2006-05-17
(Queensbury ZBA Meeting 5/17/06)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
MAY 17, 2006
INDEX
Use Variance No. 69-2005 Linda C. Casse d/b/a Sojourn Gift Shop
1.
Tax Map No. 303.5-1-62
Area Variance No. 46-2005 Jean M. Hoffman 1.
Tax Map No. 227.17-1-9.11
Use Variance No. 14-2006 Mark Darius 2.
Tax Map No. 303.20-2-38
Area Variance No. 27-2006 Kevin & Maria O’Connor 12.
Tax Map No. 290.17-1-46
Sign Variance No. 28-2006 Edward Pacyna d/b/a Massage Therapist 18.
Tax Map No. 309.10-2-22
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.
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(Queensbury ZBA Meeting 5/17/06)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
MAY 17, 2006
7:00 P.M.
MEMBERS PRESENT
CHARLES ABBATE, CHAIRMAN
JAMES UNDERWOOD, SECRETARY
LEWIS STONE
CHARLES MC NULTY
JOYCE HUNT
ROY URRICO
LEO RIGBY, ALTERNATE
MEMBERS ABSENT
ALLAN BRYANT
ZONING ADMINISTRATOR-CRAIG BROWN
LAND USE PLANNER-SUSAN BARDEN
STENOGRAPHER-SUE HEMINGWAY
MR. ABBATE-Before we begin, I do have a couple of administrative matters I’d like to take
care of.
USE VARIANCE NO. 69-2005 SEQRA TYPE: UNLISTED LINDA C. CASSE D/B/A
SOJOURN GIFT SHOP AGENT(S): HOWARD I. KRANTZ, ESQ. OWNER(S): LINDA C.
CASSE ZONING: SFR-20 LOCATION: 318 RIDGE ROAD APPLICANT PROPOSES TO
USE EXISTING BUILDING FOR A RETAIL-GIFT BOUTIQUE AREA. RETAIL USES ARE
NOT PERMITTED USES IN THE SFR ZONE. CROSS REF.: BP 2005-151, PENDING; BP
2003-536 C/O; BP 2003-384, SIGN; BP 97-3156 FREEST. SIGN; BP 95-1774, WALL SIGN; BP
93-083 C/O WARREN COUNTY PLANNING SEPTEMBER 14, 2005 ADIRONDACK PARK
AGENCY: YES LOT SIZE: 0.74 ACRES TAX MAP NO. 303.5-1-62 SECTION 179-4-020
MR. ABBATE-One, I’d like to introduce a resolution addressing Casse, which is Use Variance
No. 69-2005. The initial application was submitted to this Board September 2005, and at a
hearing before this Board on the 15 of March, 2006, the attorney for the appellant requested
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we table the appeal. Since that time, there has been no movement on the appellant to submit
new information. I have requested that the Zoning Administrator please forward
correspondence to the appellant requesting new information no later than June 15, 2006.
MOTION TO TABLE USE VARIANCE NO. 69-2005 LINDA C. CASSE D/B/A SOJOURN
GIFT SHOP, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce
Hunt:
318 Ridge Road. Tabled to July 19, 2006. New information to be submitted by June 15,
2006.
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mr. Urrico, Mr. Stone, Mr. McNulty, Mr. Rigby, Mrs. Hunt,
Mr. Abbate
NOES: NONE
MR. ABBATE-The vote is seven yes, zero, no. Use Variance No. 69-2005 is tabled. Thank
you, ladies and gentlemen.
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(Queensbury ZBA Meeting 5/17/06)
AREA VARIANCE NO. 46-2005 REHEARING SEQRA TYPE: II JEAN M. HOFFMAN
AGENT(S): WILLIAM J. KENIRY, ESQ. OWNER(S): JEAN M. HOFFMAN ZONING WR-
1A LOCATION 159 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED AN 1,170
SQ. FT. BOATHOUSE WITH 978 SQ. FT. SUNDECK AND SEEKS 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 MAY 10,
2006 ADIRONDACK PARK AGENCY YES LOT SIZE 3.43 ACRES TAX MAP NO. 227.17-
1-9.11 SECTION 179-15-050
MR. ABBATE-The second issue this evening is Area Variance No. 46-2005. Mr. Secretary,
the attorney for the appellants, Jean Hoffman, in a telephone conversation on the 16 of
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May, 2006, has agreed to a tabling. As a result of that, I’m going to let the folks here know
that we will not be hearing the case this evening. If we have any members of the public who
wish to make comments concerning Area Variance No. 46-2005, if you’d raise your hand, I’d
be more than happy to, yes, sir, please.
PUBLIC HEARING OPEN
JOHN SALVADOR
MR. SALVADOR-I’m just interested in knowing what happens in the meantime. Is there a
stay on the use of the project, and how long is this expected to go on?
MR. ABBATE-That’s a good question, and as to your reference to the stay, I would suggest
that you ask that question to the Town Attorney. I can follow it up by giving you some
facts. The reason that this has been tabled is that, at 1:30 or 1:35 p.m. Monday of this week,
after the deadline, there were approximately 30 plus pieces of new correspondence that we
were not made aware of, and of course, as you know, I’m a big one on allowing this Board to
assimilate brand new information. So, through negotiations through the Town Attorney and
through the Attorney for Mrs. Hoffman, it was agreed that they would agree to a tabling
until the 21 of June, and we will hear it on the 21 of June.
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MR. SALVADOR-Yes, but that very tabling is detrimental to us. We have to sit here and
watch a project in non-compliance. It’s been in non-compliance I can’t tell you how many
years, okay. It’s up and down, up and down, negotiation, table. You graciously allowed to
re-hear. I mean, that was really something you gave them, and now they continue to jerk it
around.
MR. ABBATE-I can’t give you guarantees Mr. Salvador, but I can say this, that on the 21
st
of June, I suspect strongly that members of this Board will come to some sort of a consensus.
MR. SALVADOR-But there should be, I believe there should be some stay on the use of that
facility, the use of that facility. I’m not saying tear it down, but the use of the facility should
be stayed pending the outcome.
MR. ABBATE-Okay. For the sake of argument, if I agree with you, I would suggest your
comment is well made, and I would suggest perhaps that it would be more appropriately
made to the Executive Director of Community Development. Do we have anybody else
who’d like to comment? Okay. There are apparently no other individuals in the audience
this evening who wish to comment on that? Okay. Hearing none, I move that we table.
MOTION TO TABLE RE-HEARING FOR AREA VARIANCE NO. 46-2005 JEAN M.
HOFFMAN, Introduced by Charles Abbate who moved for its adoption, seconded by Charles
McNulty:
159 Cleverdale Road. Tabled to the June 21, 2006 hearing date.
Duly adopted this 17 day of May, 2006, by the following vote:
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AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Rigby, Mr. Abbate
NOES: Mr. Urrico, Mr. Stone
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(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-The vote is five yes, two no, to table Area Variance No. 46-2005. Area
Variance No. 46-2005 is tabled to the 21 of June, 2006 hearing date.
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OLD BUSINESS:
USE VARIANCE NO. 14-2006 SEQRA TYPE: UNLISTED MARK DARIUS AGENT(S):
DANIEL J. HOGAN, ESQ. 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 LOT SIZE: 0.52 ACRES TAX MAP NO. 303.20-2-38 SECTION: 179-4-020
DAN HOGAN, REPRESENTING APPLICANT, PRESENT; MARK DARIUS
MR. UNDERWOOD-This was previously heard last month and we needed more information.
Would you like me to read that in, the information you submitted, or do you want to
summarize that yourself? I know there are those supportive letters.
MR. HOGAN-We do have a lot of supportive letters. As long as they’re going to be
incorporated into the record, that would be sufficient with submission, but if you wanted to
read maybe just the Use History on Pages One and Two, that might be useful.
MR. UNDERWOOD-Okay. This was the supplemental memorandum that was sent to the
Queensbury Zoning Board of Appeals on Mark Darius, and it was dated April 14, 2006, and
again, this was for his Use Variance application this evening. Mark Darius owns real property
located at 156 River Street, Queensbury, New York, and the real property, he acquired this
real property by deed from Mark Darius and Shelly Darius on May 7, 2004, and a true and
accurate copy of the deed is annexed hereto. The real property’s history on this is as follows.
The Town of Queensbury Assessor maintains cards with regard to all tax map parcels and the
real property was assigned Tax Map Parcel 303.20-2-38, and the tax map card shows the
lineage of ownership of the real property. According to the tax card, the use at the real
property has always been commercial, i.e. that is a fuel oil business, gasoline filling station,
and automobile repair shop and a used car sales businesses. A true and accurate copy of the
tax card is annexed hereto as Exhibit B. Upon information and believe, Gray Oil and
Vermont Just Incorporation operated a fuel oil business at the property from 1986 to 1991,
and the Wilders’ operated a gasoline filling station and automobile repair shop on the real
property. From 1989 to 1991, Richard v. McGill operated a gasoline filling station,
automobile repair shop and a used car business, and from 1991 until 2002, Darius Enterprises,
Inc. and/or Mark Darius continuously operated a used car and truck sales and an automobile
repair business on the real property which Corporation was wholly owned by Mark Darius.
Since 1986, that use as an automobile repair shop has continued to today’s date. Mark Darius
discontinued selling used cars and trucks at the real property in the Fall of 2001, and Mark
Darius underwent surgery and treatment for a brain tumor and epilepsy in the Calendar Year
2002. True and accurate copies of the letter from his neurologists are annexed hereto as
Exhibit C. He was unable to return to that business, but has since overcome that illness.
Mark Darius estimates that from 1991 until 2001, some 30 to 50 cars and trucks were parked
on the real property at any given time, and those cars and trucks consisted of vehicles that
were under repair, to be repaired, or to be sold. A true and accurate copy of Mark Darius’
certificate from the New York State Department of Motor Vehicles to sell used cars at the real
property is annexed hereto as Exhibit D. Effective April 9, 2002, the Town of Queensbury re-
zoned the property to Mixed Use. The Town Code’s Mixed Use zone allows for the following
uses, a bank, convenience store, daycare center, a gallery, a gasoline station, a motel, an
office, parking garage facility, personal service business, professional office, restaurant, retail
business, seasonal produce business, cemetery, health related facility, place of worship, public
or semi-public building, school and single family dwelling.
MR. HOGAN-Mr. Secretary, that ought to be sufficient at this point.
MR. UNDERWOOD-Okay.
MR. HOGAN-With regard to the four point test.
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(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-Before we start, let me do the procedures right. Both you gentlemen have
come up to the table. Please do me a favor. For the record, would you please identify
yourself and place of residence, please.
MR. DARIUS-Mark Darius.
MR. HOGAN-Dan Hogan from McPhillips, Fitzgerald & Cullum.
MR. ABBATE-Fine, continue, please.
MR. HOGAN-With regard to the four prong test, I believe the Staff notes acknowledge that
the hardship is considered unique in this situation. So I don’t think we have much difficulty
with respect to that issue. Similarly, the Staff notes also indicate that granting the variance
will not alter the essential character of the neighborhood. This had historically operated as a
used car business. It would be no surprise or shock, I think, to Ceiba Geigy or to the Town
who’s adjacent to it, or Zack’s, that this continue in that same venue going forward. With
regard to the reasonable rate of return, the Staff did have some consideration saying that we
didn’t categorically take all 19 uses and show from an economic standpoint, how it would be a
hardship. However, what we tried to do is categorize those uses which would be suitable for
this particular parcel. Mr. Underwood, I think you said .52. It’s actually .478 acres. So it’s
such a small lot size, it really wouldn’t accommodate many of the uses at all. Now with
respect to the uses that we did think it would accommodate, we tried to provide economic
data that would show that for him to demolish the existing structure, to make it useable as
office space, or anything within the categories that we thought were, would cost somewhere in
the neighborhood of $612,000 to $683,000. If we tried to amortize that over the life of a 10
year loan, he’d be paying $7500 a month, just in principal and interest alone. Mr. Levack
who’s a commercial and also residential real estate broker provided evidence that he thought
that he could lease a 3500 square foot space for $3500 a month. That wouldn’t cover half of
the principal and interest costs. So we think that we have satisfied the substantial hardship
test here, and lastly, with regard to the hardship being not self-created, we don’t believe that,
his condition really arose because of his health and illness. He would have been able to
continue the pre-existing, nonconforming use with regard to the 2002 change on the real
property, but his health didn’t permit him to do so, and he could not find anybody in there
within that 18 month period to continue that business. So we think that we’ve satisfied the
four prong test and we certainly would be willing to entertain questions.
MR. ABBATE-Okay. Do any members of the Board have questions for the appellant, please,
ladies, gentlemen?
MR. URRICO-The sole reason for the business not continuing was your health? Was your
health the primary reason the business ceased to exist?
MR. DARIUS-One of the main reasons was my health. I backed off doing a lot of things that
I was doing.
MR. URRICO-You said one of the reasons. Were there others? Were there other reasons?
MR. DARIUS-No, one of the reasons that I quit, basically gave up the.
MR. HOGAN-He’s asking were there other reasons.
MR. DARIUS-I would probably still be doing that today if the health reasons didn’t kick in.
Because I had given up the used cars and the auto repair, to an extent, just too much.
MR. URRICO-Okay. Thank you.
MR. DARIUS-You’re welcome.
MR. ABBATE-Counselor, I’m sure you’re well aware of the fact that there are five areas that
must be satisfied, and the Staff has addressed several of them, but just let me reiterate just
the four. In order to be granted a Use Variance, the owner cannot realize, must establish the
owner cannot realize a reasonable return on the property as zoned, and, two, the hardship
must be unique to the owner’s property and not applicable to a substantial portion of the
zoning district. Three, granting the variance would not alter the essential character of the
neighborhood, and, four, the hardship is not self-created. Now I could go into a long
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(Queensbury ZBA Meeting 5/17/06)
dissertation, but I don’t think that we’d have to, because I’m sure you understand what those
four provisions are. The question is whether they have been satisfied. Having said that,
members of the Board, do you have anything else you’d like to address?
MR. RIGBY-I have a couple of questions. Excuse me, I wasn’t here for the last session. So I
just want to get a little bit more information. The auto sales business that you had before,
was that a sole proprietorship, or was that a separate entity?
MR. HOGAN-That was operated both individually and under Darius Enterprises, Inc., which
is a sub chapter of S Corporation.
MR. RIGBY-So is Darius Enterprises, Inc. the same entity that operates today also?
MR. HOGAN-No. There’s been a lease entered into, a Mr. James Wood who intends to
operate the used car business on the real property, and he’ll be a tenant.
MR. RIGBY-Okay. So the sense is just to rent the property to someone else who would
operate that enterprise?
MR. HOGAN-Correct. This property has been on the market for over a year for sale.
However, there have been six people who’ve expressed an interest, as we’ve indicated through
the real estate agent, all of which have indicated an interest in using it as a used car business,
and nobody for one of the uses that’s permitted in the Mixed Use zone.
MR. RIGBY-So it’s really not a continuation of your business, it would be a start of a new
business by a separate individual.
MR. HOGAN-That’s correct.
MR. RIGBY-Okay. Thank you.
MR. ABBATE-Ladies, gentlemen of the Board, do you have any other questions? Okay. If
there are no other questions, I’m going to open up the public hearing for Use Variance No. 14-
2006, and would those wishing to be heard, please approach the table, speak into the
microphone and for the record identify yourself and place of record. Do we have anyone in
the audience who would like to address Use Variance No. 14-2006?
PUBLIC HEARING OPENED
MR. ABBATE-I see no hands. Then I shall continue.
MR. UNDERWOOD-Would you like all the supportive letters read in at this time, as public
correspondence?
MR. ABBATE-I think it would be appropriate, Mr. Secretary, if you would do that for me,
please.
MR. UNDERWOOD-Sure.
MR. HOGAN-There are a number of exhibits there. If you want to read them into the
record, I’m satisfied with that, but if you would consider.
MR. ABBATE-They are into the record, as of right now. Well, let me put it this way. Why
don’t we leave it up to you. Would you like the Secretary to read all those into the record, per
se, verbally?
MR. HOGAN-I don’t believe so. If the Board has reviewed the submissions and the exhibits,
I’m certainly comfortable with your analysis.
MR. ABBATE-Yes. Okay. Fine. Then that will be unnecessary, Mr. Secretary.
MR. UNDERWOOD-Okay.
MR. STONE-Mr. Chairman, I would only ask, are there any for or against? I mean, the
letters that are in the file are like documentation by the applicant.
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(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-Good question. Do we have any opposition?
MR. UNDERWOOD-No.
MR. ABBATE-To answer your question, no.
MR. STONE-Okay. Thank you.
MR. ABBATE-Okay. Does that satisfy, so far, everyone, all the parties?
MR. HOGAN-Yes.
MR. ABBATE-Okay. Good. Then I’m going to move on, and before I ask members to offer
their comments, I’d like to inform the public that the comments that are going to be offered
by the members are directed to the Chairman, only, and comments expressed by Board
members to the Chairman will not be open to debate. I will now ask members to please offer
their comments on Use Variance No. 14-2006. Again, before I have a volunteer, I want to
respectfully remind the members that precedents 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 ensures a fair and open process, and Board members make
decisions on reliable evidence contained in the record of Board deliberations. Now, do I have
a volunteer to address Use Variance No. 14-2006?
MR. STONE-Mr. Chairman, have you considered reading Staff Notes in? Is this a different
letter, Staff Notes, from the last time?
MR. ABBATE-All right. We’ll do it. Mr. Secretary, would you please read Staff Notes into
the record.
MR. UNDERWOOD-Yes.
STAFF INPUT
Notes from Staff, Use Variance No. 14-2006, Mark Darius, Meeting Date: May 17, 2006
“Project Location: 156 River Street Description of Proposed Project: Applicant seeks to add
Auto Sales to the pre-existing, non-conforming Auto Service /Repair use.
Relief Required:
Applicant requests relief from the allowable uses of the Mixed Use, MU zone, per §179-4-020.
Criteria for considering a Use Variance according to Chapter 267 of Town Law:
1. Can the applicant realize a reasonable return, provided that lack of return is substantial as
demonstrated by competent financial evidence?
Even with the April 14, 2006 submission of additional information the applicant has
provided minimal information in response to this question. Limited “Dollars and Cents”
evidence has been provided with respect to “…each and every permitted use…” for the MU
district.
In addition to each and every permitted use in the MU district, the applicant needs to provide
information to support the position that even the pre-existing, non-conforming use does not
offer a reasonable return for the property.
This standard is not “highest and best use.” The standard is “reasonable return.” It does not
appear as though enough supporting information has been provided to address this question.
What about remodeling costs for the existing structure? What are the
monthly/annual costs of the property? Is the mortgage still open? Taxes?
Insurances? Utilities, property maintenance?
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(Queensbury ZBA Meeting 5/17/06)
The applicants Exhibit K offers opinions from individual prospective users, however,
no “dollars and cents” numbers, which is the standard, are included with their
testimonials.
2. Is the alleged hardship relating to the property in question unique, and does this hardship
apply to a substantial portion of the district or neighborhood?
The hardship may be interpreted as unique, as the property in question appears to be the only
property in the immediate area with a pre-existing, non-conforming auto repair use, however,
the establishment of an Auto Sales use in the MU zone would cause a material change in the
MU zoning.
3. Will the requested use variance, if granted, alter the essential character of the neighborhood?
If granted, the subject property would be the only property in the immediate area with Auto
Sales Use. The properties on the south side of River Street are zoned Light Industrial in this
area. While an auto sales use may not be out of character with the Light Industrial zone uses,
such a use may be out of character with the uses allowed in the Mixed Use zone.
4. Is the alleged hardship self-created:
The alleged hardship can be interpreted as self created. While the zoning of the property
changed in 2002 from Light Industrial to Mixed Use, the previous Light Industrial zone did
not allow auto sales either. The difficulty appears to come from the fact that the applicant
voluntarily discontinued the Auto Sales use on the property and such discontinuance has been
for longer than 18 months, thereby, eliminating its pre-existing, non-conforming status.
Town Assessor records indicate that the property was most recently “re-conveyed” to
Darius on May 7, 2004.
Parcel History (construction/site plan/variance, etc.):
Per the applicant’s submittal, the Auto Sales use was discontinued, at the applicant’s
discretion, in 2003. Since that date there has been no documented, allowable Auto Sales from
the site. The pre-existing, non-conforming Auto Service/Repair use has been, apparently,
continued. Currently, a Certificate of Occupancy has been issued for a business entitled; 518
AUTO SALES. A condition of this C/O is “FOR REPAIR ONLY. NO AUTO SALES” BP
2005-903. As of March 17, 2006, the repair business does not appear to be operating.
Staff comments:
It appears as though the property can be utilized for an allowable use in the Mixed Use zoning
district.
Per §179-13-020, Discontinuance; “If a nonconforming use is discontinued for a period of 18
consecutive months, further use of the property shall conform to this chapter or be subject to
review by the Zoning Board of Appeals.”
A claim that, “…there used to be this type of use on the property…” is not applicable as
there has not been any previous use variance granted and a such similar use, if any, has not
been substantiated to have legally existed on the property within the last 18 months.
SEQR Status:
Type: Unlisted”
MR. ABBATE-Thank you. Counselor, would you like to address Staff comments?
MR. HOGAN-Yes. If I could, really just the first item, which is the reasonable rate of return.
The Staff notes say that we have not provided financial data for underlined, in quotes, each
and every permitted use. There are 19 permitted uses in a Multi Use district. We tried to
categorize the seven or eight that would be permissible, given that lot size. That’s why we’ve
got the estimates to show the reconstruction costs of $612,000 and $680,000 some odd dollars.
That’s hard financial data, given the principal and interest on the mortgage, given what they
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(Queensbury ZBA Meeting 5/17/06)
could lease back the property at. We really didn’t have to deal with the issues of taxes,
insurance, utilities, because the mortgage, the payment for rent wouldn’t cover half of the
principal and interest on the note. So it really didn’t seem to be applicable. The other about
opinions from perspective users, we had at least seven or eight say they’d have no interest in
doing a Mixed Use allowable on the property. So it really just didn’t fit into the confines.
Lastly, with regard to remodeling, nobody has come forward, in purchasing this property,
that wants to use it as an allowable Mixed Use. It’s only been used car sales, and lastly, with
respect to a reasonable rate of return, he’s got his purchase price and his basis exceeding
$199,000 on the property, and he’s got it listed for $184,000. He’s going to lose, even if he’s
able to sell the property. So we think that we’ve adequately addressed the reasonable rate of
return issue, as well as the other three criteria.
MR. ABBATE-Okay. Thank you. Ladies and gentlemen of the Board, do you have any
questions, anyone want to address Use Variance No. 14-2006? Do I have a volunteer, please?
MR. MC NULTY-Mr. Chairman, if you’re looking to get our comments prior to a vote, this is
an Unlisted Action. Might I suggest it might be appropriate to handle the Environmental
Assessment Form before we proceed on with this.
MR. ABBATE-Absolutely. Thank you. Mr. Secretary, please.
MR. UNDERWOOD-Okay. Under the Environmental Assessment Form, we’re going to run
down through here. “Does the Action exceed any Type I threshold in New York State
Conservation Regulatory Law Part 617.4?” No.
MRS. HUNT-No.
MR. UNDERWOOD-“Will the Action receive coordinated review as provided for Unlisted
actions?” I would say, yes, it will, at some point in time.
MR. STONE-Yes.
MRS. HUNT-Yes.
MR. UNDERWOOD-Could the Action result in adverse effects associated with any of the
following: Air quality, surface or groundwater, noise levels, traffic patterns, solid waste
production or disposal, potential for erosion, drainage or flooding problems? I would say no.
MRS. HUNT-No.
MR. STONE-There will be more traffic, if people come and test drive cars, they will be in and
out much more than somebody that comes in at eight o’clock.
MR. UNDERWOOD-I think you have to think of it in the context of the road there. It’s
quite a busy road already. Is it going to significantly alter the amount of traffic on that road,
realistically?
MR. STONE-Not significantly.
MR. ABBATE-I would say, no.
MR. UNDERWOOD-I would say no.
MR. MC NULTY-As long as you’re stopped, could we go back to the previous question for a
minute. That dealt with coordinated review?
MR. UNDERWOOD-Yes.
MR. MC NULTY-That means it’s going to be reviewed by more than one.
MR. UNDERWOOD-I would think the Planning Board is probably going to review it.
MR. MC NULTY-Independently, not coordinated by us.
MR. UNDERWOOD-Not coordinated by us.
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MR. MC NULTY-Where the Planning Board takes Lead Agency and proceeds with things,
that would be closer to a coordinated review, I believe, and in this case we don’t anticipate
doing this in conjunction with another agency.
MR. UNDERWOOD-No.
MRS. BARDEN-That’s correct.
MR. MC NULTY-And therefore I believe the correct answer to that one is we don’t anticipate
it being a coordinated review. There could be a series of independent reviews.
MR. UNDERWOOD-Okay.
MRS. BARDEN-That’s correct.
MR. ABBATE-Okay.
MR. UNDERWOOD-Okay. On to the next one. Aesthetic, agricultural, archeological,
historic, or other natural or cultural resources, or community or neighborhood character.
Yes, or no on that?
MRS. HUNT-No.
MR. UNDERWOOD-No.
MR. ABBATE-Thank you.
MR. UNDERWOOD-Vegetation, or fauna, fish, shellfish, or wildlife species, significant
habitats, or threatened or endangered species? No.
MR. STONE-No.
MRS. HUNT-No.
MR. UNDERWOOD-Community’s existing plans or goals as officially adopted. I think Staff
has identified that it doesn’t meet those standards, I think, in that respect, because of the
change in zoning. Growth, subsequent development or related activities likely to be induced
by the proposed action? I would say no.
MRS. HUNT-No.
MR. STONE-Well, it could always be an expansion of a business, if it’s successful, and I’m
not suggesting that there’s land around it, and I wouldn’t have a problem with saying
whatever we have to say, but I just wanted to get that on the record.
MR. ABBATE-Okay.
MR. UNDERWOOD-Okay. Long term, short term, cumulative or other effects not
identified. I would say no.
MRS. HUNT-No.
MR. RIGBY-Agreed.
MR. STONE-Agreed.
MR. ABBATE-Thank you.
MR. UNDERWOOD-Other impacts including changes in either quantity or type of energy,
no. Will the project have an impact on the environmental characteristics that cause the
establishment of a Critical Environmental Area? No.
MRS. HUNT-No.
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(Queensbury ZBA Meeting 5/17/06)
MR. STONE-No.
MR. UNDERWOOD-Is there or is there likely to be controversy related to potential adverse
environmental impacts? No.
MR. STONE-No.
MRS. HUNT-No.
MR. UNDERWOOD-That’s it then, I guess.
MR. ABBATE-Okay. Thank you.
MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FOR PROVIDED BY THE
APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS
CAUSED BY THIS 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 James Underwood:
156 River Street.
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Rigby, Mr. Urrico, Mrs. Hunt, Mr. Stone, Mr. McNulty, Mr. Underwood, Mr.
Abbate
NOES: NONE
MR. ABBATE-In a seven yes to zero no vote, the Short Environmental Assessment Form is
approved. Thank you, ladies and gentlemen of the Board. Now I’ll go back to, again, asking
members of this Board if they wish to address Use Variance No. 14-2006, and do I have a
volunteer, please.
MR. STONE-Mr. Chairman, I’ll volunteer, since you’re looking so hard.
MR. ABBATE-Thank you, Mr. Stone.
MR. STONE-Well, I am conflicted on this. I’m reading the language of a Use Variance
request. You have very nicely talked about them, and Staff has talked about them, but the
thing that sticks in my mind is, Number One, cannot realize a reasonable return. I don’t
disagree with what you have provided, but it goes on to say substantial as shown by
competent financial evidence. We’re hearing hearsay. You got a bunch of letters from a
bunch of people. I don’t know the question that they were asked. I don’t know whether they
even ever though of putting a Stewarts, for example, on that property. You asked them, and
you’re doing your job to ask them, but I don’t regard that as competent financial evidence,
and on that basis alone, I think that everything else that you’ve talked about is fine. I would
have a problem with granting this Use Variance.
MR. ABBATE-Thank you, Mr. Stone. Do we have anyone else who’d like to go next?
MR. MC NULTY-I’ll go next.
MR. ABBATE-Please, thank you.
MR. MC NULTY-I’m kind of where Mr. Stone is. Half of me says there was an auto sales on
this property before, even though it’s gone beyond the 18 month period to grandfather, and in
many ways my reaction is it probably wouldn’t significantly change the nature of the
neighborhood, although as Staff points out, this is in a Multi-Use area, not in the industrial
area. I can understand the applicant’s reason for having to discontinue his activities back a
couple of years ago, or whenever it was, but this is a Use Variance that goes with the land.
It’s not a variance that should be based strictly on personal hardships, and I’ll agree with Mr.
Stone that while the applicant’s made a fair attempt at identifying other plausible uses, I’m
still left wondering, because all of the alternative uses that have been spelled out basically are,
10
(Queensbury ZBA Meeting 5/17/06)
let’s tear it down, clear the land and build something new, which obviously costs a lot of
money, and I would like to see something that at least made an attempt to make practical use
of something that is there at the current time. Also for the nature of this kind of property, it
strikes me that failure to sell it in a year’s time is not necessarily indicative of it being
impossible to sell it. It’s rough having to hang on to it for a year or two or three years, but I
don’t think that says that it can’t ever be sold for an acceptable use. So, again, I’m torn, but
at this point, I think I’d have to agree with Mr. Stone that, push comes to shove, I’m going to
have to be opposed.
MR. ABBATE-Thank you, Mr. McNulty. Mr. Rigby, please.
MR. RIGBY-I’m kind of right where Mr. Stone and Mr. McNulty are, too. I think that there
hasn’t been any negative public feedback, which is a good thing, and all the things that Mr.
Stone and Mr. McNulty said are true on the positive side, too, but as far as establishing a
reasonable return, I think I’d like to see a little more work done in that area. I think there’s
19 possible uses you’d really have to go through. I know you’ve grouped a number of those
together, and I’d like to see some more financial analysis on it before I’d be willing to approve
it.
MR. ABBATE-Okay. Thank you, Mr. Rigby. Mr. Underwood, please.
MR. UNDERWOOD-I’m going to have to disagree with the three previous people who’ve
spoken here. I think that we have to look at this in the context of where this property is
located, and I think that when we tweak the Zoning Code, I think part of it is partially due to
what we wish we had in an area, and I think that in this instance here, you’ve substantiated
pretty clearly to me at least that, you know, a bank would not want to put an office down
there because there’s not enough traffic generated. It’s not really an area that’s on an up and
coming area of Town. It’s a neglected area of Town. Since the demise of Ceiba Geigy, it’s
become kind of a no man’s land down there, and I think that as much as I would like to see us
maintain the Mixed Use in that area as it has been changed, it is a Light Industrial area on
the other side of the road there. There’s very little down in that area at the present time.
There’s a garden center. There’s Zack’s, as everybody knows. Everything is sort of run
down, and there’s not a whole lot going on in that area of Town. I think if we have an
opportunity to put any business in an area such as that that might stimulate some change in
the area for the better, I think that’s a possibility that we have to be comfortable with, rather
than sticking to the Code like it’s a fundamentalist type doctrine that we have to follow to the
“T”, and in this instance here I don’t see any reason why we can’t accommodate this. There’s
a longstanding historical perspective of many of these same similar businesses being in
operation on that site over many years. They don’t seem to have had a detrimental affect on
the neighborhood down there, in the years that they were operating. We have had
discontinuance, and as the Staff notes point out, that is grounds to disallow this to continue,
but at the same time, I think that we have to consider if we disallow this tonight, it’s just
going to be another empty lot and an empty business sitting there half used, and it could be
better utilized as has been requested here this evening, and so I’m comfortable with granting
the variance.
MR. ABBATE-Thank you, Mr. Underwood. Mrs. Hunt, please.
MRS. HUNT-Thank you. I have to agree with Mr. Underwood. The six letters that were
provided were people all addressing the property especially, they mentioned it, 156 River
Street and I could see a bank or a school, and these would not fit on that size property in that
area, and I have to agree with Mr. Underwood. I would be in favor.
MR. ABBATE-All right. Thank you. Mr. Urrico, please.
MR. URRICO-I’m in agreement with both Mr. Underwood and Mrs. Hunt. When I look at
this, I see what I like to refer to as a tabled variance, and what I mean by that is we have this
matrix in front of us of allowed and uses that are not allowed, and to be honest with you, in
some cases, there does not seem to be any rhyme or reason as to why certain businesses are
allowed in certain districts. Had this been a Highway Commercial Intensive zone, a Special
Use permit would be allowed. Why not here? Why not Highway Commercial moderate also?
But yet it’s allowed in Recreation Commercial for three or fifteen acres. So I don’t
understand why, under the Mixed Use, gas station would be allowed yet this wouldn’t be, or a
parking garage facility would be allowed and this wouldn’t be. There doesn’t seem to be
consistency in that, and I feel, in this case, especially, that the gentleman has had special
11
(Queensbury ZBA Meeting 5/17/06)
circumstances surrounding the discontinuance, and under those circumstances, I believe, in a
sense of fairness, he should be allowed to continue that business, especially when the Code is
not clear cut when it comes to something of this nature. So I would be in favor of it.
MR. ABBATE-Thank you, Mr. Urrico.
MR. RIGBY-Mr. Chairman, I have a question. I wasn’t here for it last time.
MR. ABBATE-Okay. Take your time.
MR. RIGBY-In listening to the Board, what I probably should have done is deferred my
decision until the rest of the Board spoke. Listening to Mr. Urrico and Mr. Underwood, I’m
swayed to the opinion that I think this is an acceptable application. If they’re all
comfortable with it, I’m comfortable with it as well.
MR. ABBATE-And I can’t tell you how comfortable I am.
MR. STONE-Mr. Chairman, may I amend my comments?
MR. ABBATE-By all means you may.
MR. STONE-I’m speaking from the Zoning Code, which is our bible. I’m speaking from the
law, in Otto vs. so and so, which established this criteria. Some of the comments I’ve heard,
and I don’t disagree with what everybody is saying. I think they border on something that
we don’t like to talk about on the Zoning Board. I don’t want to even use the words, because
I’ve heard arguments like Mr. Darius had a health problem. That’s terrible. I mean, I
sympathize, but that’s not the Zoning Code, and that’s not the criteria on which Use
Variances are decided. So, I mean, I understand what the guys are saying, and I don’t
disagree with the wish, but I don’t think we have the power, based upon the law that is
imposed upon us. That’s just me.
MR. ABBATE-Okay. That’s fair enough. Thank you very much. Now for my comments.
Mr. Stone makes a case, from the legal point of view. There’s no way, and God knows he
knows that I support legal points of view. There’s no question about it, but I think this is a
set of circumstances where we have to look at a number of other things as well. Even judges
at the highest court temper their decisions with discretion, faith of the individual coming
before them, intent, etc., etc., even a humanitarian approach sometimes enters into a judge’s
decision at the highest level, and I think it should at this level, too. I have to say that I’ve
read everything, and I can assure everybody here that I have copious notes concerning Use
Variances and what we should grant, what we shouldn’t grant, and I have read probably
three or four times the statements submitted to us by Staff, and I have listened intently to
what Board members have said this evening, and I’m not going to use the word I disagree
with anyone, but I feel that this is an unusual set of circumstances, and that at times we must
temper, I believe, our judgment based upon good faith, based upon the intent of the
applicant, based, perhaps, even on the humanitarian point of view. I was delighted and I was
relieved that Mr. Rigby had enough courage, if you will, to come forward and say I change
my mind, because, quite frankly, this was going to be my vote. I was going to side with the
comments of Mr. Underwood, Mrs. Hunt, and Mr. Urrico, and particularly the comments
made by Mr. Urrico. So the vote, either way, now, has turned, and I’m going to ask, well,
right now, I’m going to close the public hearing.
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 criteria that must be carefully followed in deciding whether to grant a
variance. I’m going to ask, respectfully, that a Board member please introduce your motion
with clarity, and in the event a member does not understand the motion as stated, please
advise me and I will request the motion be repeated a second time. Is there a motion for Use
Variance No. 14-2006?
MOTION TO APPROVE USE VARIANCE NO. 69-2006 MARK DARIUS, Introduced by Roy
Urrico who moved for its adoption, seconded by Joyce Hunt:
12
(Queensbury ZBA Meeting 5/17/06)
156 River Street. The applicant is seeking to add auto sales to a pre-existing, nonconforming
auto service repair use. In doing so, the applicant requests relief from the allowable uses of
the Mixed Use, MU zone, per 179-4-020. In making the application, I believe the applicant
has satisfied the criteria used to establish a Use Variance. In that, he has shown to me that
he cannot realize a reasonable return based on financial evidence that they’ve prepared, and I
believe especially that the alleged hardship is unique and does not apply to a substantial
portion of the district or neighborhood, and especially that this is unique. Three, that the
requested variance will not alter the essential character of that neighborhood, and, four, that
this alleged hardship has not been self-created. I move for this approval.
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Rigby, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Abbate
NOES: Mr. McNulty, Mr. Stone
MR. ABBATE-The vote for Use Variance No. 14-2006 is five yes, two no. Use Variance No.
14-2006 is approved.
MR. HOGAN-Thank you.
MR. DARIUS-Thank you.
MR. ABBATE-You’re welcome, sir.
NEW BUSINESS:
AREA VARIANCE NO. 27-2006 SEQRA TYPE: II KEVIN & MARIA O’CONNOR
AGENT(S): JONATHAN C. LAPPER, ESQ.; MATT STEVES, L.S. OWNER(S): KEVIN &
MARIA O’CONNOR ZONING: PUD LOCATION: 18 FAIRWAY COURT APPLICANT
PROPOSES CONSTRUCTION OF AN INGROUND SWIMMING POOL. RELIEF REQUESTED
FROM REAR YARD SETBACK REQUIREMENTS FOR POOLS. CROSS REF.: BP 2006-177
PENDING POOL PERMIT; BP 2001-569 SFD WARREN COUNTY PLANNING N/A LOT
SIZE: 0.78 ACRES TAX MAP NO. 290.17-1-46 SECTION: 179-5-020
JON LAPPER, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 27-2006, Kevin & Maria O’Connor, Meeting Date: May
17, 2006 “Project Location: 18 Fairway Court Description of Proposed Project: The
applicant proposes an 853 sq. ft. pool and patio.
Relief Required:
The applicant requests 10-feet of rear setback relief where 20-feet is the minimum for a
private swimming pool, per § 179-5-020.
Parcel History (construction/site plan/variance, etc.):
BP 2006-177: Pending, in ground pool.
BP 2001-569: Issued, 8/8/01, for a 2,832 sq. ft. single-family dwelling with attached garage.
Staff comments:
Pools may be erected only in the rear yard, therefore, there does not appear to be a feasible
alternative to the siting of the pool. It may be possible, however, to increase the rear setback
by moving the pool closer to the house and reducing the size of the patio.
The pool is surrounded by a fence which is required, what type of fence is proposed? A
stockade type would help to lessen noise and visual impacts to the golf course.”
MR. ABBATE-Okay. I see that the petitioners and attorney are at the table. Would you be
kind enough, please, to speak into the microphone, and for the record identify yourself and
your place of residence, please.
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(Queensbury ZBA Meeting 5/17/06)
MR. LAPPER-For the record, attorney Jon Lapper, with my close friends and former
neighbors, Maria and Kevin O’Connor.
MR. ABBATE-Okay.
MR. LAPPER-Maria and Kevin had the house built four and a half years ago, and they’ve
always hoped that they could have a pool in the back. What we think we showed with the
application, and would like to explain tonight is that the benefit to them is that this is just
the best way to locate the pool so that they can do very nice, extensive landscaping, a very
attractive wrought iron style fence. All of their neighbors are in concurrence that this is the
best place to locate it, or the residential neighbors. We have letters that we’ll submit for the
public hearing, very brief letters from the three adjoining property owners, and if you see
from what we submitted on the site plan, the shape of the pool is kind of an irregular shape, a
little more interesting than an rectangular shape pool, and it’s really only a very small portion
of the pool that’s actually 10 feet from the property line, a little bump out. So in terms of the
magnitude of this variance, it’s really just a few feet that are actually 10 feet from the
property line. What’s most significant about this is that the pool is buffered from the
adjacent residential neighbors, and the golf course in this location, which is the only property
owner that could be affected at all, because that’s the area where we’re asking for 10 feet
instead of 20 feet, the way the 13 green lies, and the 13 fairway, it’s a dog leg right away
th
from their property. So there’s a whole area, a very substantial area of rough. So it’s not
near the actual fairway, so there won’t be any impact whatsoever. You wouldn’t notice 10
feet with all that grass there, in between the fairway and their property line. So for that
reason, we maintain that there is virtually no impact on those really few square feet of the
pool that are 10 feet from the property line, but that there’s a really nice benefit to them, and
the benefit to them is that, when the house was located by the builder on the site, it was
located so that the front of the house would be the same setback from Fairway Court as the
lot next door, Bob and Lydia Edwards, the brick house to the right if you’re looking at the
front of the house, and what that left was essentially 44 feet in the back. Forty-four feet
would ordinarily be enough that they could maintain the 20 feet, but because of the elevation
of the house, they had to build, which they did very nicely with pavers, they had to build a
patio in the back because of how the doors came out, and just to explain that, when the house
was originally located, and Kevin, as one of the principles in O’Connor, Inc., a very well
known and respected site contractor in Town, Kevin did the site work on the property for
Ken Collette who built it for him, and it was intended that the house was going to be set down
about five feet lower than it was. I remember the day that Kevin was down there with the
bulldozer doing the excavating, and the water table in that area right under the house was so
close to where the foundation was that he was standing on what looked like sand, and I
watched him, it was like he was on a surfboard going up and down. Once he saw that, it was
kind of like quicksand, and once he saw that, he quickly put in a whole bunch of stone and
sand and raised the house. You can’t tell from the front, it’s just really gentle, but the house
was, because of the soil conditions, was placed high. So in the back yard it has to come from
where the back door is to the level of the golf course. There’s somewhat of a drop, and for
that reason, they had to put in this paver patio area. So the problem is that if you move the
pool closer to that patio area, there’s a big difference in height, and you certainly don’t want
kids jumping off of a patio into a pool. So it’s really just a way to give them the extra few
feet, let them do substantial landscaping, and it just works better with their property for
these reasons, and there’s just no impact on the golf course. We did take, Maria took a few
pictures, that just shows the great distance between their property line and the way the
fairway is.
MR. ABBATE-Would you like to pass that around, Counselor?
MR. LAPPER-Yes.
MR. STONE-Where’s their property line, where the grass change color?
MR. LAPPER-And then Maria prepared just this same plan that we’ve submitted with the
application, but just a little more extensive, in terms of the landscaping, the stones that
Kevin will place there to make it more interesting, that just really shows how they’re going to
lay it out, just in terms of the benefit to the neighbors, with the very nice fence and some
really serious landscaping.
14
(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-Why don’t you introduce that into evidence and pass it around to the Board
members, and make it part of the record.
MR. LAPPER-And that’s essentially the argument, the benefit to them, because of the
unique way the property’s laid out and no detriment to the neighbors, and we’ve got the
letters from the neighbors that establish that, that I’ll also hand in. They’re on the east side
of the golf course, right by the corner of Rockwell and Haviland. They’re over there.
MR. STONE-The question is, have any golf balls ever come into the yard?
MARIA O’CONNOR
MRS. O’CONNOR-In all honesty, I think we’ve had, what, two?
KEVIN O’CONNOR
MR. O’CONNOR-Yes. When I excavated the property, the soil, two golf balls.
MR. STONE-And none since play has been in?
MR. O'CONNOR-No.
MR. LAPPER-Because they don’t go that way. It goes that way.
MRS. O’CONNOR-You’d be allowed to come in the yard and get your ball.
MR. STONE-I was thinking more of any liability and danger, that was all. I mean, you
would have the first liability, but we’d hate this Board to be, you allowed this thing to be too
close to a golf course.
MR. LAPPER-I can tell you what that is. Case law in New York is that it is the property
owner, if you’re driving by and somebody hits a golf ball through your windshield, it’s not the
people that hit the golf ball, it’s the guy in the car.
MR. ABBATE-The car shouldn’t have been there in the first place.
MR. LAPPER-Even if it’s on a public road, I mean, just if it’s your house.
MR. STONE-Really?
MR. LAPPER-Yes, that’s the law in New York.
MR. ABBATE-Okay. Now that we’ve learned a lesson in law this evening, do any members
of the Board have any questions concerning Area Variance No. 27-2006?
MR. RIGBY-Is there any correspondence from Hiland?
MR. LAPPER-No. Maria did bring them out and showed it to them and they were fine.
They didn’t say anything.
MR. STONE-You’re saying the golf course, Leo? Yes, that was a question I had. Okay.
MR. LAPPER-She came out to the house and Maria walked around and showed her what
was what.
MR. ABBATE-Okay. Folks on the Board, do you have any other questions or comments?
MR. URRICO-You show a three foot concrete patio, beyond the paver patio. Why three
feet? What’s different than say two feet or one foot, or four feet?
MR. LAPPER-Three feet is actually, with a pool three foot is the minimum. It’ll probably
be bigger than that. The drawing that may not have come down all the way to you, Roy,
that shows more than three. What Matt Steves did was just show, three feet is like the
sidewalk, and it’s really not enough for the kids to be running around. What they’re going to
do is what’s in front of you, and that’s bigger than three feet.
15
(Queensbury ZBA Meeting 5/17/06)
MR. URRICO-So will the pool actually be closer to the property line?
MR. LAPPER-No, the patio has nothing to do with the pool.
MR. URRICO-Okay. I guess the question I’m asking is why the pool can’t be closer to the
pavers?
MR. LAPPER-And the answer is because they just want to have some room, some distance
between the house because they’ve got the drop in elevation. They want to do landscaping on
the other side of that, so you just don’t have this wall right next to the patio. So there’s some
area for landscaping. It’ll just visually look more attractive.
MR. URRICO-And three feet is considered to be a safe distance?
MR. LAPPER-No, three foot is the minimum apron you can have around a pool, but you
really need more than that, because you can trip and fall in the pool if it’s only three. That’s
a sidewalk. You really need more than three feet.
MR. URRICO-The second question is, can the pool be smaller?
MR. LAPPER-The pool could be rectangular. You could have a straight rectangular pool. It
wouldn’t look as attractive. This just makes it look better for the neighbors and the
neighbors like this. They’ve all seen this.
MRS. O’CONNOR-Also, too, if we were to do this same pool, but make it only six feet deep,
they probably could compact it, but I’m not comfortable with my children, they’re 12 and 14.
They might follow the rules, but what about their friends, and I say there’s no diving at the
deep end of the pool because it’s only six feet. Does that mean the minute I turn my back
that, you know, some kid’s not going to decide, oh, it’s okay, I can dive?
MR. URRICO-Well, the reason I’m asking is because we’re required to only allow minimal
relief.
MRS. O’CONNOR-And I do understand that.
MR. URRICO-And I’m not sure why we’re asking for 10 rather than, let’s say eight or five.
MR. LAPPER-You saw my point about how it’s only that little bump out of the pool that’s
actually the 10 foot of relief, so it’s a really small area?
MR. URRICO-Yes.
MR. LAPPER-And the really, visually it’s just a more interesting backyard, it lays out better
with that mountain lake shaped pool rather than a rectangular shaped pool. So we think it’s
just nicer for them, and there’s no detriment to the neighborhood.
MR. URRICO-Okay.
MR. ABBATE-Any other questions?
MR. STONE-Yes, just to have it on the record, have you ever made an attempt to buy an
extra 10 feet from the golf course, you say since it’s not an integral part?
MR. LAPPER-They never thought of that.
MR. STONE-I wouldn’t have thought of it, either, but I just wanted to get it out that you, it
is a viable alternative.
MR. LAPPER-Maria invited the golf course owner to come look at it and showed her what
was what, but we never thought that they would part with any part of the golf course.
MR. STONE-Okay.
MR. LAPPER-We just never considered that.
16
(Queensbury ZBA Meeting 5/17/06)
MR. MC NULTY-A couple of questions. Back a few years ago there was an issue on some of
the property around Hiland about a covenant prohibiting pools in the backyard. Does that
apply to this area?
MR. LAPPER-That didn’t involve Maria and Kevin. I mean, they weren’t the parties that
were involved in it, but that has now been settled and everyone at Hiland, by consent order
signed by all the parties, everyone can have a pool as long as their neighbors give them
permission, and then it goes before the Board, and here the neighbors have given permission.
They’re very supportive and we’ve supported that.
MR. STONE-Okay. So there was one in that neighborhood that was in dispute.
MR. LAPPER-It wasn’t on their street, it was on the other side.
MR. STONE-Yes, I know, on Masters Common.
MR. ABBATE-Yes, that was D’Ella, was it not?
MR. LAPPER-No. It was Shepherd.
MR. STONE-Shepherd, okay.
MR. LAPPER-Garvey was also involved, but it was Shepherd who it was started against.
MR. MC NULTY-And I may have missed it, but what is the kind of fence that’s going to go
around this?
MR. LAPPER-It’s the, the covenants that were ultimately put on after the lawsuit was
settled prohibit a stockade fence. So it is this type of fence, which is just, the issue is, when
you have a golf course where views are important, you want to have a fence you can see
through, rather than a stockade fence, and this’ll be landscaped. So you won’t just be looking
at fence, but this is a very, I think, visually attractive fence.
MR. MC NULTY-That’s kind of where I was going is making sure that the golf course, you
know would be satisfied with this kind of thing.
MR. LAPPER-Yes, and they’ve seen this as well, and we certainly would put it in as a
stipulation that it’ll be what they call aluminum wrought iron estate fences.
MR. ABBATE-All right. Any other questions from members of the Board? All right. Let
me open up the public hearing for Area Variance No. 27-2006, and those wishing to be heard,
would you please raise your hand and I’ll recognize you and ask you to come to the table.
Anyone in the public wish to be heard?
PUBLIC HEARING OPENED
MR. ABBATE-Okay. I don’t see anyone in the public wishing to be heard. So, what do we
have for?
MR. UNDERWOOD-I have three pieces of correspondence.
MR. ABBATE-Okay. Would you read them into the record for me, please.
MR. UNDERWOOD-One was in the file, two were submitted this evening. The one that was
submitted previously, it says, it’s addressed to myself, and it says RE: Kevin and Maria
O’Connor Area Variance “The backyard of the O’Connor property is directly in view from
my home and deck. While I can accept the fact that a pool may be built there, I see no reason
to offer setback relief for the applicant. It would be precedent setting to grant such relief
when no hardship is involved. The patio could be made less wide to allow for the pool to be
set closer to the house, or the pool could be made smaller. It is especially critical that the 20
foot setback be maintained in this area which borders the golf course where swimmers may
risk injury from golf balls, and the sights and sounds from a pool can be distracting to players.
I would like to add that it is my hope that the applicant will choose not to cut off the view of
17
(Queensbury ZBA Meeting 5/17/06)
green space with a stockade fence, but rather surround the pool with a wrought iron fence and
landscape the area with plantings as was done at the Lapper home next door.”
MR. STONE-Who was that?
MR. UNDERWOOD-That was from Leigh Beeman, at 7 Overlook Drive. So it must be on
the opposite street.
MR. LAPPER-Let me just explain where that is. She is in the townhouse that if you go past,
you’re on Rockwell and you’re heading north. Instead of making a left onto Fairway Court,
to Maria and Kevin’s house, you go to the next intersection, and that’s Overlook Drive where
the townhouses are, and she’s in there. So it’s just, when she says that she’s across, and
there’s no way that she could see this from her property, because you’ve got Bob and Lydia
Edwards, next to Maria and Kevin, and then you’ve got the vacant lot that’s next to Lee
Beeman, so she’s probably 1,000 feet away from this.
MR. UNDERWOOD-Okay. The other letters.
MR. LAPPER-The letters we submitted are from adjacent neighbors.
MR. UNDERWOOD-Yes. “We, the undersigned, live on Fairway Court and we approve of
Kevin and Maria O’Connor being granted a variance from the Town of Queensbury”. Signed
Jean Lapper and Lydia Edwards, and that’s at 20 Fairway Court and 12 Fairway Court, and
also another letter. “I am a property owner adjacent to Kevin and Maria O’Connor’s
property on Fairway Court in Queensbury. I have no objection to Kevin and Maria’s plan to
build an in-ground swimming pool on their property”, and that’s Grace Roberts, at 273
Haviland.
MR. ABBATE-Okay. Does that cover it for the correspondence?
MR. UNDERWOOD-That’s it.
MR. ABBATE-Okay, and before I ask, again, the Board members to offer their comments,
I’d like to inform the public that the comments offered by the Board are directed to the
Chairman only, and are not open to debate. Gentlemen, ladies, I’m going to now ask
members to please offer their comments on Area Variance No. 27-2006, and recall, please,
what I said in terms of supporting our conclusions. Do we have a volunteer?
MR. UNDERWOOD-I’ll go.
MR. ABBATE-Would you, please.
MR. UNDERWOOD-As the Staff notes identify, pools have to be erected in the rear yard,
and in this instance here, I think that the rear yard is adequate to support a pool, even
though it’s going to be slightly intruding into that 20 foot setback by having to grant them 10
feet of relief. I think it’s reasonable to assume that it’s going to have a minimal, if any, effect
on the golf course, since the fairway’s turning away at that point. As far as the nearest
neighbors, they don’t seem to have any concerns. The only letter that we received was
received from somebody who’s a substantial distance away, and I don’t really think it has an
effect on them.
MR. ABBATE-Okay. Thank you. Mrs. Hunt, please.
MRS. HUNT-Thank you. I would be in favor of, I don’t think there will be any undesirable
change in the neighborhood, or to nearby properties, and I don’t think it’s a substantial
request, considering that the land behind them is really vacant land, just grass. I don’t think
it’ll have any physical or environmental effects, and I don’t think it’s self-created, except that
they want to put a pool in. So I would be in favor.
MR. ABBATE-Thank you, Mrs. Hunt. Mr. Urrico, please.
MR. URRICO-Yes, I’m generally in favor of it, and I will vote to approve it, but I am
concerned that this isn’t the minimal relief that we would like.
MR. ABBATE-Your comments are noted, Mr. Urrico. Mr. Stone, please.
18
(Queensbury ZBA Meeting 5/17/06)
MR. STONE-I don’t really have a problem. I think that the fact that the golf course is there,
and as you point out, and I did look at it, that you’re in that big broad waste area, as they
call it, about golf courses, and nobody in his right mind wants to be there, because you’re
going for the green. So nobody’s going to be aiming for the swimmers, but that’s your
problem. I mean, 10 feet or 20 feet isn’t going to make a difference of an arrant shot hitting
somebody. I mean, obviously it’s going to make a difference. It’s got to go further, but I
think in general, particularly the fact that your neighbor to the right, I mean, he’s going to
have full view from his house as I saw it, because it is kind of a crazy situation, being on a cul
de sac and all that kind of thing there. If he doesn’t have a problem, I would be willing to
grant the variance.
MR. ABBATE-Thank you, sir. Mr. McNulty, please.
MR. MC NULTY-Yes, I guess I come down on the positive side as well. I had some concerns.
Initially my reaction was, well, the golf course is a neighbor also, but I think with what’s been
presented tonight, even though we don’t have a specific letter from the corporate owner
saying we agree to this, the evidence is they have agreed to pools in backyards where it can be
arranged. They’ve addressed the visual aspect by requiring a certain kind of a fence. I think
that, coupled with the fact that this is kind of on the back waters area of the golf course
means that it’s not going to have probably a severe impact on the golf course. So,
approaching this from that viewpoint, and from the viewpoint that an Area Variance is based
on the specific situation that we’re looking at, it’s not a precedent. It’s not a guarantee for
approval of this kind for everybody that fronts on the golf course. It’s for this particular
situation, and on that basis, I’d be in favor.
MR. ABBATE-Thank you very much. Mr. Rigby, please.
MR. RIGBY-Yes. I don’t have much else to add, either, given no negative correspondence
from the golf course. I think it’s a good project, and I’d be in favor of it as well.
MR. ABBATE-Okay. Thank you. My comments, I concur with all the Board members, and
having said that, I’m going to close the public hearing for Area Variance No. 27-2006, and
again I’ll respectfully remind the members that we have the task of balancing the benefit of
the variance against the impact on the area, which I’ve already previously stated. Is there a
motion for Area Variance No. 27-2006?
MOTION TO APPROVE AREA VARIANCE NO. 27-2006 KEVIN & MARIA O’CONNOR,
Introduced by Joyce Hunt who moved for its adoption, seconded by Lewis Stone:
18 Fairway Court. The applicant proposes an 853 square foot pool and patio. The applicant
requests 10 feet of rear setback relief where 20 feet is the minimum for a private swimming
pool per Section 179-5-020. The balancing act, whether the benefit could be achieved by
other means feasible to the applicant. I think they have made it clear to us that this is the
best placement and there are reasons for needing this 10 feet relief. There will be no
undesirable change in neighborhood character or to nearby properties. The request might
seem substantial, but they are backing on a dead area of a golf so that neighbors will not be
impacted. Whether the request will have adverse physical or environmental effects, I don’t
think so, and it’s self-created only in the fact that they want to have a pool. So I make a
motion that we approve Area Variance No. 27-2006.
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. McNulty, Mr. Urrico, Mr. Rigby, Mr. Underwood, Mr. Stone, Mrs. Hunt, Mr.
Abbate
NOES: NONE
MR. ABBATE-The vote for Area Variance No. 27-2006 is seven yes, zero no. Area Variance
No. 27-2006 is approved.
MR. LAPPER-Thank you very much.
MR. ABBATE-You’ve very welcome.
19
(Queensbury ZBA Meeting 5/17/06)
SIGN VARIANCE NO. 28-2006 SEQRA TYPE: UNLISTED EDWARD PACYNA D/B/A
MASSAGE THERAPIST OWNER(S): EDWARD PACYNA ZONING: MU LOCATION: 40
MAIN STREET APPLICANT PROPOSES TO REPLACE SINGLE POSTED FREESTANDING
SIGN WITH A NEW DOUBLE POSTED 10 SQ. FT. FREESTANDING SIGN. RELIEF
REQUESTED FROM FRONT SETBACK REQUIREMENTS FOR SIGNS. CROSS REF.: BP
2006-082 PENDING SIGN PERMIT; SPR 71-95; AV 19-1995; AV 23-1990; BP 96-2032; BP 95-
129; BP 90-942 WARREN COUNTY PLANNING MAY 10, 2006 LOT SIZE: 0.17 ACRES
TAX MAP NO. 309.10-2-22 SECTION: CHAPTER 140
EDWARD PACYNA, PRESENT
STAFF INPUT
Notes from Staff, Sign Variance No. 28-2006, Edward Pacyna d/b/a Massage Therapist,
Meeting Date: May 17, 2006 “Project Location: 40 Main Street Description of Proposed
Project: The applicant proposes a 10 sq. ft. freestanding sign, at 6-feet high, which will read
“Edward J. Pacyna, Massage Therapist”.
Relief Required:
The applicant requests 2.33-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.
BP 1996-2032: Issued, for a 9 sq. ft. freestanding sign.
SP 71-1995: Approved, 12/19/95.
AV 19-1995: Approved, 5/17/95.
Staff comments:
The Chairman approved the applicant’s request for a waiver from the required survey map.
The existing sign is in a compliant location. This proposal would have the sign 2-feet closer to
the front property line.
The applicant has submitted the sign copy and an elevation drawing which shows that the
sign will be lit.”
MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form
May 10, 2006 Project Name: Edward Pacyna Project Owner(s): Edward Pacyna ID
Number: QBY-06-SV-28 County Project#: May06-48 Current Zoning: MU Community:
Queensbury Project Description: Applicant proposes to replace single posted freestanding
sign with a new double posted 10 sq. ft. freestanding sign. Relief requested from front setback
requirements for signs. Site Location: 40 Main Street Tax Map Number(s): 309.10-2-22
Staff Notes: Sign Variance: The applicant proposes to replace single posted freestanding sign
with a new double posted 10 sq. ft. freestanding sign. The sign is to be located 12 ft. 8 in.
from the front property line where 15 ft is required. The applicant has indicated the original
sign was blown down by the wind storm in Feb. 2006. the new sign is located in a similar
location as the original but will be a two sided sign at 6 ft. in height. The original sign was a
single post where the new sign is a double post. The applicant has requested a waiver from
the requirement of a survey explaining the measurements provided are consistent with the
survey from the Corinth/Main Street widening project. Staff does not identify an impact on
county resources based on the information submitted. Staff recommends no county impact.
County Planning Board Recommendation: No County Impact” Signed by Paul J. Gollhofer
5/12/06.
MR. ABBATE-I see that the gentleman has arrived at the table. Would you be kind enough,
please to speak into the microphone and for the record identify yourself and your place of
residence.
MR. PACYNA-Yes. Edward Pacyna, 40 Main Street in Queensbury.
MR. ABBATE-Okay. Now tell us why you feel we should approve your Sign Variance.
20
(Queensbury ZBA Meeting 5/17/06)
MR. PACYNA-Well, as it’s been read, there has been a sign there for 10 years. In the storm
we had in February, that took it’s toll, blown down. To coincide, I guess, with the road
project, if that goes through, I would like to put a double posted, erecting a more, you know,
nicer looking sign than the single posted one that is there now. Square footage wise, it’s about
the same, but being that obviously it’s double posted sign instead of a single, to allow that to
go where the original sign is, we’d be asking for another couple of feet.
MR. ABBATE-Okay. Now, you’re not accompanied by counsel, so let me say this to you. At
any time during this hearing if there’s something you don’t understand, stop us. We’d be
more than happy to explain it to you, and if you feel there’s additional information that you
may have forgotten to tell us, stop us, we’ll be more than happy to listen to it, okay.
MR. PACYNA-Sure.
MR. ABBATE-Good. Gentlemen, ladies of the Board, do you have any questions for Sign
Variance No. 28-2006?
MR. STONE-I have a question. You said this went down in the storm, but you already had
an application in. This had been heard by the Board before that. Correct?
MR. PACYNA-No. This has been, what do you mean heard by the Board? I have a variance
from the original, from 10 years ago.
MR. STONE-I’m looking at something dated February 2006. Motion to amend the
applications. Or, this was something that you guys did while I was away. I’m sorry. I was
just reading it, and I didn’t read it quickly enough.
MR. ABBATE-That’s not a problem.
MR. PACYNA-It was closed. It was probably three or four days or a week or two weeks or
whenever it was from the storm to the.
MR. STONE-I was misreading what the piece of paper was.
MR. ABBATE-No problem. Ladies and gentlemen, do we have any questions concerning
Sign Variance No. 28-2006?
MR. STONE-I have a question of Staff, in terms of, is there a Travel Corridor Overlay here,
and where is the new road going, and where is this sign going to be in relationship to where
we’re going to be in a few years, hopefully?
MRS. BARDEN-There’s a build to line, as far as the Main Street requirements, but that’s for
the building itself, and it’s 42 and a half feet I believe, but still under the Sign Ordinance the
setback is 15 feet from the property line.
MR. STONE-It still is. Okay.
MR. ABBATE-Okay. Any other questions for the applicant? Gentlemen, ladies, no other
questions for the applicant? Okay. I’ll open up the public hearing for Sign Variance No. 28-
2006, and would those wishing to be heard be kind enough to raise your hand and I’ll be more
than happy to recognize you.
PUBLIC HEARING OPENED
MR. ABBATE-Apparently, up to this point, we have no questions from the public. So I’m
going to move on, and I’m going to ask members to offer their comments, and again, I’d like
to inform the public that the comments offered by members are directed to the Chairman and
will not be subject, open to debate. Gentlemen and ladies, earlier I respectfully reminded you
what precedence mandates that we concern ourselves with, and there’s no reason to go into it
again. Do any members of the Board have any questions or comments regarding Sign
Variance No. 28-2006? Ladies, gentlemen?
21
(Queensbury ZBA Meeting 5/17/06)
MR. STONE-I’m just wondering why he can’t split the difference, in light of some of the
things we’ve been talking about tonight, minimum. Even the fact that it’s a double post sign,
you could move the inner post, if you will, closer to the building.
MR. PACYNA-Right, but there’s only four foot ten inches between where the post is now and
the building, and, well, it doesn’t matter. I was going to go to the west some, but if you
encroach that back towards the house even more, then, you know, I feel people are going to
be right on top of that before they actually see that, you know, as you’re coming down that
road. So, I mean, as far as I’m concerned, it looks kind of foolish if you’re sticking it, you
know, you’re putting one post, as it is, it’s four foot ten inches from the house, okay. So you
want to go another two foot, just to have that two foot next to the house looks.
MR. STONE-I’m only going on the basis of minimum. I don’t know where I’m coming down.
MR. PACYNA-That’s what you’re saying, though, why couldn’t you go closer to the house.
MR. STONE-Right.
MR. PACYNA-And as that picture shows, if you’re looking at that, I’d like to move that to
the right, so it’s not in front of that window anymore.
MR. RIGBY-How far is that existing post that’s there from the house?
MR. PACYNA-No, that post is four foot, ten inches.
MR. RIGBY-That post there now is four foot ten inches?
MR. PACYNA-Yes.
MR. RIGBY-So you’re saying that the first post here, on the sign, is going to be in that same
location?
MR. PACYNA-Right. I would put that in the same location. And then with the post, the
sign there now is 36 inches. The new one, total, is five foot. So you’re asking two more foot.
MR. RIGBY-So you’ve got another two foot of sign that you’re asking for?
MR. PACYNA-Right, correct.
MR. RIGBY-That’s about as much variance as you want, two feet.
MR. PACYNA-Right.
MR. STONE-Yes.
MR. RIGBY-So that’s what you’re asking for. You’re asking for two feet.
MR. PACYNA-Right.
MR. STONE-Is this sign to help people who know they’re going to your place, or to attract
new business?
MR. PACYNA-Well, both. I mean, attracting new business is huge. Twenty-five, twenty six
thousand cars daily go by there. I mean, that’s been great advertising. So both for sure.
MR. STONE-Okay. Well, you talked about this ability, and that’s a reasonable argument.
MR. PACYNA-Right. Yes, and now, as you can see, that’s back before the storm. Now it’s
tacked to the post. So it’s only a one dimensional, I guess you could say, and even though I
have clients that have been coming to me for years, you know, drive by there and they just
assume the sign’s there, and they’re right on top of it now until you see it, even though they
know where they’re going. So new people, especially in the summertime with the tourists,
you get a lot more calls, you know, people vacationing and want a massage. So a little more
attractive, nicer looking sign.
22
(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-Okay. Any other members of the Board have any questions concerning Sign
Variance 28-2006? All right, then I’ll continue. All right, I note here, Mr. Secretary, that this
is classified as Unlisted.
MR. UNDERWOOD-Yes, we’ll have to do that eventually. Would you do it for me?
MR. UNDERWOOD-Yes, there was no correspondence on this one. All right. “Does the
Action exceed any Type I threshold in New York State Conservation Regulatory Law Part
617.4?” I would say no.
MR. ABBATE-No.
MR. STONE-No.
MR. UNDERWOOD--“Will the Action receive coordinated review as provided for Unlisted
actions?” I would say no.
MR. STONE-No.
MR. UNDERWOOD--Could the Action result in adverse effects associated with any of the
following: Air quality, surface or groundwater, noise levels, existing traffic patterns, solid
waste production or disposal, potential for erosion, drainage or flooding problems? I would
say no.
MRS. HUNT-No.
MR. STONE-No.
MR. UNDERWOOD-Aesthetic, agricultural, archeological, historic, or other natural or
cultural resources, or community or neighborhood character. I would say probably not.
MRS. HUNT-No.
MR. UNDERWOOD-The vegetation, or fauna, fish, shellfish, or 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. I would say no.
MRS. HUNT-No.
MR. STONE-Not natural resources, no.
MR. UNDERWOOD-Growth, subsequent development or related activities likely to be
induced by the proposed action? No.
MRS. HUNT-No.
MR. UNDERWOOD-Long term, short term, cumulative, or other effects not identified? No.
Other impacts including changes in use of quantity or type of energy? No. And will the
project have an impact on the environmental characteristics that cause the establishment of a
Critical Environmental Area? No.
MR. STONE-No.
MRS. HUNT-No.
MR. UNDERWOOD-Is there or is there likely to be controversy related to potential adverse
environmental impacts? No.
MR. STONE-No.
23
(Queensbury ZBA Meeting 5/17/06)
MOTION THAT THE SHORT ENVIRONMENTAL ASSESSMENT FOR PROVIDED BY THE
APPLICANT INDICATES THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS
CAUSED BY THIS 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 Joyce Hunt:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mr. Rigby, Mr. Urrico, Mr. McNulty, Mr. Stone, Mrs. Hunt, Mr.
Abbate
NOES: NONE
MR. ABBATE-In a seven yes to zero no, the Short Environmental Assessment Form is
approved. The public hearing is now closed for Sign Variance No. 28-2006.
PUBLIC HEARING CLOSED
MR. ABBATE-And again, I respectfully remind the members we have the task of balancing
the benefit of the variance against the impact on the area that I have explained earlier this
evening. Do we have a motion for Sign Variance No. 28-2006?
MR. STONE-You need to know where we stand.
MR. ABBATE-Gentlemen, ladies, I’m going to ask members to offer their comments on Sign
Variance No. 28-2006. Do we have a volunteer?
MRS. HUNT-I’ll volunteer.
MR. ABBATE-Thank you, Mrs. Hunt.
MRS. HUNT-I have no problem with the Sign Variance. Going by there, I was right on top
of it, I was looking for it, and I can understand where you’d want something, I think for
safety of people who aren’t familiar with your place. That would give them a sign, and I was
looking at the Cat Hospital, and they have that lighted sign on. So I think it’s an attractive
sign, and I have no problem.
MR. ABBATE-Thank you, Mrs. Hunt. Mr. Urrico, please.
MR. URRICO-Yes, I agree. I think Mr. Pacyna, I think he’s hemmed in a little bit by the
design of the property and the home, and I think he has a good idea to move that sign out a
little bit so it becomes more visible, and I don’t think the two feet is going to really encroach
too much on the front property line. I would be in favor.
MR. ABBATE-Okay. Thank you, sir. Mr. Underwood, please.
MR. UNDERWOOD-I’d be in agreement with my fellow Board members.
MR. ABBATE-Okay. Mr. Rigby, please.
MR. RIGBY-I’m going to come down on the other side. My view is I’m looking at, looking
down the road, and looking down Main Street, and looking at the possibilities of all the
numerous signs that could be there, and all those signs being out closer to the road, and with
the new construction of Main Street coming up, I’m looking at it and I’m saying I think this
could be a bad precedent. I know we have to look at each application individually, but I am
concerned about the future, too. I’d like to see some type of arrangement where we talk
about a little less variance, bring the sign down a little bit, maybe bringing it in a little closer
to the house. Just a little bit of a compromise before I’d be willing to approve it.
MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please.
MR. MC NULTY-I’m going to agree with Mr. Rigby, on a couple of grounds. One, the points
I think he’s made are valid. Also, this is a Sign Variance. It’s not exactly an Area Variance,
24
(Queensbury ZBA Meeting 5/17/06)
and the Sign Ordinance very explicitly says a variance should not be allowed unless the
applicant would be deprived of the practical use of the sign absent the variance. Now if we’re
talking about what he’s got in front of his building now, compared with the sign that is
perpendicular to the road, I’ll agree, what he’s got now, he’s being deprived of some practical
use of the sign, but I’ll agree with Mr. Rigby that I think there’s room for some compromise
here of maybe a smaller sign, moving it closer to the building, or some other thing, and I’m
also thinking in terms of a lot of comments we’ve heard as we’ve been working on the
Ordinance, even though the particular we’ve been doing on the PORC Committee is not
specific to the Sign Ordinance. There have been a lot of comments about the need to continue
to reduce the multitude of signs and clutter that we’ve got in the Town. So I think adhering
to the front setback is one thing that we can do. So, at this point, I’d be opposed.
MR. ABBATE-Okay. Mr. Stone, please.
MR. STONE-As a third member of the PORC, I’m going to agree with my fellow members. I
think we are thinking very much about the future. Main Street gets talked about every
meeting we have, because it is a goal, it’s an ideal for something that we’d like in the Town of
Queensbury, and I think putting signs that violate the current Sign Ordinance, or at least
violate it as much as this does, is not good for the future. I certainly could, I understand your
need for the double sided, lighted sign, and I have no problem with that, but I would like to
see it as close to the building as we can make it. That pole that’s there, you’re going to move
the pole anyway. You made some argument for it. It’s not going to be used. So I think it
can be closer to the building and still achieve your purpose. So I would vote no.
MR. ABBATE-Okay. Thank you very much, and the Board did that to me again this
evening.
MR. STONE-Yes.
MR. ABBATE-I’ve listened carefully to what everyone has said, and I’ve listened carefully to
what you have said, concerning your sign and the advantages that you would have if the sign
were approved, and there is a sign currently there, and what have you, but I’d like to take the
stand of Mrs. Hunt, Mr. Underwood and Mr. Urrico. I think in this instance, that you have
justified the reasons why you wish to have this sign, and quite frankly I think it makes good
sense. However, I’m not saying, now, that there’s no merit to what Mr. McNulty, Mr. Stone,
or Mr. Rigby has stated. However, based upon what I consider to be a fair and unbiased
hearing, I’m going to vote in favor of your application. Having said that, I’m going to now
ask members of the Board for a motion concerning Sign Variance No. 28-2006. Please.
MOTION TO APPROVE SIGN VARIANCE NO. 28-2006 EDWARD PACYNA D/B/A
MASSAGE THERAPIST, Introduced by James Underwood who moved for its adoption,
seconded by Joyce Hunt:
40 Main Street. He’s proposing a 10 square foot freestanding sign at six feet high which will
read Edward J. Pacyna Massage Therapist. The applicant is requesting 2.33 feet of front
setback relief where 15 feet is the minimum from any property line, and that’s per Section
140-6. If we approve this this evening, we’re recognizing the fact that his current structure
does not meet the setbacks for the new Main Street guidelines either, and neither does the sign
that was knocked down by a windstorm last winter and is currently not in the best condition.
He’s asked to slightly move the sign so he has a better view out the front window of his
establishment, and we recognize the fact that he wants to put up this new sign because he
thinks it’ll attract more business and make his site more recognizable for people that
currently use that business. The existing sign is not in a compliant location and this one here
will intrude slightly more out into the Travel Corridor Overlay, and that’s why he’s
requesting the two feet closer, but as mentioned, that two feet is probably going to be as a
result of the fact that he’s going to now have a post on both sides of that sign. We’re
relatively confident that this sign is not going to present any hazards to drivers on that main
busy road out in front on Main Street. The applicant has made a good case for his argument,
and I would move that we approve it this evening.
Duly adopted this 17 day of May, 2006, by the following vote:
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AYES: Mr. Urrico, Mr. Underwood, Mrs. Hunt, Mr. Abbate
NOES: Mr. McNulty, Mr. Stone, Mr. Rigby
25
(Queensbury ZBA Meeting 5/17/06)
MR. ABBATE-The vote for Sign Variance No. 28-2006 is four yes, three no. Sign Variance
No. 28-2006 is approved.
MR. PACYNA-Thank you.
MR. ABBATE-Okay. Ladies, and gentlemen, we have a number of administrative details
here, this evening. Do you want to do that first? We have a slew of minutes we have to
approve.
MS. HEMINGWAY-I have a question. Going back to the Casse Sojourn Use Variance No.
69-2005, if I’m correct in my vote here, you said to submit information no later than 6/15/06
for the ZBA meeting on 6/21/06. Do you really mean that you want them on the June agenda
or the July agenda?
MR. UNDERWOOD-July it would have to be now, because they missed the deadline for
June.
MS. HEMINGWAY-So July would be July 19 meeting.
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MR. ABBATE-Which one is that, 69-2006?
MS. HEMINGWAY-Yes. Casse.
MR. ABBATE-Yes, please. Would you make that correction for me. It’s my error.
MS. HEMINGWAY-You want it on July?
MR. ABBATE-I think so. Because I think I said to Craig, when Craig and I were talking
today, I should have said the 15 of the other month, and schedule it for July.
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MS. HEMINGWAY-Thank you.
MR. ABBATE-Okay. I made a little mistake when I was talking to you today with, 69-2005,
Craig. We’ll have to move it to July.
MR. BROWN-Which one?
MRS. BARDEN-Casse.
MR. UNDERWOOD-Casse.
MR. ABBATE-Okay, and that letter that’s going out, because that deadline has already
passed.
MR. BROWN-Move what to July?
MR. ABBATE-Remember we initially said we were going to move it up, and you were going
to send out a correspondence to those folks.
MR. UNDERWOOD-They would have had to have submitted by the 15 of this month.
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MR. BROWN-Right, and I thought we were going to send them a letter that says you need
to submit by the 15 of June?
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MR. ABBATE-Can we do that?
MR. BROWN-Sure.
MR. ABBATE-Then that’s okay, then.
MR. BROWN-The 15 of June, and they could make the July agenda.
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MR. ABBATE-So it has to be on the July agenda. If we do it by the 15 of June, then we
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can hear them on the 19 of July.
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(Queensbury ZBA Meeting 5/17/06)
MRS. BARDEN-That’s right.
MR. ABBATE-Fair enough. So I’m going to modify the resolution, then, on Area Variance
69-2005 to correct it that in effect it will remain that they will submit information no later
than the 15 of June. However, it will be scheduled for the 19 of July. Okay. Thank you
thth
very much for bringing it to our attention. Mr. Secretary.
MR. UNDERWOOD-Do you want to do all these previous minutes? If everybody has a copy
of this in front of them, these previous minutes here.
CORRECTION OF MINUTES
MOTION TO APPROVE THE JANUARY 18, 2006 MEETING MINUTES, Introduced by
Charles Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Stone, Mr. Rigby, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE JANUARY 25, 2006 MEETING MINUTES, Introduced by
Charles Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Rigby, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE FEBRUARY 15, 2006 MEETING MINUTES, Introduced by
Charles Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Rigby, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE FEBRUARY 22, 2006 MEETING MINUTES, Introduced by
Charles Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Rigby, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE MARCH 8, 2006 MEETING MINUTES, Introduced by Charles
Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE MARCH 15, 2006 MEETING MINUTES, Introduced by Charles
Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Stone, Mr. Abbate
27
(Queensbury ZBA Meeting 5/17/06)
NOES: NONE
MOTION TO APPROVE THE MARCH 22, 2006 MEETING MINUTES, Introduced by Charles
Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Stone, Mr. Abbate
NOES: NONE
MOTION TO APPROVE THE MARCH 29, 2006 MEETING MINUTES, Introduced by Charles
Abbate who moved for its adoption, seconded by James Underwood:
Duly adopted this 17 day of May, 2006, by the following vote:
th
AYES: Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Abbate
NOES: NONE
MR. ABBATE-Now we have basically, Craig, do you want to do a little history of this
tentative resolution, and the reason for it and what have you, from the Staff point of view,
and I think it would help the Board, please.
MR. BROWN-Okay. Is there something here that tells me what we’re talking about?
MR. ABBATE-Yes, well, basically, I gave you, I think you got a copy of this thing.
MR. UNDERWOOD-I’ll read it.
MR. ABBATE-Okay.
MR. UNDERWOOD-To wit it reads the following, the ZBA will not entertain any written
documents addressing a scheduled appeal which are submitted after the deadline set by Staff,
and I would just add, as an addition to that, unless such documents are corrections of
previously submitted, of that appeal, which makes realistic sense, and I think that that was
in response to the Hoffman one where we received, I guess, in excess of 30 pages or so, which
none of us have had any contact with yet.
MR. URRICO-What constitutes written documents?
MR. UNDERWOOD-Well, like when we get those last minute submittals, like when some
attorney walks in and hands us a packet and we’re supposed to digest it in two seconds, I
think that’s unrealistic.
MR. URRICO-What if they present a map, pictures, are those written?
MR. UNDERWOOD-That’s fine. It’s reasonable to expect if it’s something minor like that,
but I mean, when you come in with a whole packet of things.
MR. URRICO-See, I think we get into trouble when we start deciding what’s going to be
allowed and what’s not going to be allowed.
MR. UNDERWOOD-I think we can accept pictures, a diagram. I mean, I think that’s
reasonable.
MR. ABBATE-The Planning Board does, in fact, have a resolution to this effect.
MR. MC NULTY-I don’t have a problem with the principle. I have a problem with some of
the wording.
MR. ABBATE-Fine. It’s up to the Board.
MR. MC NULTY-Well, let me express my thoughts and see where we go from there. It
strikes me as being very negative the way it is now. We won’t accept information. We want
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(Queensbury ZBA Meeting 5/17/06)
to accept information. We want to know everything we possibly can about something. So
it’s not that we won’t accept it. It’s that we don’t want to accept it two days before a
meeting. If we said something, well, I guess two things. One to explain a little bit in the
resolution as to why, something to the effect that because Board members need time to
review and understand the information, it could be the policy of the Zoning Board that
additional information submitted or discovered, because I think it ought to apply not only to
something that the applicant submits, but it could be something that somebody in opposition
submits. It could be something that all of a sudden Planning Staff discovers in the files that
for some reason they hadn’t spotted before, a significant chunk of information. We still want
time to review it and assimilate it and think about it, and I think it ought to say that, instead
of refusing to accept it, it just automatically causes a postponement of consideration of the
matter until the next available meeting slot for which the application deadline has not passed,
or something to that effect.
MR. UNDERWOOD-Craig, when you get the submittals on the 15 of the month, do you
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guys go through them like the following day, just to see if they’re complete?
MR. BROWN-Yes.
MR. UNDERWOOD-And so in other words, at that point in time, if something was missing,
you could call back and say, look, get this thing in to me, you know, I mean, I would think if
you had one thing missing out of your packet, or if, you know, some minor little things like
that, it would make sense to prompt them to send them in.
MR. BROWN-Yes, that’s typically what we do, and I guess maybe the Chairman knows
what our completion review process is, as he’s recently started participating in it, but that’s
exactly what we do. We get the applications in on deadline day. The next day, or two days
after deadline day, actually we did it today, we’ll sit down and go through the applications
and identify what’s there, what’s not there. If there’s a signature missing or an elevation that
they’ve checked off that they have submitted that’s not there, we’ll call them up. If they can
get it in to us within a reasonable time period, a couple of days, I mean, we’re not going to
stretch it out forever. If they get it in to us in a couple of days, we’ll keep them on the
agenda. If they don’t, we bump them because we just can’t, administratively, track five open
applications or ten, I mean, this month between the Planning Board and Zoning Board we
had nearly 30 applications, and if we have to track all those because they’re all missing one
item, it’s impossible to do. So we’ll give them a little bit of time to get the information in.
We keep them in the pool, so to speak, for applications that are going to go on the agenda. As
we work through the agenda, typically Susan’s going to start her review of the applications.
If in that review we find a glaring error, or we find something that differs significantly from
what should be in the application, that may cause them to get pulled also, but for the most
part we try our best to make sure they’re complete before they come to you, and I can just
give my two cents, and that’s probably all it’s worth, on this resolution. When I first talked
to the Chairman about it, it seemed like something that was a workable thing. I really think
that’s a decision you guys can make on the fly. If you want to take a position, I agree a little
bit with what Mr. McNulty says, you take a position, you dig your heels in, you say, no, I’m
not going to do it. What you guys have done in the past is, and I don’t need to tell you what
you guys have done, but, you know, any application that the applicant brings to you at the
meeting. You look at it, see what it is. You decide if you want to consider it. You decide if
you want to take some time to digest it. We don’t do anything different if we get information
submitted to us, and we’ll use the Hoffman information for example. It’s a package that
came in the mail. Unsolicited. We didn’t say, hey, get us more information to show the
Board. Fed Ex package shows up on my desk. I open it up. What is it? Okay. It goes in the
box to come to the meeting. It would have come to the meeting tonight, and, as a courtesy,
what we did is we informed the Chairman, you may be hearing from the applicant about this
visual analysis I think is what it is at the meeting tonight, so, be prepared. We don’t plan on
giving it to you. We don’t expect you to digest it before the applicant gets here. Just because
they submitted it, we’re not forcing it on you. So you know, it’s in the box. If they want
you to see it and you want to accept it, we’ll give it to you. Otherwise, we’re not going to
send it out until next month because it’s not in by the deadline. So we don’t add anything
after the deadline, except Warren County, Staff notes, any drawings, any GIS maps that we
want to add. We don’t allow the applicant to add anything after deadline unless it’s those
clean up things, like you said, they miss a signature or a drawing or something.
MR. STONE-Well, I think we have to keep in mind that we don’t get the information until
two weeks before the meeting anyway. So we don’t know, I mean, you may know, since
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(Queensbury ZBA Meeting 5/17/06)
you’ve been going in, but the rest of us don’t know anything about the application. So there
is some timeframe that we can put a deadline on, but I agree with Chuck, we can’t be too
tough. Because somebody may come in with a map, and we can look at the map and we can
all say, well, yes, I see that. That’s very helpful and I mean, we ask for that kind of
information all the time anyway, at the meeting. I just think that we ought to say that it has
to be in time for us to get our initial application material, which we get, what, two weeks.
MR. URRICO-I agree. I think if it’s submitted after the deadline, they can bring it to the
meeting and they have the option of presenting, and we can decide, no, we don’t want to see
it. We don’t want to look at it, we don’t have the time, and then it’s up to them to decide if
they have enough of a case to make without it.
MR. ABBATE-I agree. Yes, because as you know, one of my procedures here, basically, if
that does, in fact, happen, I say to counsel, counsel, this information is submitted late. You
have a choice of us hearing it, but you will not argue the new information.
MR. URRICO-You did that with Casse.
MR. ABBATE-I did that, yes, but let me say this, but I like Chuck’s philosophy. No matter
what we do this evening, ladies and gentlemen, I do believe it has to be put in the resolution,
really, truly, and the reason I say that because I was informed that putting things in writing
may be the proper thing to do now.
MR. BROWN-I would just be a little bit resistant to, I know you guys don’t get your
applications until two weeks before the meeting. So if the thought, and correct me if I’m
wrong, Lew, if what you want to do is, you know, you don’t care if anything comes in after
the deadline as long as it’s in the packages before you get the packages, I see what you mean,
because you don’t know whether it’s been there or not.
MR. STONE-Right.
MR. BROWN-But what’s going to happen is the applicants aren’t going to submit stuff on
deadline date. They’re going to submit the cover page to their application and then take two
weeks to bring stuff in, and that, in no way, gives us time to review it, even if they get
everything, and they submit something that they think is extra, two weeks before the
meeting, we’ve already started project review. We may have reviewed their application first,
but we’re on to Number 27 now. Now we’ve got to go back to Number One to review the new
stuff. So, we at Staff, if you don’t get it in on deadline day, unless it’s a clean up thing, like
Jim was talking about, it doesn’t go in the package.
MR. ABBATE-See, we have a deadline date, and let me say this, and I’m not trying to be
extremely harsh, but the burden of responsibility is for the applicant to ensure that he
complies with the rules and regulations, and a good example would be this. Today is May
15. Craig Brown’s drivers license expired today. Tomorrow he goes up to the County and
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says, I want to renew it. Guess what they’re going to tell him? You can’t. Sorry, you can’t.
So we have a set of rules and regulations that sets forth deadlines. It’s probably about time
that we now enforce the fact that there is a burden, not just on the ZBA or the Planning
Board or Staff, but on the applicant to comply.
MR. STONE-And I certainly agree that the deadline is the deadline. Chuck is talking more,
as I understand it, with the appearance. We’re saying, this is the deadline. We reserve the
right not to review material which comes in after that.
MR. ABBATE-I don’t have a problem with that.
MR. UNDERWOOD-That’s fine.
MR. ABBATE-As a matter of fact, I would like Chuck to propose, I kind of like what he had
to say. I think that it’s a reasonable approach.
MR. URRICO-There’s also a flipside to this, in that that could be used against us. I mean, if
the Hoffman, for example, if they wanted to buy more time, to deliver a 31 page packet on
that Monday.
MR. ABBATE-Thirty plus.
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(Queensbury ZBA Meeting 5/17/06)
MR. STONE-Well, I was prepared to vote no on the tabling. I did, I think, yes, two of us did.
MR. URRICO-What do we do, not accept it? And then he tables it.
MR. BROWN-And again, I would take the position you don’t take any stance on it. You
deal with it when they bring it to you at the meeting. You don’t tell them you will accept it
up to a date. You don’t tell them you won’t accept it after a certain date. You deal with it
on the fly. You realize that we don’t give you guys anything that’s come in past the deadline
day, and if they submit it, it goes in the box, or if they submit it and it goes in the box, it’s
the same as if they bring it to the table the night of the meeting. That’s the first time you
guys hear about it. You decide whether you want to take it then and use it in your decision
making that night. If it’s a one page, hey, here’s a new photo of what my building’s going to
look like, yes, sure, you can do that. If it’s 37 pages of visual impact, no, you need to let them
know, I’ll accept your information. I realize you guys don’t, and probably can’t, deny them
from submitting any new information.
MR. ABBATE-No, by law, we have to accept it.
MR. BROWN-But you can clearly tell them, this is way too much information for us to
digest to give you a decision tonight. If you want us to consider this, and you’ve submitted
it, so we need to consider it, you’re not on until we have time, and you deal with it on the fly.
That way they don’t see you’re disposed to do something or not do something.
MR. URRICO-How are people notified that they have to submit stuff on the 15? Is there a
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letter handed to them?
MR. BROWN-It’s in the application.
MR. URRICO-It’s in the application. The application says, here’s the deadline day. When
we meet with them in their pre-submission meetings, we say, get it in by the 15.
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MR. URRICO-And if it’s not.
MR. BROWN-If it’s not, we bump them off and send them a nice happy letter and say, see
you next time, here’s the things you’re missing.
MR. RIGBY-Well, once an applicant submits an application by the 15 of the month, it’s up
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to this Board to decide whether they want to table something or not for more information.
This Board can still make the decision that they’re going to hear the application. We’re not
going to table it. We’ll hear the evidence that’s been presented. So what we’re talking about
is a stalling tactic that some people might want to use to get us to continue to table it. We
don’t have to table to accept more information, if the application’s been filed.
MR. URRICO-But in this case it was tabled.
MR. RIGBY-And we’ve been gracious enough to table it once. I don’t see us tabling it a
second time. So I think that kind of takes care of that, Bob.
MR. STONE-See, one of the things that we could have done with Casse tonight is deny it.
That’s an option, is that right, Craig?
MR. ABBATE-Yes, but here’s the problem, Lew. Again, I have to ask myself the question.
If we deny it, and it goes to an Article 78, will the Town Attorney be able to successfully
defend us? And the judge could very well say we were arbitrary. That’s the thing that
frightens me.
MR. STONE-That was the word I didn’t want to use tonight. I think you guys, but that’s
okay, we have a right to where we’re coming down. I think it was, but, the point is, I don’t
think, in this case, that it is arbitrary. We’ve given them how many months?
MR. BROWN-Yes. I think if you look at the track record, you’ve asked for more
information. They’ve tried to submit some. They’ve decided that, you know, based on our
review of it and our comments that we don’t think it’s enough. So they’ve asked for more
time. They still haven’t submitted information. If you deny it without prejudice and allow
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them to complete an application and bring it back to you, I don’t think you’ve done anything
wrong. Was it safe to table them and give them a warning and say, hey, until you bring stuff
in, if you don’t bring something in, it’s the safe way to do it.
MR. ABBATE-You know what that is, that’s error on the side of caution.
MR. BROWN-It was fine. Could you have denied it without prejudice? Sure. Was it safer to
do it this way, yes, no question.
MR. ABBATE-All right. Listen, folks, it’s up to the Board. As I said to Craig today, I don’t
make the decisions. It’s the majority of the Board who makes these kinds of decisions, and I
will be more than happy to comply with whatever the Board wants to do, but we have to
come up with some sort of a definite position. Now I do have, as you know, in my little spiel,
that when an individual does, let’s take the case of Hoffman as an example. If we had
received those 30 some pages, I would have said to him, Counselor, here are your choices. If
you want to hear this case tonight, you will not argue the 30 some pages. You have a choice
of tabling if you wish. I can do that legally.
MR. MC NULTY-I think Craig makes some good points of, you know, our using a discretion
at the meeting. It keeps us out of the problem of us trying to do a resolution and cover all
bets, but the other thing that strikes me. Two things, again, I don’t think, we shouldn’t put
ourselves in the position of saying we’re not going to consider a piece of evidence, because
that also could be a problem for trial, but in the sense you are. If you’re saying to an
applicant, you presented me with 30 pages of material tonight, we’ll decide this tonight, but if
we do, we’re not going to consider those 30 pages. Then you’re refusing to consider them.
MR. ABBATE-No, no. He can’t argue the 32 pages, and what I will do is then say you will
have a decision within 62 days, and that 62 days will allow members of this Board to
assimilate the 32 some pages.
MR. MC NULTY-Well, I was going to say, we’ve got some options. One, we don’t have to
put the burden necessarily on the applicant. We can look at it and say, okay, this guy’s
presented us with a packet of 30 pages of something. We want to see what’s in that. Never
mind what the applicant says. So then you’ve got the choice of either saying to them, you
can talk to us about everything else tonight. Understand we haven’t seen these 30 pages, but
we’re not going to make a decision tonight. We’re going to table it and go on or whatever.
MR. ABBATE-That’s my position.
MR. MC NULTY-You don’t necessarily have to have the applicant’s agreement to table it,
you know, in the right circumstances, if you want to give them the option of tabling or
making a decision you can, but, you know, I think we, as a Board, if we look at something,
we’ve got a responsibility not just to the applicant.
MR. ABBATE-I disagree. I think legally, and I think the Town Counsel will agree. Legally,
we cannot table an application without, first of all, it’s up to the individual to ask us to table.
This was the case for Hoffman, if you recall. Cathi made it quite clear that the only way we
could table this, if the attorney agreed to it, correct? Well, she spoke to me.
MR. BROWN-Well, I think you’ve picked an unfair case. This is one that’s in litigation. If
you take one that’s a straightforward off the street application, and you want to table it, you
can table it. Once the application’s submitted to you, it’s your application to do with what
you want. If you want to approve it, you can approve it. If you want to deny it, you can
deny it. You can table it. If they request you to table it, should you entertain that, yes, why
not. Do you have to? No.
MR. ABBATE-Of course not.
MR. BROWN-So, therefore, if you have it in front of you, you can do with it what you want.
MR. STONE-Chuck, you do the right thing, when we get a five, two negative vote, you say, if
we continue, we’re going to deny it. You’ve heard everybody, but if you think you can do
something to sway the Board, provide other information, we’ll be glad to table it, or you can
pull the application and try again, because once it’s denied, now other legal parameters come
into play.
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MR. ABBATE-Yes, I do give options. There’s no question about it.
MR. BROWN-That’s why it’s reasonable to, if they request to table it, you table it for them,
why not. For the most part, you know, applicants that sit at this table, they don’t want any
delays. They don’t want to drag out their variance approval for months and months and
months. On the rare occasion you get somebody who is involved in enforcement, like a
Hoffman, where they’ve done something wrong and they’re in court, are they trying to delay
it so they can have another summer with their boathouse without having to tear it down, who
knows.
MR. STONE-Well, that’s my concern.
MR. BROWN-You can speculate all you want about that, but for the most part, the
applicant’s before you tonight, they wanted their pool. They don’t want to be delayed. They
want to give you everything they can. They don’t want to be denied. So if there’s something
that they think, and you think is missing from their application, they’ll take that delay, only
so they don’t get denied, and, like I said, these guys aren’t going to want delays. For the
most part, nine out of ten people are going to want their answer.
MR. ABBATE-Yes, I cover that, Lew, you’re absolutely right. I do cover that when it’s
necessary.
MR. STONE-Well, Chuck, I think we re-affirm the deadline date, and then we do what we’ve
always done. As Craig says, we make the decision on the fly.
MR. URRICO-I like the idea of keeping options open. I just think, once we lock into a
particular procedure, there’s going to be something that comes up.
MR. ABBATE-I don’t have a problem with that, guys.
MR. STONE-It is stated policy, right?
MR. ABBATE-Yes, it’s in the application, Lew.
MR. STONE-Yes, it’s in the application.
MR. ABBATE-All right. So leave it up to my good judgment, then, because I do have a
provision to cover that, as Chuck mentioned. I’ve done it before.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Charles Abbate, Chairman
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