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2006-11-15 (Queensbury ZBA Meeting 11/15/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 15, 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. 49-2006 Peter Mitelman 11. Tax Map No. 302.7-1-39 Area Variance No. 62-2006 MT Associates, Inc. for Smartshop 18. Tax Map No. 288.00-1-59 Sign Variance No. 63-2006 MT Associates, Inc. for Smartshop 33. Tax Map No. 288.00-1-59 Area Variance No. 64-2006 T & M Jacobs Properties, LLC 39. Tax Map No. 302.11-1-2 Area Variance No. 65-2006 Brooks Teele 46. Tax Map No. 227.18-1-8 Area Variance No. 66-2006 BBL, Inc. QEDC Parcel 52. Tax Map No. 309.10-1-82, 83, 84 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 11/15/06) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 15, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ALLAN BRYANT CHARLES MC NULTY RICHARD GARRAND ROY URRICO MEMBERS ABSENT JOYCE HUNT LAND USE PLANNER-SUSAN BARDEN STENOGRAPHER-SUE HEMINGWAY MR. ABBATE-Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated November 15, 2006. Prior to setting this hearing in motion, I wish to acquaint you with information that will familiarize you with the responsibilities of this Board, the mandated legal requirements we are guided by, and the procedures for a hearing before this Board. The function of the Zoning Board of Appeals is to listen to and consider all evidence that appears on the record, and may bear upon the issue we are deciding. This Zoning Board of Appeals can grant (or deny) two types of relief; interpretive and variance. In either case, this Board will affirm, reverse or modify the enforcement officer’s decision. In doing so, this Board will either permit or deny the requested relief. If the appeal is for an interpretation, this Board’s decision will be based on the Town of Queensbury zoning regulations. If the appeal is for a variance, this Board’s decision will be based on the standards of proof contained in NYS Town Law 267-b. Additionally, the Zoning Board of Appeals may only authorize the minimum variance necessary to relieve the applicant. We will invite public comments on each appeal, however, in the interest of time please be crisp, organized and limit your comments to only the facts and information given this evening. On opening the public hearing the public will be allowed a maximum of 5 minutes to comment on a specific appeal. The purpose of this time limitation is to provide each member of the public an opportunity to be heard, and also to limit the length of the hearing to a reasonable time frame. Ms. Hemingway, would you please monitor the time, and, Mr. Secretary, do we have any correspondence, if so, would you be kind enough to read it into the record, please. MR. UNDERWOOD-None. MR. ABBATE-We have none this evening. All right. That’s fine. OLD BUSINESS: 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): SAME 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: NO LOT SIZE: 0.74 ACRES TAX MAP NO. 303.5-1-62 SECTION 179-4-020 LINDA CASSE, PRESENT MR. UNDERWOOD-Last time we asked them for more information about other possible conversions, and they did make some submittals to this. The only two possibilities are either as a church or school in the district, as the regulations read. So I’m going to read Staff notes. MR. ABBATE-Please do. 1 (Queensbury ZBA Meeting 11/15/06) STAFF INPUT Notes from Staff, Linda C. Casse, d/b/a Sojourn Gift Shop, Meeting Date: November 15, 2006 “Project Location: 318 Ridge Road Description of Proposed Project: Note: Revised staff comments based on the October 2006 submittal are shown in this smaller, bold type. Applicant seeks to establish a Retail Gift Boutique on the property. Relief Required: Applicant requests relief from the allowable uses of the Single Family Residential, SFR-20 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? th The applicant provided, at the January 18 2006 meeting, responses to the following questions, however, some questions still remain: No new “competent financial evidence”, other than what appears to be a compilation of the financial account for the property, has been submitted. For example, tax bills, utility billings, rent agreements/checks, insurance receipts, contractor billings or cancelled checks, etc. A property appraisal by Robert Cote was submitted previously. This appraisal offers potential annual revenue of $37,380, minus vacancy and collection costs for a potential $35,511 income versus an annual operating cost of$21,500 leaving a $11,881 net income….roughly $1000 a month profit. The appraisal suggests that this is not high enough. These numbers do not correspond with the January 18, 2006 submittal, which claims a $15,900 annual income versus a $31,014.43 expense total…….which is correct? A contractor estimate for the reconfiguration of the building to a church and school was submitted. What is the monthly / annual mortgage dollar amount versus the income figures offered? If no mortgage, is the $11,881 “net income” all to be considered income/return to Casse? Is the Maintenance / Repairs a value taken from recent work or an average of several years? Several of the items listed under A., 2. “Expenses for 2005” appear to be one time expenses rather than yearly expenses. For example, plumbing, advertising, furnace, painting, locksmith, misc improvements, materials. There appear to be several utility meters on the building, however, the application indicates a $6000 amount for utilities. Are utility costs included with the rent or paid by individual tenants? What are the actual “dollars and cents” amounts for conversion to an allowable use for “…each and every permitted use under the zoning regulations…” for this particular district? There are speculative answers offered in response to this question, however, each and every use is not addressed with Dollars and Cents proof. The $336,000 figure is an estimate to perform interior alterations (remove a kitchen and some interior walls, add a bathroom and a stairway) for conversion to a single family dwelling. This estimate appears to be high. What would the appraisal of a completely renovated 3540 sf single family dwelling be? In addition to each and every permitted use in the SFR-20 district, the applicant needs to provide information to support the position that even the pre-existing, non-conforming uses do not offer a reasonable return for the property. The information provided appears to demonstrate that a reasonable return is possible; however, the applicant presents the argument that the return is not high enough. 2 (Queensbury ZBA Meeting 11/15/06) This standard is not “highest and best use.” The standard is “reasonable return.” It does not appear that the lack of return is substantial. 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 professional office, however, the existing residential use of the property, albeit multi-family, is not unique to the surrounding residential neighborhood. 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 a professional office use along with a retail use. The adjoining, City of Glens Falls, zoning district is Single Family Residential, Medium Density. 4. Is the alleged hardship self-created: The alleged hardship can be interpreted as self created. The property transfer deed dated; November 2, 2004 occurred more than 2 ½ years after the most recent, April 2002 revisions to the Town of Queensbury Zoning Ordinance. Further, the previous 1988 Zoning Ordinance identified this property to have the same SFR-20 zoning designation. This information was public record which was available to the previous owners as well as the current owners prior to their purchase. The property zoning designation has not changed since the purchase date. In the January 18, 2006 submittal, the appellant claims (para. D) that they were presented a “fact sheet” prior to purchase. This “fact sheet” was not generated by the Town of Queensbury, nor was it provided to the appellant by the Town of Queensbury. Parcel History (construction/site plan/variance, etc.): It appears as though the application offers a listing of previous tenants at the subject property; however, Town records only reflect two Certificates of Occupancy to have been issued to the property. Both appear to have been replacement uses consistent with previous occupancies. Unapproved occupancy of the property does not provide a basis for a “replacement use” or for historical occupation purposes. Staff comments: It appears as though the property can be utilized for an allowable use in the SFR-20 zoning district, specifically, a Single Family Dwelling. While there may have been, other, various non-conforming uses on the property, no retail use has been permitted on the property within the last 18 months. If there had been such a retail use, there may have been an opportunity to allow for a retail to retail replacement use. However, 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. The construction estimate appears to be for an entire building renovation, including the “shop” building. Is such an extensive renovation necessary to allow the property to be used for a single family dwelling? It would appear as though a less intensive reconstruction would achieve a conversion to a single family dwelling. Is a complete renovation NECESSARY in order to utilize the PROPERTY with an allowable use? 3 (Queensbury ZBA Meeting 11/15/06) SEQR Status: Type: Unlisted” MR. ABBATE-Okay. Would the petitioner of Use Variance No. 69-2005 please approach the table, speak into the microphone and for the record identify yourself and your place of residence, please. MS. CASSE-My name is Linda Casse, and I live in Saratoga Springs, New York. MR. ABBATE-Are you represented by Counsel this evening? MS. CASSE-No. MR. ABBATE-Okay. This, of course, is a Use Variance, and I would like to respectfully remind you of the fact, and hope that you understand that in this particular case, particularly in a Use Variance, that the burden of proof rests squarely on the shoulders of the appellant to show, in fact, that this is necessary, Number One, and based on some of the comments in Staff’s notes this evening, you understand the term due diligence? Okay. Well, let me explain it to you. One of the comments made by Staff this evening, or several comments, was the fact that this information was public information when you purchased the property. Due diligence basically means, in its simplistic form, is that you have the responsibility to determine it, to research out, before purchasing property, what you may or may not do with it. Do you understand that? MS. CASSE-I understand that. MR. ABBATE-Okay. Then are you prepared to proceed? MS. CASSE-Yes. MR. ABBATE-Would you do that for me, please. MS. CASSE-Yes. MR. ABBATE-Okay. Well, here’s what I’d like you to do. Explain to us, okay, this is your second time before us, explain to us why you feel, and justify to us why you feel we should approve what you’re requesting. Would you do that? MS. CASSE-Okay. Yes. MR. ABBATE-And since you’re not represented by Counsel, any time this evening you don’t understand something stop us, we’ll be more than happy to explain it. MS. CASSE-Okay. MR. ABBATE-Would you, please. MS. CASSE-I did do one other thing that you don’t have in front of you. I have an expense, expenses for the Year 2006. MR. ABBATE-Would you like to pass that out to us? MS. CASSE-Yes. MR. ABBATE-By all means. Thank you, ma’am. Go ahead. MS. CASSE-So basically you want me to tell you why I think? MR. ABBATE-Yes, explain to us, present your case to us and try to convince us this is what it’s all about, why we should approve your variance, okay, and then we will ask you questions. MS. CASSE-Okay. Basically, what I did was I had taken my life savings and invested in this building, wanting it to be my retiring future, so to speak, after the emptiness and drome. I bought the building in hopes of opening up the gift shop and feeling that my investment, taking the money from the sale of my previous house and purchasing this house, I would also be securing myself an income by being able to open up this gift shop. As it turned out, the due diligence, which I did not realize that it was not, the retail was not allowed, and I do know that the fellow that was in there who was the accountant, 4 (Queensbury ZBA Meeting 11/15/06) before he left, his wife had a bookstore in there. I did not know that she had not applied for a license for the bookstore. So there were many businesses that had been there previously which the previous owner, Rob Lavery, had explained to me the numerous businesses being a diet center and the liquor store, and it just went on and on. Anyway, I take a lot of pride, personal pride in my projects, and things that I do and in my property, and I’ve tried very hard to clean it up to make it look as nice as possible. The tenants that are there, they have not paid any of the electric, as one of the questions that was asked this year, with the electric being so expensive, I asked them to contribute 10%, which they did, and I added that in the sheet that I just gave you. So I received 10% of the electric from Brad Phillips who rents one of the apartments, and that totaled $354.87, and also 10% from Sally, which was $354.87, which is on the income sheet. The total amount of the monthly rents that I get is $1325, which for this year totaled up to $14,575 dollars. Al Merchant rented the downstairs from me for a short while for the $2400. So the total income for this year has been $17,684.74, and then on the expense part of it, it’s an old building, and I know these seem high, but I’ve got some of the National Grid bills with me, but the main building came up to the $3,549 dollars and where the store is, I have to keep the electric on in that part as well. That part came up to $957 so far. I provide waste management for the people there, for the tenants, and that bill is $741. The water, sewer and taxes came up to $7,641. I insure the building for $2425. I maintain a phone for my own use in the store, which is $400, and then the maintenance I hire, to get the leaves and the grass, the bushes, the snow removal and all of that. So the total expenses so far have come up to $18,215, which is almost, a little more than $500 than the money that I’ve taken in, and I’m just, all I can tell you is that I will probably be forced to sell it because I really can’t afford to keep it if I don’t get the gift shop. MR. ABBATE-Okay. At any time during this hearing, if you feel like there’s something else that would support your case you may have forgotten to tell us, please stop us and tell us. Would you, please. MS. CASSE-Okay. MR. ABBATE-I’m going to proceed and I’m going to ask members of the Board if they have any questions for the appellant. MR. BRYANT-Mr. Chairman? MR. ABBATE-Yes. MR. BRYANT-These tenants that you have, you have apartments in the building? MS. CASSE-Yes, there are two studio apartments on the second floor. MR. BRYANT-Okay, and like the Brad Phillips rental for $425, how big is that apartment? MS. CASSE-It’s just a small studio apartment. It has one bathroom, a little kitchenette and a combination living room/bedroom area. MR. BRYANT-Do you live in that building? MS. CASSE-No, I do not. MR. BRYANT-Thank you. MS. CASSE-These tenants were there when I purchased the building. Nothing has changed. MR. BRYANT-Okay. So you basically have three apartments in there? MS. CASSE-Two, just the two, and there’s a little hair salon on the first floor that was there when I purchased the building as well, Advanced Hair Salon. MR. BRYANT-Thank you. MR. URRICO-I have a question of Staff. The 18 month, the clock started on that, or went back from the first submittal, from when this variance was first submitted, or is that 18 months from tonight? 5 (Queensbury ZBA Meeting 11/15/06) MRS. BARDEN-Eighteen months from the end of that use to now. So you have to have the continual, if the use has stopped for 18 months, the use is no longer a permitted, existing nonconforming use. MR. URRICO-The applicant first submitted this on January 18, 2006. So at that point was it just six months, or what would be, seven or eight months that it hadn’t been used? MRS. BARDEN-It must not have been a retail use at that time. MR. URRICO-Do you know what I’m getting at? MR. ABBATE-Yes, I do. MRS. BARDEN-Yes. MR. ABBATE-I do. Jim, would you like to pursue that? MR. UNDERWOOD-No. I would just think that we need to be pretty accurate as to when the 18 months occurred, because I think if they came in in good faith asking for this, you know, I think that, you know, we can overlook the fact that it’s more than 18 months, if they started the application process prior to the 18 months. MR. ABBATE-Well, let’s be specific and put it on the record. When did the 18 months specifically start? MR. MC NULTY-One point on this. The previous occupant of the area where your store was, was that an accountant? MS. CASSE-Yes. MR. MC NULTY-I think perhaps what the Staff was the thinking is an accountant is not equivalent to a retail shop. MRS. BARDEN-Right. I’m sorry, Mr. McNulty, it does say in the Staff comments that, and I apologize. The Zoning Administrator did draft these, that there has been no retail use within the last 18 months. If there had been such a retail use, there may have been an opportunity to allow for a retail to retail replacement use. MR. BRYANT-While you’re looking at that, Ms. Barden, I’m not quite understanding something. We’re talking about retail use for the store, but yet we have retail use already existing on the complex, the hair salon. MRS. BARDEN-That’s not retail. It’s personal service. MR. BRYANT-That’s not considered retail? MRS. BARDEN-Right. MR. BRYANT-Okay. That answers my question. MRS. BARDEN-So you can do a retail, retail replacement, but if that use has not been maintained for 18 months, consecutive 18 months, then the use has expired. MR. ABBATE-Ms. Barden, do me a favor. I’m still not convinced in my own mind, the question that Mr. Urrico raised, the timeframe. Eighteen months is the timeframe. Let’s start with that, correct? MRS. BARDEN-Yes. MR. ABBATE-Okay, and then you just mentioned 13 months. What did you mean by that? MRS. BARDEN-I don’t believe I mentioned 13 months. MR. ABBATE-Okay. I must have misunderstood what you said. Are you suggesting that the record show that the 18 months have expired prior to? MRS. BARDEN-Absolutely. 6 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-No doubt in your mind. Okay. Mr. Urrico, are you satisfied with that? Okay. Go ahead, please. MR. URRICO-No, I am. MR. ABBATE-Okay. Gentlemen, do we have any other questions for the appellant? We have none. Okay. Then what I’m going to do. Do you have something you wish to say? MS. CASSE-Yes. I have down here that I know that it wasn’t on record that she didn’t apply for a license or whatever she needed to have, but for a period in excess of two years, from July 2002 through October of 2004, Theresa Powers, wife of Alan Powers, operated Personally Yours Creative Books out of the same space. MR. ABBATE-Okay. All right. Thank you. MR. URRICO-Do you know when they vacated? MS. CASSE-Yes, in, I believe it was November of 2004. MR. URRICO-Thank you. MR. ABBATE-All right. I’m going to continue on. I believe I kept the public hearing open. Yes, the public hearing is still open, and I’m going to request from the public those wishing to be heard on Use Variance No. 69-2005 if you would be kind enough to raise your hand, I’ll be happy to recognize you. Sir, would you come to the table, please, and, sir, before you identify yourself, we’d like to read two letters into the record. PUBLIC HEARING OPEN MR. ABBATE- Sir, would you come to the table, please, and, sir, before you identify yourself, we’d like to read two letters into the record, please, and then I’ll get right to you. MR. UNDERWOOD-We can do that after. MR. ABBATE-Are you sure? All right. Please identify yourself. JOHN SALVADOR MR. SALVADOR-My name is John Salvador. I’m a resident in North Queensbury. I would like to refer to the Zoning Ordinance, Section 179-2-010, which deals with definitions, and the only place that retail is defined, it says retail business. It’s the offering for a fee of goods, services and merchandise to the general public. Accounting are services. So I maintain that an accountant business constitutes, under our definition of, in the Code, a retail business. The other point, I’m looking in the Code here, these are allowable uses in commercial districts, and we do talk about retail. So, there is a connection between a retail use and a service. So I think the Code supports the fact that the accounting business is a retail business, definition of our Code. It says services. Not necessarily the sale of goods, but the sale of services constitutes retail business, that’s according to Code. MR. ABBATE-Okay. Thank you, Mr. Salvador. Do we have anyone else in the audience, public, who would like to address this issue, Use Variance No. 69-2005? MR. UNDERWOOD-I have three letters that were submitted. I’ll read those into the record. This one was sent in as public comment. It says, this was a phone call. “Not opposed to the retail shop. I think it will keep it nice and it would be cute.” This was a th phone call received by Sue Hemingway at the Zoning Office, November 15, 3:45 p.m., and that was from Marcia Timinski at 36 Meadowbrook Road. Also here’s a second one. th This was also a phone call received on November 15 at 3:30 p.m. “This place would look very nice as a gift shop and I cannot imagine the building used for a home. It’s been retail for years, previously an ice cream and Clements Liquor Store.”, and this last one here, this one was also received, I guess this one was just a short note. This was th submitted on November 15. “As I stated in my last letter, it looks to me that it already has a boutique there already. We have lived here in this neighborhood for 60 years and we have fought before and will do so again. There are few places that are neighborly and I’ve built here and raised five children. Change the zoning and then what – no, no, no. Chris & Dick McCarthy 12 Wilson Street, Queensbury” So I assume that’s adjacent. 7 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Okay. Thank you very much. Would you like to respond to anything that’s been said so far? Okay. Before I ask the 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 and their comments expressed by the Board members are not open to debate. I’m going to respectfully remind the members that precedence mandates we concern ourselves with the evidence which appears on the record to support our conclusions. Now I must say this as well, to the Board members. In requesting a Use Variance, that is permission to establish a use of property not otherwise permitted in the zoning district, the appellant must prove unnecessary hardship, and to prove this State law requires the appellant to show all of the following, One, that the property is incapable of earning a reasonable return on initial investment if used for any of the allowed uses in the district, actual dollars and cents proof must be submitted. Two, that the property’s being affected by unique or at least highly uncommon circumstances, and, Three, that if the variance is granted, it will not alter the essential character of the neighborhood, and, Four, that the hardship is not self-created. If any one or more of the factors is not proven, State law requires the ZBA must deny the variance. I would now ask members to please offer their comments. MR. URRICO-Mr. Chairman, I’d like to bring up one point, before we get to that point. What Mr. Salvador said shows that there is a discrepancy in our Code. MR. ABBATE-Yes. MR. URRICO-If his definition is upheld, which sounds to me like it could, that means at the time that she applied, it was only 14 months. So there was no discontinuance at that point. MR. ABBATE-Yes, and I’ll go one step further, gentlemen of the Board. State law makes it quite clear. If this Board finds that a Zoning Ordinance is somewhat ambiguous, we should vote against the community and in favor of the appellant. MR. BRYANT-Mr. Chairman, I have a couple of questions. MR. ABBATE-Yes, please do. MR. BRYANT-But I do want to make the statement in that regard. This is not an appeal to a determination of the Code Enforcement Officer where he said that it’s been discontinued. So I don’t think that that really is necessarily an issue, but in any event, I do have a couple of questions. MR. ABBATE-Please do. MR. BRYANT-Can you tell me a little bit about your gift shop? What exactly are you going to do there? MS. CASSE-Okay. I just, like Christmas is coming. I’d like to have some women’s clothing, boutique items, some, I’ve got some furniture, unique pieces of furniture, some beautiful African Slate furniture, actually, that I had acquired a while back. My son has a small business in Ballston Spa where he manufactures tea bags. It’s for the women’s bath, and there’s candles, and it’s just a little bit of a lot of different kinds of things. MR. BRYANT-Yes. A little boutique or something like that, knick knacks, something like a Sutton’s, for example? MS. CASSE-Yes. MR. BRYANT-Would be nice there. What I’m concerned about is summertime, big tenants, big sales, and that would really change the character of the neighborhood. You don’t seem like a big tent kind of person. MS. CASSE-No. MR. BRYANT-In the Staff notes, back in January, I guess your counsel supplied some estimates or guesstimates about the potential income there, somewhere around $30,000. Why is there such a big discrepancy there? MS. CASSE-I don’t know why there’s such a big discrepancy. Because the figures haven’t changed. I have not changed, the rents haven’t changed at all. 8 (Queensbury ZBA Meeting 11/15/06) MR. BRYANT-Since you bought the property, the rents are the same? MS. CASSE-Yes. MR. BRYANT-Don’t you think $400, even for a studio, is kind of inexpensive in Queensbury? MS. CASSE-I think it is, but I’d be, if I couldn’t rent them out again I’d really be stuck. I mean, I’d have to go in and spend a lot of money, you know, I’ve been painting and cleaning and trying to fix everything up a little bit at a time, and then if one of them left and I had to go in and do all of this, I couldn’t get it rented out again right away, so I’m very happy to leave them alone. MR. BRYANT-Thank you very much. MR. ABBATE-Well, let me go down the line. Anyone want to volunteer? All right. Let me just do this. Let’s go with Mr. Urrico, please, Jim. Comments? MR. UNDERWOOD-Do you want me to go? MR. ABBATE-Please. MR. UNDERWOOD-I’m Mr. Underwood, by the way. All right. In listening to the applicant, here, I think it’s important for us to remember why we’re here as a Board, and that is that people come in here seeking relief from the regulations, and, you know, it’s important for us to differentiate between, you know, requests that are really off the wall and requests that are quite reasonable, and I think that in this instance here the property is unique to the neighborhood. I don’t think it’s going to result in numerous requests for people to change their homes into gift shops in the neighborhood. I think that it’s been substantiated both by her counsel and herself that there were previous retail uses on site there. I mean, neighbors have provided that information to us also. There doesn’t seem to be any neighborhood dissention about her request to do this, and I think that it’s a benign use of the property. I mean, a retail shop, you know, with knick knacks or whatever it ends up being, a boutique, is a reasonable request. She substantiated her return is not adequate at the present time, and I think that possibly you could go out and solicit another, you know, an attorney to come in there or another accountant. I mean, that might be a possibility also, but this is what the applicant wants, and I think that in this instance here, we can be reasonable. We can overlook the fact that it is that gray area that we’re in, that we’re not quite certain of what it is, and I don’t think that anybody’s going to be negative about this, in a sense that it’s going to be a detriment to the neighborhood or the community. So I would be all for it. MR. ABBATE-All right. Thank you. Mr. McNulty, please. MR. MC NULTY-Well, I guess there’s a couple sides of this. Frankly I’m not sure where I’m going to come down until I guess finish thinking out loud. I’ll agree with Mr. Bryant that while we’ve discussed some about the 18 month time period and definition of retail use versus accountant or whatever, that whole argument is moot because it would be an appeal of the Zoning Administrator’s decision, which has long past for appeal. On one hand I’ll agree with Mr. Underwood that, you know, I think the proposed current use probably would not change the character of the neighborhood. It seems like if you’re going to do something other than residential that it’s an appropriate use. On the other hand, that’s not what we’re approving tonight. What we’re approving is a retail use for ever more. So if the applicant decides to sell and if somebody decides to start something else that is more obnoxious to the neighborhood, we’ve approved it. So that concerns me some. I’m willing to give the applicant the benefit of the doubt. I’m not sure the original figures on cost of conversion of this property to residential use are reasonable, but on the other hand it obviously would cost a chunk of money to convert their residential use, and I think it’s probably reasonable to presume that she might not get a reasonable return out of the total property if she were to convert it to reasonable use. So I’ve got some real misgivings, but I guess my inclination at the moment is to go along with the request and approve it. MR. ABBATE-Thank you, Mr. McNulty. Mr. Urrico, please, sir. MR. URRICO-I’m in agreement with Jim Underwood on this, and I’d be in favor of it. I believe this is the process gone amuck. I think the fact that this might be retail forevermore would only complete the cycle because it’s been retail all along except for 9 (Queensbury ZBA Meeting 11/15/06) the period that we’re talking about, it appears. So I really think this applicant’s been put through the ringer unnecessarily. I would be in favor of it. MR. ABBATE-Okay. Thank you. Mr. Garrand, please. MR. GARRAND-Mr. Chairman, I’m kind of torn on this one also. I do remember this place when it was a bookstore, had been in there on a couple of occasions. From my perspective, I think the hardship is unique, especially to that neighborhood, and also somebody brought up the point that if a nonconforming use has been discontinued for 18 months it is up to review by the Zoning Board of Appeals. On that note, I don’t think it would cause any unnecessary hardship for the rest of the neighborhood, therefore I’d be in favor of this application. MR. ABBATE-Mr. Bryant. I know you spoke earlier, but I’m not so sure I really got a position from you. MR. BRYANT-Thank you, Mr. Chairman. Well, two things that the applicant has in favor, and one of them is that she’s provided detailed information, financial information, to show that the current situation is not profitable, okay, which is one of the criteria for a Use Variance. The second thing is the fact that most of her neighbors are in favor of it. I have a tendency to agree with Mr. McNulty on this one. I am a little bit concerned about the future, in the case that the building is sold, supposing that the gift shop is not a profitable, you know, what will be there next. I mean, that is a major concern, but that being said, I think I’m going to fall in favor of this. MR. ABBATE-Okay. Thank you very much, and I have listed very carefully to what each of the Board members had to say, from one spectrum to another, and I guess my bottom line is this. One of the major purposes of the Zoning Board of Appeals is to act as a safety valve, and acting as a safety valve, we take into consideration a number of ingredients, if you will, and I think Mr. Urrico said it quite well. You’ve been here a number of times, and I do believe that you acted in good faith. I understand, initially I indicated to you you have to understand due diligence and all that thing, but that’s part of the things that I have to say for the public and for the public record, but the safety valve issue. I think we have a unique responsibility on the Zoning Board of Appeals to do that, and based upon that, and based upon what my fellow Board members said, I, too, would support the application. Now, having said that, 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, and also as it was said this evening by a number of Board members, there really is no adverse impact on the health, welfare and security of the community, certainly that I see. Having said that, I’m going to ask for a motion, and I’m going to request that the motion be made with clarity, and the motion itself is not going to be open to debate. If you don’t agree with the motion, you certainly have every right to come up with your own motion. Having said that, is there a motion for Use Variance No. 69-2005? MR. MC NULTY-Before you move in that direction, Mr. Chairman, this is an Unlisted Action. You need to do SEQRA. MR. ABBATE-Absolutely correct. Jim, would you go through that for me, please, thank you. MR. UNDERWOOD-I’ve got it. Okay. We’re going to do the Short Environmental Assessment Form. The applicant is Linda Casse. The project location is 318 Ridge Road. This is a request for a retail gift boutique on the property, and again, the proposed action, I don’t think we would call this a new use on the property, or maybe I guess we should call it a new use because it hasn’t previously been this type of use on the property. The present land use in the vicinity, it’s an SR-20 zone, Single Family Residential 20 zone. Does the action involve a permit, approval or funding from any other governmental agency? The answer would be no on that. Does any aspect of the action have a currently valid permit or approval? I would say no. As a result of the proposed action, will the existing permit/approval require modification? I would say no. Under Part II, Does the action exceed any threshold and will the action receive coordinated review as provided for Unlisted Actions in New York Conservation Law. I would say no. Could the action result in any adverse effects associated with the following: And that would be air quality, no. Agricultural, archeological, historic or other natural or cultural resources, no. Vegetation, or fauna, fish, shellfish or wildlife species, 10 (Queensbury ZBA Meeting 11/15/06) significant habitats, no. A community’s existing plans or goals as officially adopted, I would say no. Growth, subsequent development, or related activities likely to be induced by the proposed action, no. Long term, short term, cumulative or other effects not identified, no, and other impacts including changes in use in either quantity or type of energy usage, no. Will the project have an impact on the environmental characteristics that caused the establishment of a Critical Environmental Area? I would say no. Is there or is there likely to be controversy related to potential adverse environmental impacts? I would say no. Okay. I guess we can vote on it. MR. ABBATE-Okay. THERE IS AN ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATING THAT THERE IS NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, AND, UNLESS THERE IS A CHALLENGE FROM A MEMBER, I ACCEPT THAT BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES. AS SUCH, I MOVE THAT THE ENVIRONMENTAL ASSESSMENT FORM BE APPROVED., Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Garrand, Mr. McNulty, Mr. Urrico, Mr. Abbate NOES: NONE ABSENT: Mrs. Hunt MR. ABBATE-In a six yes to zero no vote, the Environmental Assessment Form is approved. Now, moving on. MOTION TO APPROVE USE VARIANCE NO. 69-2005 LINDA C. CASSE d/b/a SOJOURN GIFT SHOP, Introduced by James Underwood who moved for its adoption, seconded by Roy Urrico: 318 Ridge Road. The applicant has given us reasonable proof that she cannot maintain a reasonable return based upon the present use of the property and that the retail usage as established would help her pay her bills. As far as the other five criteria. Is the alleged hardship relating to the property unique? We don’t seem to feel that it’s going to alter the neighborhood character. There’s been other retail uses on this site previously, although they have been somewhat discontinuous in the past. As far as the change in the neighborhood, we don’t feel that the added traffic is going to be a detriment to this single family residential area, and as far as the request, we don’t feel there’s going to be a detrimental effect to the neighborhood, and as far as the alleged hardship, she, I think, has been acting in good faith here in applying for this application for this usage. I think that she has fallen into a gray area as far as the Code goes and I think that we can overlook that factor and grant this. th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. McNulty, Mr. Garrand, Mr. Bryant, Mr. Underwood, Mr. Urrico, Mr. Abbate NOES: NONE ABSENT: Mrs. Hunt MR. ABBATE-The vote to approve Use Variance No. 69-2005 is six yes, zero no. Use Variance No. 69-2005 is approved, and good luck to you. MS. CASSE-Thank you very much. MR. ABBATE-You’re very welcome. AREA VARIANCE NO. 49-2006 SEQRA TYPE: II PETER MITELMAN AGENT(S) MICHAEL S. BORGOS, ESQ. OWNER(S): THE BBS MITELMAN FAMILY TRUST ZONING: SFR-1A/LI IN PART LOCATION: 27 NORTH ROAD APPLICANT PROPOSES CONSTRUCTION OF A MASONRY AND WROUGHT IRON (OR SIMILAR ALUMINUM) FENCE WITH GATED ACCESS IN ARCHITECTURAL FRONT YARD. RELIEF FROM MAXIMUM HEIGHT OF FENCE IN A RESIDENTIAL ZONE 11 (Queensbury ZBA Meeting 11/15/06) REQUESTED. WARREN COUNTY PLANNING: N/A LOT SIZE: 9.06 ACRES TAX MAP NO. 302.7-1-39 SECTION 179-5-060 MICHAEL BORGOS, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-We had previously heard this application, and it was sent back to them for some modifications. So they’ll be presenting it again this evening. Mr. Borgos submitted a letter to us and also new drawings were submitted at that time, and some of the changes which I’ll just go over quickly, I’m sure he’s going to cover them, too, are elimination of all the globe lights on the top of the columns. Elimination of the two foot brick knee wall between the columns, reduction in the number of columns from 15 to 8, increase spacing of the columns from six feet to sixteen feet to improve the aesthetics, and a reduction in the column height from seven feet to six feet. I’ll read the Staff Notes. MR. ABBATE-Please. STAFF INPUT Notes from Staff, Area Variance No. 49-2006, Peter Mitelman, Meeting Date: November 16, 2006 “Project Location: 27 North Road Description of Proposed Project: Applicant proposes construction of a masonry and wrought iron (or similar aluminum) fence with gated access in architectural front yard. Relief Required: Relief from maximum height of fence in a residential zone requested. (Section 179-5-060) Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be permitted to construct the proposed fence at the desired height of 6- feet. 2. Feasible alternatives: Feasible alternatives include erection of the proposed fence at a compliant 4-feet in height. 3. Is this relief substantial relative to the ordinance?: The request for 2 ft. over the maximum 4 ft. height for a fence in the front yard could be deemed considerable (33%). 4. Effects on the neighborhood or community: Public comment from neighboring residents indicated potential impacts to the neighborhood. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): None found. Assessing records indicate property improvements in 1931. Staff comments: This application was previously tabled on September 20 for a modified, more compliant proposal (see meeting minutes). With this submittal, the proposed height of the fence has been reduced from 7-feet to 6-feet, reducing the amount of the variance requested from 3-feet to 2-feet. SEQR Status: Type II” 12 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Okay. I see counselor is at the table. Counselor, would you be kind enough to tell us who you are, please and your relationship to Area Variance No. 49- 2006. MR. BORGOS-Michael Borgos, here as counsel for the applicant. MR. ABBATE-Okay, and Counselor, as a graduate of law school, I know that you understand the burden of proof. I don’t have to go through that. MR. BORGOS-I do. MR. ABBATE-Thank you. Are you prepared to proceed? MR. BORGOS-I am. MR. ABBATE-Please do. MR. GARRAND-Mr. Chairman, could I intervene for a moment? At this point I’d like to recuse myself for reasons previously stated. MR. ABBATE-You may. MR. GARRAND-Thank you. MR. ABBATE-Proceed. MR. BORGOS-First I’d like to start off with a correction. There was an error in my letter th of October 16 that Mr. Underwood read. The knee wall is going to stay. We had talked about a couple of different variations. In fact, we’ve come up with a whole sheet full of various looks to try to come up with a presentation for this re-submittal that took into account the public comment, the neighbors comments and this Board’s comments. I’d also like to point out that the original proposal was seven feet for the top of the brick work, but there were those globes on top which would have put it up another six or eight or twelve inches, depending on the size of those globes. What we are presenting here today with the revised drawings is a six foot high column that’s interspersed with essentially a four foot wrought iron fence. We’ve kept that knee wall down there, because as we drew it out, without the knee wall, it gets very stringy looking. It just didn’t look right because of the scale of this fence. It’s over 120 feet from end to end, and that scale is necessary because of the over nine acre size of this parcel. It just is not a regular subdivision parcel, and that’s why it’s unique, and that’s why we think this is suitable for a variance from this Board. In order to have a gate, and that was the primary concern for Mr. Mitelman, he wanted to have a gated access similar to other properties on this street. In order to do that, the gate had to have certain mass, a certain size component to it, in order to hold the hardware and the mechanisms for doing the controls, and there after, too, when you look at the property itself, the landscaping that’s presently there, there’s a lot of existing hedges and shrubs on either side of the open expanse. He actually owns quite a bit of property on either side of those hedges and shrubs, and he’s going to retain all of that greenery, but he just wanted to connect it so it would look appropriate. So what we presented is a revision that changes the number of columns from 15 to 8, and that was in response to criticism that what was proposed originally was too massive. It was overbearing and too much for the conditions on the street. So we’ve cut that in half, essentially. We’ve changed the spacing of the columns from 6 feet to 16 feet, as a result of that, dropped those columns in height by a foot, eliminated those globe lights. The only lights that will be present will be some small cut off fixtures on the gate itself, probably with a street number right below it for 911 identification purposes. The height of the actual aluminum fence, which is meant to look like a wrought iron, is decreasing by six inches to 42 inches, and the actual design has changed to try, again, to make is more aesthetically pleasing. I think in response to some of the neighbor’s concerns, what I was hearing from them, and I think what the Board heard was that a lot of them were generalized. We like the park like setting on the street as it is, and we don’t want a fence at all. I don’t think there were any comments, other than what we’ve addressed, that objected to a variance of two feet, from the four feet to the six feet that we’ve been requesting. So I haven’t heard anything that is saying that that is too high. What we’ve heard is that it was too massive and it was not appropriate, but what we’ve tried to do here is modify that. So with that, I’d like to let you go to the public hearing. MR. ABBATE-Okay. Thank you so much. Members of the Board, do you have any questions for counsel? 13 (Queensbury ZBA Meeting 11/15/06) MR. BRYANT-Yes, Mr. Chairman. The knee wall, just explain that to me, because I don’t think it’s shown on your sketch. That’s the two foot high brick thing between the columns and then you’re going to have four feet of wrought iron on top of that, is that it? MR. BORGOS-Yes. It’s essentially, there’s a two foot running wall, and then above that is a 42 inch fence. So nearly four feet above that. The total height of six feet is from ground level to the cap on top of the wall. MR. BRYANT-Okay. The gate height, from the sketch it looks like the gate is rounded at the top, it’s higher than the rest of the fence. MR. BORGOS-That’s the architectural feature of the fences and the gates that are offered in the catalogue. So there is perhaps a six or eight inch differential as it slopes up to its maximum height on the gated portion. MR. BRYANT-Just a question for Staff. Is that to be considered in the, I mean, that’s part of the fence. The gate is part of the fence. So therefore the relief is not two feet. The relief is two feet whatever the gate difference is. MR. BORGOS-Corrects. MR. BRYANT-Okay. MR. BORGOS-And that’s more of an as built condition. We struggled with that ourselves in terms of how to phrase this request, and all I could come up with was, as designed per the attached plan. MR. BRYANT-Okay. Well, I think we’ve got to nail it a little bit closer than that. We’ve got to say what exactly is the height of that gate, because that’s the relief we’re going to need to give. MR. UNDERWOOD-That’s seven feet. MR. ABBATE-Seven feet. Is that correct, Counsel, seven feet? MR. BORGOS-I believe it’s less than seven feet. MR. UNDERWOOD-It’s like six foot eight. MR. ABBATE-Do you happen to have the exact dimensions? MR. BRYANT-So then we’re still back at the same seven foot height. MR. UNDERWOOD-On the drawing it says seven foot gate door. So it is seven feet. MR. BORGOS-That’s the width. MR. UNDERWOOD-Okay, that’s the width. MR. BORGOS-Yes. The whole entry across the driveway is 14 feet. MR. UNDERWOOD-The top of the posts that are going to have the brick on them are exactly at six feet. That’s going to protrude slightly above that. So probably six inches max above that. MR. BRYANT-It looks like more than six inches to me. Because they show the cap on the column is three inches, and you’ve got at least four of those between the top of the gate and the top of the fence. MR. BORGOS-Well, the top of the cap is at six feet. MR. BRYANT-I understand that, but what I’m trying to say to Mr. Underwood is that there’s a place where it shows that the top, the cap on the column is three inches, and if you compare that to the, I don’t have a scale. MR. UNDERWOOD-I’m guessing six inches. 14 (Queensbury ZBA Meeting 11/15/06) MR. BRYANT-Do you know what I’m saying? It looks like almost a foot, and I think we need to nail that down. MR. ABBATE-We need some assurances, gentlemen. MR. BORGOS-I can assure the Board that it is less than six inches. I believe it’s about four inches in actuality, and if the Board would like to limit that, we can make sure that it’s built to compliance with that relief. That’s not a problem. MR. BRYANT-If this is to scale, and I don’t think that it’s four inches. My eyes are weak and old, but I don’t think it’s four inches. Have you got a scale, Ms. Barden? MRS. BARDEN-I don’t. MR. ABBATE-Do we have anywhere in the record, Ms. Barden, the actual height in feet and inches? MRS. BARDEN-No. MR. ABBATE-We do not. MR. BRYANT-So you’re saying that you would be satisfied with two feet four inches, as far as relief? MR. BORGOS-Yes. What we’ve tried to present is that it’s a maximum of two feet for those columns and then for the gate section as it approaches its apex in the middle of the swinging gates, two feet four inches relief would be sufficient, yes. MR. ABBATE-Two feet, four inches. Okay. So let’s continue on. Members of the Board, do we have any other questions for counsel concerning Area Variance No. 49-2006? Okay. This is Old Business. So the public hearing, I do believe I left it open, and if we have anyone in the public who’d like to address Area Variance No. 49-2006 , would you please come to the table, ma’am, identify yourself and your place of residence, please. PUBLIC HEARING OPEN BEVERLY KERR MRS. KERR-I’m Beverly Kerr. I live at 47 Garrison Road, and I’m here representing the neighbors. I have two letters. Would you like me to read them or would you like them? MR. ABBATE-You can read them into the record if you wish. MRS. KERR-I can read them. Okay. The first is signed by Tom Meath, Elizabeth Meath, Margaret Meath, and Mrs. Charles Wood “Those signed below would like to express their disapproval of the proposed construction of a masonry and wrought iron (or similar aluminum) fence with requested two foot variance (at masonry posts) and one foot variance (at wrought iron fencing) at 27 North Road, Queensbury. As pointed out by several members of the Board of Zoning Appeals at the 9/20/2006 meeting, the design is out of character for the neighborhood and since the main reason for constructing the fence is stated as being a deterrent to vehicular traffic, the height and design, including heavy masonry columns, are unnecessary. A less obtrusive design which includes a lot of plantings would more suit the neighborhood and still achieve the desired effect.” The next letter is from John and Mary Gijanto, who are not in residence at this time, and they do live on North Road right next to the proposed fence. “We again would like to object to the 8 foot gated fence that the Mitelman Family Trust wishes to build across the front of their compound at 27 North Road. The zoning that is in place was written by citizens such as yourself who carefully thought it out and agreed that it was the most appropriate for the neighborhood. We are a friendly and accessible area and this fence says STAY OUT….WE DON’T WANT YOU! We find it hard to comprehend that a family who is not from this town, not from this county, not from the state and not from this country can come in and change the whole complexion of our neighborhood and town that has been in existence since 1763 and as your logo states is a “HOME OF NATURAL BEAUTY…A GOOD PLACE TO LIVE.” What is natural or beautiful or natural about a black metal fence? Thank you for your kind consideration. John and Mary Gijanto” MR. ABBATE-Now, ma’am, I’m going to call that Exhibit A and B. Would you be kind enough to give it to our Secretary so it could be entered into the record, please. 15 (Queensbury ZBA Meeting 11/15/06) MRS. KERR-Certainly. MR. ABBATE-And then you may continue, please. MRS. KERR-On a personal note, I would like to just say that we have known both previous owners of the property, and they have taken considerable time and care to keep the property in its architectural present situation, and it’s a lovely home, probably one of the most beautiful homes in all of the Glens Falls area. The home is always considered by the North Warren School District. They come every year with their classes to look at the architectural designs on North Road and Garrison Road, and I happen to know that that’s one of the properties that they always point out. It seems to me that this fence is, if there needs to be a fence, then the feeling of the neighborhood is that it should comply with the Ordinance as written, that there should not be a variance given because it is not a hardship. There is no reason for this fence. It is not for security. To the north of the property is a vacant lot, which also belongs to the Mitelman Trust that will not be secured. So I heard mentioned that there was another gate on the street. That’s true, but it’s at the very end of the street. There is no property visible behind that gate, only a driveway. So the neighbors are very adamant this fence comply as written. Thank you. MR. ABBATE-Okay. Thank you so much. Do we have anyone else in the audience who would like to address Area Variance No. 49-2006? Would you raise your hand so I can recognize you, please. I see no other hands. Counselor, would you mind coming back to the table, please. Would you like to respond? MR. BORGOS-I would. There are a couple of items I’d like to address. Number One, we had originally presented this as a, one of the reasons for the request was for security, and security can be interpreted in many ways. We discussed that at the last meeting. I think here the notion is similar to what Mrs. Kerr was mentioning about the Whitney Estate at the end of the road, where there’s only a driveway. Now that has a very high wall, but that is also very close to this property, and that is one of the things that inspired Mr. Mitelman to make this request. He is not always at the property. His family’s not always there, but sometimes his daughters and wife and such are there, and he wants them to feel comfortable that nobody’s going to drive in. It is a long access drive, and it has somewhat of a secluded turnaround behind the home, and he didn’t want people feeling that they could drive in there and turn around, or, once they’re occupying it, that people could feel comfortable driving in, and that’s why they wanted the gate, and everything really flows from the need for the gate to bridge the gap across the front. They find it aesthetically pleasing. Apparently they neighbors don’t. That’s always going to come up, and as the Board knows, an Area Variance is not dependent upon the neighborhood vote. With that, I’ll let the Board discuss it. MR. URRICO-Can he find security at four feet? MR. BORGOS-Well, we considered the four feet compliant fence right off the bat, and we think it would look insufficient. It would look ridiculous actually, and I don’t think the neighbors would be happy with a four foot fence. I think that would look worse than that’s been proposed. This has been proposed to look better. Certainly they could do a berm, and a compliant four foot fence and actually have a much higher separator, but again, that is not aesthetically pleasing. There are a lot of other options that they could have pursued. They’ve chosen one that is what they believe to be the most pleasing, and unfortunately for them it’s very expensive to do this. They wanted to make it pleasing to the neighbors, and unfortunately there’s been a negative reaction. MR. ABBATE-Okay. I’m going to ask members, now, of the Board, to offer their comments, and again, the comments are going to be offered to the Chairman are not going to be open to debate. I’m going to, again, remind the members that we have to concern ourselves, we must concern ourselves with the evidence which appears on the record to support our conclusions. MR. BRYANT-Mr. Chairman, I have a question. You talk about the knee wall, okay, and the necessity for it, and yet the majority of the samples shown in here do not have any kind of knee wall, okay. MR. BORGOS-That’s just a sales catalog. They don’t sell the brick. MR. BRYANT-I understand that, but they still look nice, okay. The other thing that I wanted to point out that this fence is available in all different heights, including 48 inches. 16 (Queensbury ZBA Meeting 11/15/06) MR. BORGOS-That’s true. That was the scale issue that we addressed earlier. With regards to the scope of this property, 48 inches might be appropriate for a smaller subdivision lot with a smaller home, but this home is set back from the road a great distance, and has nine acres of property surrounding it. It is definitely an estate category, and if you look at some of the pictures in there, there’s some large estates where they have much bigger fences. MR. BRYANT-Yes. In fact they have like an estate class. This is a residential fence that you’re putting in? It’s not the commercial fence? MR. BORGOS-Actually the supplier has recommended that they use a heavier gauge, and I think that’s when they go residential, commercial, industrial gauges at the quality of the metal and that he was recommending a commercial gauge because it would be more substantial, would not deteriorate over time. MR. ABBATE-Mr. McNulty, would you like to comment, please. MR. MC NULTY-Sure. I’m unconvinced. A security fence on one side of the property doesn’t strike me as being a security fence. Also we’re charged with granting the least relief possible. If the real concern is vehicular access, then a four foot gate is sufficient to slow down a vehicle and a six foot fence or a six and a half foot fence won’t do it any better. MR. ABBATE-Okay. MR. MC NULTY-And while neighborhood comment is good to give us information and ideas, it’s not necessarily a vote. Nevertheless, in this case, I’m inclined to agree with the neighbors. I still don’t think a higher than four foot fence is appropriate for that immediate area on that street. So I’m going to be opposed. MR. ABBATE-Okay. Thank you, Mr. McNulty. Mr. Underwood, would you be kind enough to go next please. MR. UNDERWOOD-Homeland security is always on the agenda of recent vintage, and I think in this instance here I think we have to remember where we live, and I can understand not wanting a car turning around in your driveway. I think certain people are upset by that, but, nonetheless, I think in this instance what’s being proposed here is way over the top from what’s necessary. A four foot fence would be okay. I don’t think anybody would have a problem with that. Even if the neighborhood didn’t want it, you could go out and build it tomorrow, but I think the last time I also suggested if you want more security or more privacy, put up a hedge. It’ll grow as high as you let it grow, and that also provides more. As far as the gate there, I think if you went to a compliant gate, height on the fence in its greater portion and had a slightly higher gate, I think that we probably might be amenable to that. I think that’s more of a reasonable solution than what you’re proposing this evening. MR. ABBATE-Okay. Thank you. Mr. Urrico, please. MR. URRICO-Yes. I’m afraid I’m in agreement with my fellow Board members so far. I think there’s certainly ways to achieve what he’s trying to achieve with other means. I also think the change in the neighborhood would be stark. It would be drastically different than what we’re seeing there now, not only there, not only there, but throughout the rest of Queensbury, because precedent is precedent, and the community at large suggested four foot fences are what are required for whatever reason people need fences, and going larger than that, no matter what the size of the property, certainly I think would be out of character for this community. I also believe the request is substantial. It’s 33%. It’s a third, and we talk about adverse physical or environmental effects. Environment also means the visual environment, and I think it would certainly be a stark contrast to what we see, especially in that neighborhood, and I think the difficulty is self-created. There are other ways to go about this. MR. ABBATE-Okay. Thank you. Mr. Bryant, did you give me your position? I don’t believe you did. MR. BRYANT-No. Thank you, Mr. Chairman. I’d have to agree with Mr. Urrico. I think the fence, first of all, it being aluminum, available in various colors, and styles and so forth, I think that you could be compliant and use a little bit of creativity and still maintain your architectural integrity. I really, I’d have to be opposed to this application. 17 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Thank you. Counselor, I have a problem with this as well. I agree with all my fellow Board members, quite frankly. I think there are feasible alternatives that could be addressed. However, all is not done at this time. It appears that you’re not going to have support for your appeal. However, to provide you with every opportunity for a fair and impartial hearing, may I suggest you consider perhaps asking us for a tabling, or, if you wish to continue for voting, we certainly can do that. The choice is yours, and certainly whatever suggestions we make to you is certainly without prejudice. What would you like to do, Counselor? MR. BORGOS-Well, since my client is presently out of the country, I’d like to have the time to consult with him. So I would request a tabling, and perhaps he will be interested in pursuing just the gate option, as Mr. Underwood had set forth, and we can present another option to you. So I’ll request that you table this matter, pending the submission of some additional plans. MR. ABBATE-Okay. Counselor, I’m going to honor your request, and would you submit th to Staff no later than December the 15 of 2006 any modifications please. MR. BORGOS-I will. MOTION TO TABLE AREA VARIANCE NO. 49-2006 PETER MITELMAN, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: 27 North Road. Be re-scheduled for a hearing on January 2007. th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. McNulty, Mr. Urrico, Mr. Underwood, Mr. Bryant, Mr. Abbate NOES: NONE ABSTAINED: Mr. Garrand ABSENT: Mrs. Hunt MR. ABBATE-The vote to table Area Variance No. 49-2006 is five yes, zero no. The motion is carried. Area Variance No. 49-2006 is tabled for the January 2007 hearing. AREA VARIANCE NO. 62-2006 SEQRA TYPE II MT ASSOCIATES, INC. FOR SMARTSHOP AGENT(S): J. LAPPER, ESQ. BPSR/BMA ARCHITECTS OWNER(S): DANIEL LOMBARD ZONING: HC-INT. LOCATION: 1477 STATE ROUTE 9 APPLICANT PROPOSES CONSTRUCTION OF A CONVENIENCE STORE, FUEL ISLAND, AND CAR WASH. RELIEF REQUESTED FROM FRONT SETBACK REQUIREMENTS FOR BOTH THE PROPOSED CANOPY AND CARWASH FOR THE HC-ZONE. ALSO, RELIEF REQUESTED FROM THE TRAVEL CORRIDOR OVERLAY SETBACK REQUIREMENTS. CROSS REF.: SIGN VAR. NO. 63-2006; SPR 40-2006 WARREN COUNTY PLANNING: NOVEMBER 8, 2006 LOT SIZE: 2.43 ACRES TAX MAP NO. 288.00-1-59 SECTION: 179-4-030 JON LAPPER & KIRK MOORE, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 62-2006, MT Associates, Inc., Meeting Date: November 15, 2006 “Project Location: 1477 State Route 9 Description of Proposed Project: Applicant proposes construction of a 3,135 sq. ft. convenience store with fast food vendors, a 3,136 sq. ft. fuel island canopy, and a 1,025 sq. ft. car wash. Relief Required: The applicants request relief of 16-feet from the minimum 50-foot front setback requirement for the canopy, per §179-4-030 for the HC-I zone. Relief from the minimum 75-foot travel corridor overlay (TCO) setback requirement for the canopy (36-feet) and; Relief from the 75-foot TCO setback for the car wash (20-feet), per §179-4-060 for the Route 9 corridor. 18 (Queensbury ZBA Meeting 11/15/06) Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be permitted to construct the proposed canopy (over the fuel tanks) and/or car wash in the desired location on the site. 2. Feasible alternatives: Feasible alternatives may include moving the buildings back (convenience store and car wash) toward the rear of the site, thus accommodating the fuel tank canopy to move further back to meet the front setback requirement. Feasible alternatives could be explored during site plan review. 3. Is this relief substantial relative to the ordinance?: The request for 16-feet of front setback relief from the minimum 50-foot setback requirement (from the front property line to the canopy) could be deemed considerable (32%). The request for 36-feet of relief from the minimum 75-foot travel corridor overlay setback (from the DOT ROW to the canopy) could be interpreted as considerable (48%). The request for 20-feet of relief from the minimum 75-foot travel corridor overlay setback (from the DOT ROW to the car wash) may be considered moderate (27%). 4. Effects on the neighborhood or community: Effects on the neighborhood or community could be explored further during site plan review. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): SV 63-2006: Pending, relief from the front setback requirement for a freestanding sign and relief from the maximum number of allowable signs are requested. SP 40-2006: Pending, the convenience store, gasoline station, and car wash are all uses subject to SPR in the HC-I zone. Staff comments: In addition to the area variances sought, this project requires sign variances and site plan review by the Planning Board. Traditionally, the Board has requested that the Planning Board conduct a SEQR coordinated review where there are multiple involved agencies. The Board could consider requesting coordinated review, and that the Planning Board seek lead agency status and issue a SEQR determination prior to consideration of the (area and sign) variances. Possible feasible alternatives to any or all of the variances requested and any potential impacts to the neighborhood or community could be explored during the Planning Board’s review of the total project. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form November 8, 2006 Project Name: MT Associates, Inc. for Smartshop Owner(s): Daniel Lombard ID Number: QBY-AV-06-62 County Project#: Nov06-24 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicant is proposing construction of a convenience store, fuel island, and car wash. Relief requested from front setback requirements for both the proposed canopy and carwash. Site Location: 1477 State Route 9 Tax Map Number(s): 288.-1-59 Staff Notes: The applicant is proposing the construction of a convenience store, fuel island, and car wash. The convenience store is located in the required building setbacks. The Car wash is located 19 (Queensbury ZBA Meeting 11/15/06) 55 ft. from the DOT easement area where 75 ft. is required. The fuel island canopy is located 36 feet from the front property where 75 ft. is required. The information submitted shows the location of the buildings, landscaping information, details of parking and lighting. The applicant has indicated due to the DOT easements the car wash requires a variance. The fuel canopy is located to the front of the property to be consistent with the other fuel stations in the area. Staff recommends no county impact with the condition that it is confirmed to utilize the designated DOT area for access. County Planning Board Recommendation: No County Impact The Warren County Planning Board recommends No County Impact.” Signed by Richard C. Merrill, Warren County Planning Board 11/9/06. MR. MC NULTY-Mr. Chairman, before you proceed, I’m going to recuse myself from this application. MR. ABBATE-Yes, sir. Thank you, Mr. McNulty. Counselor is at the table. Gentlemen, would you be kind enough to identify yourself and your relationship to Area Variance No. 62-2006, please. MR. LAPPER-Good evening everyone. For the record, Jon Lapper, and tonight I’m with Kirk Moore, the project architect. I’d like to start out, an explanation and remove one of the variances from, requests from the table. Remember earlier in the year when you changed your requirement to demand that everyone submit a certified survey when we get started on variances? Well, it turned out that was very helpful to the applicant, that what we thought was the DOT taking for the south curb cut, which would be the combined curb cut with the property to the south, we, at first, had believed that that was taken in fee, and in fact it was just an easement. So there’s no 75 foot setback problem to the carwash building, and we didn’t obviously realize that at the time that we made the submission. We followed up with the survey. So that is not necessary relief. MR. ABBATE-So, Counselor, for the record, are you saying that this Board used good judgment in requiring it? For the record, thank you very much. MR. LAPPER-Apparently I am saying that, yes. MR. ABBATE-Thank you. MR. LAPPER-So in that case, we don’t need that variance, and that sort of gets into the whole issue in terms of the setback, that 75 foot Travel Corridor setback. What’s interesting in this particular application is that DOT just came in in the last couple of years, did the taking, and widened that area of Route 9, obviously, to make it a three lane road with sidewalks and street trees and lights on both sides. So, what’s interesting about the Ordinance is that every time they do their taking, the 75 foot setback doesn’t change. So they’ve already acquired a bunch of land, but yet the Town standard still says that you have to be 75 feet back. It’s unlikely that there’s going to be another widening in the near future, but either way, we’ve talked about this many times. The issue is the cost of relocating a building if the State was going to do a taking, and in this case we’re not talking about a building. We’re talking about a canopy which gets bolted to footings because it’s a gas station canopy. So it’s really, in my mind, not a big deal compared to, you know, if you had a building that was actually being built within the 75 feet, and I think that, because it’s something that could be re-located, could be moved, the Board should consider that not substantial relief. The issue that the Staff raised I just want to briefly touch on about coordinated review. Staff made a comment that said frequently the Zoning Board asks for coordinated review when there are multiple agencies, and I just want to argue that, that the standard, as we all know for coordinated review, is when there’s a SEQRA Type I Action, an action that under the SEQRA list is more likely to require a Long Form to have a potential significant adverse environmental impact. In this case, there’s nothing that is a Type I Action. So there’s no reason, legally there’s no requirement that there be coordinated review. SEQRA contemplates that each of the Boards would do their own SEQRA review on the action. Of course we have the variances and we have the site plan, and there’s nothing unusual about that. Almost everything that comes before you for a variance has to go to site plan as well, and certainly everything commercial, and certainly you don’t treat everyone as coordinated review. We just view that as, we don’t see this as a very significant application in terms of the environmental impact, and we would just view that as a real delay in terms of getting on the Planning Board agenda before we get to come back with you. In some cases, of course it’s appropriate. With a big project that you might want to ask for a coordinated review, but I don’t think this is one of those cases, and I hope you agree with that. 20 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Counselor, we’ve heard your argument for that, and I agree with you, legally, you’re correct, but the ultimate decision remains with this Board. MR. LAPPER-Absolutely. MR. ABBATE-Thank you. MR. LAPPER-Okay. At this point, I’m going to ask Kirk to just walk you through the site plan and familiarize everybody with what is proposed. MR. MOORE-As Jon said, I’d like to just walk you through the site plan real quickly. What you see here is our site development plan which is included in the package. We’ve added some color on to it so you can see the green space areas and the buildings as well much easier from where you’re sitting. At the bottom of the page is Route 9. The site is located roughly a block from the intersection of Route 149. I’m sure you’re familiar with it. There’s a pizzeria on the north side of the site, and I believe the Scooters shop is on the south side. We’re taking advantage of the two existing curb cuts that are currently on Route 9, entrance and exit from both of those curb cuts. The proposed gas canopy that we’re seeking the variance for would be directly in front of the building, and the building, the larger building here in orange would be the convenience store with two potential food vendors in there. The drawings show right now a Dunkin Donuts or Subway, but those have not been finalized by the owners yet, and then a single bay carwash to the south side of the convenience store that would be a drive through automated carwash. To the back of this site we have an enclosed dumpster area to accommodate four dumpsters, a delivery zone for, if Dunkin Donuts were to come in there, they do deliver with semi-tractor trailers. So we wanted to make room for that. We also have a secondary delivery zone at the front of the property which is for those small deliveries. It would be a small truck that would be coming in there. Employee parking at the rear. We’ve got plenty of customer parking out front. The Ordinance requires quite a bit of parking because of the mixed uses on the property. At the advise of Staff, we did a very strict interpretation of the Ordinance, in terms of the parking required. We think it’s far more than we’ll actually need, based on 30 some stores that MT Associates currently has, but we have provided for reserve parking in the back here to accommodate 21 spaces, should they be needed in the future. We’ve also provided for an interconnect to the north side of the property, which was something that was also suggested by Staff, and it’s mentioned in the Zoning Ordinance. Good circulation throughout. There is a drive up window on the back side for a Dunkin Donuts, and we’ve provided bypass lanes for that as well as for the carwash. I would like to just give you a response to the suggestion that we could move the buildings back on the site. As you can see, the site is pinched up here in the middle. So the further we move back, it squeezes these buildings together. We did look at that in the very beginning. We’ve gone through several iterations of this site plan. What we’ve proposed is what we feel is the best layout for the site, in terms of traffic circulation and circulation around the gas pumps. Any questions? MR. LAPPER-I just have a couple of more comments. Kirk addressed the issue about the site narrowing so it’s not practical to move the buildings back because it narrows. There’s also a grade issue because the site rises up when it gets towards the Northway in the back, which would make it difficult and much more visible to construction something that would be going up the hill, but beyond that, in terms of the canopy issue within the 75 foot setback, if you notice on the site plan there are parking spaces that are designed right behind the sidewalk. If DOT were ever going to come in and expand this to add another lane, those spaces could simply be moved, be re-located somewhere to the back of the site, and there would still be plenty of circulation for cars to get around the pump island, and the canopy wouldn’t have to be relocated. So this, even though we’re asking for the variance from the 75 foot Travel Corridor, there is ample room here to have site circulation, still put in another lane on Route 9, I don’t know if that’ll ever happen, but the canopy wouldn’t have to be moved. So we’re not moving it all the way up to the road, and I think that’s also something that should be considered even though I think it’s highly unlikely that there’s going to be an expansion to four or five lanes at any time, and we’re open to questions. MR. ABBATE-Okay. Good. MR. UNDERWOOD-Do you, it’s essentially going to be in the position that Sunoco is up the road? I mean, I don’t think you’re going to be any closer to the road than they are. It looks to me like you’re back further. 21 (Queensbury ZBA Meeting 11/15/06) MR. MOORE-I believe we are. I have been to the Sunoco station. I haven’t taken any measurements there, but I’ve driven around the site. MR. UNDERWOOD-No, but I’m guessing yours looks like it’s going to be 15 or 20 feet back further than that. MR. MOORE-I believe that’s correct. MR. UNDERWOOD-Okay. MR. URRICO-Will there be seating in the convenience store? MR. MOORE-Yes, there are a dozen seats proposed. MR. URRICO-What about outside seating? MR. MOORE-No outside seating. MR. URRICO-Okay. Those fuel pumps seem to be located right in front of the islands. Will that create an access problem when deliveries are made? MR. MOORE-What islands are you referring to? MR. URRICO-The gas islands. MR. MOORE-You’re talking about the fuel tanks? MR. URRICO-Yes. MR. MOORE-That’s a pretty typical location on a lot of their stores of the location for the tanks. I mean, the deliveries are not that often, and it’s a common thing with most of these convenience store installations. MR. URRICO-Would they close down the island? Because it seemed like it would block off a few of them, and then create problems for any cars trying to access or come in from that area. MR. MOORE-It certainly would inhibit some sales temporarily, but the fills often occur late at night or if they are during the day, yes, people will be deterred from getting gas at that moment, but it’s a fairly short period of time that they’re in there. MR. GARRAND-A couple of quick questions. This future interconnect, have there been agreements made with other businesses in the area for that? MR. LAPPER-The way that works under the Town Code is that we’re required to show it, and it would be, so our site plan will have that so that if the neighbor next door comes in for a site plan modification in the future, the Planning Board will require that they would have to add that because this is a condition in the Ordinance that didn’t exist previously. So it gets addressed one site at a time. We’re granting a perpetual easement and it gives the Planning Board the right, when they come in, to hook up to the site. MR. GARRAND-Okay. So basically garbage trucks and everything, tractors trailers all have to enter and exit from the same area, the same? MR. LAPPER-On our site they would do the loop. We would provide it for that loop around the back of the building, but in the future, it’s certainly possible that it could be connected as the Ordinance calls for. MR. GARRAND-Okay. I’ve also seen facilities like this around New England. Is this a basic design for Smartshops that I’ve seen around New England? I’ve seen, you know, you’ll see a Subway, Dunkin Donuts, a carwash and a gas station, convenience store. Is this a standard design? MR. LAPPER-Our client, the applicant is based in Rutland, Vermont. They have over 20 stations that they own and operate, and I mean, yes, in terms of the industry trends now, adding Dunkin Donuts, one thing you might all be familiar, when you come down from Killington, they have one right on the right side, just when you’re coming in to, by the high school. 22 (Queensbury ZBA Meeting 11/15/06) MR. GARRAND-Yes. I see them there, Manchester, New Hampshire, all over I see these things popping up. The only discrepancy I see is basically the layout relative to the lot size, and a lot of these, we find a lot of these off of major highways. MR. LAPPER-And if it’s a major highway you need a lot more parking because you’re going to have a lot more traffic, but in this case we have ample parking in the back and it’s a question of whether it gets built, you know, and we’re prepared to build it if the Planning Board wants it and in Queensbury we don’t need a variance. The Planning Board has a waiver provision, if they feel it’s unnecessary. So we’ve got it on here. Planning Staff didn’t seem to think that it would be necessary to build, but if we, if the Planning Board wants it, it’s going to get built. If not, it’ll be a case of we’ll dot it in like it is now and when the Zoning Administrator says you need to build it, it’ll get built. MR. GARRAND-Okay. Thank you. MR. LAPPER-Sure. MR. ABBATE-Gentlemen, do we have any other questions? All right. No other questions, I’m going to open up the public hearing for Area Variance No. 62-2006, and if we have any folks in the audience who would like to be heard, would you raise your hands and I’ll recognize you. Would those wishing to be heard please approach the table, speak into the microphone, and tell us your name and your place of residence, please. PUBLIC HEARING OPENED JOSHUA COHEN MR. COHEN-Hello. My name is Joshua Cohen. I reside in Lake George. I am presently one of the Managers at the Scooters shop next door to the proposed gas station site. I have a few concerns. One is that the property is not suitable for this type of development. The property does narrow towards the back of the proposed site. With the buildings lined up the way they have them, I don’t believe they’re going to have enough access for all the traffic driving through. I don’t see on the map where they have the stream coming down off the mountainside right there. Also where that stream is, there’s a significant amount of trash dumped across the back side of the hill coming in to the stream. It’s probably been there for at least 10 years. Possibly five, longer than we’ve owned the shop next to them. Also I’d have a little bit of concerns with the holding tanks for the gas and the soil around them, with any proposed cleanouts for any leafage that would be presented. Also with the traffic coming in to this property from the south entering in the most southern entrance, I believe they don’t have enough room for all the cars and vehicles. They would be forcing their exiting traffic onto our property where we have our proposed parking lot with all of our cars being parked through there. So I definitely don’t see that as being enough room for that entrance to be placed. Definitely with the canopy for the gas pumps, I do believe that the Town should enforce the setback requirements for that, you know, reasoning of not having the businesses blocked by the pizzeria on the north end, Frank’s, their whole setup’s going to be blocked by that canopy, along with our Scooters shop to the south. Along with the traffic congestion on the site, with all the proposed businesses there, the delivery trucks for the gas, food and drinks being brought in, I don’t believe that the amount of customers coming through are going to have the access through all the property. I definitely think that should be on the top of everyone’s mind, with all the traffic. With all the sign requests that they’re having, I don’t see anything for the carwash building that they’re having in the back, you know, to let anyone know that that’s going to be back there, and I think that’s it. MR. ABBATE-Okay. Thank you so very much. I believe I saw another gentleman with his hand up. Yes, sir, please. Please tell us who you are. VANCE COHEN MR. COHEN-My name is Vance Cohen. I’m also one of the managers over at the Scooters location, just south of the property that’s being proposed here. A couple of the other concerns that I had, or suggestions that might help in the planning, is to flip the canopy so that it runs more towards the rear of the property. That way it’s, because when you pull in, you’re going to have cars parked, you know, pumping gas right there, and that’s going to create a congestion right at the entrance of the parking lot. During the summer, everyone knows, it’s a crawl up there. There’s a ton of people trying to get in and out of gas stations that are already there, and there’s usually two or three cars lined up to get in. That’s going to create a problem of people even getting in to the 23 (Queensbury ZBA Meeting 11/15/06) property from Route 9, and also, you know, one of the concerns my brother had was the exiting traffic is going to force them onto our property, and right where they’ve got it boxed in is, we’ve got a row of cars that are going to be right there, so they’re going to have cars exiting right behind where are cars are parked, our customer cars are going to be parked right there, and we do have a lot of children that run along our property with all the mini bikes and such that we have there. So it is a concern having that kind of traffic coming out of that property. As far as the proposed parking lot in the back, with the way the property’s set up, it just doesn’t seem like it’s going to work real well with the amount of traffic that is up in the Outlets. They may definitely require having that additional parking in the back, which, you know, I have some concerns on the stream that’s back there and the additional runoff that’s going to come into the stream, because we just went through an extensive planning for our property, and we got approved to put in the go kart track, and we’re going to be putting in, you know, all our drainage systems, which is going to work with that stream, but I don’t know that planning was made for additional runoff which will be coming from the parking lot in the rear. So I don’t know how that would be controlled, you know, if that would be brought out towards the sewer system. I don’t see any plans on there for that, and I would think that it would be required, especially the amount of cars that will be going into this property, and they’re talking about three businesses which each one on their own will draw as many cars as any one of the businesses that are along Route 9, and Dunkin Donuts we all know first thing in the morning there’s a line of cars running out there. I imagine the gas station would be very busy, and the way Sunoco down the road has their pumps set up so that it runs towards the back side of the property allows for a little more easement of cars to pull in and out of the parking lot. I just see a tremendous amount of trouble right here. Maybe if they had half the amount of pumps out front, that you would have a little more access in there. It looks like they’re hanging over their entrance way by a good 20 to 30 feet, well, you know, taking out the measurement on the north end of the parking lot, and currently there’s a lot more green space that’s out in the front on the roadside. A lot of the businesses, as you can see up the road here, have more green space in the front, which is nice. The Town does require a certain amount of trees to be put along Route 9, maybe not this part of the corridor, but I guess it’s asked of us to put it in. We put it in on ours. We’ve put in, you know, a significant amount of green space in front of our property, and I think that that should be something that should be taken into consideration on this property as well, and I guess those are just a couple of my concerns. Again, the shared parking lot, or the entrance and exit right there is like a real major concern for me, and with the amount of traffic that will be coming out of there, and I just want you guys to take that into consideration, and I’m sure we’ll have more to say. MR. ABBATE-Thank you very much. Do we have any other folks in the audience who would like to address Area Variance No. 62-2006? Would you be kind enough to raise your hand please. I see no other hands. Counselor, would you be kind enough to come back to the table and would you like to address some of the issues that were raised? MR. LAPPER-Yes. Thank you. I’d just like to explain that when DOT did the widening, and they acquired that right of way, the whole concept is to minimize curb cuts and to have shared entranceways. So the specific purpose, as you see on your map, is that there would be one curb cut for this site and for the site to the south, regardless of what the uses are, because the issue is travel safety in the corridor in the travel lanes to reduce curb cuts. So what is proposed on our site is to have, to use that shared entrance with the neighbors, and that’s not something that the neighbors have anything to say about. It’s DOT having already made that determination and acquired that joint curb cut, and so we’ve already met with DOT and they’ve instructed us that that’s how it’s supposed to work. That’s why they made that acquisition, and that’s the same for the site to the south. Beyond that, Kirk will get into this, but the site plan certainly talks about the stormwater infiltration and we’ve addressed all that. If there’s trash in the back, it’s certainly nothing that the applicant is responsible for, and if there’s something there needs to be cleaned up, then it’ll get cleaned up. The site next door, the fellows next door, I think their property isn’t in very good condition, and this property certainly hasn’t been in very good condition, but this proposal will re-develop the existing site and it’ll certainly be properly designed, landscaped and maintained. I’d like to just talk about circulation. MR. MOORE-Yes. I’ll be brief because I think we’re here for a variance on the canopy, but, you know, this isn’t the first convenience store we’ve done. I mean, we’ve done quite a few of them, and we pay a great deal of attention to circulation in and out of the site and getting gas trucks in and particularly making it customer friendly. This is a very, I mean, there’s very strict dimensions we follow to gas pumps, from the gas pumps to the curb line of the front of the store because it’s been re-designed and re-designed by not only ourselves, but a lot of other convenient store gas station companies and there’s 24 (Queensbury ZBA Meeting 11/15/06) certain rules of thumb that you follow. So we’re very comfortable with the site layout. This site, in particular, is much larger than most sites that we work with. So we’re able to really get a lot more out of it then we normally would have. As far as traffic circulation, I think we’ve submitted a traffic analysis with our application. In regards to stormwater, there’s a complete stormwater application in there that addresses all the stormwater with calculations, all of the engineering is in the application that we submitted. MR. URRICO-You say you follow strict guidelines, you mean there’s no flexibility built in there for community regulations and such? MR. MOORE-Absolutely. There’s ideal clearances that we try to incorporate. MR. URRICO-What you’re telling us is that you’re the expert? MR. MOORE-Yes, we’ve met all of the zoning requirements as far as distance is concerned. MR. LAPPER-You’re talking about design requirements for access or circulation around the pumps. MR. MOORE-Yes. There’s certain turning radiuses, for example, that we have to have for delivery trucks as well as customer friendly for the gas pumps and what works best in terms of what direction a gas pump should be facing, how it should be oriented in relationship to the store itself. MR. URRICO-This is a convenience store that’s pretty typical, you have soda, cigarettes? MR. MOORE-Correct. MR. URRICO-And depending on whether, who you have in there as tenants, you’ll either have your own coffee or they’ll have coffee. MR. MOORE-Correct. MR. URRICO-It’s going to be a morning business, midday business. Or will there be, if you don’t have a Subway shop, will you do cooking on site? Will there be a? MR. MOORE-There are several food vendors that are clients are speaking with. We’re not sure who yet. At the time we submitted the application we were fairly sure we were going in the direction of a Subway and a Dunkin Donuts. MR. URRICO-What’s the average time a customer spends in the store? Do you have any figures on that? MR. MOORE-Not really. We have the seating in there just as incidental seating, in case somebody does want to sit down and have a cup of coffee or a donut and sandwiches, but it’s not like a fast food restaurant. MR. URRICO-So they’re in and out? MR. MOORE-Right. MR. URRICO-What’s a typical volume of traffic that you have during peak? MR. MOORE-I think that’s all in the traffic analysis that we provided. MR. URRICO-Okay. MR. MOORE-But let me just give you the conclusions of the analysis was there’s no significant impact on the traffic, and there are no circulation issues. MR. LAPPER-I’d also just like to point out a circulation issue that if the canopy was designed so that it was perpendicular to Route 9, instead of parallel, then after you pumped your gas, you would be walking back in front of all the lanes where you have, you know, the six cars that would all be facing, and you’d be walking through the drive lanes. The way it’s designed now, the drive lanes are all facing the road and you’re walking back. You’re not crossing those drive lanes to get to the store to buy something. So it’s just safer. That’s why it’s designed this way. 25 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Gentlemen, do we have anymore questions for the appellant? None whatsoever? Okay. What I’m going to do is ask Board members to, again, express their positions, their points of view, on Area Variance No. 62-2006, and their comments are going to be addressed to the Chairman not subject to debate. Gentlemen, do we have a volunteer? MR. BRYANT-Thank you, Mr. Chairman. Well, with all the comments that your neighbors have made relative to a stream which I don’t see on the site plan, and, you know, drainage and then the visual blocking of the adjacent clients and then later on the future interconnect and all that my tendency is to go along with the Staff notes and suggest that this be sent to the Planning Board for a coordinated review. That’s where I’m at right now. I think that all those issues have got to be addressed by the Planning Board. Just from the look of it where the existing building is to the south, I mean, the canopy is going to totally block it. So maybe it should go to the Planning Board first, I know that’s the kiss of death, but, you know, to be reasonable, okay, I think those things should be addressed. MR. UNDERWOOD-I would only remind you of what we’re doing and what’s being asked of our Board, you know, I mean, site plan review is going to modify anything that we do, you know, to a degree, and the canopy is really the issue for us. MR. ABBATE-Yes, and let me expound on that a little bit, folks. I certainly don’t have any problems. These folks are going to have to go before the Planning Board anyway, and I don’t have a problem with requesting a coordinated review. We’ve done that in the past, but I do have a problem with the suggestion from Staff that we hold off our determination until we hear from the Planning Board. To me this, in my opinion, it delays due process. So I see no problem with us making a decision, because these folks are going to have to go to the Planning Board, and I see no problem requesting the Planning Board be the Lead Agency. MR. LAPPER-Let me explain, that can’t be done. You have to make a SEQRA determination. So if you’re going to send it away, then you can’t render a decision. So we would ask that if you really think it’s the canopy, make the SEQRA determination and render a decision on the variance, but if you’re going to send it to the Planning Board for coordinated review, it precludes you from making a decision procedurally. MR. ABBATE-Well, these are the options I offer the Board. so it’s up to them to make that kind of a decision. Good point, Counselor. Anybody else on the Board? MR. UNDERWOOD-I think I’m comfortable with rendering a decision here this evening, based upon what they’re requesting here, and they’re requesting relief for the canopy out front. I think that in general if we look at the corridor there, if we look at the Mobil station up the road, if we look at the Sunoco station, this is, where they’re proposing their canopy is set back much further than those other gas stations. I think that as far as the size of the canopy, our parameter is going to be the setback from the Travel Corridor Overlay, and the relief that we need to grant from the Highway Commercial Intensive zone setbacks, and I think that they’ve reasonably explained that the takings have, you know, increased that somewhat, but I think that this is not going to exacerbate the traffic flow, you know, these are all questions that are germane to the Planning Board. They’re not germane to use. They want to know if they can put their canopy there. The Planning Board may tell them that they’ve got to move the canopy back further than we suggest, but we’re going to say, you know, if we grant this tonight, that we’re comfortable with where they’re proposing that canopy, and I think that’s a reasonable thing to do. I think that also the other issues that were raised will be raised again on site plan review, and that’s not our purview here this evening. These guys want to move ahead with their project, and I think that we can render a decision, a reasonable decision here tonight, based upon what we’re asked. MR. ABBATE-Okay. Thank you, Mr. Underwood. Mr. Urrico, please. MR. URRICO-I agree with Mr. Underwood. I think we can render a decision tonight, but my opinion is different than his. I do believe there could be some modification to the requested relief. I think 16 feet is excessive, and what I’m hearing is that you’re the experts. You know where this should go, how far it should be back, and I guess I would like to hear some mitigation in that, and see it either be made smaller or pushed back towards the convenience store. I’m not comfortable where it is right now. So I would be against it. 26 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Okay. Please, Rick, do you mind? MR. GARRAND-Well, Mr. Chairman, I agree that the canopy could go back towards the primary structure further. I don’t think it could go back that much farther, as much as we’d like. I think basically the applicant is constrained by the designs of the lot, for the most part. The design of the lot is not the creation of the applicant, but I think the applicant’s done a pretty good job of designing this to try and get traffic in and out. I can’t see where this would cause an undesirable change in the neighborhood whatsoever. In this area also in the summertime you’ll also notice that a lot of businesses do tend to encroach on the setbacks with their products and putting their products out in front of their businesses right up near the road. I don’t think the canopy being in this position is really going to have that much of an effect on these other businesses, since a lot of what these other businesses have are closer and more into the setbacks than this canopy will be. So I’d be in favor of this. MR. ABBATE-Mr. Bryant, could I have a position, please. MR. BRYANT-I’m going to stick by what I said. I disagree with some of the other Board members’ comments because we are responsible for the health, safety and welfare of the citizens of the Town, and if there is a problem which we cannot identify, then I think it should go to the Planning Board for site plan review, and after which whatever it is it is. So as it stands, I’m going to be opposed to it. MR. ABBATE-Okay. I think all the Board members have made good points. There’s no question about it. My position basically is that I see no reason why we can’t make a decision this evening. You folks still have to go to the Planning Board anyway. That’s not even an option. That’s a requirement. The only concern I have, gentlemen of the Board, basically is this. If we hold off on our decision, that, in fact, in my opinion, does delay due process because what happens, they’re going to have to make a decision, this is November and I suspect they will not be getting on the agenda until probably January, which means then they’re going to have to come back to us, and we’re going to have to put them on the agenda maybe January or February. To me, I’m concerned about due process, and I’m not sure I see any adverse impact if this Board were to make a decision based upon what Mr. Underwood said, based upon what the applicant is requesting. So that’s my position there. So we’re in a quagmire this evening. Suggestions, Counselor? MR. LAPPER-Well, certainly, as you know, my role is always to try to work out a comprise, and I’m looking at what Mr. Urrico said in terms of the canopy, and what the problem that I see is that the way this is designed, the cars that are parking perpendicular head on to the building have to be able to pull out, and you have to, at the same time, have circulation around the fuel pumps. So I don’t think that there’s room to move. If we could move it back five feet and it would still work circulation wise, of course I would urge the applicant to do that, but in this case I don’t see that that would work, circulation wise. The canopy is just right in the center of that, to aid circulation, and I think that’s what the problem is, but I’d also point out that the issue there, in terms of that 75 foot setback, it’s not, you know, the building setback, it’s not because of visual issues, it’s because of that whole future widening, and just because of the nature of this canopy that can be dissembled, I think that sort of mitigates it, so I think that Roy’s point that it could just be moved back, as a compromise, we would always try to do that. I just don’t see that here. I think there’d be a safety issue if we tried to do that. MR. UNDERWOOD-That distance is to the edge of the canopy, too, not the pumps, where people are actually going to be, right? I mean, you’re talking it sticks out substantially further. MR. LAPPER-Yes. MR. BRYANT-Can I ask a question relative to that? You say in the future if it’s an issue you can dissemble the canopy, then what happens? You have no canopy? Is that it? MR. LAPPER-Well, the point that I made in discussion before that those, the five parking spaces could be eliminated, I mean, I think another lane could be added to Route 9 and the canopy could stay in the same location, because it wouldn’t hurt circulation because of those parking spaces behind the sidewalk, but in terms of the issue that this, compared to a building, if DOT was actually going to do a taking and condemn property because they wanted to make this a five lane road, it’s a question of the cost of doing an eminent domain, a condemnation, and the point is that dissembling this and taking it down is not the same cost as taking down bricks and mortar in terms of that issue for why you have that 75 foot corridor, Travel Corridor Overlay to allow for future widening. 27 (Queensbury ZBA Meeting 11/15/06) That’s the point I was addressing. I mean, people can still gas up without a canopy, but who wants to. MR. URRICO-The difference with this convenience store as opposed to Sunoco and the Mobil station is that they don’t have parking right in front of the building. They don’t have parallel parking. I mean, there really is no legal parking there. They have it on the sides. MR. LAPPER-And that’s because this building is further back from the road. So it allows for it. MR. URRICO-Right, but that’s why they don’t have that issue. MR. LAPPER-You’re right, but it’s nice to have it because that’s where people are going to pull up. MR. URRICO-Do canopies come smaller? Does it have to be a certain size? MR. MOORE-Well, I think we have about the minimum depth on this particular canopy to provide proper cover for the cars when they pull in to the pump, in terms of the overall depth, but can I just address one thing? I understand where you’re coming from, in terms of, can we just move it back. Can I just show you the problem with that? It’s not really the parking out front. If we were to move the canopy back, all of this has to move back as well, and because of the skewed property line here everything shifts this way. For every foot you move back, you’re moving a foot this way, basically. It’s our view that this bypass lane around the carwash is very important, because otherwise we get a bottleneck and the only way, if someone pulls in here and decides not to get a carwash, they’ve got to back out and come out the drive through lane. So we really would like to keep this bypass lane on the carwash itself. It also works well if someone decides not to go to the drive up window. So if we were to push everything back, we would lose that line, and that creates another problem. MR. URRICO-Well, can the building be made smaller, the convenience store? MR. MOORE-Not to meet the program that we have there. MR. LAPPER-To allow the Dunkin Donuts. MR. MOORE-Particularly the depth. The width could be made a little bit smaller, but not in the depth. MR. LAPPER-I wonder if there’s a confusion in the drawing, when you look at this in the black and white, you’re looking at the concrete pad that includes those dotted lines for the underground fuel tanks, but the canopy itself is only, what, 18 feet wide. When you look at it, what I’m looking at it, it looks like the canopy’s pretty big because you’re looking at that solid line, which is actually the concrete pad underneath it, and so this is really not a, the 16 foot wide is not, it’s long, obviously, but it’s not a very wide canopy. MR. URRICO-I would not change my vote, but what I would do, there’s a lot going on on this property, so rather than, if I were to change, I would change to Mr. Bryant’s point of view, where I think this should go to Planning Board first. MR. BRYANT-Can I ask another question, Mr. Chairman? MR. ABBATE-Of course you can, please. MR. BRYANT-You talk about moving the buildings back and having to move them over because of the way the property is angled. How about do the buildings have to be totally parallel with Route 9? Can’t you also change the angle of the buildings? I mean, you could achieve the same without moving the buildings over. MR. MOORE-We actually looked at that layout in trying to accomplish it that way. We’ve probably done a dozen different layouts on this site before we arrived at this one which is what we feel is the best layout. It’s juggling all of the objectives and issues that we’re trying to address in terms of circulation parking. MR. BRYANT-Okay. That doesn’t answer my question. MR. MOORE-No, it doesn’t help. 28 (Queensbury ZBA Meeting 11/15/06) MR. BRYANT-No. What you’re saying is this is what you’d like, but I’m asking you if you can also angle the buildings to accommodate the angle in the property, and achieve what Mr. Urrico is looking for. MR. MOORE-No, you can’t, because when you start angling the buildings, you create another problem, you actually encroach more onto the setback on the south side, because you have to keep the carwash and the convenience store parallel to each other. So to skew that, you’re still encroaching into the setback on the south side. MR. BRYANT-I don’t see it. Of course I’m not the architect, but I don’t see it, because the building, right now you’re looking at the corner of the building, you know, versus the property line. If you twist that building around, then you’ve got a flat edge of the building and you’re still. MR. MOORE-Are you suggesting we also twist the canopy? MR. BRYANT-If that need be, yes. MR. MOORE-We’ve tried a whole bunch of options on this. All I can tell you is we attempted to get as close to the 75 feet as we possibly could with the gas canopy and still have proper circulation through the site. The best we could do is what we have here, as far as getting the canopy as far from the road as possible. MR. LAPPER-We do have the building 75 feet back from the road, which none of these other stations have. MR. MOORE-It’s actually quite a bit more than 75 feet. MR. LAPPER-Absolutely. MR. ABBATE-Okay. Let me do this, members of the Board. Let me poll the members of the Board to see how many folks would prefer that this go to the Planning Board for site plan review and a coordinated SEQRA, with the Planning Board seeking Lead Agency. Let’s find out how the Board members feel about this, because if I don’t do that, then I suspect, Counselor, there’s not going to be support for your. MR. UNDERWOOD-Can I ask a question? MR. ABBATE-By all means, please. MR. UNDERWOOD-If we granted the relief you requested, and the Planning Board told you they wanted you to go back to a more compliant, like say they wanted you back 10 feet further, would you guys be amenable to that? MR. LAPPER-We would try to accommodate that, obviously. MR. UNDERWOOD-Yes. Which, I mean, I think we can set the number and leave it up to the Planning Board to be the ultimate decision making process. MR. ABBATE-We can set the number, absolutely. We can do, let me say this, we can do a number of things. We can set the number. Number One. Number Two, we can request a site plan review by the Planning Board, and, Number Three, we can request a coordinated SEQRA with the Planning Board being the Lead Agency. MR. UNDERWOOD-We can’t do that. MR. ABBATE-Only if we don’t make a decision tonight. MR. UNDERWOOD-You can only do, only if we don’t make a decision, yes. MR. ABBATE-Right. All right. So let me go down the line. Let me start with Roy. MR. URRICO-What’s the question? MR. ABBATE-Here’s the question. What is your position on this appeal this evening based upon the information that you’ve received so far? What would be your position? MR. URRICO-No. 29 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-No. How would you feel about the appeal going to the Planning Board for a site plan review and also for a coordinated SEQRA with the Planning Board being Lead Agency? MR. URRICO-Let me ask you another question. You said that if we approve something, the Planning Board has the option of pushing it back. If we deny something, do they have the option of changing our denial? MR. ABBATE-No. MR. URRICO-Okay. MR. ABBATE-Absolutely not. For the record, our decision is final. MR. URRICO-Well, since you’re going to present options to Counselor as to what he can do, if that was an option, then I would be in favor of it at that point, but right now, no. MR. UNDERWOOD-Well, if the Planning Board decided that they were comfortable with where they had the canopy, that would be fine, but if they decided they wanted it back further, they can modify our. MR. URRICO-That’s fine, but I’m not comfortable with it the way it is. MR. ABBATE-Okay. So you’re not comfortable. Okay. I’ve got it. Jim, what is your position on this? MR. UNDERWOOD-I’m okay with it. MR. ABBATE-You’re okay with it. Mr. Bryant, please. What is your position on this thing, what would you prefer we do? MR. BRYANT-I would prefer that it goes to the Planning Board. MR. ABBATE-Rick? MR. GARRAND-I feel comfortable voting on it tonight. MR. ABBATE-Voting on it this evening? MR. GARRAND-Yes, sir. MR. ABBATE-Three. Okay. All right. We have a majority, three people who are willing to make a decision based upon the one fact, and that is the applicant proposes construction of a 3,135 square foot convenient store with fast foot vendors, 3,136 square foot fuel island canopy, and a 1,025 square foot carwash. MR. UNDERWOOD-We’ve got to do a Short Form. MRS. BARDEN-Not for the Area Variance. MR. ABBATE-This is a category two. She’s right. Yes, the next one is the Unlisted. You’re absolutely right. Thank you. MRS. BARDEN-You’re welcome. MR. LAPPER-I wonder if we should, because Joyce isn’t here tonight, if we should ask to table it until there’s a bigger Board because Chuck had to recuse himself. MR. ABBATE-Counsel, if you wish to table this, if you will ask me officially, I will honor your request. MR. LAPPER-Could I have 25 seconds to talk to the applicant? MR. ABBATE-By all means, you may. Gentlemen, let’s have about a five minute recess here please. MR. LAPPER-Mr. Chairman, we’ve discussed it, and we’ve found five feet that, in order to try and accommodate Mr. Urrico’s point. We’ve looked carefully, and also my eyes aren’t as good, and the canopy is, I thought it was 18 and it’s 28. So we’re able to make 30 (Queensbury ZBA Meeting 11/15/06) a five foot adjustment towards the back, which I’ll let Kirk explain, if that would address Mr. Urrico’s request. MR. MOORE-The owners have said that they could live with a 24 foot canopy. So we could pick up two feet right there, and I’m fairly confident I can pick up another three in the back. So we can shift that canopy back a total of five more feet. I had some concerns about it because we have some tight turning radiuses for a semi-truck going back there, but I think we can make that work. MR. ABBATE-Mr. Urrico? MR. URRICO-Yes. MR. ABBATE-You’re comfortable with that. Okay. Then in that case there, we have that down, whoever’s going to make the motion, let’s go over those dimensions again, please. MR. UNDERWOOD-Eleven feet. MR. ABBATE-You have it, Jim? MR. UNDERWOOD-We’ve got 11 feet from the minimum 50 foot front setback requirement for the canopy. MR. ABBATE-Okay. MR. UNDERWOOD-And then the 75 foot Travel Corridor. That’s going to move that back to 31 feet. MR. ABBATE-Agreed? Okay. All right. Good. All right. I’m going to close the public hearing. MR. BRYANT-You had a public. MR. ABBATE-Unfortunately, I was informed that there is a member of the public who wishes to be heard, but I am, I’m having a problem with that, because I don’t want ex parte communications, quite frankly, and if you care to tell me, you don’t have to, but if you care to tell me who participated in that, then I can make a decision. MR. BRYANT-Sure. One of the people I believe from Scooters, I believe, came up during the break and asked if the public hearing was closed, and I stated, no, it’s not closed until we have a motion. So, and that’s all. MR. ABBATE-That was the extent of the conversation? MR. BRYANT-That was the extent of the conversation. MR. ABBATE-Okay. Then my decision is this. I don’t consider that ex parte communications, and if you don’t mind, Counselor, I’m going to ask, once again, do we have an individual in the audience who wishes to be heard on this particular application? If so, raise your hand. Sir, would you come back to the table, please. Tell us your name again. MR. COHEN-My name is Vance Cohen. I’m one of the Managers at Scooters. I understand there’s going to be some adjustment to the depth of the canopy now, that they’re talking about a five foot adjustment further back? Am I understanding that correct? MR. UNDERWOOD-Yes. MR. COHEN-Okay, because that is the major concern for me is the amount of turning radius. I mean, they suggest even having cars right there, it just seems that it’s just too congested right there. I don’t know if any of you have tried to get gas at Cumberland Farms up on Route 9. When it’s a full lot up there, and you try and pull in, it’s really a tight corridor to pull in and have a second car even trying to get gas, and I really see that the way this is overhung, I mean, obviously that’s another Planning Board issue, but it just seems like it’s too aggressive, too close to the road, and I’d just like to see it either further back or, you know, turned so that it would allow for a better traffic flow, and that was my point. 31 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-We’re all getting tired, so I’m going to inject a little humor. Are you ready? I didn’t know there was a Cumberland Farms on Route 9. That’s okay. Anyway. That’s an inside joke. Counselor, would you come back to the table, please. Okay. Let’s continue. You heard the comments. Do you have anything else you wish to say? MR. LAPPER-No. MR. ABBATE-If not, I am closing the public hearing for Area Variance No. 62-2006. PUBLIC HEARING CLOSED MR. ABBATE-And, Board members, gentlemen, again, we know the task of balancing the benefit. I don’t have to go through that again, and I’m going to be looking for a motion, and I would request that your motion be made with clarity, particularly since there has been an adjustment. So, having said that, gentlemen, I’m going to ask for a motion for Area Variance No. 62-2006. MR. GARRAND-Mr. Chairman, I’ll make a motion. MR. ABBATE-Yes, sir. MOTION TO APPROVE AREA VARIANCE NO. 62-2006 MT ASSOCIATES, INC. FOR SMARTSHOP, Introduced by Richard Garrand who moved for its adoption, seconded by James Underwood: 1477 State Route 9. The applicant proposes construction of a 3135 square foot convenience store with fast food vendors for a 3136 square foot fuel island canopy, and a 1,025 square foot carwash. The 3136 square foot fuel island canopy is going to be adjusted as per the agreement here tonight. The variance request would be five feet less. The applicant requests 11 feet from the minimum 50 foot front setback requirement for the canopy as per Section 179-4-030 for the Highway Commercial Intensive zone. Relief is also requested from the minimum 75 foot Travel Corridor Overlay setback requirement for the canopy at 41 feet. Whether the benefit can be achieved by any other means by the applicant, I don’t believe so. The design and the layout of the property does not lend itself to placing this facility in any other way. Will this create an undesirable change in the neighborhood or character to nearby properties? No, it will not change the neighborhood. It’s in character with the neighborhood. The request is not substantial. Will the request have adverse physical or environmental effects? No, it will not. The applicant has instituted stormwater control and other measures to prevent that, and is the difficulty self-created? No, I do not believe it is. Basically the configuration of the lot restricts the applicant for what they can do with it. th Duly adopted this 15 day of November, 2006, by the following vote: MR. GARRAND-The 3136 square foot fuel island canopy is going to be adjusted as per the agreement here tonight. MR. ABBATE-Be specific. MR. UNDERWOOD-I’ll just add that in. It’s going to be two feet less out towards the road. They’re going to a 24 foot canopy, I believe, is what they said. MR. GARRAND-Yes. I’m just not sure what the total square footage of that canopy is going to be at this point. MR. UNDERWOOD-And then it appears the islands and everything will be shifted back three feet from where they are. MR. ABBATE-Do you agree with that, Counselor? MR. LAPPER-I think what Jim had said before, that the variance would be reduced by five feet, is probably the easiest way to characterize it, the variance request would be five feet less. MR. UNDERWOOD-Sure. MR. ABBATE-Okay. 32 (Queensbury ZBA Meeting 11/15/06) MR. LAPPER-The math was a little bit off, and it was probably my fault. We had said that the canopy was going to be 36 feet back and now it’s going to be an extra five feet. MR. GARRAND-Thirty-one feet back? MR. LAPPER-No, it goes the other way. Because it’ll be 41 feet back. MR. GARRAND-Okay. Forty-one feet back. MR. ABBATE-Okay. MR. LAPPER-That’s not the relief. The location will be 41 feet set back from the road. MR. ABBATE-Okay. AYES: Mr. Urrico, Mr. Garrand, Mr. Underwood, Mr. Abbate NOES: Mr. Bryant ABSTAINED: Mr. McNulty ABSENT: Mrs. Hunt MR. ABBATE-The vote for Area Variance No. 62-2006 is four yes, one no. Area Variance No. 62-2006 is approved. MR. LAPPER-Thank you. MR. ABBATE-You’re very welcome. SIGN VARIANCE NO. 63-2006 SEQRA TYPE II MT ASSOCIATES, INC. FOR SMARTSHOP AGENT(S): J. LAPPER, ESQ. BPSR/BMA ARCHITECTS OWNER(S): DANIEL LOMBARD ZONING: HC-INT. LOCATION: 1477 STATE ROUTE 9 APPLICANT PROPOSES CONSTRUCTION OF A FREESTANDING SIGN AND THREE WALL SIGNS. RELIEF REQUESTED FROM FRONT SETBACK REQUIREMENTS AS WELL AS RELIEF FROM THE NUMBER OF ALLOWABLE SIGNS. CROSS REF.: AREA VAR. NO. 62-2006; SPR 40-2006 WARREN COUNTY PLANNING: NOVEMBER 8, 2006 LOT SIZE: 2.43 ACRES TAX MAP NO. 288.00-1-59 SECTION: 140 SIGN ORDINANCE JON LAPPER & KIRK MOORE, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Sign Variance No. 63-2006, MT Associates, Inc., Meeting Date: November 15, 2006 “Project Location: 1477 State Route 9 Description of Proposed Project: Applicant proposes one 64 sq. ft. freestanding sign and four wall signs totaling 80 sq. ft. These signs are associated with the proposed construction of a convenience store (Smartshop) with fast food vendors (Dunkin’ Donuts and Subway), and a fuel island (Exxon). Relief Required: Applicant requests setback relief for the proposed freestanding sign, specifically, 14-feet of front setback relief and 10-feet of side setback relief from the minimum 25-foot setback for a maximum 64 sq. ft. freestanding sign (§140-6 B(2)(a)). Additionally, relief is requested for an additional wall sign, for the “Exxon” marquee sign (§140-6 B(3)(d)[4][b]). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be permitted to erect a freestanding sign in the desired location. And, erect an additional marquee sign. 2. Feasible alternatives: 33 (Queensbury ZBA Meeting 11/15/06) Feasible alternatives may include a smaller freestanding sign (50 sq. ft.) located 15-feet from the front property line (existing side setback is 15-feet). Feasible alternatives to the additional wall sign (“Exxon” marquee sign) appear to be limited. These or other feasible alternatives could be explored during site plan review. 3. Is this relief substantial relative to the ordinance?: The cumulative relief for the three requested sign variances could be deemed considerable. 4. Effects on the neighborhood or community: Effects on the neighborhood or community could be explored further during site plan review. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): AV 62-2006: Pending, front setback and travel corridor overlay setback reliefs required from the fuel island canopy and the car wash. SP 40-2006: Pending, the convenience store, gasoline station, and car wash are all uses subject to SPR in the HC-I zone. Staff comments: In addition to the sign variances sought, this project requires area variances and site plan review by the Planning Board. Traditionally, the Board has requested that the Planning Board conduct a SEQR coordinated review where there are multiple involved agencies. The Board could consider requesting coordinated review, and that the Planning Board seek lead agency status and issue a SEQR determination prior to consideration of the (area and sign) variances requested. Possible feasible alternatives to any or all of the variances requested and any potential impacts to the neighborhood or community could be explored during the Planning Board’s review of the total project. SEQR Status: Unlisted” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form November 8, 2006 Project Name: MT Associates, Inc. for Smartshops Owner(s): Daniel Lombard ID Number: QBY-06-SV-63 County Project#: Nov06-25 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicant is proposing construction of a freestanding sign and three wall signs. Relief requested from front setback requirements as well as relief from the number of allowable signs. Site Location: 1477 State Route 9 Tax Map Number(s): 288.-1-59 Staff Notes: Sign Variance: The applicant proposes the construction of a freestanding sign and three wall signs. The free standing sign is to be located 11 ft. setback where a 25 ft. setback is required for business complex signs. The sign is to be 64 sq. ft. where 50 sq. ft. is the maximum size allowed. The applicant also proposes three wall signs to advertise the businesses where four are proposed and only three are allowed. The plans show the location of the wall signs and the free standing sign. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 11/9/06. MR. ABBATE-Okay. Gentlemen, you’re sitting at the table. Please be kind enough to speak into the microphone and tell us your name and your relationship to Sign Variance No. 63-2006. MR. LAPPER-For the record, Jon Lapper along with project architect Kirk Moore. I will keep this extremely brief and simple and just reiterate two points. I know how seriously you guys take Sign Variance applications, and what’s unique about this one is that what 34 (Queensbury ZBA Meeting 11/15/06) the chart on our submittal showed is that 364 square feet would be allowed here, three times one hundred square feet for the tenants, plus sixty-four square feet, and what we’re proposing in total is one hundred and forty-four square feet. We can’t reduce the size of the 64 square foot sign, because we have to include Exxon, Dunkin Donuts, Subway, Smartshop. So it just wouldn’t be readable if it was 50 square feet, but if you look at the total number, 364 compared to 144, what we’re offering to justify the relief is to drastically reduce the size of the signs, of the sign panels of what would be permitted in Queensbury without a variance, and I think that’s a pretty significant give back, and in terms of the front setback, as our application stated, and Staff reiterated, we are 26 feet. When you drive by, all you see is the curb, the grass, the sidewalk, the trees. You don’t see that there’s a property line that’s in the middle of the curb. So the sign is more than 26 feet back, it’s 26 feet back from the curb line, which appears to be the property line, even though the DOT taking goes beyond that. So you have the visual distance of 26 feet, and all of our signs. It’s just that that Exxon sign that’s asked for on the canopy is only 10 square feet. So it’s a very small sign. MR. ABBATE-Counselor, you know I’m a senior citizen and I get confused easily. Did I not hear earlier that this gentleman over here indicated that he wasn’t sure who was going to be a party to this thing, yet I see on 63-2006 it says Dunkin Donuts and Subway. What happened? MR. LAPPER-The answer to that is that they have negotiated with Dunkin Donuts and Subway and there’s a lease agreement pending, but it hasn’t been executed yet. So that we can’t sit here saying, now, I mean, it could be Blimpy. We expect that it’s going to be, we hope that it’s going to be Dunkin Donuts and Subway, and they’re negotiating for Dunkin Donuts and Subway, but either way, they will have somebody in there, and hopefully it’ll be them, but the lease is not signed. MR. ABBATE-Okay. Well, we’ve got it for the record. MR. LAPPER-Okay. MR. ABBATE-Thank you very much. That relieves me. Thank you so much. MR. BRYANT-I have a question, Mr. Chairman. MR. ABBATE-Yes, sir, go right had. MR. BRYANT-For Staff, actually. Since these are all separate businesses, aren’t they entitled to their own wall sign? MRS. BARDEN-Yes. MR. UNDERWOOD-Yes. MR. BRYANT-So realistically, you’re only asking for one extra sign. MR. LAPPER-Correct, and it’s only 10 square feet, the Exxon sign. MR. BRYANT-Yes, okay, that’s all you have to worry about. Dunkin Donuts and Subway are entitled to their own signs. MR. ABBATE-They are, indeed. MR. LAPPER-Yes, but they could be 100 square feet, and they’re 30, 20 and 20, respectively. So we’re really trying to come in with a minimal request. MR. ABBATE-Yes. Mr. Bryant is absolutely correct. Do you have anything else you want to add at this time, Counselor? No? Okay. Well, let’s continue, then. Members of the Board, gentlemen, do we have any questions for Sign Variance No. 63-2006? MR. UNDERWOOD-I think in the past, you know, dealing with the signs, you know, the sign out front, that’s not really a monument sign, in a sense, but your one up on the post there, I remember when we did Tractor Supply, we put the minor clients below in smaller size, and I think that’s what that sign is accomplishing by doing that, plus I think they’re in the 64 square foot, which is allowable by Code. I don’t really have a problem with that. The very small sign on the canopy, I suppose that’s going to be on both sides? MR. LAPPER-Just one. 35 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-Just going north? MR. LAPPER-Just facing the road. MR. UNDERWOOD-Okay. MR. LAPPER-So it actually faces east. MR. UNDERWOOD-I don’t really see that as being that obtrusive or in your face as far as being a huge amount of neon lit up or anything like that. My only suggestion on the building would be that you stack the Subway and Dunkin Donuts signs one on top of the other, just so you have more wall space and less lit up over there. I think the Smartshop sign, I don’t know if there’s any way to shrink that down a little bit. I know in the case of Wal-Mart, they wanted huge signs up, too, and, you know, we made the signs a little bit smaller. I think everybody pretty much understands what those logos are and what they are. I mean, the colors are pretty distinctive. I don’t think it’s something that people are going to pass by and say, yes, there was a Dunkin Donuts. MR. ABBATE-Okay. That’s a question, Counselor. MR. LAPPER-Yes, I think the difference, those are channelized letters, which is a little bit fancier sign, because the Dunkin Donuts and Subway, they’re logo signs. So those are panel signs. So I think that even though the Smartshop, when you measure it it’s 30 square feet, but it’s really kind of a fancier sign by just being those channel letters. It’s less imposing. MR. ABBATE-All right. Okay. MR. URRICO-Where is that Exxon sign going again, you said east, he said north? MR. MOORE-Facing Route 9. MR. LAPPER-Facing Route 9. MR. URRICO-Facing Route 9 in what direction? MR. UNDERWOOD-It’s way on the very end of it. MR. LAPPER-It’s on the southeast corner facing east. MR. URRICO-So traffic turning from 149 onto Route 9 will see it? MR. LAPPER-Yes. MR. URRICO-Okay. I don’t notice a sign for your carwash? MR. LAPPER-We didn’t contemplate that at the time that we made the submittal, and that came up yesterday in our discussion. What we’re contemplating at the moment is that on the 64 square foot sign, instead of saying Smartshop, we could say carwash, and we could get some directional signs on the ground for that as well. MR. ABBATE-You understand that since it wasn’t included in your initial application. MR. LAPPER-No. I think in the Town that if we replace the name Smartshop with carwash on that sign, it’s still a sign panel. We just realized that. MR. ABBATE-It’s a swap is what you’re doing. Okay. I don’t have a problem with that one. MR. LAPPER-Yes. MR. ABBATE-Gentlemen, any other questions for 63-2006? Okay. I’m going to open up the public hearing. The public hearing is going to be open for Sign Variance No. 63- 2006. Do we have any folks in the public who would like to address that issue? If so, would you be kind enough to raise your hands. PUBLIC HEARING OPENED 36 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE- I see no hands raised, so I’m going to move on, and again I’m going to ask the Board members respectfully to make their comments to the Chairman, and their comments to the Chairman are not going to be open to debate. I don’t have to remind the Board members, again, about precedent mandating we concern ourselves with the evidence that appears on the record to support our conclusions and all of that. So, I’m going to ask Board members then to please offer their comments. Do I have a volunteer? MR. GARRAND-It’s a situation where I also feel that the applicant’s pretty much constrained by the design of the Smartshop. There isn’t a lot of other places they can place the sign. The applicant could have come in with a much larger sign and they didn’t. I don’t think this request is necessarily substantial. I’d be in favor of this application. MR. ABBATE-Okay. Thank you very much. Gentlemen, do we have a volunteer? MR. BRYANT-The wall mounted sign, the 10 feet is really not an issue. I’m totally in favor of that. I’d like to see the smaller free standing sign. However, the request that you’re making is minimal, and I’d be in favor of the application, as it stands. MR. ABBATE-Thank you, sir. Mr. Urrico, please. MR. URRICO-Actually, I don’t have a problem with most of this. I do have a problem with the small Exxon sign. So I would not be in favor of that part of it. MR. ABBATE-Okay. All right. Mr. Underwood, please. MR. UNDERWOOD-I’m generally favorable to this, but I’m looking on the drawing and I’m reading the numbers on there and it says regular gas $3.62, and I don’t know if I can go for that. MR. LAPPER-We’d have to change that. MR. UNDERWOOD-You might have to change that, but otherwise I think I can go along with your request. MR. ABBATE-Okay. Thank you very much. I would tend to agree with Mr. Bryant and Mr. Underwood and Mr. Garrand, and also, in part, with Mr. Urrico. I think the points are well made. I think the applicant, the appellant has made a reasonable approach to us, and I think there were concessions to construct this in accordance with the zoning laws within the Town of Queensbury. I think they acted in good faith, and as a result, I would also support the application. Mr. Secretary, we have Unlisted, so we’re going to have to do a Long Form. Would you mind, please, sir. MR. UNDERWOOD-Yes. Okay. The project application is MT Associates, again. Project Location is Town of Queensbury and the project location is 1477 State Route 9. This is a Sign Variance, and describing the project briefly, the applicant is proposing to demolish the existing building and construct a convenience store, carwash and fueling station. It’s 2.34 acres that are affected by this project, and will the proposed action comply with the existing zoning or other existing land use restrictions? No. The project will require relief from the front setback requirement for the freestanding sign, the size requirement for the freestanding sign and the number of wall signs allowed in the zone. What’s the present land use in the vicinity of the project? It’s commercial. Describe the area, it’s in the outlet corridor. Does the action involve a permit approval or funding now or ultimately from any other governmental agency? No. Does any aspect of the action have a currently valid permit or approval? No. As a result of the proposed action, will existing permit approval require modifications? No. MR. LAPPER-That’s wrong. That should say yes for site plan review to the Planning Board for another agency. MR. UNDERWOOD-Okay. Does the action involve a permit approval or funding now or ultimately from any other governmental agency? Yes, it would be our Planning Board, and it goes up for site plan review. On the Environmental Assessment Form, Does the action exceed any Type I threshold? I would say no. MR. ABBATE-No. 37 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-Will the action receive coordinated review? I would say, yes, it will by the Planning Board. MR. UNDERWOOD-No, not coordinated. MR. UNDERWOOD-No other coordinated review. Okay. Could the action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal? I would say, yes. MR. ABBATE-Yes. MR. UNDERWOOD-Aesthetic, agricultural archeological, historic, or other natural or cultural resources or a community or neighborhood character? I would say, no. MR. ABBATE-Agreed. MR. UNDERWOOD-Vegetation, fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species? I would say no. MR. ABBATE-Agreed. 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. MR. ABBATE-Okay. MR. UNDERWOOD-Growth, subsequent development, or related activities likely to be induced by the proposed action? I would say no, I mean, it is a commercial corridor. MR. ABBATE-All right. MR. UNDERWOOD-Long term, short term, cumulative or other effects not identified? I would say no. MR. ABBATE-Okay. MR. UNDERWOOD-Other impacts (including changes in use of either quantity or type of energy)? I would say no. MR. ABBATE-Fine. MR. UNDERWOOD-Is there or is there likely to be controversy related to potential adverse environmental impacts? I would say no. MR. ABBATE-Okay. MR. UNDERWOOD-I guess that’s it. THERE IS AN ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATING THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, AND, UNLESS THERE IS 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 Richard Garrand: th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. Garrand, Mr. Abbate NOES: NONE ABSTAINED: Mr. McNulty ABSENT: Mrs. Hunt MR. ABBATE-In a five yes to zero no, the Environmental Assessment Form is approved. The public hearing is now closed for Sign Variance No. 63-2006. 38 (Queensbury ZBA Meeting 11/15/06) PUBLIC HEARING CLOSED MR. ABBATE-Gentlemen of the Board, I don’t have to remind you of our duties and obligations. So, having said this three times before this evening, I’m going to request that one of the Board members volunteer to provide us with an attempt to move a motion. Is there a motion for Sign Variance No. 63-2006? MOTION TO APPROVE SIGN VARIANCE NO. 63-2006 MT ASSOCIATES, INC. FOR SMARTSHOP, Introduced by Richard Garrand who moved for its adoption, seconded by Allan Bryant: 1477 State Route 9. Applicant proposes one 64 square foot freestanding sign and four wall signs totaling 80 square feet. Total square footage is 144 square feet. The signs are associated with the proposed construction of a convenience store, Smartshop, with fast food vendors, Dunkin Donuts and Subway, and a fuel island. Applicant requests setback relief for the proposed freestanding sign, specifically 14 feet of front setback and 10 feet of side setback relief from the minimum 25 foot maximum of 64 square foot freestanding sign, as per Section 140-6B(2)(a). Additional relief is requested for an additional wall sign for the Exxon marquee sign, Section 140-6B(3)(b)(4)(b). Can the benefit be achieved by any other means feasible to the applicant? Given the layout of this property, no. Will this variance create an undesirable change in the neighborhood character or to nearby properties, no, it will not. The applicant’s sign is actually smaller than what it could have been. Is the request substantial? No. Will the request have adverse physical or environmental effects? No, it will not. Is the alleged difficulty self- created? By the layout of the lot, I don’t believe it is self-created. It’s a function of where best placement of the sign should be. At this point, I can’t see any feasible alternative for the placement of this sign. th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Garrand, Mr. Abbate NOES: Mr. Urrico ABSTAINED: Mr. McNulty ABSENT: Mrs. Hunt MR. ABBATE-The vote for Sign Variance No. 63-2006 is four yes, one no. Sign Variance No. 63-2006 is approved. MR. LAPPER-Thank you. MR. ABBATE-You’re very welcome. AREA VARIANCE NO. 64-2006 SEQRA TYPE: II T & M JACOBS PROPERTIES, LLC AGENT(S): MICHAEL S. BORGOS, ESQ. OWNER(S): T & M JACOBS PROPERTIES, LLC ZONING: HC-INT. LOCATION: 643 UPPER GLEN STREET APPLICANT HAS CONSTRUCTED A 3,024 SQ. FT. STORAGE BUILDING. RELIEF REQUESTED FROM SIDE SETBACK REQUIREMENTS. CROSS REF.: BP 2005-644 WARREN COUNTY PLANNING: NOVEMBER 8, 2006 LOT SIZE: 5.40 ACRES TAX MAP NO. 302.11-1-2 SECTION: 179-4-030 MICHAEL BORGOS, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 64-2006, T & M Jacobs Properties, LLC, Meeting Date: November 15, 2006 “Property Location: 643 Upper Glen Street Description of Proposed Project: Applicants have constructed a 3,024 sq. ft. accessory structure (storage building). Relief Required: The applicants request side setback relief, per §179-4-030 for the HC-I zone. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 39 (Queensbury ZBA Meeting 11/15/06) 1. Benefit to the applicant: Applicants would be able to maintain the existing storage structure in the present location. 2. Feasible alternatives: Feasible alternatives appear to be limited to physical movement of the structure (see budget estimate). 3. Is this relief substantial relative to the ordinance?: The request for 20-feet of relief from the minimum 20-foot side setback is considerable (100%). 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2005-644: Issued, 9/29/05, 3024 sq. ft. commercial unheated building. SP 42-2005: Approved 7/19/05, 3024 sq. ft. cold storage building. Staff comments: The request for relief is considerable relative to the ordinance however feasible alternatives appear to be limited. The applicant should discuss the resolution with the City regarding the encroachment of the structure onto their property. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form November 8, 2006 Project Name: T & M Jacobs Properties, LLC Owner(s): T & M Jacobs Properties, LLC ID Number: QBY-06-AV-64 County Project#: Nov06-27 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicant has constructed a 3,024 sq. ft. storage building. Relief requested from side setback requirements. Site Location: 643 Upper Glen Street Tax Map Number(s): 302.11-1-2 Staff Notes: Area Variance: The applicant has constructed a 3.024 sq. ft. storage building. The storage building is located 0 ft. from the side property line where a 20 ft. minimum setback is required (with the sum of 50 for total side setback). The information submitted indicates a plan and building permit was issued for the construction where the as-built survey shows the building a non-compliant location. The applicant has provided an estimate for relocation of the building to be $66,000 for dismantle and reconstruction of the building. 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 Richard C. Merrill, Warren County Planning Board 11/9/06. MR. ABBATE-The petitioner and counsel is at the table. Would you be kind enough, gentlemen, to identify yourself, please. MR. BORGOS-Michael Borgos, counsel for T & M Jacobs Properties, LLC, with John Jacobs, member of the LLC. MR. ABBATE-Okay. Are you prepared to proceed? MR. BORGOS-We are. MR. ABBATE-Please do. 40 (Queensbury ZBA Meeting 11/15/06) MR. BORGOS-I would categorize this application as seeking the Board’s forgiveness rather than permission because this building’s already been constructed. It was constructed erroneously in a mistaken location. What I can give for you is an outline of how that happened, and I can also tell you how we’ve addressed it in the months since that’s been discovered. It was first discovered when the survey was done by Matt Steves in late February, as part of the issuance of Certificate of Occupancy from the Building Department. That’s the first time a survey was required. They were working from an earlier survey from 1985, that Van Dusen and Steves had done for a prior owner of the property, and on there, and as part of their building permit application, they had set aside the 20 foot buffer as designed. They knew about it and they planned for it. The problem came about when they were measuring from a different starting point than the actual boundary line. Now when you’re on the site, if you walk behind the building, adjacent to this boundary line, you probably observed the vegetative buffer between this and that cinder track that runs behind the YMCA. There’s a power line that runs through there that supports the lights for the ski trails that go behind the property, and actually some of the lights are on this property, and I’ll get into that in a minute. There’s a training track that they allow the local schools and other members of the community to utilize on their property for Nordic skiing. The location of the building was designed to be as minimally intrusive upon those other uses. Historically Mr. Jacobs has been a large proponent of Nordic skiing, helped develop the trail system within Coles Woods, and has always encouraged and permitted school buses, officials and others to come in and park on his property, to utilize those ski trails. You’ll see on the survey map that there’s a large open field depicted on there, and that is where those activities take place. When the business needs grew and they had some larger pieces of merchandise to store, as cold storage, they needed an additional storage space. They certainly could have put the building in a compliant location. They have over five acres of land here that easily could have been accomplished. They tucked it in a corner, in an existing parking area, essentially, that had been always used for parking and had been cleared. They measured from what they thought was the boundary line within that tree line separating the two parcels, and went from there, and if you look towards Route 9 from that location, it seems to be correct visually, and that was where the mistake was made, that there wasn’t a surveyor retained at that point to say this is where the corner should be located. In fact, there were some measurements taken from the corner of the existing building going over, and that validated what they thought was correct. So the only indication that they had there was an error was after the building was already constructed and up, and that’s when everything started happening. We approached the City of Glens Falls and over the last six to eight months, we’ve negotiated with them a resolution to this. They’ve been very courteous and they’ve recognized and appreciated the Jacobs’ assistance with the skiing in Coles Woods over the time, and they’ve signed an easement. They’ve passed a resolution through the City Council and the Mayor signed it last week, and I provided Staff with that Thursday or Friday of last week. I hope it made it to all of you. If not, I brought the original with me tonight. MR. ABBATE-Now, we have an easement agreement which is dated October 23, 2006, between the Mayor of Glens Falls and T & M Jacobs Property, Inc.? MR. BORGOS-That’s correct. MR. ABBATE-And also a consent to variance to the Queensbury Zoning Board of Appeals? MR. BORGOS-That’s correct. MR. ABBATE-And any other stipulated agreements this Board should be aware of, that you can bring to our attention? MR. BORGOS-Everything is within this easement agreement. MR. ABBATE-Is in there? MR. BORGOS-Yes. MR. ABBATE-Okay. Continue, please. MR. BORGOS-Yes, we worked with Assistant City Attorney Jim LaPann over these months to find language that was acceptable to the City. They wanted the building to remain, so long as it’s standing. Of course if there’s any destruction of the building, due to some type of a hazard or catastrophe, it would be rebuilt in a compliant location. 41 (Queensbury ZBA Meeting 11/15/06) MR. ABBATE-Okay. MR. BORGOS-We obtained estimates from the original contractor, Morton Buildings, to reconstruct the building and that estimate was at least $66,000 and a forecast that there might be some additional costs that are unforeseen at this time, and that is nearly the cost of the original construction itself. So we see that as an unfeasible alternative here. MR. ABBATE-Okay. MR. BORGOS-We believe that there is little to no impact upon the neighboring community because, Number One, most people are not even aware that this building exists. As you drive by on Route 9, you have to be looking for it to spot it. There are no residential neighbors to this property. We have not received any negative feedback from either the YMCA or the City or anybody else in the vicinity. I know that the Board was provided with a response from a neighbor on Garrison Road, right on the corner, in the new house, 1 Garrison Road, Ray Wynn, Jr. He wrote that they’ve been a good neighbor, and he says it’s okay, and I think that’s probably something that Mr. Underwood will be reading in in a moment. So we feel that everyone is supportive of this. We regret the error, but there is precedence for zero lot lines within the Town, and we think this is a unique situation (some lost words) the issuance of a variance for this particular case. MR. ABBATE-Okay. Now, Counselor, I’m assuming that you explained to your client what is meant by due diligence, so that in the future we won’t see another building constructed without a permit. He explained that to you, I’m sure, for the record. JOHN JACOBS MR. JACOBS-Yes. MR. ABBATE-Okay, and we won’t see another building constructed without a permit. Okay. That’s fine. Gentlemen, do you have any questions for the appellant? MR. BORGOS-Mr. Abbate, I just wanted to clarify. This was constructed pursuant to a permit. It was just put in the wrong location. MR. ABBATE-In the wrong location. MR. BORGOS-Next time I think I can assure you that Mr. Jacobs is going to have a surveyor out there from Day One to make sure that doesn’t happen. MR. ABBATE-You would also agree that the mandate of this Board, that we have surveys that are signed, dated and sealed, was made with great judgment, for the record? MR. BORGOS-I agree with Mr. Lapper’s consent earlier. MR. ABBATE-Thank you very much. We need that. MR. BORGOS-Absolutely. MR. ABBATE-Do you have any questions? MR. BRYANT-Yes, Mr. Chairman. MR. ABBATE-Please. MR. BRYANT-I understand what you’re saying, you didn’t have a survey, you built the building, so forth and so on, but when you had your site plan review in July, Item Number Four, the Planning Board specifically states that the proposed building has to be moved in a northerly direction for it to be in compliance with the 20 foot separation. So, you know, we’re saying you know that at site plan review, and then you build a building and it’s still 20 feet off. So, you know, do you know what I’m getting at, without me having to say it? MR. BORGOS-Well, we knew where, I understand that my clients understood the 20 foot separation was required, and they moved it on the plans. Unfortunately their starting point that they identified physically on the property was incorrectly identified. 42 (Queensbury ZBA Meeting 11/15/06) MR. BRYANT-So you’re saying that originally the original plans were off 40 feet? MR. BORGOS-I haven’t seen the original plans. Perhaps Mr. Jacobs can respond. MR. BRYANT-Well, that’s what you’d have to assume. You’d have to assume that the original plans were off 40 feet. You made a 20 foot adjustment, and now you’re on the property line. That’s what you’d have to assume. It’s here in black and white. MR. BORGOS-I don’t think the original plans knew the correct boundary line as depicted on the survey, with respect to where this building was actually sited. I think it’s a siting issue, not a plan issue. The plan was always to be compliant, and it was just that when it was actually built, it was built in an incorrect location. MR. BRYANT-Well, that sounds good, but to get back to my original point, I don’t want to belabor the point, this site plan review identified that there was a problem on the plan, indicating that the building needed to be moved 20 feet north in order to be compliant. Now the building is not compliant by 20 feet, so in reality the original plan must have been 40 feet off. MR. BORGOS-I think at the time that that plan was done, there was no requirement for a survey, and that’s the root of the problem. MR. BRYANT-Thank you, Mr. Chairman. MR. ABBATE-Thank you. Gentlemen, do we have any other questions for Counsel? MR. GARRAND-I just have one. MR. ABBATE-Yes, please. MR. GARRAND-Mr. Jacobs, were you the general contractor, or? MR. JACOBS-No, the general contractor was Morton Buildings. MR. GARRAND-Morton Buildings, and they’re the ones that began the construction of this in the wrong place? MR. JACOBS-They built the foundation based upon our demarcations, on our staking of the perimeter of the building. MR. GARRAND-Okay. Thank you. MR. URRICO-I guess I’m like Mr. Bryant. I’m having problems understanding. Your boundary line, building juts, comes up right to the City of Glens Falls line, butts right up against that? MR. BORGOS-Yes, the property line abuts the City of Glens Falls. MR. URRICO-It just seems curious that some, an error would be made, and that it would come right to that point. You know, sometimes when things are off, they’re off by a foot or two, but this comes right to that property line. I don’t understand how that happened. MR. BORGOS-Again, I keep referring back to when I stood and visited the property, I walked behind that building, and I saw the historical usage of that area. You could tell the ground had been utilized for some type of developed purpose, and I believe it was parking, and then there’s the entrance to the woods, and then into the woods there is, there’s a series of power poles, and if you follow that line visually out to Route 9, I think a layperson’s view would be that is the boundary line. Historically, that’s the way the property was occupied. Certainly the City in the Park never came across that line and they never crossed that boundary going the other way. They identified that as the boundary line between the two parcels. The surveyor came out, in February of this year, after construction, and said, no, no, it’s over here, much to their surprise, and actually they’ve been utilizing some of that space, that 20 foot buffer, over time, which was fine, but when it comes to siting a compliant location, they had made a mistake. MR. URRICO-So the surveyor came out as part of the as built survey after the fact. It never dawned on anybody because of the City of Glens Falls/Queensbury boundary being there that we should have a surveyor come out beforehand? 43 (Queensbury ZBA Meeting 11/15/06) MR. BORGOS-Only with hindsight. MR. URRICO-What is T & M Jacobs Properties do? Are you? MR. BORGOS-T & M Jacobs Property, LLC is just the owner of the property. Reliable Racing is the business that is occupying the space. Most of you know it as The Inside Edge. Reliable Racing actually is a catalogue and Internet business that supplies racing poles for ski races, ski fences. I think you’ve done some things for the Olympics over the time. They have a diversified catalogue, but they’re a very low impact business in the community, as most of you are not even aware that it’s there. It’s that way for everyone, I believe. Very few people know what actually goes on there. MR. ABBATE-Gentlemen, do we have any other questions? Okay. What I’m going to do is open up the public hearing for Area Variance No. 64-2006. Do we have any folks in the audience who would like to address this issue? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised. Consequently, I’m going to move on, and again, Board members, I said it this evening, the comments that are going to be made now, I’m going to request from the Board members, are going to be directed to the Chairman and not subject to debate by anyone. Members, do we have a volunteer to offer your comments for Area Variance No. 64-2006, please? MR. BRYANT-I know you’re going to call on me, so I’ll volunteer. MR. ABBATE-Thank you. MR. BRYANT-I think I expressed my concern with the sequence of events here. I think the Planning Board was clear that according to the plans the building had to be moved 20 feet north, and then for the building to still end up on the line, regardless of a survey or not, and that’s another question altogether, it’s a 40 foot mistake, and if I were going to make a $100,000 investment in a building, I would be very sure that that building was in a relatively compliant location so that we wouldn’t have to address these issues. I’ve said this before on a number of occasions, you’ve indicated that it’s going to cost as much to move the building as it did to put the building up, and that’s really not an issue. That’s not one of the criteria, but the reality is it’s really not, when something is contractor error or owner error, it’s not up to the Town of Queensbury to resolve these problems. I know that you’ve gone to the City of Glens Falls and that’s great, but frankly it doesn’t really sit well with me. So I’d be opposed to the application. MR. ABBATE-Okay. Gentlemen, do we have someone who would like to address this issue? Mr. McNulty, would you be kind enough to do that for me, please. MR. MC NULTY-I’m betwixt and between. I’m inclined to agree with Mr. Bryant. Let me think it out. There’s an obvious benefit to the applicant if we should approve this. He’s going to save a chunk of money. Feasible alternatives, I guess it depends on your definition of feasible. The only alternative is to move the building, and that kind of building is probably going to cost him as much either way, whether he dismantles it and moves it or whether he has somebody come in and try to jack it up and move it. Relief relative to the Ordinance, yes, it’s substantial. It’s great. Effects on the neighborhood or community, I don’t know for sure. I haven’t, myself, walked out in back to see what the impact is viewed from the ski trails or whatever, but on the other hand, that size building viewed, whether it’s on the line or 20 feet away, probably doesn’t make a big difference. So I’m not sure that there’s a huge effect on the neighborhood or community in this case, and as we’ve said before, each Area Variance is considered on its own merits. So there is not a precedent established should we approve this or disapprove it, and is the difficulty self-created? Absolutely. As Mr. Bryant said, in this case, I think it’s an error of judgment in not having a survey done so you know where you’re putting this before you start. So, on the one hand I’m inclined to say no, move it and make it compliant because there is also, as Mr. Bryant points out, I don’t know, there’s some suspicion here of how did that manage to land right on the lot lines. If there’s an error, why didn’t it land over the lot lines or two feet in. On the other hand, I think the adverse impact of it being on the lot lines is probably not great in this particular instance, mainly because the neighbor is the City and it’s open space, the other side of it. I guess I’d come down the balance is probably in favor of the applicant. So I would very reluctantly be in favor. MR. ABBATE-Okay. Thank you, Mr. McNulty. Gentlemen, do we have a volunteer? Mr. Underwood, would you do that for me? 44 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-I’m quite familiar with the project because I do the Bilco Ski League and my kids are out there skiing everyday. Last winter I watched them construct that building, and when they were doing it, I said, gee, that looks like a logical place to put the building up, and I don’t think I ever second guessed whether the building was too close to the line. I think if you do go over on the track side, on the YMCA side there, you would say that it probably looks like it’s in a reasonable place that it could have been constructed. I think it probably was a gross error in judgment to not take the Planning Board’s recommendation to move it 15 feet, and I don’t know how that occurred or why that occurred, but in this instance here, I think that, you know, the building is up. The City, who’s the most affected by it, has signed off. It really does not affect the ski trails or the ambience of out back there, either, because I think that the woodlands to the west of it there pretty much block it in. It’s just one more building that you go by when you’re on the track by the YMCA. So I think in this instance I can go along. It’s upsetting that it occurred. I think that if we were playing hardball, we could make you move it, but I don’t see any real reason to do that. I think it’s well set back off the road, and most people don’t even know that a new building has been built back there. MR. ABBATE-Okay. Mr. Urrico, would you be kind enough, please. MR. URRICO-I appreciate all the comments of the previous Board members, because I agree with all of them to a certain degree. I think in situations like this we always try to put ourselves in the position that this is being presented to us for the first time, and of course if this was presented to us for the first time, we would never consider it because it would be zero lot line, but in quoting a previous Board member, to make you move it, in my estimation, would be draconian, and I don’t think that would be the right way to settle this. The issue I come down to, the one piece of the balancing test that really I come down to is the undesirable change in the neighborhood character or to nearby properties. The City of Glens Falls has signed off on it. We haven’t heard anything from the YMCA or any other nearby properties basically about any negative results of this property being there. So I would also agree with Mr. Underwood and Mr. McNulty that I reluctantly go along with it, but I don’t quite understand how it happened, but I would approve it tonight. MR. ABBATE-Okay. Thank you. Mr. Garrand, please. MR. GARRAND-Well, while I would have liked to have seen the applicant reduce the visual impact of the building, possibly changing the color, making it blend in with the environment a little bit more, I, too, use the ski trails out there. I also don’t think the position of this building benefits the applicant. It’s in an area that the applicant really can’t secure. It’s along ski trails used by teenagers and everybody else, for all sorts of purposes. I don’t think that the contractor necessarily went into this with any malice aforethought to place this on the property line, but by the same token, I do think it was a certain level of incompetence putting it there. I would also reluctantly be in favor of this application. MR. ABBATE-Okay. Thank you very much. Counselor and your client, I’m going to address this as well. I agree with all the Board members including Mr. Bryant, and quite frankly I’m troubled. However, we don’t want to be draconian. I think that was the word that was used, but let me say this, Counsel, a word to the wise for your clients, due diligence in the future. Having said that, this is a Type II. We don’t have a problem with that, then. The public hearing is now closed for Area Variance No. 64-2006. PUBLIC HEARING CLOSED MR. ABBATE-Gentlemen, again, I’m going to not go through all the little bits that we have to do here this evening. You’re well aware of them, and I’d request you make your motion with clarity. Having said that, do I hear a motion for Area Variance No. 64-2006? MOTION TO APPROVE AREA VARIANCE NO. 64-2006 T & M JACOBS PROPERTIES, LLC, Introduced by Charles McNulty who moved for its adoption, seconded by Roy Urrico: 643 Upper Glen Street. The applicants have constructed a 3,024 square foot accessory structure, a storage building, and they’re requesting side setback relief, pursuant to 179- 4-030 for the Highway Commercial Intensive zone. In considering this, the benefit to the applicant is that the applicant would be able to maintain the existing storage structure in the present location, and not have to incur a cost of sixty some thousand dollars in having it moved to a compliant location. The feasible alternatives are limited to physically moving the structure, either by disassembling and reassembling, or having it 45 (Queensbury ZBA Meeting 11/15/06) jacked up and moved, and as already mentioned, that’s going to be a considerable cost. Is the relief substantial relative to the Ordinance? Absolutely. It’s 20 feet of relief from the 20 foot requirement. So it’s 100%. The effects on the neighborhood or community, as a member mentioned earlier, I think this is probably the heavy deciding factor is that there’s going to be, I believe, minimal effects on the community. It borders on City property. The City has agreed to allow to continue to do that, and there is an understanding and statement by the applicant that should something catastrophic happen to this building, a fire or something else that basically destroys it, it would be reconstructed in a compliant location. Given that understanding, and recognizing that the difficulty is self-created, and I think also as a statement to other potential applicants with this kind of a problem, I’m recommending we approve this based on its unique location on this particular property, and this does not indicate any inclination of this Board to approve another situation like this under other circumstances. Given all those qualifiers, I move that we approve Area Variance No. 64-2006. th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. Garrand, Mr. Underwood, Mr. Urrico, Mr. McNulty, Mr. Abbate NOES: Mr. Bryant ABSENT: Mrs. Hunt MR. ABBATE-The vote for Area Variance No. 64-2006 is five yes, one no. Area Variance No. 64-2006 is approved. AREA VARIANCE NO. 65-2006 SEQRA TYPE: II BROOKS TEELE AGENT(S): DEAN HOWLAND, JR. OWNER(S): BROOKS TEELE ZONING: WR-1A LOCATION: 10 FISHING HOLE LOOP, KATTSKILL BAY APPLICANT PROPOSES CONSTRUCTION OF A 568 SQ. FT. SECOND STORY ADDITION. RELIEF REQUESTED FOR ENLARGEMENT OF A NONCONFORMING STRUCTURE OVER 50 PERCENT OF FLOOR AREA OF ORIGINAL SINGLE-FAMILY DWELLING. CROSS REF.: SPR 42-2006; SPR 3-89; BP 2001-358 WARREN COUNTY PLANNING: NOVEMBER 8, 2006 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.83 ACRES TAX MAP NO. 227.18-1-8 SECTION: 179-13-010 DEAN HOWLAND, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 65-2006, Brooks Teele, Meeting Date: November 15, 2006 “Project Location: 10 Fishing Hole Loop, Kattskill Bay Description of Proposed Project: Applicant proposes construction of a 568 sq. ft. second-story addition to an existing 2,434 sq. ft. single-family dwelling, totaling 3,000 sq. ft. (original camp was approximately 852 sq. ft.). Relief Required: The applicant requests relief to exceed the maximum aggregate of 50% of floor area (prior to the first enlargement) of a single-family dwelling, per §179-13-010 for a nonconforming structure. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the proposed 568 sq. ft. addition. 2. Feasible alternatives: Feasible alternatives may include reducing the size of the proposed addition. 3. Is this relief substantial relative to the ordinance?: The request for an addition which would exceed the maximum 50% expansion by approximately 1,724 sq. ft. is considerable relative to the ordinance. 4. Effects on the neighborhood or community: 46 (Queensbury ZBA Meeting 11/15/06) Moderate effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-586: Pending, 560 sq. ft. residential addition. SP 42-2006: Pending, for expansion of a nonconforming structure in a CEA. BP 2001-358: Issued 6/5/01, septic alteration. SP 3-89: Approved 2/28/89, for a 616 sq. ft. (bldg. footprint) and 922 sq. ft. second-floor addition, added to original 852 sq. ft. structure, totals 2,390 sq. ft. AV 1456: Approved 12/21/88, for 23-feet of shoreline setback relief for the 616 sq. ft. addition. Staff comments: The original structure was approximately 852 sq. ft., a 50% increase (426 sq. ft.) would amount to a total of 1,278 sq. ft. The addition in 1989 of 1,538 sq. ft., totals 2,390 sq. ft., this is an increase of 275%, the need for relief at the time of this proposed expansion was not identified. The size of the structure after the 1989 addition (2,390 sq. ft.), plus the proposed 568 sq. ft., totals approximately 3,000 sq. ft. (350% over the original 852 sq. ft.). SEQR Status: Type II” MR. UNDERWOOD--“Warren County Planning Board Project Review and Referral Form November 8, 2006 Project Name: Teele, Brooks Owner(s): Brooks Teele ID Number: QBY-06-AV-65 County Project#: Nov06-29 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant is proposing construction of a 568 sq. ft. second story addition. Relief requested for enlargement of a non-conforming structure over 50 percent of floor area of original single-family dwelling. Site Location: 10 Fishing Hole Loop, Kattskill Bay Tax Map Number(s): 227.18-1-8 Staff Notes: Area Variance: The applicant proposes the construction of a 568 sq. ft. second story addition. The requested relief is for construction of more than 50% of the original non conforming structure. The information submitted shows the location of the addition and the existing home. The home footprint sq. footage is 1,479 and the existing Floor area ratio is 2,498 where the new floor area ratio is to be 3,066. 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 Richard C. Merrill 11/9/06. MR. ABBATE-Okay. Gentlemen, I see that you’re at the table. Would you folks be kind enough to identify yourselves and your relationship to Area Variance No. 65-2006, please. MR. HOWLAND-My name’s Dean Howland. I’m here as the agent. I’m here with Brooks Teele who’s the owner. MR. ABBATE-Okay. Are you prepared to proceed? MR. HOWLAND-Yes, we are. MR. ABBATE-Please do. MR. HOWLAND-I think it’s been described fairly well what it is, is that originally there was an Area Variance granted in, actually it was in December of ’88, and during that time, they did not address a 50% increase in the existing structure. Never mentioned, it’s not in any of the notes. I have all the variance notes and meetings here. That’s since now that we’re proposing to add an addition to the existing house, they thought they should go back and correct that. MRS. BARDEN-That and the following, the addition in ’89 and then the addition. 47 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-Dating back to the original Area Variance which was 1456, and that was approved on 12/21/88. The original project granted them relief for 23 feet of shoreline setback for the 616 square foot addition. There was Site Plan Review 3-89, and that was approved on 2/28/89. That was for that 616 square foot building footprint and a 922 square foot second-floor addition, added to original 852 square foot structure. So that totaled 2,390 square feet. There was a Building Permit 2001-358 that was issued on 6/5/01 for a septic alteration. There’s presently Site Plan Review pending for the expansion of a nonconforming structure in a Critical Environmental Area, and also the building permit is pending, based upon what we’re going to decide here this evening. MR. ABBATE-Okay. Thank you very much. Having stated that, would you like to proceed, continue? MR. HOWLAND-Well, what we’re proposing is to put a second story addition on the north side of the house. It’s above the existing family room. That particular addition meets shoreline, side yard, rear yard setbacks. The owner put in a new leach field a couple of years ago which was approved, and it’s for a five bedroom house. This would become only a four bedroom house. It’s got two bedrooms now. It will become a four bedroom house. MR. ABBATE-And am I correct in assuming that that new septic system, which has been approved, is on another parcel which the gentleman also owns as well, it’s on a separate parcel? MR. HOWLAND-That’s correct. It’s an adjacent parcel. MR. ABBATE-Have you consolidated that property under one deed? MR. HOWLAND-No. MR. ABBATE-You have not? Okay. Continue, please. MR. HOWLAND-I believe that’s it. MR. ABBATE-Okay. All right, and since you’re not represented by counsel, you heard what I said earlier, and if you didn’t, if there’s anything that you feel you don’t understand, stop us, we’ll explain it, or if there’s anything you feel you can add to your argument to support yourself, please feel free to do it. Okay. Having said that, gentlemen of the Board, do you have any questions for the appellant? MR. BRYANT-I just want to make a statement, Mr. Chairman. MR. ABBATE-Please do. MR. BRYANT-I think the question you asked earlier was whether or not in the application you had to backtrack, and in reality, in the Code, and I had to look this up when I first got the package because I wasn’t sure what was happening there, but in the Code it’s very clear. It says no enlargement or rebuilding shall exceed 50% of the gross area, and then it goes on to say prior to the commencement of the first enlargement. So any time you add to that building, it goes back to the original configuration. It has to take everything into consideration. So I understand. MR. HOWLAND-That’s correct. That was explained, but then it was explained further that it was not addressed at that time, even though it would have to be addressed again at this time. That’s the statement that we were making. MR. BRYANT-Yes, it should have been addressed then, too, yes. BROOKS TEELE MR. TEELE-Well, can I speak to that, to the Board? MR. ABBATE-By all means, certainly. MR. TEELE-As the owner of the property, it’s my permanent residence now, and I’d like to have a couple of more bedrooms so my grandchildren can come and stay with me and I installed a new septic system. I hired the Environmental Design Partnership to design a new sewer system for me a few years ago because what I had was holding tanks, and they told me at the time I could only have two bedrooms when I built the house. They 48 (Queensbury ZBA Meeting 11/15/06) kept me restricted to two bedrooms. Well, I didn’t put the new septic system in for that reason, but now as I live there now and I’m permanently there, I’d like to have room for my grandchildren to stay and my daughter without being in two bedrooms, and that’s why I’d like the relief, if I can get that. MR. ABBATE-Yes, well, just for information, I did some research on this, and in fact the Town of Queensbury has approved a new septic system for a five bedroom, just for the record. Gentlemen, do we have any other questions for Area Variance No. 65-2006? MR. UNDERWOOD-So your leach fields are way back up by the road? MR. TEELE-I spent $38,000, dynamiting and blasting and. MR. ABBATE-That’s on the eastern portion of your property? MR. TEELE-I mean, it was a major project. MR. ABBATE-Correct. Okay. MR. TEELE-And they’re as far back as I could get them from the lake. They’re almost 280 feet back from the lake. MR. ABBATE-Okay. MR. UNDERWOOD-Based upon the square footage of the lot, because it’s just under an acre in size, if we had a blank lot with nothing built on it, how big a house could you build on there on a one acre lot? MRS. BARDEN-It looks to be, if you go to your Floor Area Ratio worksheet, is that what you’re? MR. UNDERWOOD-Yes, it would be like about 6,000 square feet or something like that. MRS. BARDEN-It’s 8,324 is what is listed on the Floor Area Ratio. MR. ABBATE-Okay. Gentlemen, any other questions? Okay. If not, I’m going to open up the public hearing for Area Variance No. 65-2006. Anyone in the public who wishes to address this issue? Yes, sir. Sir, would you come to the table and identify yourself, please. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-My name’s John Salvador. I’m a resident in North Queensbury. There’s a couple of things. I’m surprised that the applicant hasn’t been required to consolidate the two lots. We have a regulation in our Code that says that before you can erect an accessory use, which a septic system is, you must have a principal use on the property. Without the consolidation, some day these two facilities could become separated. The septic system could become separated from the dwelling. The other thing I can’t understand is how they were allowed to build a septic system that was greater than their needs, for whatever reason. The Town Board acting as the public Board of Health, has been very, very reluctant and very, very conscious of the fact that when they grant permits for rebuilding or for failures or for something, it is for the needs as they exist right then, and not that the enlarged septic system will be used to do what these folks are trying to do is build a larger building. So consolidation and whether or not that permit for the septic system was properly granted without having a principal use on the property. MR. ABBATE-Okay. Thank you very much, Mr. Salvador. Do we have anyone else in the audience, in the public, who would like to address 65-2006? Seeing no one, gentlemen, would you come back to the table for us, please, and then we will continue on. At this point, unless you wish, you have the opportunity to address the comments of the public, Mr. Salvador, if you wish? Okay. Then I will continue on. Again, gentlemen, I’m going to ask you that the comments be directed to the Chairman, and not subject to debate. Gentlemen, do we have anyone who would like to volunteer to address Area Variance No. 65-2006? 49 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-I can start if you’d like. My question would be this. I think the regulation as it exists, you know, makes sense when you’re talking about expansions, but I think, you know, when you try to balance that off and that was why I asked that other question. I mean, when you try to balance that off if someone came to this lot and they wanted to build a house from scratch on a blank lot, you know, if you can build an 8,000 square foot house, and I think in this instance here, I mean, these people somehow got that septic system built, which I find hard to believe because I know the Town Board, when the Board of Health meets, is very reluctant to allow stuff like that to happen, but in this instance here, I think that, you know, you’re looking at the house, it’s not going to increase the footprint of the house by any means if we allow this to occur, but I’m just trying to think of how you balance that out, you know, based upon a from scratch building project, you know, to just a minor addition. Five hundred square feet isn’t a whole lot of space that you’re going to add to this house, and it seems to me the big sticking point should be the septic. In this case obviously they have the ability to handle the new effluent that’s going to be generated by more people being in the home, but I’m unsure how I’m going to vote on this. So I’ll listen to everybody else. MR. ABBATE-That’s fair enough. That’s not a problem. Do we have someone else who would like to address this issue? Anyone? How about Allan? MR. BRYANT-Mr. Chairman, there are numbers of properties all on the lake that originally were designed to be camps and so forth and so on. I’m reading the Planning Board minutes from the ’88-’89 meeting where you actually get to build the addition closer to the lake. Frankly, I think I’m going to pass right now. I’m not going to say anything. MR. ABBATE-Okay. Mr. McNulty, would you like to respond, please. MR. MC NULTY-Yes. Some of the points that have been raised by the public and we’ve thought about a little bit here I think are valid points, but they’re probably not germane to the issue that’s before us. I’ll agree that a septic system on a separate lot can eventually be a problem. We’ve had a similar situation in our neighborhood just recently that didn’t involve a septic system, but involved a house on two lots, and lo and behold the other lot got built upon when the total understanding was it never would be, and not much that anybody could do about it because it wasn’t in the Planning Board resolution, but that’s beside the point. That’s really not what we’re being asked here. We’re being asked whether or not the applicant can put an addition on this house that expands it beyond 50% of the original and I think in this case, in this particular house, this is one of the instances where I don’t really see a big problem. There’s so many times on the lake when somebody’s proposing to do this and it’s a camp crammed on a postage size stamp lot and they’re trying to build a humongous house on a real small lot, and this strikes me as being a reasonable request. I don’t think it’s going to have a substantial effect on the neighborhood. I think there’s enough mitigation to have the benefit fall in favor of the applicant, and I’d be in favor. MR. ABBATE-Okay. Thank you very much. Mr. Garrand, would you be kind enough. MR. GARRAND-Mr. Chairman, I was kind of up in the air with this one, and I’m going over the balancing test. I’m looking at this and I’m thinking whether benefits can be achieved by any other means. I’m thinking a smaller addition. Fifty percent of the original Floor Area does seem a little excessive. Is there going to be an undesirable change in the neighborhood? Well, you know, I look at this and I think of visual congestion. I think it’s going to be something more that we’re going to see from the lakeside and from the roadside also. I also don’t agree with having two separate lots with a septic in one and a residence in another. If you look at this by the numbers, I do think it is substantial. At this point, I don’t think we’re going to have an adverse environmental impact, and, yes, they want the addition. I think it is self-created. At this point, I wouldn’t be in favor of the application. MR. ABBATE-Okay. Thank you. Mr. Urrico, please. MR. URRICO-I’ve listened to some of the points that have been made, and Mr. Underwood made two, I feel two good points, and I agree with him. If this was being built from scratch on this piece of property, we would not have an issue, and I understand the 50% of Floor Area based on the original size of the house, but that house no longer exists. I know that’s what the Code says, but that’s not what the house is right now, and really for the size property, it’s not excessive, I don’t think. As far as the septic, we’ve had issues where people have joint property that actually weren’t contiguous to the 50 (Queensbury ZBA Meeting 11/15/06) property and actually stretch over a piece of road. So this one is far better in my opinion, but that’s not on the table anyway. So I would be in favor of it. MR. ABBATE-Okay. Thank you, Mr. Urrico. Mr. Bryant, may I get back to you? MR. BRYANT-Yes, Mr. Chairman. Three hundred and fifty percent of relief is substantial, and one of the feasible alternatives is not to build, and with that in mind, I’d be opposed to it. MR. ABBATE-Okay, and Mr. Underwood, may I get back to you, please. MR. UNDERWOOD-Yes. I think I’m generally going to be favorable for this application. The other question I would have is this. I mean, if the place burned tomorrow, and you didn’t rebuild it to the exact same size in the stipulated timeframe, you could then apply and build a house of 8,000 square feet on that lot, based upon what you could do there. I mean, if you wanted to take that route I guess you could, but I don’t really think that the addition and the razing of this house to about 3,000 square feet is going to really be anything major. One suggestion I would make is this. If the sticking point septic is an issue, that those parcels could be co-joined. I would assume you don’t have any plans for that, but I mean I think it would probably relieve the question mark in people’s minds if that’s the case. So, you know, we can put that in as a condition. MR. ABBATE-And before I present my position, Staff, for the record, when we have our debriefing tomorrow, I really would like to get that issue cleared up, in terms of adjacent property, and having a residence on one and a septic system on the other, because I’m not knowledgeable in terms of real estate law. So I’m at a loss. There may be a legitimate reason to question that. I don’t know at this point. So can we bring it up tomorrow? MRS. BARDEN-Absolutely. MR. ABBATE-Okay. MR. UNDERWOOD-The other question I would bring up with you tomorrow, too, is that, you know, like we’ve had numerous instances with tiny little lots, as was mentioned by Chuck, that, you know, in the case of like Rockhurst and places like that. I mean, most of those places have been expanded way over 50% from what they originally were. I mean, if you went back to the Year One when they were cabanas, I mean, none of them would be out there. So I don’t understand why this time we’re triggering this and other times we haven’t triggered this same idea. It’s just interesting to me. MR. ABBATE-Okay. All right, gentlemen. My position, each of you made some excellent points, and I must admit that when I first reviewed this, I was in awe, and I’m saying, my goodness, the original camp was 852 square feet and now they want to go up to 3,000 square feet, wow, in addition to the fact that it’s a nonconforming structure, but as several Board members this evening have pointed out, there is a consideration, and it’s this. Under our Ordinances, the individual could construct a home up to 8,000 square feet. MR. UNDERWOOD-On a blank lot. MR. ABBATE-On a blank lot, and there is an approval. I don’t know how it was done, but I can assure you I researched it out and it is accurate. There is an approved septic system for a five bedroom home that was approved by the Town of Queensbury, which is located further east on an adjacent parcel owned by Mr. Teele. My feeling is that when we take a look at the balancing test, I’m going to have to come down with Mr. McNulty, Mr. Underwood and Mr. Urrico and say that, under these rather unique circumstances, that I would probably support the application. Having said that, we’re going to move on now. The public hearing is now closed for Area Variance No. 65-2006. PUBLIC HEARING CLOSED MR. ABBATE-Gentlemen, I am requesting we have a volunteer for a motion for Area Variance No. 65-2006. MR. URRICO-I’ll take it. MR. ABBATE-Yes, sir, please. 51 (Queensbury ZBA Meeting 11/15/06) MOTION TO APPROVE AREA VARIANCE NO. 65-2006 BROOKS TEELE, Introduced by Roy Urrico who moved for its adoption, seconded by Charles McNulty: 10 Fishing Hole Loop, Kattskill Bay. The applicant has proposed the construction of a 568 square foot second story addition to an existing 2,434 square foot single family dwelling, totaling 3,000 square feet. In doing so, the applicant requests relief to exceed the maximum aggregate of 50% of Floor Area, prior to the first enlargement of a single family dwelling per 179-13-010 for a nonconforming structure. The applicant in making this request, we’ve reviewed the balancing test, and I think the benefit could be achieved by other means feasible to the applicant if he wasn’t looking to expand. If he’s looking to expand, there would be no other way to achieve this benefit. So I think that he does need this benefit in order to get the benefit he so desires. As far as an undesirable change in the neighborhood character, or to nearby properties, I think this would not affect that in either way, because as stated earlier, it will not exceed the footprint. It’s well within the character of the neighborhood in that respect, that it’s not too large for the piece of property. The request is substantial when compared to the Ordinance, which is based on the original size of the camp which was about 850 square feet, but if this lot, if this were not the case, they would be able to build, or start from scratch, and build something that would be more than two times the size of what they’re requesting even as an aggregate, and, yes, the alleged difficulty is self-created, but I move that we approve this Area Variance. th Duly adopted this 15 day of November, 2006, by the following vote: MR. UNDERWOOD-Do we want to put the condition on of co-joining the two lots so that the septic system? MR. URRICO-But the septic system’s not part of what we’re being asked to approve. MR. UNDERWOOD-Sure, but I mean we can put that on as a condition. I mean, I would think that would be in your interest, too. MR. TEELE-I’ve been paying taxes on the lot. It’s very substantial. MR. URRICO-What do you guys think? MR. ABBATE-It’s your call. I’m going to raise the issue. Normally I’ll come out fighting on this thing, but I’m unsure of the law on this thing, and that’s why I want to raise the issue tomorrow. I’ll be honest with you. I’m unsure of whether it must be consolidated. I don’t know. MR. UNDERWOOD-I’m guessing if you consolidate the lot so your taxes would probably go down, too, because it’s not a buildable lot at that point. MR. URRICO-I just don’t think it’s germane to the issue right now. MR. UNDERWOOD-I agree. MR. URRICO-Okay. Then I stand. AYES: Mr. Underwood, Mr. McNulty, Mr. Urrico, Mr. Abbate NOES: Mr. Bryant, Mr. Garrand ABSENT: Mrs. Hunt MR. ABBATE-The vote for Area Variance No. 65-2006 is four yes, two no. Area Variance No. 65-2006 is approved. AREA VARIANCE NO. 66-2006 SEQRA TYPE: UNLISTED BBL, INC. QEDC PARCEL AGENT(S): JONATHAN C. LAPPER, ESQ. AND JIM MILLER OWNER(S): QUEENSBURY ECONOMIC DEVELOPMENT CORP. ZONING: MR-5 LOCATION: OFF LUZERNE ROAD APPLICANT PROPOSES CONSTRUCTION OF AN 84,000 SQ. FT. OFFICE BUILDING. RELIEF REQUESTED FROM MAXIMUM PARKING REQUIREMENTS FOR AN OFFICE USE AND FROM THE MINIMUM ROAD FRONTAGE REQUIREMENTS FOR A PRINCIPAL BUILDING. CROSS REF.: N/A WARREN COUNTY PLANNING: NOVEMBER 8, 2006 LOT SIZE: 6.9 ACRES TAX MAP NO. 309.10-1-82, 83, 84 SECTION: 179-4-040; 179-4-090 52 (Queensbury ZBA Meeting 11/15/06) JON LAPPER & JIM MILLER, REPRESENTING APPLICANT, PRESENT MR. BRYANT-Mr. Chairman, I’m going to have to recuse myself from this one. STAFF INPUT Notes from Staff, Area Variance No. 66-2006, BBL, Inc. QEDC Parcel, Meeting Date: November 15, 2006 “Project Location: off Luzerne Road Description of Proposed Project: Applicants propose construction of an 84,000 sq. ft. office building with associated site work including 425 parking spaces. Relief Required: The applicants request relief from the maximum parking requirement for an office (1 per 300 sq. ft. of gross leasable floor area), per §179-4-040. Specifically, 280 are required, with an additional 56 allowed (25% overage), totaling a maximum of 336 spaces, thus relief for 89 additional parking spaces is required. Relief from the required minimum 40-foot of road frontage for a principal building is also required, per §179-4-090. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be able to construct an additional 89 parking spaces on their site. Applicants would be able to access a lot that presently does not have frontage on a public road. 2. Feasible alternatives: Feasible alternatives could be explored during site plan review. 3. Is this relief substantial relative to the ordinance?: The request for 89 additional parking spaces could be deemed considerable relative to the ordinance (26.5%). The 40-feet of relief required from the minimum 40-feet of road frontage for a principal building is substantial (100%), however future development of the proposed connector road would remedy the need for the variance. 4. Effects on the neighborhood or community: Effects on the neighborhood or community could be explored further during site plan review. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): None Staff comments: This request is a SEQR Unlisted Action and the project is subject to site plan review. In similar instances, the Zoning Board has requested that the Planning Board conduct a SEQR coordinated review. The Board could consider requesting coordinated review, and that the Planning Board seek lead agency status (there may be other involved agencies) and issue a SEQR determination prior to consideration of the variances. Possible feasible alternatives to either or both of the variances and any potential impacts to the neighborhood or community could be explored during the Planning Board’s review of the total project. SEQR Status: 53 (Queensbury ZBA Meeting 11/15/06) Unlisted” MR. UNDERWOOD-“ Warren County Planning Board Project Review and Referral Form November 8, 2006 Project Name: BBL, Inc. QEDC Parcel Owner(s): Queensbury Economic Development Corp. ID Number: QBY-06-AV-66 County Project#: Nov06- 15 Current Zoning: MR-5 Community: Queensbury Project Description: Applicant is proposing construction of an 84,000 sq. ft. office building. Relief requested from maximum parking requirements for an office use. Site Location: Off Luzerne Road Tax Map Number(s): 309.10-1-82; 309.10-1-83; 309.10-1-84 Staff Notes: Area Variance: The applicant proposes to construct a two story structure containing 84,000 sq. ft. between the two floors. The building limits the parking to 336 spaces where the applicant proposes to have 425 spaces. The plans show the location of the building and the parking arrangement with landscaping information. The landscaping data indicates the applicant proposes 10.76% where only 10% is required. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. Warren County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 11/9/06. MR. ABBATE-Gentlemen, I see that you are already at the table. Would you folks be kind enough to identify yourself and your relationship with Area Variance No. 66-2006. MR. LAPPER-For the record, I am project attorney Jon Lapper. On my right is Jay Hopeke, from BBL, and on my left is Jim Miller, Landscape Architect, Miller Associates. Given the hour, we’ll try to be brief, although this is a significant project and potentially very significant for the region, because of the number of jobs. In general, I guess, let me address the access issue first, because that’s really a very temporary issue. Just to bring you up to speed, what you can see on the map at the bottom is the new roadway which has not yet been constructed, and next to that is the EMS, West Glens Falls EMS which is presently under construction, and then Luzerne Road to the left. Title to the road bed has already been conveyed to the Town of Queensbury. They’ve hired Barton Loguidice Engineering firm to do all the design of the road, and the road construction is out to bid right now. The Supervisor told me this week that they anticipate that the road will be constructed in early Spring because they’ve told EMS that it’ll be ready for them for Spring access. So while right now this parcel doesn’t have road frontage, this whole parcel was put together as an economic development project to use this corridor for job creation activities and in order to aid the reconstruction of Main Street and create a traffic light on the other end of the road to get people over to the west side of the Northway. EMS had to be located because they were blocking that access. So this is all part of a long term project that’s been going on for a few years that’s about to come to fruition. So that the variance for the lack of 40 foot of road frontage right now could be characterized as just temporary until the Town constructs that, which should be certainly in 2007 and probably in early 2007. In terms of the parking variance that we’re really here to talk about, this has come up in other instances lately. In this particular case, it’s about the requirements for office use, and under the Town Code it’s one space per every 300 square feet. For a professional office, and not my professional office because we don’t have 300 square foot offices, but I can envision more of a traditional office building would have 300 square feet per employee, but these days most people have cubicles that are fortunately or unfortunately far smaller than that. So it’s just, with the 84,000 square feet of building that’s planned, there’s going to be more people than one for every 300 square feet. I would think that this variance could be considered significant if there was a green space problem, if we were trying to sacrifice green space for parking, but that’s not the case here. What’s proposed is to comply with the green space requirement and also to provide the parking. So, for that reason, it’s just a matter of meeting the needs of this tenant and the needs for parking without an impact on the neighborhood because the green space is being provided, and it’s unique to this tenant because it’s cubicles in this space, but in terms of the bigger picture, this is next to a NiMo right of way, National Grid right of way, which is next to the Northway, an area designated for office or industrial development, under utilized parcel that was really created by taking a little piece from the cemetery, a little piece behind EMS and knocking down a couple of houses on Luzerne Road near the Transfer station. So it’s really creating somewhat of a jewel for economic development out of some pretty marginal properties, and for that reason I don’t think that there’s an impact. I’d just like to ask my colleagues if they’d like to add anything at this point. MR. MILLER-I believe Jon’s addressed everything. MR. ABBATE-Okay. Then let me continue on. Gentlemen of the Board, do we have any questions for 66-2006? 54 (Queensbury ZBA Meeting 11/15/06) MR. URRICO-The proposed 425 parking spaces, does that include the 43 parking spaces that are going to be part of the proposed Park & Ride? MR. LAPPER-No. Those are on Town property. MR. URRICO-Okay. So that’s not yours. MR. LAPPER-That’s not. MR. URRICO-Okay. MR. GARRAND-I have a question. Lot 80 and 81also known as the two properties in the front fronting Luzerne Road, are there still homes on those properties? MR. MILLER-I believe there is, yes. MR. LAPPER-Are those on the top of the map? MR. GARRAND-Yes. MR. LAPPER-Yes. MR. GARRAND-Okay. Because those are the homes I’m thinking of, those residents have been before this Board before and, you know, they’ve expressed concern about development. What impact is standing water going to have behind their property? MR. MILLER-The stormwater basin, obviously we’re early in the project here. We have well drained sands in this particular case, and our plan is that the area is designated as a stormwater basin. It’s basically going to be a dry basin. During periods of rain, rainwater will be in there for probably less than a day, and there’ll be, an infiltration system will be installed under the parking lot so the water will tend to drain at those basins and then drain, you know, for pre-treatment to meet DEC requirements and then will be infiltrated into the ground. So that’s sort of a temporary holding basin. For the majority of the time, that’s going to be mowed grass. MR. GARRAND-Okay. So another concern I have is this water won’t be leaching into the groundwater and filling up the neighbors’ basements at all? MR. MILLER-No, because what occurs now, we’re not, the development won’t increase the amount of water, and what happens now is any storms occur in this area, it’s so well drained everything’s soaking into the groundwater. So our plan is essentially do the same thing. Our roof water, as well as the parking lot water will be distributed fairly evenly across the site by having these infiltrators under the pavement. So the idea is to basically mimic what happens now, and infiltrate it. We’re not going to take it and concentrate it into that basin. It’s going to go into that basin and then it will be distributed back under the parking areas. MR. GARRAND-Okay, because my concern is once we put in a building and a parking lot like that with all those extra parking spaces, what you’re going to get is a lot less permeable area, a lot less vegetation to soak up that water. My primary concern is standing water for those residents that are going to remain there, and I don’t want to see, you know, six months after the project’s complete them come to us and say, hey, we’ve got water in our basements now. MR. LAPPER-Rick, this is much like at Aviation Mall, because the ground conditions are similar, where you have real sand. So by putting infiltrators under the parking lot, like we did at the Mall, it’s going to, what Jim was saying, it’s going to keep it out of the basin. So a lot of the water’s going to go right into the ground before getting into the basin. So it’ll keep it away from the neighbors, but certainly the soil can accommodate that type of a drainage system. MR. MILLER-The other thing is this’ll fall under the new DEC Stormwater Pollution Prevention Plan requirements which means any stormwater we have to pre-treat. That’s why we have to have some open basins to allow the water to stand, to allow sediments to filter out before they go into the infiltrator. So that’s why we have some open basin, but what’s required by DEC is that we have to contain on site, it’s 100 year storms. We can’t increase the runoff from our site. So the way we’ve got to do it with these sands is put it back into the ground the way it occurs now. 55 (Queensbury ZBA Meeting 11/15/06) MR. GARRAND-Okay. Thank you. MR. ABBATE-Gentlemen, any other questions? MR. MC NULTY-Will this basin be fenced, fence around the basin? MR. MILLER-Well, we haven’t gotten that far. Like I said, it’s not going to be standing water. I mean, if that’s a requirement that they want that fence, I mean, we certainly would do it. MR. LAPPER-That would generally be a Planning Board issue. So it can be. Yes. MR. MC NULTY-Yes. I asked mainly as effecting the character of the neighborhood, thinking the neighbors, again, if they had kids, you know, if it’s a basin, that suggests that you are expecting standing water at some point, maybe not for a long period of time. MR. LAPPER-Well, because it’s mowed, because it’s grass and it’s mowed, usually if the slope is gentle, we’re not asked to fence it these days, and if the slope is more dramatic, it is fenced. MR. MILLER-Well, one of the things, DEC’s requirements are pretty specific, that whenever there’s a pond, you have to provide what’s called a safety bench so there’s sort of a flat area around any water. So it’s not like a steep bank someone would slide down into, but, you know, we haven’t really gotten that far. There’s buffers, planted buffers that are required along the adjacent properties. So I would envision our final plans will have landscaping along the rears of those properties, in addition to any fencing or anything that the Planning Board feels they would want to see. MR. LAPPER-Excuse me. If the Planning Board wants a fence, we’ll agree to a fence. That’s not a problem. MR. UNDERWOOD-I had a question. Who’s going to be going into it? MR. LAPPER-Well, there’s an option agreement to purchase the property, and the deal is not yet set. So we’re anticipating that there’ll be an announcement within a month. MR. UNDERWOOD-Are you guys going to just be building the building and then selling it to whoever is moving in? Essentially, is that how it’s going to work? JAY HOPEKE MR. HOPEKE-Right now we have just a design build arrangement that we have with the client. So the terms of that, again, we just can’t disclose at this point now, but it’s being constructed specifically for a client. MR. UNDERWOOD-Yes. I assume that presently that client has its units scattered around Town and they want to consolidate in one building? That’s my understanding of the project. MR. HOPEKE-Correct. MR. UNDERWOOD-So, you know, it’s understandable. I’m just wondering if the Planning Board’s going to be upset with the number of parking cars coming in and out every day, if that’s going to trigger anything in their minds. MR. LAPPER-Well, my answer to that would be that there’s going to be a traffic light, well, there’s going to definitely be a traffic light on Corinth Road, and the Town was looking at whether they needed a traffic light on Luzerne Road, but that’s a Town project, to build that road. MR. UNDERWOOD-I mean, I would think that would be logical if you’re going to, you know, generate that much traffic, in anticipation of why they were building the connector road was to allow for a free flow traffic north/south. So it does make sense in that. MR. LAPPER-Yes, exactly. I know, Barton & Loguidice did do a traffic analysis for that cut through, and what I recall is that they wanted to get the road in before the new Main Street project happened, because they said that 15% of the traffic could be alleviated from Main Street during construction because it’s people that want to get to the west side 56 (Queensbury ZBA Meeting 11/15/06) of the Northway, and this would be a way to quickly do that. It parallels Pine Street, but it’s just for people going west it’s more convenient. So really this is intended as a bypass road and there really isn’t a lot of residential traffic right here that would be messed up with it. MR. ABBATE-Mr. Urrico had something he wanted to say. MR. URRICO-Is it anticipated that this road, this project will be completed before the road is complete? MR. LAPPER-No. The road’s going to happen this Spring. MR. URRICO-If there’s a delay on the road project, what happens? MR. LAPPER-Then the applicant would have to construct the road, they would have to construct the road is the simple answer. MR. URRICO-Where would they do that? MR. LAPPER-Well, the Town’s already committed to, they’ve funded the road. I mean, the Town owns the road bed, and this will be a year construction project, for the house. EMS is already on that road. MR. URRICO-And then my other question was, have there been studies, you mentioned one per three hundred square feet of gross leasable floor area is no longer a valid measurement. Are there any studies, any statistics on this? MR. LAPPER-I didn’t mean to say that so black and white. It depends on the nature of the office. This is just a, in Queensbury, that’s a standard number for office, and I would say that there are some offices where 300 might be appropriate, but for this type of business where you have people in cubicles, they just don’t get that much space, but I do know that the issue of parking is something that the PORC Committee is looking at and that the Town Board members are talking about, that it needs to change, that the Ordinance needs to have more flexibility. MR. URRICO-But we’re building this basically for one type of tenant, and there are a lot of tenants in Town that have similar populations of employees and still manage with a lot less parking. MR. LAPPER-Well, in this case, there’s not on street parking here. There are not adjacent lots where people can park. So if you’ve got 400 employees, you need 400 spaces. In some places you could have shared parking concepts. MR. URRICO-Travelers has, what, 300 employees, 200, 250, and they accommodate that. Home Depot nearby and there’s another place behind it. MR. LAPPER-Yes, they do have enough parking, though, the Travelers, for their employees. MR. MILLER-And they have the ability to share, too. We’re isolated here, and if we didn’t have enough, we’d be parking in that new road. It’s been my experience, after doing a number of projects, in different towns, also, is that the parking requirement for office varies quite a bit, and, you know, some towns it’s as much as one parking space per 150 square feet, which is twice as high as Queensbury. Most are one per two hundred. So one per three hundred is really low, and what I’ve found is, especially in medical facilities, it’s not adequate, and so, you know, like Jon said, if you have a traditional office, a smaller attorney’s office, where you have an attorney and secretaries with larger offices and conference rooms, that works out fairly well, but in a situation like this where it’s mostly people working at a desk, without a lot of conference room and common facilities, it’s a low requirement. MR. URRICO-But I think what we’re trying to avoid is creating this massive blacktop areas in a Town known for natural beauty as well. MR. LAPPER-Well, and that’s mitigated partly by Jim’s design with all of the trees in the parking lot. MR. URRICO-It helps somewhat, but it still doesn’t eliminate the blacktop, you know, it’s still there. 57 (Queensbury ZBA Meeting 11/15/06) MR. UNDERWOOD-I had a question also, as a follow-up to that. If you consider, I don’t know why they picked this site. Could you give us some background on that? MR. LAPPER-That is because the site was acquired by Queensbury Economic Development Corp., a not for profit entity, that, because the City did the Veterans Field industrial park, first of all, and this was a desired connector road to get truck traffic, to get traffic to the Glens Falls industrial, Veterans Field industrial park off of Exit 18. So this is a way to relieve congestion both for traffic that’s going to that future industrial park over by the West Glens Falls Firehouse, and as an economic development opportunity for QEDC, in an area where it’s always determined that there’s not enough industrial and office development in Queensbury. It’s mostly residential. There’s the IDA park by the airport is starting to get filled up. The Carey industrial park has a few lots. So it’s always, there’s always been, it’s been viewed as having a lack of industrial and office lots, and this was viewed as something where you wouldn’t have impact on residents because there’s not a lot of residents here, and it’s a way of both alleviating that traffic congestion issue and creating what originally was about 10 acres for development, but then in order to move EMS and then create a Park & Ride, that took some land. So this is basically the only piece that was left, but it was intended for this purpose. MR. UNDERWOOD-I just thought it would be a vast amount of tarmac over at K-Mart, why wouldn’t you go over there? MR. LAPPER-That’s interesting, because we always talk about K-Mart, and that’s where they were allowed seven per thousand, which is, you know, the Mall has four per thousand. I mean, they so over build parking, and the reaction of that was to be more stringent with the Queensbury Codes, and they were wrong. I mean, obviously those spaces never get used, but this is a case where you’re going to have good paying jobs and there’s a need for these spaces. So it’s not going to be a sea of asphalt. It’s going to be a sea of, you know, cars for employees, but, you know, what you’re looking at here when you go off the Northway, you’re looking at a power transmission corridor, which isn’t particularly attractive. This will be a well designed, well landscaped, you know, pretty fancy office site. It’s not like a metal building, but it’s really the jobs. That’s what this is about. MR. URRICO-But they also have access to mass transit. There’s a bus stop right next to it. The bus lines run through there. I mean, what we call mass transit in this area, so there is some mitigation here as opposed to the airport site we talked about not too long ago, where that’s sort of off the beaten path. MR. LAPPER-Very simply, the tenant has said that this is there, that in order for them to do the deal, they need to have, there’ve been other municipalities that were competing for this tenant in the Capital District and elsewhere, and the tenant has said these are their requirements, that they’d like to have a presence, they’d like to have a building that, with their logo that would be their building, and in order to do that, they need to have this many spaces so that each of their employees can have a spot, that in order for them to take this site, that’s their requirement, and I think the argument is that it’s important enough to retain this many jobs, good paying jobs, in the region. MR. ABBATE-Gentlemen, any other questions? Okay. Well, let me continue here. The public hearing is going to be open for Area Variance No. 66-2006. I see no one in the public, but I’ll ask the question anyway. Is there anyone in the public who would like to address this issue? PUBLIC HEARING OPENED MR. ABBATE-I see no hands raised, so I’m going to continue on. Gentlemen, I’m going to ask members to please offer their comments on Area Variance No. 66-2006. Do we have a volunteer? MR. UNDERWOOD-I think as far as it goes, I can go along with the request. I don’t know what’s going to happen to you in site plan review, if they’re going to raise red flags or throw up road blocks, but it makes sense to me. It’s way over the top as far as parking goes, but, you know, who knows how many people are going to be driving 20 years from now. Maybe we’ll all be on mass transit, who knows, but the request is substantial, but it’s not unreasonable, based upon your arguments to the fact that 300 square feet of office space is the norm in this day and age, and I also understand that. As far as the relief for the second part of it, the road frontage, it appears that once the connector road 58 (Queensbury ZBA Meeting 11/15/06) is built that’s going to be a moot point, and you guys aren’t going to be undertaking construction most likely until Spring anyway. MR. LAPPER-Correct. MR. UNDERWOOD-Are you guys going to totally take down every tree on that lot when you do it, do you think, or are you going to try and save some of the mature trees? I would think it would be a plus if you did that. I mean, I don’t know how easy it is to do it when you’re putting in your drainage tile and everything else, it’s tough. MR. MILLER-We’ll try to do it as much as possible. It becomes a question of the grading, but unfortunately a lot of times what happens is, you know, when you get out on a site like that, there’s a lot of trees. When you start looking at them individually, they’re not that nice, and a lot of times it ends up, we’re required to put 10% of the parking area into planted islands. So if any existing trees could be saved, we could adjust the islands as much as we could to try to save those. MR. UNDERWOOD-I would just think it would be a bonus for you guys. It would make, you know, instead of having a bald site, you know, with a brand new building, you know, it’s going to enhance it and make it look it’s been there for a while. MR. MILLER-You’re absolutely right. We would definitely try to do that if we could. MR. ABBATE-Okay. Gentlemen, Mr. Garrand, would you like to take a crack at it, please. MR. GARRAND-Well, in this day and age, like Mr. Underwood said, who’s to say how many parking spots we’re going to need down the road. The request does seem a little high, but I don’t think it’s completely unreasonable, relative to what we’ve granted before. As far as an undesirable change in the neighborhood, I think that, you know, site plan review will have a better idea than I will. The request might be substantial, but like I said before I’m not one to say how many parking spaces this business will need, you know, how many visitors they’re going to have there, people coming and going during the day, deliveries, God only knows. Is the difficulty self-created? Probably not. You’ve got to gauge this relative to what the business community wants. So I’d be in favor of this project at this point. MR. ABBATE-Thank you very much. Gentlemen, do we have someone else who’d like to volunteer? Chuck, would you take it for me, please. MR. MC NULTY-Sure. I guess I’d be reluctantly in favor. A couple of things that bother me about requests of this sort. One is no real mention of any attempt to use mass transit or encourage its use, or to encourage carpooling, or to encourage the use, even, of bicycles, and all those things are kind of nebulous, but I think a company that comes in and asks for a real jump in the number of parking spaces available ought to be saying we’ve looked into this and that and I think if we continue to get these we ought to start leaning on them to do that kind of thing. On the other hand, as I made the point to the PORC Committee not too long ago, we’re getting a lot of requests in for going both directions on parking, both higher than and lower than what the Town requires, and I think in most part it makes sense to rely on the applicants. I don’t think they’re going to spend more money than they absolutely need to on paving. It’s an expensive proposition. So, on that basis, on the question that’s really before us, the parking spaces, I would think I would be reluctantly in favor. I really would like to see a fence around that holding pond, looking at the character of the neighborhood and how it’s going to affect neighbors. If you’re going to have standing water, and we require people to fence swimming pools, I don’t see any reason why we shouldn’t also require them to fence a holding pond, even though it’s going to have water in it only maybe two days a year, but, anyway, reluctantly in favor. MR. ABBATE-Okay. Sue, would you please ensure that the minutes of this meeting get to the Chairman of the Planning Board, please. Thank you. MR. UNDERWOOD-The only other suggestion I would make, too, looking at your forefront where you have your bus stop, Jim, you know it’s way over to one side. Those are things that you can kind of like, even though we’re not in that mindset yet, you know, in the future if we’re going to use mass transit, keep it as close to the building so people are not reluctant they have to walk to the far side of the parking lot to get on the bus. 59 (Queensbury ZBA Meeting 11/15/06) MR. MILLER-What we’re trying to do there, Jim, is, that parking lot, those 42 spaces part of the Park & Ride is part of the DOT grant to the Town, and they require that the bus stop and the bus shelter is located right there at the Park & Ride because it’s part of that project, so what we’ve tried to do, in working with that, is provide a walkway over to the building. It is a little bit of a walk, but we’ve tried to make an attempt to share that bus stop so that mass transit would be available, but it’s one of those things that it’s hard to predict how many people will use it. MR. UNDERWOOD-Sure. MR. ABBATE-Mr. Urrico, please. MR. URRICO-Yes. I’m going to do a Chuck McNulty here and think out loud. I’m probably going to be in favor of it, but I do have some concerns. One, I feel that this is another step in the area selling its environmental soul for some economic exchange, and I think we have to be very, very careful when we start expanding these parking lots, because we’ve done it for one. Now we’re doing it for another, and this is going to become the request that everybody makes, and parking lots have their own, they have their own failings. They have their own problems. So we have to be very careful about that. I would reluctantly go along with it, based on what seems to me is a sound development, but I do have one condition. I don’t know if we need to make it or not, but I would not want to see any of the tenants of this building occupying that Park & Ride, and that would be a, you know if they were filled or they, you know, it wasn’t plowed out or something, they might want to go there, but there are people that would use that parking lot. MR. LAPPER-That wouldn’t be right. So we have no problem with that. I can offer something by way of compromise. We’ve talked about it outside. Because the final architectural plans of the building are just being done, it’s possible that at the end of the day that it’s going to be 83,000 or 82,000 square feet, and Jim ran the calculation that it would be one space for one hundred and seventy-five square feet. So that if it turns out that the building’s smaller, if you were to approve the variance in that way, at least if the building gets smaller, the parking would get smaller, because we don’t need those 89 spaces if the building is a little smaller. So maybe that’s another way you could look at it, it’ll make you feel more comfortable. MR. URRICO-Okay. MR. ABBATE-There is rationale for each of the positions stated by the Board members this evening, no question about it, and there were certainly some interesting points that are now on the record, and that I will again ask Staff to bring to the attention of the Chairman of the Planning Board the minutes of this meeting. I, too, am reluctant, but I realize what life is all about. I understand that this went out for bidding, and we can’t, again, I use the word draconian approach. So I would also reluctantly support the application. Having said that, I’m going to close the public hearing for Area Variance No. 66-2006. PUBLIC HEARING CLOSED MR. ABBATE-And we have an Unlisted, Mr. Secretary. Would you like to read it, or would you prefer I do it? MR. UNDERWOOD-You can do it. MR. ABBATE-Or, Chuck, you can do it, if you’d like. I don’t care. Great. Thank you. MR. MC NULTY-Okay. Short Environmental Assessment Form. The applicant is Queensbury Economic Development, BBL. MR. LAPPER-The applicant is BBL. The owner is QEDC. MR. MC NULTY-Okay. The applicant is BBL with the owner being Queensbury Economic Development. The location is off Luzerne Road. Proposed Action is new. It’s going to accommodate a new local business, initially seven plus acres, and it’s not going to comply with zoning completely. It requires relief from the parking requirement, commercial project. It’s going to be adjacent to the EMS building. It does not involve a permit approval, and it doesn’t currently have a valid permit or approval, and as a result of the proposed action, will existing permit approval require modification? The answer to 60 (Queensbury ZBA Meeting 11/15/06) that is no. And the questions for this Board to answer is Does the action exceed any Type I threshold in 6NYCRR Part 617.12? And I think the answer is no. MR. ABBATE-Agreed. MR. MC NULTY-Will the action receive coordinated review as provided for Unlisted actions in 6NYCRR Part 617.6, and I think we’ve decided no since we’re reviewing this. MR. ABBATE-Agreed. Could the action result in any adverse effects associated with the following: Existing traffic air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems? I think we can say no there, given the mitigating measures that have been described. MR. ABBATE-Agreed. MR. MC NULTY-Aesthetic, agricultural, archeological, historic or other natural or cultural resources or community or neighborhood character? No. MR. ABBATE-Agreed. MR. MC NULTY-Vegetation or fauna, fish shellfish or wildlife species, significant habitats or threatened or endangered species? I think again no, as far as we know. MR. ABBATE-Agreed. MR. MC NULTY-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? No, other than the obvious development of this parcel. MR. ABBATE-Agreed. MR. MC NULTY-Growth, subsequent development, or related activities likely to be induced by the proposed action? I don’t believe so. MR. ABBATE-Agreed. MR. MC NULTY-Long term, short term, cumulative, or other effects not identified in C1. through C5.? I don’t believe there are any. MR. ABBATE-Okay. Agreed. MR. MC NULTY-Other impacts? I don’t believe there’s any other. MR. ABBATE-Agreed. MR. MC NULTY-Is there, or is there likely to be controversy related to potential adverse environmental impacts? I don’t believe so. MR. ABBATE-Agreed. MR. MC NULTY-And therefore we can determine it’s not likely there’s going to be any adverse environmental impacts. MR. ABBATE-Okay. THERE IS AN ENVIRONMENTAL ASSESSMENT FORM PROVIDED BY THE APPLICANT INDICATING THAT THERE ARE NO SIGNIFICANT NEGATIVE IMPACTS CAUSED BY THIS PROJECT, AND, UNLESS THERE IS A CHALLENGE FROM MEMBERS OF THE BOARD, I ACCEPT THAT BASIS IN ANTICIPATION OF NO NEGATIVE RESPONSES. AS SUCH, I MOVE THAT THE ENVIRONMENTAL ASSESSMENT FORM BE APPROVED., Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. McNulty, Mr. Garrand, Mr. Underwood, Mr. Urrico, Mr. Abbate NOES: NONE 61 (Queensbury ZBA Meeting 11/15/06) ABSENT: Mr. Bryant, Mrs. Hunt MR. ABBATE-The vote is five yes, zero no. In a five yes, zero no, the Environmental Assessment Form is approved. The public hearing is closed. Gentlemen, I know it’s a late hour, but I’m going to ask you for a motion for Area Variance No. 66-2006. MOTION TO APPROVE AREA VARIANCE NO. 66-2006 BBL, INC. QEDC PARCEL, Introduced by Richard Garrand who moved for its adoption, seconded by Charles McNulty: Off Luzerne Road. The applicant proposed construction of an 84,000 square foot office building with associated site work including 425 parking spaces. The applicant requests relief from the maximum parking space requirement for an office, one per 300 square foot of gross leasable floor area per sub Section 179-4-040, specifically 280 spaces are required with an additional 56 allowed, 25% average totaling a maximum of 336 spaces. Thus relief for 89 additional parking spaces is required. Relief from the required minimum 40 foot road frontage for a principal building is also required as per Section 179-4-090, subject to the road being installed adjoining the property. Can the applicant achieve benefits by any other means feasible? I don’t believe so. The applicant needs additional parking space, and the only way to get that is through an Area Variance. Will this result in an undesirable change in the neighborhood character or to nearby properties? No. This area is basically MR-5 zone. I don’t believe it’s going to change anything about this neighborhood. Is the request substantial? It may be deemed substantial, but in lieu of what the company needs for their parking, yes, we can call it substantial. Will the request have adverse physical or environmental impacts? At this point we did the environmental SEQRA form. We don’t believe it will have any adverse environmental impact. Is the difficulty self-created? Well, relative to the zoning, it’s basically what the applicant needs. They need additional parking. Projected parking is needed. I don’t believe it is self-created. I believe it’s a need of the business community at this point. At this point I don’t see any feasible alternatives for the applicant. With the condition that the Park and Ride not be used for overflow parking by the tenants or any kind of parking. th Duly adopted this 15 day of November, 2006, by the following vote: AYES: Mr. Underwood, Mr. Urrico, Mr. McNulty, Mr. Garrand, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant, Mrs. Hunt MR. ABBATE-The vote for Area Variance No. 66-2006 is five yes, zero no. Area Variance No. 66-2006 is approved. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 62