ZONE. ALSO, RELIEF IS REQUESTED FROM THE MINIMUM SETBACK REQUIREMENTS OF THE TRAVEL CORRIDOR OVERLAY DISTRICT. CROSS REF. SPR 14-2006; BP 91-420 INT. ALT.; BP 99-013 INT. ALT.; BP 99- 105 ADDITION WARREN COUNTY PLANNING YES LOT SIZE 0.54 ACRES; 0.86 ACRES TAX MAP NO. 296.09-1-3, 4 SECTION 179-4-030 CHRIS CARTE, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 22-2006, Chris C. Carte d/b/a The Wood Carte, Meeting Date: April 19, 2006 “Project Location: 1063 State Route 9 Description of Proposed Project: The applicant proposes a 400 sq. ft. “Adirondack Style” entry addition to The Wood Carte. Relief Required: The applicant requests 5.5-feet of front setback relief, where 50-feet is the minimum, 21-feet of side setback relief (Southside), where 25-feet is the minimum, per § 179-4-030, for the HC- Int zone. Additional relief from the Travel Corridor Overlay District requirements of 30.5-feet, where 75-feet is the minimum, per § 179-4-060, for Route 9. Parcel History (construction/site plan/variance, etc.): SP 14-2006: Pending, 4/25/06, for this project. SP 41-98 Mod.: Approved, 9/18/01, previously approved site improvements not constructed. SP 41-98: Approved, 7/28/98, for a 7,378 building addition and associated site work. AV 41-98: Approved, 7/15/98, side setback and FAR relief, and relief from the minimum parking requirements, for a proposed 7,378 sq. ft. addition. Staff comments: The applicant has received approvals for the existing conditions on site (see resolution AV 41- 98). This proposal will encroach 1.5-feet further into the existing front setback of 46-feet and the side setback will encroach an additional foot into the existing 5-foot setback. While this proposal won’t affect the overall permeability of the site, the existing and proposed 19%, is less than the required 30% for the HC zone. This is a preexisting nonconforming condition, however, a recommendation to the Planning Board with regard to increasing the permeability of the site should be considered.” MR. URRICO-“Warren County Planning Board Project Review and Referral Form April 12, 2006 Project Name: Chris C. Carte d/b/a The Wood Carte Owner(s): Chris C. Carte ID Number: QBY-06-AV-22 County Project#: Apr06-40 Zoning: HC-Int. Community: Queensbury Project Description: Applicant proposes an approx. 400 sq. ft. “Adirondack Style” entry addition. Relief requested from front and side yard setback requirements of the HC-Int. zone. Also, relief is requested from the minimum setback requirements of the Travel Corridor Overlay District. Site Location: 1063 State Route 9 Tax Map Number(s): 296.09- 1-3, 4 Staff Notes: Area Variance: The applicant proposes to construct a 400 sq. ft. second story addition and façade and redesign at the front entryway. The addition is 44.5 ft. from the front property line where a 50 ft. setback is required. The existing structure is located 47.4 ft. from the front property line noting the structure is already nonconforming. The information submitted indicates the addition proposal is to enhance the front entrance with an Adirondack theme including log siding. The site plan layout shows the entry way changes that is associated with the roof line where there is no increase in the footprint of the building as the addition is for the second story. 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 4/14/06. MR. UNDERWOOD-Mr. Carte, any comments you want to make? 18 (Queensbury ZBA Meeting 04/19/06) MR. CARTE-Yes. My name is Chris Carte, and I’m here representing the Wood Carte this evening. Good evening, Ladies and Gentlemen. I’m here because I drew the short straw. Myself and my two older brothers own the business, and they suggested that maybe I handle this situation, and I’m also here to hopefully follow Mr. Stone’s earlier advice of convincing the Board to grant us a variance to put this new façade on our building. We’ve been in business for almost 25 years, and we’ve been in this building since 1991, and at that time that we bought the building and moved in, the only thing that we could really afford to do, as far as dressing it up, was to add the green awning that you can see in the picture there on the screen, and we made our own sign and put that up. The sign’s been changed, and we’ve decided recently that perhaps we could make the front of the building look a little more attractive. We’ll probably be doing a lot of that work ourselves also, but you have before you a rendering of what it might look like, and we think it’s certainly going to be an improvement over the existing building, and hopefully get our building a little bit more noticed by travelers on Route 9, and I’m glad to answer any questions that anybody might have. MR. UNDERWOOD-Do any members have questions for the appellant? MR. BRYANT-I have a couple of questions, Mr. Chairman. The front setback relief that you’re requesting that has to do with the peak, and the side setback, you’re not really going beyond what the building is. MR. CARTE-Well, approximately one foot. If you look at that south elevation drawing, you’ll see that there’s basically one, it’s kind of hard to describe, but basically it’s a false roof line, an overhang of a foot that extends out beyond the existing building, yes. MR. BRYANT-I notice on this peak thing you have, you’re going to have a lot of blank space. Are you going to put signs up there later on? Is that what’s going to happen? MR. CARTE-Only one sign, on the front. MR. BRYANT-On the front. In other words, the way that thing is going to be peaked, you’re not going to have any signs on the side, on the roof, or anything like that? MR. CARTE-No, that’ll be shingled. No. MR. BRYANT-That’s what it says, but five years from now we don’t know. MR. CARTE-Yes, well, I’m very familiar with the Sign Ordinance. So I’m aware of the fact that there’s a limited number of square feet that we can use for signage. MR. BRYANT-Thank you. MR. CARTE-You’re welcome. MR. UNDERWOOD-Does anybody else have any questions? MR. URRICO-Mr. Carte, will there be any changes to the parking? MR. CARTE-No changes to the parking, and to be honest with you, we don’t really feel the need to change the parking. I mean, our business is the type that we don’t get huge in flows of cars. On a busy day, on our busiest day, we might have 10 or 12 cars in the parking lot at one time. So while I would certainly welcome more parking, there really isn’t. MR. URRICO-What I meant was, would this cut into the existing parking? MR. CARTE-No. It won’t cut into it at all. The existing parking will remain the same. Yes. MR. URRICO-Okay. MR. UNDERWOOD-Anybody else? Okay. I guess then we’ll open up the public hearing. Does anybody in the public want to make any comments about this project? PUBLIC HEARING OPENED JOHN SALVADOR 19 (Queensbury ZBA Meeting 04/19/06) MR. SALVADOR-My name is John Salvador. I notice here that additional relief from the Travel Corridor Overlay requirement of 30.5 feet where 75 feet is the minimum. Have you addressed that issue? MR. UNDERWOOD-I don’t think it’s listed on there this evening. No. I believe that’s a pre-existing condition, though. I don’t believe that that was anything that they were going to change, other than the overhang was going to stick five feet out further towards the road, but the parking lot is there, between the frontage and the road. It’s in the TCO. MR. SALVADOR-Well, this new addition will encroach on the Travel Corridor Overlay District. MR. UNDERWOOD-Right. MR. SALVADOR-By 30.5 feet, the way I read this. MR. STONE-Yes, but right now it’s 25. MR. SALVADOR-Right now it already encroaches 25. We’re going to increase it to 30. MR. STONE-Because of the overhang, as I understand it. MR. UNDERWOOD-I assume that they’re talking about the building. I mean, it’s reflective of the parking in front of there also, being included in there. MR. SALVADOR-Yes. The reason I point this out is we went through great pains to have this Travel Corridor Overlay District put in. That was part of our previous Comprehensive Plan, Land Use Plan that we did in this area. Now, other businesses along that corridor have been granted various variances and it has always been addressed. Those automobiles that are parked on the lawn, practically on top of the sidewalk, are a violation of the Zoning Ordinance, and those RV’s that are parked, and all those cars for sale. They’re encroaching on this corridor, and it’s not being enforced. I brought this up at the last meeting we had at the Community College with the Comprehensive Land Use Plan Committee, okay. I recall that the zoning in that area was specifically restricted to what we would call small boxes. I think 60,000 square feet is the largest building size you can have there. We didn’t want big boxes in that area. Now what we have now is an outdoor big box with that RV sales. That’s all we have is an outdoor big box. That facility at Clifton Park was inside a building. It was a big box in Clifton Park. I don’t know if you’ve ever been down there. MR. UNDERWOOD-I know where it is. MR. SALVADOR-Okay. Now they move up here and they’re all outdoors, and they’re encroaching on the Travel Corridor. So, you know, if you’re going to give consideration to this, or recognize it, recognize that everyone else is in violation, and right across the street, the sign, you recall the sign issue for. MR. STONE-The furniture store. MR. UNDERWOOD-The new one. MR. SALVADOR-All that stuff. I mean, not only in the Travel Corridor. It’s on State land. So somehow we’ve got to get this thing. You shouldn’t burden one applicant with all these problems, if you’re going to let everybody else run wild, and I think it has to be considered, the previous applicant, Mr. Keniry, he pointed out the discretion of the Board in one application against another, and you don’t have to necessarily repeat a mistake, all this, that’s fine, providing you don’t deny anyone equal protection of the law, and that prohibits you from treating one person differently from another, 14 amendment right. So I think it th has to be addressed, and if the variance is going to be granted, fine, but recognize that nobody’s adhering to the Zoning Ordinance. MR. STONE-Again, are you in favor or opposed to the applicant? I’m just curious. MR. SALVADOR-I don’t have to show my cards. You do. 20 (Queensbury ZBA Meeting 04/19/06) MR. STONE-Okay, and we shall. MR. UNDERWOOD-Okay. Would anybody else like to comment this evening on this application? Do we have any correspondence? I don’t believe we do. Do we, nothing in the file? MR. URRICO-Nothing in the file. MR. UNDERWOOD-Before I ask members to offer their comments, I would like to inform the public that the comments offered by the members are directed to the Chairman only, all right, and I’m going to, I’ll guess I’ll close the public hearing at this point in time. PUBLIC HEARING CLOSED MR. UNDERWOOD-So I guess I’ll start with Mr. Bryant. MR. BRYANT-Thank you, Mr. Chairman. Mr. Salvador makes a legitimate point, and I recall that sign and I was opposed to that sign. I know I was in the minority, but what else is new. As far as this application is concerned, it’s really not adding a lot to what’s already there existing. I am not happy with all the, you have other activity going on, too, don’t you? Don’t you have another application before us that’s been tabled? MR. CARTE-No, sir. MR. BRYANT-Isn’t there something else going on with the Wood Carte? MR. UNDERWOOD-No. MRS. BARDEN-May have pending site plan. MR. CARTE-Yes, I do have to go before the Planning Board. MRS. BARDEN-Next week. MR. BRYANT-In any event, I’m reluctantly in favor of the application. I think you’re at the maximum of what this property can bear, with all the setbacks you have. MR. CARTE-Okay. MR. UNDERWOOD-Okay. We’ll go to Mr. Stone next, please. MR. STONE-I think this is a classic case of the benefit to the applicant outweighs the minimal detriment to the community. Yes, it encroaches a little further on the Travel Overlay Zone, but actually very minimally, and I think it will be a boon to the neighborhood, in the fact that it will be a better looking building. It will contribute to the visual impact of this fairly stark building. I mean, it’s a box, there’s no question, and I think the Cartes are trying to make it appear both more aesthetically pleasing and obviously more functional as far as they’re concerned, and I would be in favor of it. MR. UNDERWOOD-Mr. Garrand? MR. GARRAND-I think Mr. Stone summed it up, that the building does represent, resemble a box. I think putting on a façade of this nature certainly fits in with the neighborhood character, much like those on the Million Dollar Half Mile. I don’t think it’ll have any adverse effects on the neighborhood, and I don’t see further encroachment of 1.5 feet into the Travel Corridor as significant. So I’d be inclined to be in favor of this application. MR. CARTE-Thank you. MR. UNDERWOOD-Mr. Urrico. MR. URRICO-This is the kind of project that I think improves the touch and feel of Queensbury. It really provides the area with an uplift that needs it. That building, as Mr. Stone said, is stark. It’s a square building, and I can’t think of a better façade to put on the building for something as the Wood Carte than something that looks Adirondack style, which 21 (Queensbury ZBA Meeting 04/19/06) is what the Comprehensive Land Use Plan that’s current in effect requests, and I think not only is it an upgrade to the building, but it’s an upgrade to, I think, that whole Travel Corridor, and I would be in favor of it. MR. CARTE-Thank you. MR. UNDERWOOD-I, too, would be in favor of this project. I think it’s important that we support our local businesses and it’s nice that someone can remain in business for a quarter of a century and still be going, and I think that, you know, the change over to the Adirondack style, as Mr. Urrico said, will, you know, attract more customer base for you, and you make nice stuff. So, before we vote, before I ask for a motion, we’ve got to do the Short Environmental Assessment Form, I think, on this one. MR. STONE-We do? MR. UNDERWOOD-No, I guess it’s a Type II, isn’t it? So we don’t need to. MR. STONE-It’s a Type II. MR. UNDERWOOD-All right. So I guess at this point I’ll ask for a motion to approve Area Variance No. 22-2006. MOTION TO APPROVE AREA VARIANCE NO. 22-2006 CHRIS C. CARTE D/B/A THE WOOD CARTE, Introduced by Roy Urrico who moved for its adoption, seconded by Lewis Stone: 1063 State Route 9. The applicant is proposing a 400 square foot Adirondack style entry addition to the Wood Carte. In doing so, the applicant has requested 5.5 feet of front setback relief where 50 feet is the minimum, 21 feet of side setback relief on the south side where 25 feet is the minimum, per 179-4-030 for the HC-Int. zone. Additional relief from the Travel Corridor Overlay district requirements of 30.5 feet where 75 feet is minimum per 179-4-060 for Route 9. In granting this application, the applicant has proven the acceptable positive results as far as the balancing test is concerned. It has been determined that the benefit cannot be achieved by other means feasible to the applicant, the means being of updating that building. We determined that no undesirable change in the neighborhood character or nearby properties would occur. The request will encroach 1.5 feet further into the existing front setback of 46 feet, and the side setback will encroach an additional foot into the existing five foot setback. So as far as it being substantial, if it is, it’s only slightly more than it currently is. We’ve determined no adverse physical or environmental effect, and I guess the difficulty would be considered self-created when you change the look of a building that you are creating the need for the variance. I move we approve this Area Variance. Duly adopted this 19 day of April, 2006, by the following vote: th AYES: Mr. Garrand, Mr. Bryant, Mr. Stone, Mr. Urrico, Mr. Underwood NOES: NONE ABSENT: Mr. Abbate, Mrs. Hunt, Mr. McNulty MR. CARTE-Thank you, gentlemen. MR. UNDERWOOD-Thank you. Is there any further business from the public this evening? JOHN SALVADOR MR. SALVADOR-I took the trouble to distribute to everyone a series of letters on a project on Rockhurst, and included in one of those packets was the issue of the previously approved subdivision plat for that whole area, and this has come to everyone’s attention because that subdivision plat was a reference drawing on one of the engineer’s plans for the septic system, and this subdivision plat was approved by New York State Health Department in 1956, and no one has paid any attention to it. There are restrictions on that subdivision plat as to where and what you can build on that small peninsula. In any case, before the Town Board two weeks ago an applicant came in to schedule, to just schedule, a public hearing for a revision to his on-site wastewater system before the Town Board of Health, and Roger Boor brought up 22 (Queensbury ZBA Meeting 04/19/06) the issue of this subdivision plat that precluded the location of a septic system where he wanted to put it, and if he wanted to proceed with this plan as he had it, that he would have to go to the Planning Board to get a revision to the subdivision plat, and of course this poor guy, he had no idea what, I mean, this is, you might agree, sort of sophisticated information and zoning and this sort of thing, and the applicant was blindsided. He didn’t know what to do, where to go, and everything, but the issue is coming up. Somehow, some way we’re going to have to begin to address these previous approvals and the limitations that have been put on these approvals, the conditions. The development on Rockhurst has run wild. By rights we should have a moratorium until we straighten this out. That’s really what we need, and all of North Queensbury, we should have a moratorium. MR. UNDERWOOD-What’s the total outlay that the County has set aside for the sewer project up there on the lake over the years? Lew, you must know that, too, don’t you, approximately? MR. STONE-Well, it was $14 million, but it’s been spent down and down and down, John probably knows better. I mean, it was, I think we were paying Bill Lamy’s salary. MR. SALVADOR-That money is essentially gone. MR. STONE-It’s gone. MR. SALVADOR-Is essentially gone, and the reason we couldn’t do anything in Queensbury is because of the propaganda that came out of this Town Board, Mr. Champagne and company, okay, spreading word, we can’t afford it because of all the rock removal. Now if you look at that plan I distributed, they dug test pits down five feet and hit hard pan, not bedrock. So we really don’t have the problem that exists. In the meantime, they spent all that money over, you’ve read the newspapers about the mayor. MR. UNDERWOOD-Wouldn’t it make sense at some point just extrapolating the future that if you really want to deal with the problem, you’re going to have to like put a moratorium into effect, or something of that effect, too? I mean, it would force the County to act. MR. STONE-Well, you’ve got to keep in mind, Jim, that that’s what the Planning Board tried to do about a year and a half ago. They went on record saying give us six months. MR. UNDERWOOD-Well, I mean, not in the respect of trying to shut down building per se, but in other words, you know, on the lake front up there, I mean, it’s an eventuality, I mean, are we really going to wait to the point until the lake starts to be detrimentally affected by the properties up there? We’re kind of at the edge of it now, I would imagine. MR. SALVADOR-It already is. It’s irreversible what’s going on up there. It’s the best kept secret in the world, because of property values. MR. BRYANT-With all due respect, Mr. Salvador, I promised I’d be gentle, but this has nothing to do with this Board. We can talk after, off the record, I mean, this whole moratorium is for the Town Board. MR. STONE-Why don’t we just close the meeting. MR. UNDERWOOD-I’ll adjourn the meeting, then. On motion meeting was adjourned. James Underwood, Acting Chairman 23