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2007-01-17 (Queensbury ZBA Meeting 01/17/07) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JANUARY 17, 2007 INDEX Area Variance No. 49-2006 Peter Mitelman 1. Tax Map No. 302.7-1-39 Area Variance No. 81-2005 Steve & Debbie Seaboyer 2. Tax Map No. 227.13-2-36 Area Variance No. 1-2007 Frank Jelley 3. Tax Map No. 279.19-1-4 Use Variance No. 2-2007 Paul Kruger 13. Tax Map No. 296.20-1-18 Area Variance No. 3-2007 Laura and James Colvin 28. Tax Map No. 309.15-1-27 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 01/17/07) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JANUARY 17, 2007 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ROY URRICO JOYCE HUNT ALLAN BRYANT CHARLES MC NULTY JOAN JENKIN, ALTERNATE MEMBERS ABSENT RICHARD GARRAND LAND USE PLANNER-SUSAN BARDEN TOWN COUNSEL-FITZGERALD, MORRIS, BAKER FIRTH-MATT FULLER STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE- Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated January 17, 2006. Prior to setting this hearing in motion, I would like 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. Having said that, there are several administrative actions I want to take this evening. 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 REQUESTED. WARREN COUNTY PLANNING: N/A LOT SIZE: 9.06 ACRES TAX MAP NO. 302.7-1-39 SECTION 179-5-060 MR. ABBATE-The first one I would like to bring to the attention of the public that the one case that we have here dealing with Mitelman, and that is Area Variance No. 49-2006, Peter Mitelman. I wish to advise those in the public who are interested in that particular case that Mr. Mitelman has in fact withdrawn the application. So since this is an administrative procedure, there’s no further action on our part. So, again, Area Variance No. 49-2006, Peter Mitelman, has been withdrawn. The second I wish to do before we th get started this evening is go over the minutes, if you will, of the September 20, thth approval of September 20, 27, and October the 18, 2006 meeting minutes. APPROVAL OF MINUTES September 20, 2006 1 (Queensbury ZBA Meeting 01/17/07) MOTION TO APPROVE THE MINUTES OF SEPTEMBER 20, 2006 QUEENSBURY ZONING BOARD OF APPEALS MEETING, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Underwood, Mr. Abbate NOES: NONE September 27, 2006: Correction to minutes; Page 32, section where Mr. McNulty gives comment, middle of page, should be more than adequate access, not more inadequate access MR. ABBATE-Maria, will you make that correction, please, and then, do me a favor, please. Once the correction is made, would you provide copies to each of the Board members, as well as the Town Attorney. MS. GAGLIARDI-Sure. MR. ABBATE-Thank you, Maria. MOTION TO APPROVE THE MINUTES, WITH CORRECTION, OF SEPTEMBER 27, 2006 QUEENSBURY ZONING BOARD OF APPEALS MEETING, Introduced by Charles Abbate who moved for its adoption, seconded by Allan Bryant: th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Abbate NOES: NONE October 18, 2006 MOTION TO APPROVE THE MINUTES OF OCTOBER 18, 2006 QUEENSBURY ZONING BOARD OF APPEALS MEETING, Introduced by Charles Abbate who moved for its adoption, seconded by James Underwood: th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Bryant, Mr. Urrico, Mr. Abbate NOES: NONE MR. ABBATE-Okay. Having gotten that out of the way, I would like to read into the record a facsimile that I received. I received a facsimile from Jon Lapper, who is an attorney for Steve and Debbie Seaboyer. That’s Area Variance No. 81-2005, and the reasons follow. “Dear Chairman Abbate: Please be advised that our office now represents Steve and Debbie Seaboyer with regard to their development of the property located at 83 Rockhurst Road. On February 15, 2006, the Zoning Board of Appeals granted the following area variances: 1. 6.7 relief for a front setback where 30 feet is the minimum; 2. Shoreline setback relief of 16.1 feet where 15 feet is the minimum; 3. Side setback relief of 12.4 feet for the south side where 20 feet is the minimum; 4. Side setback relief of .7 feet for the north side where 20 feet is required; and 5. Floor area relief of 9% where 22% is required. Due to the fact that the Seaboyer’s have been unable to act upon these variances, because the Planning Board has tabled the Site Plan Review, we hereby request that these variances be extended for another year. Please place this matter on your January 24, 2007 agenda because the one year period will expire prior to your February meetings. If you need anything further in order to adjust this request, please feel free to contact me. Very truly yours, Jonathan C. Lapper” I’m going to move a motion that we approve it. What we basically will do, if this is approved with a second, is that we’re merely extending the State of Limitations that’s going to be expiring, and we’re, as a courtesy, merely extending for one more period exactly what we provided for before. So, I’m going to move a motion that we honor the request that we extend this for a one year period. MOTION TO EXTEND AREA VARIANCE NO. 81-2005 STEVE & DEBBIE SEABOYER FOR ONE YEAR, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 2 (Queensbury ZBA Meeting 01/17/07) For the exact relief that we provided in Area Variance No. 81-2005 in the Year 2005. th Duly adopted this 17 day of January, 2007, by the following vote: MR. MC NULTY-Mr. Chairman, question. The request that you received from the fax th was to place is on the agenda for January 24. MR. ABBATE-Yes. MR. MC NULTY-Are we voting on placing it on the agenda, or are we voting on extending it? MR. ABBATE-I thought, in order to save time, I’ll leave it up to the Board, ladies and gentlemen. I thought I’d do a motion and get it over with, but if you feel more th comfortable doing it on the 24, that’s perfectly okay with me. It’s whatever the Board th wants to do. Do you want to do it this evening, or do you want to do it the 24? MRS. HUNT-I think we should do it this evening. MR. URRICO-Yes. MR. MC NULTY-I have no objection. I just wanted to be clear, because that’s not what the attorney requested. I presume he’s got nothing extra special to present to us, but we don’t know. MR. ABBATE-Okay. AYES: Mr. Urrico, Mrs. Hunt, Mr. Underwood, Mr. McNulty, Mrs. Jenkin, Mr. Abbate NOES: Mr. Bryant MR. ABBATE-The vote is six in favor, one against. The motion is approved to extend for one more year the variances that we granted to Area Variance No. 81-2005. Mr. Secretary, do we have any correspondence that should be read into the record before we proceed, and if so, would you be kind enough to read that into the record for me, please. MR. UNDERWOOD-No. MR. ABBATE-We do not. Okay. NEW BUSINESS: AREA VARIANCE NO. 1-2007 SEQRA TYPE II FRANK JELLEY OWNER(S): ROBERT AND COURTNEY SMITH ZONING: RR-3A LOCATION: 129 SUNNYSIDE ROAD EAST APPLICANT PROPOSES A 2-LOT RESIDENTIAL SUBDIVISION. RELIEF IS REQUESTED FROM THE DOUBLE THE MINIMUM LOT WIDTH REQUIREMENT FOR RESIDENTIAL LOT ABUTTING COLLECTOR ROADS. CROSS REF.: BP 2005-298 SEPTIC ALT.; SUB. NO. 2-2007 WARREN COUNTY PLANNING: JANUARY 10, 2007 LOT SIZE: 12.73 ACRES TAX MAP NO. 279.19-1-4 SECTION 179-19-020 FRANK JELLEY & BOB SMITH, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 1-2007, Frank Jelley, Meeting Date: January 17, 2007 “Project Location: 129 Sunnyside Road East Description of Proposed Project: Applicant proposes a 2-lot residential subdivision. The plan indicates direct access off of Sunnyside Road East, a collector road, to each of the lots. The spacing between the two proposed driveways will be approximately 220-feet. Relief Required: The applicant requests 149.77-feet of relief from the double the minimum lot width requirement (for lot 2) for residential lots fronting on arterial roads, per §179-19-020 for the RR-3A zone (minimum lot width is 200-feet). 3 (Queensbury ZBA Meeting 01/17/07) Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct an individual driveway for lot 2 and maintain the existing driveway on lot 1. 2. Feasible alternatives: A feasible alternative may be to move the shared property line approximately 150-feet to the east, where the existing driveway to lot 1 is located. This would, however, provide lot 1 with more acreage. 3. Is this relief substantial relative to the ordinance?: The request for approximately 150-feet of relief from the minimum 400-feet (two times the minimum lot width of 200-feet) for lot 2 could be considered moderate relative to the ordinance (37.5%). 4. Effects on the neighborhood or community: Moderate effects on the community may be anticipated as a result of this action. “Unrestricted access onto arterial and collector roads can hinder the safe and efficient movement of traffic” (§179-19-020). 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): SB 2-2007 Sketch Plan: Pending 1/16/07 Planning Board meeting, consideration may be given to reviewing the outcome of the Planning Board’s advisory recommendation to the applicant prior to rendering a decision. Staff comments: The resulting lot 1 will be 9.73-acres, what is the future plan for this lot? The feasible alternative identified above should be discussed, whereby the shared property line is relocated 150-feet to the east. Shared access with the existing driveway to lot 1 would be provided to lot 2, however, the size of lot 2 would be increased to over the minimum 3-acre in RR-3A. SEQR Status: Type II” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form January 10, 2007 Project Name: Jelley, Frank Owner(s): Robert and Courtney Smith ID#: QBY-07-AV-1 County Project#: Jan07-28 Zoning: RR-3A Community: Queensbury Project Description: Applicant is proposing a 2-lot residential subdivision. Relief is requested from the double the minimum lot width requirement for residential lot abutting collector roads. Site Location: 129 Sunnyside Road East Tax Map Number(s): 279.19-1-4 Staff Notes: Area Variance: The applicant proposes a 2-lot subdivision. The lots are located in Rural residential 3 acres where lot 1 is to be 9.73 acres and lot 2 is to be 3.00 acres. The required lot width is 400 ft. where lot two is to have 250.23 ft. and lot one is to have 1,283.94 ft. The plans show the subdivision and proposed house with septic, well and drive. 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, 1/12/07. MR. ABBATE-Would the petitioner of Area Variance No. 1-2007 be kind enough to approach the table, please, speak into the microphone and for the record would you identify yourself, please. 4 (Queensbury ZBA Meeting 01/17/07) MR. JELLEY-Good evening, my name is Frank Jelley, and I’m here representing Bob and Courtney Smith. MR. SMITH-And I’m Bob Smith, the owner of the property. MR. ABBATE-Are either of you attorneys? MR. JELLEY-No, sir. MR. ABBATE-Okay. Since you’re not attorneys, let me give you a little briefing on our procedures here. Basically, you’re here to present an argument to us, try to convince us why we should honor your request. If at any time during the hearing there’s something you don’t understand, don’t hesitate to raise your hand and question us. Further during the hearing, if there’s any additional information that you perhaps forgot to have mentioned in support of your appeal, don’t hesitate to raise your hand and bring it to our attention. Now, one thing I wish to bring to your attention. You understand that the burden of proof, that is the law requires that you show us the benefit that you will receive from this variance will outweigh any burden to the health, safety and welfare of the community. Do you understand that? MR. JELLEY-Yes, sir. MR. ABBATE-Okay. Are you prepared to proceed? MR. JELLEY-Yes. MR. ABBATE-Tell us all about it. MR. JELLEY-Okay. We’d like to give you a little history on the property. Bob and Courtney, approximately two years ago, started the process of subdividing their lot in order to sell it off to help pay down their mortgage. Approximately a year and a half ago they met with the Town staff and were directed to the best course of action which was the time to do an administrative subdivision and with the approval, condition that there’s a shared driveway between the Lot One and Lot Two. The Smiths did so accordingly and did subdivide the lot, and filed and everything. Since then they’ve been trying to sell the lot for the last year and two or three months or so. MR. SMITH-It was I believe September of 2005 that we originally got the original subdivision. So since that time we’ve been attempting to sell the property. MR. JELLEY-Okay. So anyway they’ve been attempting to sell the property with, you know, several people very interested in the property, and the issue has been the shared driveway with maintenance agreements and the issue that people just don’t want to share. So, what has happened that brought us here is that the Smiths have a contract under the condition that they do not want a shared driveway, but they will purchase the property with a driveway just for their lot, and that’s essentially where we have, you know, and last night we did go to the Sketch Plan for the Planning Board, and we, if things go well tonight we would be going back to them. They wanted some minor additions to the plan, and I did not feel that they had any problems with the application. MR. ABBATE-All right. Do any of the Board members have any questions for the appellant? MR. URRICO-Have you considered any alternative plans that would move the driveway away from the current location that you’ve proposed? MR. JELLEY-There has been a lot of discussion about the driveway placement, and the plan that was approved would be the three acre lot, the lot line to the right was a shared driveway. Part of the problem is because of the existing buildings we couldn’t get the 400 foot width on the other side, because there’s 1200 plus feet of road frontage for the property, but with the buildings and everything, they’re kind of spread out. On the other side of the property, there would be enough frontage, but there’s a river and wetlands going through that part of the property, and would not be buildable and it wouldn’t be built on in the future. MR. URRICO-Now, when you first approached the Town, the Planning Department, as far as subdividing it, the issue was raised at that point that the fact that you’re on a collector road would be a problem. 5 (Queensbury ZBA Meeting 01/17/07) MR. SMITH-Yes. I was actually the one that met initially with the Town. I met with Craig Brown. He explained the entire, you know, the law behind it and the entire process, and at the time we said, okay, well, we’ll get the subdivision with the notion that we’ll have a shared driveway, and I believe on that original map there was a drawing of a shared driveway. We’d have to straddle the property line, and that’s the issue. If we were to share their existing driveway, it wouldn’t be possible to cut through existing structures, and if we were to move that, then it causes a lot of logistical and financial difficulty for us, and also no one wants to buy it that way. Every potential buyer has decided against it, against having a shared driveway. MR. ABBATE-Okay. Do we have any other Board members who have a question? MR. BRYANT-Thank you, Mr. Chairman. I just want to understand you. Primarily you said you had it on the market for four months, and therefore, four months is it? MR. SMITH-No, it’s been, between trying to sell it, one year and four months. MR. BRYANT-Okay, and you’ve only had one nibble, and that person of course doesn’t want to share a driveway. MR. JELLEY-No, we’ve had several people that inquired through the realty agency and with the Smiths. They tried to sell it for a short while by themselves, and it’s an appealing lot. I’m sure you’ve seen it, and it just was, that was the problem. MR. SMITH-The current proposed buyer is the most anxious and willing to buy it, but still, that’s their stipulation that they don’t want the shared driveway. MR. BRYANT-Yes, but a shared driveway is not really a unique circumstance in the Town. There are shared driveways all over the place. What’s the big objection to it? I’m not understanding that. MR. JELLEY-Well, I can’t speak for the other people who have shared driveways. I know I’ve seen quite a few of them around like on Ridge Road. MR. BRYANT-Ridge Road is very popular with shared driveways. That’s why I don’t understand the objection to it, and the Staff’s comments relative to moving the line over to the existing driveway, you say that’s not feasible at all and nobody will ever buy Lot Number One, or Lot Number Two. MR. JELLEY-Well, I mean, the issue with going through the existing driveway is that, if you looked at the map, we actually have structures that would end up landing in the other property. It would have to. MR. BRYANT-What structure specifically? MR. JELLEY-Two garages. Two garages that exist to the left of the existing driveway. So in order to cut around those, we would end up flagging the property, and the other issue with the surveying standards, the property lines are required to be as close to 90 degrees to a road as possible. So that was another, we could certainly have cut the line across to try to make this work, but that’s not feasible with surveying standards. MR. SMITH-And I can say, as far as objections to the shared driveway, just anecdotally anyway, I mean, I don’t have anything in writing as to the original reason why they, but I think primarily it’s privacy issues. I think it’s logistical issues, who owns the driveway, who has to plow what part of it, and, you know, people don’t want to get in to that sort of debate with their neighbor. People want to take care of their own driveway, and there would be a lot of back and forth about it. MR. BRYANT-Okay. Thank you. MR. JELLEY-There’s a few, like the one that I’ve seen on Ridge Road, the differences between the two roads I believe are very great in traffic. Ridge Road is very, very busy all the time. MR. BRYANT-Sunnyside is pretty busy, too. MR. JELLEY-It’s fairly busy, but, you know, at night and during the morning, but the times I’ve gone out there, I’ve worked on their property, it’s very light during the day. I didn’t believe that it would be as much of a safety issue as a Ridge Road, where it makes 6 (Queensbury ZBA Meeting 01/17/07) more sense where the properties were, the houses were very close together. These proposed properties are hundreds of feet away from each other, have to cut through an existing tree line, which, as you know, this property is already cleared. Trying to save the tree line to have some privacy. So there are quite a few, this is more of a country setting, that Ridge Road and that section is very busy. MR. ABBATE-Mr. Urrico made a comment, would you like to address his comment? MR. URRICO-I’m sorry, I misspoke. It’s not a quiet road. It’s one of 21 collector roads in the Town. There aren’t that many of them. So it’s not a minor road. The collector roads actually serve a very important purpose. MR. JELLEY-No. Absolutely not a minor road. I just, when I had studied this road, it’s a much more quiet road than a Ridge Road or comparable, like a West Mountain where on a busy time you can’t even get out of your driveway, which is part of why the people who are buying it, they live on West Mountain Road, and they can even get out of their driveway in the morning, you know, five minutes they’ve got to wait. I don’t think that Bob ever has to wait to come out of his driveway. MR. UNDERWOOD-When you exit your driveway, do you back out or do you turn around and come out? MR. SMITH-Well, we just turn around right up by the house. MR. UNDERWOOD-Because my suggestion in the past has been on these that the driveways be constructed so there’s a turnaround up in at the garage so you always exit onto the road, head out, so you’re not backing into traffic. MR. SMITH-Right, which is the way the current house is. MR. UNDERWOOD-And I think that’s the main concern with these. We had one of these last month. We turned it down, but nonetheless, I think it’s an alternative to create a driveway like that. I don’t see that as a negative. MR. ABBATE-Do we have any other members who’d like to address Area Variance No. 1-2007? All right. If not, I’m going to open a public hearing. The public hearing now is open for Area Variance No. 1-2007, and would those wishing to be heard please approach the table, raise your hand and I’ll recognize you. PUBLIC HEARING OPENED DON ROSS MR. ROSS-Good evening. I’m Don Ross. I live on West Mountain Road in Queensbury. My wife Jody. We’re the proposed buyers. We’re the ones that we have a contract with the Smiths at this point, and the shared driveway is the issue, and the reason being is, a couple of different reasons. One, the fact that if I don’t want to plow my driveway because I’ve got two inches of snow, they want to, I don’t want to pay to have it shoveled or plowed. We have four wheel drives, we drive in and out. Two, I might want it blacktopped. They don’t want it blacktopped. Who pays to have it blacktopped? I may want it sanded. They may want it salted. I’m not going to pay for his salt, or I don’t want it ruining my blacktop. So those are just a couple of the issues. The second thing is the house that we’re proposing to put on the property, it’s a single family ranch, and the driveway, the garage is going to be on, as you’re looking at the property, it’s going to be on the left side. The shared driveway is now on the right side, and I do want to make a turnaround to back out of the garage and then drive out onto Sunnyside East. I don’t want to back out. Number One, it’s too long of a driveway to back out, because the house would be probably well over 100 feet from the roadway. That’s a couple of the reasons that we don’t want the shared driveway is the problems. I’m not saying the Smiths will ever be a problem, but who knows two years down the road Smith doesn’t sell the property to somebody else and we run into an issue with them. I don’t know the Smiths. We’ve just talked to them a couple of times, so I don’t know them personally. Who knows, maybe we’ll have problems with them. MR. ABBATE-Is that the extent of your comments? MR. ROSS-Yes. MR. ABBATE-Thank you very much, sir. I appreciate that. 7 (Queensbury ZBA Meeting 01/17/07) MR. ROSS-Thank you. MR. ABBATE-Do we have anyone else in the audience who’d like to speak? PAUL ALAGNA DR. ALAGNA-Hi. My name’s Paul Alagna. I live on 192 Sunnyside East, and I need a clarification on the actual, this double the width. I don’t know what you’re referring to, as to what’s really the change in the law. MR. UNDERWOOD-What it refers to is on a normal road you would have that normal width, but on collector roads they have more traffic on them. It’s double the width. So instead of 200 feet it would be 400 feet between. DR. ALAGNA-Between driveways? MR. UNDERWOOD-Between driveways, but that’s not the case with most of the driveways, as you know, on your road down there. MR. MC NULTY-Well, it’s not between driveways. It’s lot frontage. MRS. BARDEN-That’s right. MR. MC NULTY-It doesn’t matter, that doesn’t apply to the distance between driveways. DR. ALAGNA-So they’re asking that this lot be a shorter lot, that it be narrower? MR. MC NULTY-No, that it be twice as wide, yes, they want it narrower. DR. ALAGNA-I hate to be a spoiler, and we’re neighbors, so it’s really not, you know, I feel kind of bad about this, but I’m here to say that I’m against this, to give a variance. Just down from us, still on Sunnyside, and I do believe it’s still in Queensbury, they built a house, you know, on their side of the road, if you continue over the two streams, they put in a small house. MR. ABBATE-Excuse me, who’s “they”? DR. ALAGNA-I don’t know their names. I apologize. I’m just giving you some reference. They built a small house. They’ve destroyed Sunnyside East Road. They crushed it during the construction. I’m a cyclist. They’ve never corrected it, and they broke it during the construction of their property. No one’s ever attended to the road, and as a cyclist I can tell you they haven’t fixed it in the years that that building’s been up. I like the feel, you know, they said it’s more of a country area. I’d prefer to keep it more of a country area. I know the lot they’re talking about. I hate impeding someone’s economic gain, but my feeling is there’s so much building going on in Queensbury, you know, if there’s a law that says you have to have X amount of property, then I think you have to have X amount of property before you keep adding on, and my fear is that if you make the variance then the next guy makes a variance, and the tone of where we live changes. So that’s my concern, and I apologize to you guys. I’ve never really met you, but I feel bad about it, but I’ve got to be honest with you. It is a busy road, you know, it’s a fast road, too. It’s not, 45 to 50 something miles an hour on Sunnyside East. So I guess I’m here to say I’m against the variance. All right? MR. ABBATE-Yes. Thank you so much. Miss, I believe you wanted to? COURTNEY SMITH MRS. SMITH-I’m Courtney Smith. I wanted to address, it keeps coming up we’re on Sunnyside. We’re actually East Sunnyside. So we’re not, like Sunnyside is between Bay and Ridge, which is very busy. We’re East Sunnyside. So we’re, East Sunnyside goes from Ridge all the way down into, we’re going into Kingsbury. So we are more of a country area. So we’re like on the border of Washington County. We’re smaller. MR. SMITH-And I would say also to Paul’s point about the property, I’m not sure what property he’s talking about. MR. ABBATE-Well, let’s get something straight here. This was to be addressed by the public. You’ll have an opportunity. You’re the appellant, are you not? 8 (Queensbury ZBA Meeting 01/17/07) MR. SMITH-Yes. Well, we both are. We thought that we could, we were going to respond to his comments. MR. ABBATE-But I would prefer that she just address the issue and you can address the issue when you come back to the table. MRS. SMITH-Okay. I have a question for Mr. Underwood, and you were talking about, you guys have the map in front of you, right? Okay. You were talking about (lost word) turnaround. You see that our driveway couldn’t move anymore, it would hit our house, and on the other side of our driveway is trees. So I have no problem sharing, but I don’t know how we could, if they want to put their house all the way on the other side. MR. SMITH-He was talking about building a new one with a turnaround. MRS. SMITH-I’m sorry. I didn’t understand that. MR. ABBATE-Does that conclude your comments? MRS. SMITH-Yes. I just didn’t understand what he was saying. MR. ABBATE-That’s quite all right. Thank you so very much . We appreciate that. Do we have anyone else in the public who’d like to address this issue on Area Variance No. 1-2007? If you’d raise your hand, I’ll recognize you. I see no other hands raised. So would the appellant please come back to the table. Now, would you like to address any of the comments that were made by the public? MR. SMITH-Yes, I would. I apologize for the confusion there. I just wanted to make a point, too. Again, I don’t know exactly what property Paul was, I don’t remember Paul’s last name, that’s why I’m referring to him in the first name. I don’t remember exactly what property he’s talking about, but further down Sunnyside East past our house, actually still on our property line, it’s a one acre zoning area. So any construction, any driveways that were built in there, they were done so under looser restrictions, and would be indicative of a more damaging policy than we’re presenting here. That’s an area where you could build a house on one acre, and obviously if you can have a one acre lot then it couldn’t possibly be under the same constraints of 400 foot of road frontage because that’s more than an acre. So what we’re talking about is a three acre lot, three times the size of any destructive construction that he’s familiar with. I guess that’s the point I wanted to make to that. MR. ABBATE-Okay. Would you like to comment on any of the public remarks that were made? MR. JELLEY-Well, actually on one of his comments, Paul, the house can be constructed with administrative approval, and the driveway would change spots if that’s what the outcome is. So the real reason right now we’re here is to try to have just the driveway for the one lot and keep the Smith’s driveway the way it is, and if we need to do turnarounds, whatever, you guys, I mean, there’s enough room back there to do that kind of stuff, and that’s why a three acre lot, I mean, it’s a nice size lot. It’s the only thing that this lot is lacking is just the width, and if they could have the width, they would have the width. There’s no question. MR. SMITH-The question isn’t whether or not there can be construction or whether or not a house can be constructed, which seems to have been his primary objection. A house can be constructed either way. MR. ABBATE-Is that it? Do you have anything else? Okay. Fine. I’m going to move on. MR. URRICO-Mr. Chairman, I need some clarification on the Staff comments about the property line being moved and that creating a problem with the size of Lot Two. I’m not sure what that means. MR. ABBATE-All right. Staff, I’d like you to clear that up for us, please. MRS. BARDEN-Mr. Urrico, can you tell me again? MR. URRICO-The Staff comments where you say shared access with the existing driveway with Lot One would be provided, let me go back, the feasible alternative identified above should be discussed, whereby the shared property line is relocated 150- 9 (Queensbury ZBA Meeting 01/17/07) feet to the east. Shared access with the existing driveway to lot 1 would be provided to lot 2, however, the size of lot 2 would be increased to over the minimum 3-acre in RR- 3A. MR. SMITH-I didn’t really understand that either. MR. URRICO-Wouldn’t it be a good thing if it was more than three acres? MRS. BARDEN-Sure, why not. I mean, the minimum lot size in the zone is three acres. It would be larger. I think, right, they need 150 feet, and so my comment was just if you have almost 10 acres on Lot One, it’s feasible that you could move that line over, do a lot line adjustment, in other words, moving that line over 150 feet to meet the requirement. MR. ABBATE-Mr. Urrico, are you satisfied? MR. URRICO-Yes, I just don’t know what that. MR. BRYANT-I see what Mr. Urrico is saying. Actually moving the lot line east to the driveway. Is that what you’re saying? That actually creates a smaller lot line. MRS. BARDEN-I beg your pardon? MR. UNDERWOOD-No, that makes a bigger lot. Lot Two is going to be created larger than it would be. MR. BRYANT-If you look, this is north. This is east. So if you move this line east, that makes a smaller Lot One and a larger Lot Two. MRS. BARDEN-Yes, exactly. MR. UNDERWOOD-You’re correct. MR. BRYANT-That’s not what the Staff Notes say. Unless I’m not reading it correctly. MRS. BARDEN-A feasible alternative may be to move this shared property line approximately 150 feet to the east. MR. BRYANT-If you move it east, it would therefore make Lot One, give Lot One more acreage. In reality it gives Lot One less acreage. MR. MC NULTY-He’s looking at the number two item on the front page of the Staff Notes. MRS. BARDEN-Yes. MR. MC NULTY-And I agree. I think it should say provide Lot Two with more acreage. MRS. BARDEN-You’re right. It would give additional lot width to Lot Two, but it would make Lot One smaller in acreage. Right. MR. BRYANT-As long as we know what we’re talking about. Yes. MRS. BARDEN-You’re right. Thank you. MR. ABBATE-All right. We’ll move on. Before I ask members to offer their comments, I’d like to inform the public that the comments that are going to be offered by the members are directed to the Chairman, and the comments expressed by Board members to the Chairman are not open to debate. May I respectfully remind the members that precedent mandates we concern ourselves with the evidence which appears on the record to support our conclusions and the evidence relied upon should be specifically stated. Additionally any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project, and Board members are obligated to make decisions on reliable evidence contained in the record of the Board’s deliberations. I will now ask members to please offer their comments on Area Variance No. 1-2007. MR. BRYANT-Thank you, Mr. Chairman. Of the five criteria that we use to determine the outcome of this application, one of them is feasible alternative, and I’ve got to agree with Staff that I think changing that lot line is somewhat a feasible alternative. I listened to the 10 (Queensbury ZBA Meeting 01/17/07) purchaser of the property say you know there’s a question about the blacktop and the salt and all that, but my response is that there are hundreds, or, you know, scores if not hundreds of shared driveways in the Town and the surrounding area, and they don’t seem to have these difficulties. So I’ve got to come down on the negative on this one. I think that there is a feasible alternative, and the fact that you’ve had a number of bites in the last year is an indication that it’s valuable property and there is going to be somebody who’s going to buy that lot with a shared driveway. So I’d be opposed to it. MR. ABBATE-Thank you. Mr. Underwood, please. MR. UNDERWOOD-Currently existing I think on the totality of the property of over 1283 feet of frontage on Sunnyside East Road, and if you look on the map on the other side of the road, approximately along that same distance and sight line, you have five driveways, including the entrance into Brookfield Run there, which is the subdivision off the road there. Although it’s been offered as a feasible alternative, changing that property line, I don’t really see that you should, you know, in this instance here, hold one of the property owners on that street accountable, where everybody else has not been held accountable along that road. I mean, most of those driveways are pre-existing nonconforming, but in this instance here, I think the addition of a single driveway in over 1200 feet of frontage is not a huge amount of difficulty that’s going to create problems for traffic flow on Sunnyside East Road. So I would support your application. MR. ABBATE-Okay. Folks, do we have another volunteer? Yes, please, Joan. MRS. JENKIN-Yes. When I visited the property, I looked up and down the road, and I also cycle on that road a lot, and there’s clear access, you can see, it’s an area of the road that’s going up. There is an incline, but the top of the hill is not, is far enough away that you can easily see both ways if you’re coming in and out of a driveway. The other thing that I thought, this is a cleared lot. It’s a wide open lot, and I think that it’s quite, it looks like it’s a natural lot, and certainly in that area I don’t think it would be a bad thing to have another driveway in there because there’s not any other driveways on the other side of the road, right in that same area, and I would be for this variance myself. MR. ABBATE-Okay. Thank you very much. Mrs. Hunt. MRS. HUNT-Thank you. I have to agree with the last speaker an Mr. Underwood. It’s a long stretch there, and on the other side we’re saying there are five driveways and only one now, and the proposed second driveway, I don’t have a problem with it. MR. ABBATE-Okay. Thank you very much, Mrs. Hunt. Mr. McNulty. MR. MC NULTY-I’m going to agree with Mr. Bryant. I’m not focusing so much on driveways, just simple road frontage. The rule says 400 feet, and I think, as Mr. Bryant says, there is a feasible alternative, and that’s move the lot line. Even though surveying guidelines may urge 90 degree lot lines to the road, that’s not an absolute demand. So there would be a chance to do a little gerrymandering and wiggle that lot line if necessary to avoid buildings, and I’m worried about incremental additions here. This one’s here now. Who knows what’s going to come along in the future on this road. I can see the potential for another one. If we allow this lot here. The next thing is you draw a lot line up through the middle of that wetland and sell off the acreage on the other side and you can get almost somewhere around 300 feet frontage there. So that’s almost enough to make another allowance, and you can go on down that road and do similar things. So granted there’s some benefit to the immediate applicants. On the other hand I’m also looking at the fact that a variance isn’t just for the immediate applicants. It’s forever, and since there is a feasible alternative, I’m going to be opposed. MR. ABBATE-All right. Thank you very much. Mr. Urrico, please. MR. URRICO-Yes. I’m afraid I’m going to come down on the negative side as well. The thing that scares me, this is one of 21 collector roads in the Town, not counting the arterial roads, because this applies to arterial as well as collector roads, and the reason it’s there is to try to minimize the curb cuts. So we talk about collector roads, we’re not just talking about one neighborhood. Like I said we’re talking about 21 collector roads spread across the Town, and when we start changing the status quo on them, we’re changing neighborhood character in all those communities. I think when you assess the five criteria I think we’ve listed some alternatives which can be followed. I believe this is an undesirable change in the neighborhood, and that neighborhood character extends beyond Sunnyside, East Sunnyside, and even though we say that it’s only a collector road, it’s not too busy, when Hadlock Pond collapsed, that became a major road at that 11 (Queensbury ZBA Meeting 01/17/07) time, and it could happen again. We don’t know. It’s a collector road for a reason. It moves traffic along. The request is substantial. I will grant you that if the lot line were adjusted 150 feet, that wouldn’t change the distance between the driveways. It’s still 220 feet, but again, we’re talking about something that’s specified in our Code, specifically it’s East Sunnyside, Sunnyside Road, Sunnyside Road East are specifically mentioned, and I think there won’t be any environmental effects to it, but I think the difficulty is self- created, and I would be against it. MR. ABBATE-Okay. Thank you, ladies and gentlemen of the Board. I have listened very carefully to the public comments that were made. I also have listened very carefully to what the appellant had to say this evening, and I also paid particular attention to what each of the Board members has said this evening, and it’s my decision that each of the Board members in their own way presented a valid argument. As it stands right now, it appears that the situation is three and three. So the decision, then, will fall on the Chairman. I, too, believe that there are feasible alternatives. I listened carefully to what Mr. Bryant had said, and Mr. McNulty and Mr. Urrico, and I believe that their argument pushes me 51% against approval of the application because I thoroughly believe that they presented an argument which shows that there is, in fact, a feasible alternative, and I believe that their argument outweighs, at this time, the benefit to the applicant, and so based upon that, I would not be in favor of the application. However, do we have anything, Mr. Secretary, in terms of environmental assessment on this? MR. UNDERWOOD-No. MR. ABBATE-Do you have anything? Okay. I’m going to now close the public hearing for Area Variance No. 1-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again 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 while State law sets forth five factors to take into consideration, again, unlike a Use Variance test, this Board need not find in favor of the applicant on every one of the five factors, rather they must take into account in deciding whether to grant an Area Variance. I’m going to ask for a motion. I’m going to request that the motion be made with clarity, and the motion itself is not subject to debate. In the event a member moves a motion to disapprove and believes the appeal is substantial, please make clear your judgment on that basis. Having said that, ladies and gentlemen, I will now seek a motion for Area Variance No. 1-2007, please. MR. UNDERWOOD-Are you going to give them the opportunity to withdraw this and modify it and come back, or, I mean, it’s up to you. MR. ABBATE-I am certainly willing, before we do a motion to approve or disapprove, I’m certainly willing to listen to any kind of alternate suggestion that you may have. MR. SMITH-Well, I guess if there is an actual direction that you could, the members that aren’t for this, that we would certainly, if we can, you know, change the survey to try to work on it better, but when I worked on this with the Staff, it was a little surprising to me that it was talked about moving the lot line which, what I had talked about was, you know, what if we moved the lot line to try to move it over to get the 400 feet, and the problem was it’s the median, the average of 400 feet for the lot, which would never be able to be physically done because of that garage, and that was the issue. I mean, certainly if the Smith’s could, you know, change the lines and make it work, they would. MR. ABBATE-Let me give you a suggestion. Perhaps you might wish to consider asking this Board to table your application so that you can get together with your client and perhaps come up with a feasible alternative, based upon what you’ve heard this evening. Would you like to request a tabling, and if so, I would like you to make it formal. Mr. Chairman, I would like to request a tabling. MR. JELLEY-Mr. Chairman, I would like to request a tabling. MR. ABBATE-Yes, and I will honor your request for a tabling. MOTION TO TABLE AREA VARIANCE NO. 1-2007 FRANK JELLEY, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 12 (Queensbury ZBA Meeting 01/17/07) th 129 Sunnyside Road East. Tabled at the applicant’s request until the 28 of February, th and the applicant has a deadline to submit the new information of the 24 of January to Staff. th Duly adopted this 17 day of January, 2007, by the following vote:| th MR. ABBATE-I’m going to put you on the agenda for the 28 of February. Will that give you sufficient time? MR. SMITH-Yes, sir. th MRS. BARDEN-When would you like the information in, the deadline was the 15. MR. ABBATE-When do you think you can have the information available, your new proposal? MR. SMITH-Early next week. MR. ABBATE-That would be fine. Then part of the condition for a motion to table would th be that you provide Staff the new information no later than the 24. That gives you a full week. MRS. BARDEN-For which meeting? th MR. ABBATE-We’re going to put them on the 28. We have three and three for the th month of February. So let’s put them on the 28 of February, which will make it four for that evening, which should not be a problem. MRS. BARDEN-Okay. AYES: Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. McNulty, Mrs. Jenkin, Mr. Abbate NOES: NONE MR. ABBATE-And the vote is seven to zero to approve your request for tabling until the th 28 of February, with the condition that you submit the new information to Staff no later th than 24 of January. Gentlemen, thank you very much. MR. JELLEY-Thank you. USE VARIANCE NO. 2-2007 SEQRA TYPE: UNLISTED PAUL KRUGER OWNER(S): PAUL KRUGER ZONING SFR-1A LOCATION 131 MEADOWBROOK ROAD APPLICANT PROPOSES TO BUILD AN ADDITION TO 2-FAMILY HOME. RELIEF REQUESTED FROM ZONING USE TABLE FOR MULTIFAMILY DWELLING IN AN SFR-1A ZONE. CROSS REF.: BP 2006-668; BP 2006-268; BP 2005-004; BP 7623 WARREN COUNTY PLANNING: JANUARY 10, 2007 LOT SIZE: 1.20 ACRES TAX MAP NO. 296.20-1-18 SECTION: 179-13-010 PAUL & MARIA KRUGER, PRESENT STAFF INPUT Notes from Staff, Use Variance No. 2-2007, Paul Kruger, Meeting Date: January 17, 2007 “Project Location: 131 Meadowbrook Road Description of Proposed Project: Applicant seeks to expand an existing duplex. Relief Required: Applicant requests relief from the allowable uses of the Single Family Residential, SFR-1A 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? The applicant has provided a record of 8 to 9 months of some of the expenses for the property and for some of the incomes of the property. 13 (Queensbury ZBA Meeting 01/17/07) Among the unknown information is: ? Original mortgage / purchase price of the property (Assessor records indicate $103,500) ? Details regarding increase in the principal amount owed on the existing line of credit (around April 2006 the principal was increased by approximately $65,000) ? Income statement regarding the apartment in the “garage” ? Income statement regarding the unapproved construction company business currently operating from the property While there appears to be an actual “dollars and cents” amount for conversion to an allowable use, specifically, a Single Family Dwelling, there is no information regarding the potential income or sale price that is anticipated for the property after such conversion. In addition to single family dwelling conversion information, 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. However, the status of the “allowability” of this use is still undecided. 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 property is similar in size and configuration to other parcels in the immediate area. The property immediately east, and across Meadowbrook Road is the Regency Park apartment complex. 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 SFR-1A area with a duplex use. 4. Is the alleged hardship self-created: The alleged hardship can be interpreted as self created. The property transfer deed dated; June 20, 2002 occurred 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-1A 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. Parcel History (construction/site plan/variance, etc.): UV 70-1995 Lawn Care Business res. date 9/28/95 BP 2006-668 1056 sf addition pending BP 2006-268 partial demolition issued 5/2/6 BP 2005-04 182 sf porch repair issued 1/4/6 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. In reviewing the Zoning Board of Appeals resolution for Use Variance 70-1995, it is clear that the variance was granted specifically for a Landscaping Business and that there was an issue with the multiple dwelling units on the property at that time. Apparently, the applicant was to address that issue at another time, however, no records can be found regarding such reviews. When were the dwelling units created? Were they legally created at that time? 14 (Queensbury ZBA Meeting 01/17/07) The construction estimate appears to be for an entire building renovation, including the existing dwelling portion of the 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? SEQR Status: Type: Unlisted” MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form January 10, 2007 Project Name: Kruger, Paul Owner(s): Paul Kruger ID#: QBY-07- UV-2 County Project#: Jan07-29 Zoning: SFR-1A Community: Queensbury Project Description: Applicant is proposing to build an addition to 2-family home. Relief requested from zoning use table for multifamily dwelling in a SFR-1A zone. Site Location: 131 Meadowbrook Road Tax Map Number(s): 296.20-1-18 Staff Notes: Use Variance: The applicant proposes to construct a 192 sq. ft. addition to an existing 2- story residence. The information submitted indicates the applicant purchased the property with multi dwelling and pre-existing business. The single family zone does not allow for multi family or commercial operations. The applicant has submitted financial information as to the existing operation of the site as a multi dwelling property and business use and the cost of the addition project is estimated at 17,000 where the conversion of the property to single family would be $52,000. 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 1/12/07. MR. ABBATE-Would the petitioner of Use Variance No. 2-2007 please approach the table. Good evening, and would you be kind enough, folks, to speak into the microphone and identify yourself, please. MR. KRUGER-Good evening. I’m Paul Kruger. MRS. KRUGER-And I’m Maria Kruger. MR. ABBATE-And are either of you attorneys? I assume that you’re not. Okay. Did you hear what I said earlier? Feel free at any time to raise any questions you don’t understand or introduce any evidence on your behalf and what have you. Are you prepared to present your argument to us? MR. KRUGER-Yes. MR. ABBATE-Please do. Go right ahead. MR. KRUGER-Approximately 10 months ago I lost both renters because of some issues inside both the apartments. So after doing some initial renovation, we found what was an old porch which was renovated into living space. There was significant water damage, and some other issues, and so at that time we went ahead and came up with a set of drawings to improve both apartments, including new bathrooms and new kitchens for both units, as well as having up to date entry/egress and allowable area for the use of the two apartments. There were some other issues brought up by Mr. Brown, and basically I have a question if that is all under this one application, or those are other issues? MR. ABBATE-You’ll have to explain yourself. I have no idea what you’re talking about. MR. KRUGER-Okay. Craig Brown, as you mention in the notes that the business use, things like that. MR. ABBATE-I understand. Did you meet with Staff? MRS. KRUGER-I did. MR. ABBATE-Okay. You met with Staff. Then Staff should have explained to you the significant, significant difference between an Area Variance and a Use Variance. A Use Variance is very specific, and by New York State law you either meet all the requirements or we can’t grant the authorization. Now Staff, I’m sure, explained that all. Who did you meet with? 15 (Queensbury ZBA Meeting 01/17/07) MRS. KRUGER-I met with Susan. MR. ABBATE-Okay. Then I know Susan and I’m sure she explained all of that in detail. All right. Now, having said that, what is it you don’t understand? MR. KRUGER-If all these issues are inclusive under this. MR. ABBATE-All right. Since you’re not an attorney, I’m going to do something I don’t normally do. I’m going to explain to you exactly what your responsibilities are. Okay. Have you read, before you submitted your application, have you read the requirements for a Use Variance by any chance? Did you go through those? MR. KRUGER-Yes, we did. MR. ABBATE-Okay. You understand that there are four factors that must be proven, proven under the law, in order for us to grant that Use Variance. Do you understand all of those? I’m sure Susan explained all those to you. Okay, and I’m sure it was explained to you with clarity. Okay. Now, if that’s the case, then, what is your question? MR. KRUGER-Okay. I’ll retract that question. MR. ABBATE-Okay. MR. KRUGER-So to continue with the variance request. First, there was information provided regarding the potential income for sales anticipated after conversion. There are several businesses operated out of homes on Meadowbrook Road. At 113 Meadowbrook there is signage for a family counseling business. Our next door neighbor is O’Connor Construction. They have a significant construction company there. At 153 Meadowbrook there are several trucks parked there with business signage. At 105 Meadowbrook there’s a self-storage facility. Regency Park Apartments across the street. There is a very heavy multi use property there. As far as the character of the neighborhood being altered, we have a period home here. We’re trying to, we’ve done extensive exterior renovations to the home and the property. We’re trying to bring that back to period, as well as allowing for what the home was and has been for a long period of time a two family, to have safe areas that we can bring up to Code as much as possible. The house doesn’t look like the average duplex with two garages or anything. It is an older home that we’re trying to keep with that period. There is no retail business there. What the business currently is operating there as, we do property management. We do landscaping. We have what is used, a couple of trucks, a couple of vehicles that are parked in the garage coming in and out of there. I think there, this addition is a total of 192 square feet. It doesn’t impose on either side lot. It doesn’t impose on the front. It doesn’t even take away from any parking. We’re just coming eight feet out the back so we can have a sufficient space for the two apartments. MR. ABBATE-Okay. This Board, every member on this Board is particularly interested in ensuring that each individual receives what we refer to as due process. At the present time, I’m not sure that you really understand what’s going on. Let me take some time and explain to you what your responsibilities are, and then if you understand that, then we can proceed. MR. URRICO-Mr. Chairman, could I just suggest one thing? MR. ABBATE-Certainly. MR. URRICO-Start with what the use is, and what we’re changing it to. I think that may be the bottom line to what he’s asking. MR. UNDERWOOD-And I think what you want to do is go back to the historic record. The property before he purchased it was used for a landscaping business. It was a duplex, and I believe there was an apartment in the back of there. So we need to look at what changes have been made since the purchase of the property. MR. BRYANT-Yes, but there is a Use Variance for the business. However, I don’t see anything, I mean, how do we get to the duplex in the first place is the question. MR. UNDERWOOD-I would just interject and say that, you know, if you look at the historic record and you read back in the minutes of the old Planning Board minutes, Zoning Board minutes that were provided to us, there was an issue with the use of the 16 (Queensbury ZBA Meeting 01/17/07) property at the time in 1995, but the Town did not follow up on that process. They did not make a determination as to when, where and how. MR. ABBATE-You’re absolutely correct. MR. UNDERWOOD-And in the lapse of time since 1995, we’re now here 10 years plus hence, you know, and in that instance here it’s been established, and I think that, you know, and the only one we’ve had recently like that was the one that we had on Ridge Road there where we had to look at the issue of has there been a discontinuance of what was there, and I don’t know, we need to ask that question. Has the use as a multiple dwelling been discontinued. MR. ABBATE-Okay. Jim, why don’t you ask the question right now. MR. UNDERWOOD-All right. I would just ask the following questions. I mean, the original permit was for a landscaping business. As you’ve described it to us, you’re in property management, which, to me, involves landscaping, and it probably involves hammer and nails and doing renovations and stuff. I don’t know if that demands a new permit from the Town for that change in usage? I mean, it’s a slight difference, but it’s similar to me. MRS. BARDEN-Let me go back a little bit. The applicants want to expand their pre- existing, nonconforming use. That’s what they’re here for, not the landscaping business that they did get a Use Variance for before. This is the house that’s an existing, again, a pre-existing, nonconforming use as a duplex, a multi family dwelling, in a Single Family Residential zone which only allows single family residential uses. They want to expand that nonconforming use. MR. UNDERWOOD-Okay. So our only issue, then, realistically, then, is these other side issues, then. We’re concerned with that eight foot addition that they want to put on the back of it. MRS. BARDEN-That and the fact that is a nonconforming, expansion of a nonconforming use. So it’s not an Area Variance for the addition. It’s an expansion of a nonconforming use. MR. UNDERWOOD-All right. MRS. JENKIN-May I ask a question? MR. ABBATE-By all means. MRS. JENKIN-Does it matter if there was no variance given originally, as changing it to multi family, or duplex or two? Because any of the information that we got, there was never a variance approved for, to change it from single family to multi family. So because it’s been used for that for so long does it just sort of make it okay? MRS. BARDEN-No, it does not. MR. ABBATE-No, it does not make it okay. MRS. JENKIN-Well, then what do the present owners do? MRS. BARDEN-So it is a Use Variance for the multi family use, in a single family residential zone. Because there was never a Use Variance for that. MRS. JENKIN-So the fact that it was never approved doesn’t matter? It doesn’t matter. Okay. MR. BRYANT-One more question for Staff, please. MR. ABBATE-Yes, please do. MR. BRYANT-On the third page of the Staff Notes, relative to whether or not, when the dwelling units were created, were they legally created at the time. Is this what this is all referring to? Is Staff trying to reach out and say, well, look, there is no variance ever to make this a duplex, okay. So therefore it was never legally created, and regardless of the fact that it existed for X number of years, it existed and they didn’t act on it, it existed 17 (Queensbury ZBA Meeting 01/17/07) in a, you know, it wasn’t necessarily a legal use. Just because they didn’t enforce it doesn’t mean that it was correct. Is that what they’re trying to say on the third page? MRS. BARDEN-There is no record that this was ever granted a Use Variance for the existing use, the multi family dwelling. There’s no record of that. I think that’s where the questions stem from. MR. MC NULTY-So, should we grant this variance, we’d be granting a variance to allow a multi family use on this property? MR. BRYANT-Forever. MRS. BARDEN-Yes. MR. ABBATE-That would be correct, Chuck, yes, you’re right. MR. FULLER-I don’t think you’re being called upon to question the past Use Variance, if I’m correct. There’s no history that it was not granted, then there’s no history that it doesn’t pre-date. Is that correct, we don’t have anything? MRS. BARDEN-We don’t have anything. MR. FULLER-Either way. MRS. BARDEN-Right. MR. UNDERWOOD-Why don’t we ask the applicant. Do you have any idea when it was turned into a duplex? MR. KRUGER-Okay. Well, I think I can clarify this, because if you see the meeting minutes on Page 34, this house has been a two family since at least 1982, that we know of, possibly earlier in the 70’s. My father knows someone who used to rent there years and years ago. The old woman that owned it had renters upstairs when she converted. So this is a very gray area for both of us because we thought we were just, of course when we bought the property, we bought it as a two family business with a garage, so on and so forth, and as far as we knew we were just coming before you for this addition alone. MR. ABBATE-See, it may be a gray area to you, but it’s not to us because the provisions of the law indicate that you have due diligence, and that basically means that you have due diligence to check the records, etc., of the Town to determine any variance, etc., etc. Either way, regardless of what conversation is taking place, you are, in effect, asking for a Use Variance, and there’s no way we can waiver from the four requirements. It’s as simple as that. MR. KRUGER-That’s fine. MR. ABBATE-All right. Let me continue here then. Remember, now, what I said to you earlier. If, during the rest of this hearing, there’s anything you don’t understand or you want to introduce anything else, feel free to do that, please. MR. KRUGER-I simply was under the impression that a pre-existing condition stayed as such. MR. ABBATE-I understand that, and this is nothing personal. A Zoning Board of Appeals hearing, by its very nature, is adversarial. So it’s nothing personal. Okay. Right now you have concluded your argument before us to this point? You can always continue on, give us more information if you wish. MR. KRUGER-She has whatever financial information that we’ve accumulated. MRS. KRUGER-As far as these questions here that are asked, just to kind of go in order and answer. The original mortgage was, he did purchase it for $103,500. The original mortgage was $100,000. It was increased in April of 2006 by, it was increased by about $48,000, and that increase was to do the renovation and just to do some other things to kind of keep the business going while we’re renovating. I do have an income statement for the construction company that’s there, if that’s something. MR. ABBATE-Have you introduced that? 18 (Queensbury ZBA Meeting 01/17/07) MRS. KRUGER-I have not. MR. ABBATE-Would you like to present that to us this evening for the record? MRS. KRUGER-If that’s something that will help us, I absolutely will give it to you. MR. ABBATE-Yes. We would like that, if we may have that please. Would you present that to our Secretary so we can enter it into the record, please. MRS. KRUGER-Yes. Mr. Underwood, I have a simple profit and loss statement for January 2006 through December 2006 for Kruger Construction, which is the company that operates there. I also have some photographs that I’ll hand you as well that are pictures of the property before and then some of the improvements that we’ve done to date. MR. BRYANT-There’s a construction company that operates there, too? I’m really not following this. We’ve got landscape. We’ve got a duplex. We’ve got a construction company. MRS. KRUGER-The name of the company is Kruger Construction, LLC. That’s the name of the company. MR. BRYANT-And it operates out of this two family house? MRS. KRUGER-The garage in the back, there’s a garage where we have the two work trucks. MR. ABBATE-Let me re-phrase the question. It operates from the property rather than the house. It operates on the same property? MRS. KRUGER-Yes. MR. ABBATE-Okay. Does that answer your question? MR. BRYANT-Does this fall under the category that they need a Use Variance for a construction company, or is it one of these one person company that operates out of their house? MRS. KRUGER-Yes, that’s what it is, but this is all. MR. BRYANT-Yes, but that’s not related to the property. I don’t understand the validity of that. MRS. KRUGER-That’s the whole issue here, is that we applied to add on to the two family. Now all of these other issues are being brought up. So I’m supplying you the information to respond to these other issues that were brought up, because there are multiple nonconforming uses on the property. MR. KRUGER-We didn’t want it to get this complicated. MRS. KRUGER-No. MR. BRYANT-Well, you’re allowed to have a family business where you have no employees, okay, on your own personal property in the Town. You’re allowed to do that, okay. So my question is you’ve got employees in the construction company? MR. KRUGER-Yes. MR. ABBATE-So that’s why they need a Use Variance, one of the reasons. MR. BRYANT-Yes, but the Use Variance is to have a duplex. MRS. BARDEN-You’re not dealing with that garage. It’s different. MR. FULLER-What you’re dealing with is kind of, it’s an amalgam of a Use Variance and an Area Variance. It’s Use because it’s a nonconforming use in the zone, so that any increase in the structure is an increase in nonconformity. They’re adding on to a nonconforming structure. 19 (Queensbury ZBA Meeting 01/17/07) MR. BRYANT-I totally understand that. However, when we start to talk about construction companies working out of the garage, it has nothing to do with the economic structure of a two family house, and that’s the crux of the discussion, that’s the point that I was trying to make. MRS. BARDEN-That’s right. MR. FULLER-On the economic standpoint, the reason for the requirement of providing the economic data is that the applicant has to show for each and every use in that district on the zoning chart they cannot realize a reasonable return on their investment without this variance. That’s a substantial hurdle, intentionally, under New York law. So the reason for them to be submitting that information would be for them to provide you with testimony with that information as to why they can’t realize a reasonable return for all of those uses based on that financial data. I think what you’re saying is financial data alone doesn’t provide you with that testimony. MR. ABBATE-No. MRS. BARDEN-Right, and let me just say one thing, too, because I misspoke earlier, Mr. McNulty. I think you asked whether or not this was a Use Variance granting the use for the multi family use, and it’s not. That’s a pre-existing, nonconforming use, and this is an expansion of that nonconformity. It’s the 198 square foot addition. You can maintain in reasonable repair a nonconforming use. You can’t enlarge or expand it. MR. MC NULTY-Okay. Then that raises another question in this can of worms. If this were a simple grant a Use Variance for a duplex in a Single Family Residential area, then we compare whether it was possible to get a reasonable return for this property, as a Single Family Residential setup, but now we’re complicated. Do we still do that, or do we do it, compare it considering all the other functions that are on that property? MR. UNDERWOOD-I don’t think that we look at the other functions on the property. I think that we have to be blinders on looking at the addition that they want to put on. That’s what they’re here for us for. The other issues are side issues, and the RPS property description from the Town of Queensbury lists it as property class Apartment. So I mean, if that’s what it’s listed as, that’s what it is. We don’t get to change it, even though it’s not permitted in the zone, it’s pre-existing. So they’re specifically asking us for that 198 square foot addition to upgrade their apartment. That’s what they’re asking for. MR. BRYANT-I disagree with that totally because the law is clear. It states that to grant a Use Variance they have to provide economic data relative to every allowable use in that zone. So therefore in this particular zone, what Mr. McNulty is saying is that there should be economic data relative to single family. MR. ABBATE-All right. Let me say this, gentlemen, ladies. Listen to this. 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. 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 is being affected by unique or at least highly uncommon circumstances. Three, that the variance, if granted, 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. MR. MC NULTY-Okay. Let me throw another thing in, then, too, that’s bothered me. I don’t know what the answer is, so I’m not arguing for one direction or another, but one thing I’m thinking of, Staff, in the notes, indicated there’s some question about whether or not some of the other uses on this property are properly approved, are legal or whatever. One of the things that worries me is I don’t want to drag these applicants through our review of this particular thing, and then have the Town come back and say, okay, now you’ve got to do the same thing for your construction company, now you’ve got to do the same thing for the third apartment or whatever. Whatever the rules say is one thing, but I don’t think it’s fair to the applicants. I’d like to see the thing sorted out so that, you know, they go through it once and we get it all sorted out, and once they’re through with it, they’re done, and they know what they can or can’t do, period, and it still leaves me with the question of what do I compare their figures against, the use as a single family property or use as three different commercial uses on the property? It just bothers me. 20 (Queensbury ZBA Meeting 01/17/07) MR. ABBATE-Your point is well made, and let me say this, again, remind the members that we base our decision on the evidence that’s contained in the record. We have Staff Notes that address other issues. I don’t see how we cannot address those issues and still make a decision based on the evidence contained in the record. I think anything that Staff raises we have to address. If they didn’t want us to address it, they shouldn’t have raised it in the first place. I concur with Mr. McNulty. What is the solution? I have a recommendation. You can accept it or you can reject it without prejudice. As you can see this evening, the issue is quite complicated. Okay. Number One, what I would do is this, if I were in your situation. I would request a tabling. I would retain an attorney, and I would get together with Staff, those are my three recommendations. You can do whatever you wish. MRS. BARDEN-Mr. Chairman, do you want to listen to the public? MR. ABBATE-I’m sorry. MRS. BARDEN-Public hearing, do you want to open the public hearing? MR. ABBATE-Certainly we’re going to open the public hearing. MR. URRICO-As long as we’re getting things out in the open here, I want to make sure, th the letter that was sent to Mr. Kruger on December 27 refers to an Area Variance. That’s another issue. Is that a second issue? MRS. BARDEN-That’s a different piece of property. MR. URRICO-Okay. That was in our packets. I’m not sure why. MRS. BARDEN-I’m not sure why either. MR. URRICO-Okay. MR. KRUGER-You’re referring to 56 Meadowbrook? MR. URRICO-Yes, 56 Meadowbrook. MR. KRUGER-Yes, that’s a totally different piece of property that a mistake was made on by Mr. Brown, we’re totally conforming on that property. MR. URRICO-It has no relation to this piece of property? MR. KRUGER-Nothing whatsoever. MR. ABBATE-All right. Here’s what we’re going to do. You think about what I said, and I’m going to ask you to take a seat back there and I’m going to open up the public hearing. Okay, and then I’m going to ask you to come back again. MR. KRUGER-Well, you have those four issues, and can we just finish summing up those issues? MR. ABBATE-If you wish, by all means. MR. KRUGER-Okay. As far as being incapable of having any other. MR. ABBATE-Would you like me to repeat it again for you? MR. KRUGER-No, we have it right here. Let me start from Number Four. Self-imposed hardship. I believe it isn’t self-imposed. We found some of the structure to be deficient. We’re trying to improve this structure. Will it alter the neighborhood? Absolutely not. We have one neighbor next door to us who has no objections to this issue. Are there unique circumstances? I think you can all agree that, yes, there are, and as far as Number One, we have provided all of the financial record that we have, and it’s substantial. MRS. KRUGER-We have come prepared to try to get this all worked out tonight, as far as we possible can. I mean, we understand that this property is a huge can of worms, and we would like to get it resolved. So, you know, we’re more than happy to give you 21 (Queensbury ZBA Meeting 01/17/07) all the information that we have, and if you feel you can make a decision based on that, great. If not and you feel we need to table it, we can figure that out, too. MR. ABBATE-Okay. We’ll continue on and you folks grab a chair back there. I’m going to open up the public hearing, and I’m going to ask any members of the public who wish to provide us information on Use Variance No. 2-2007, if you’d be kind enough to raise your hands, I will recognize you and ask you to come forward. Do we have anyone in the public who wishes to address Use Variance No. 2-2007? PUBLIC HEARING OPENED DON KRUGER MR. KRUGER-My name is Don Kruger, for the record. I’m Paul’s father. In 1976, I had a woman come to me crying because she lived in a two family there on Meadowbrook and her cousin was cheating her out of the whole property. Well, I won’t give you the cousin’s name, but he’s a businessman in the Town, and if you knew him, you could well appreciate that he would cheat his cousin out of a two family. So, to me, I knew that it was a two family back in the 70’s. It’s been sold many times. When Paul bought that property, I went there and I almost fell over. I’m like, what are you doing? He’s got a two family there that looked like a ghetto. There’s a garage that you’re looking at in that picture, they had a cleaning company, but they drove up at night in a van and they got out, four or five guys got out of the van and went in the garage and shut the door, and then an hour or so later came back and got in the van, and I said, what the hell, are the Arab terrorists? He kicked them out of there. He got rid of the tenant that was renting the apartment behind the garage. He had two tenants in the front there. He started cleaning the place up. He had my dump trucks and excavators down there day after day, taking stuff out of there. He had Ricky Sears come down with a tub grinder, ground all kinds of just debris up that the previous people had put in the yard. He cleaned the whole place up. He’s trying to clean it up, and the Staff says it’s a residential zone. It might be zoned that, but there’s really only one house next to it, that’s the Habitat for Humanity house that’s right next door to him. O’Connor’s have been there for years. Regency Park has been across the street. They’ve done everything they could to clean that house up and make it an asset. The bathrooms and whatever that were in that two family that he tore off of there were just absolutely horrendous. I told him that he should put a coat of paint on it and forget about it, but if he’s guilty of anything it’s being idealistic. So, I’ve got to tell you, he wants to put eight feet onto the thing. It’s not encroaching in the front, side or anything else. It’s back acreage. How it’s that difficult, I don’t know. There’s a concrete construction business or his maintenance he does on people’s properties, he pours sidewalks and stuff, is that any worse than having a landscape business there? I don’t know. He’s trying to make a living. He’s trying to do something, and the place absolutely pre-exists everything. Any questions for me? MR. ABBATE-No, no questions. Thank you so much for your comments. Do we have anyone else in the public who’d like to address Use Variance No. 2-2007? I see no other members of the public. Would you folks mind coming back to the table please. Okay. Now we’ve had the opening of the public hearing, and I’m willing to entertain anything you have to say. MR. UNDERWOOD-I just had one more question for them. MR. ABBATE-Yes, please. MR. UNDERWOOD-The addition that you’re proposing to put on the back, what exactly was going to go in there? Was it just going to expand the size of the room slightly, or, essentially? MR. KRUGER-The overall footprint would be increased by 192 square feet. It would still be a two story, and like I said, it provides for new bathrooms and new kitchens in both units to conform to existing Code, bring everything up to date in both apartments. MRS. JENKIN-I have one question. MR. ABBATE-Yes, please. MRS. JENKIN-The apartment in the back of the garage, is that now, are you renting that out now? MRS. KRUGER-We live there. 22 (Queensbury ZBA Meeting 01/17/07) MRS. JENKIN-You live in the apartment? MRS. KRUGER-Yes. MRS. JENKIN-Okay. MRS. KRUGER-And that’s the office, it’s the office and that’s where we live. It’s not rented, and if we ever move, it’ll be the office. MR. ABBATE-Any other questions from any members of the Board before I continue? Okay. Hearing none, I’m going to continue. Now, I’ve made you certain recommendations earlier. Okay. Now you want me to continue with the hearing? Okay. Before I ask members to offer their comments, I’d like to inform the public that the comments offered by the members are directed to the Chairman, and the comments expressed by Board members are not open to debate. I respectfully remind the members that precedent mandates we concern ourselves with the evidence which appears on the record to support our conclusions and the evidence relied upon should be specifically stated. This is necessary for an intelligent judicial review. Additionally any position you may take must be based on the regulatory review criteria of our laws and not simply on subjective preferences or not liking a project. Any decisions must be based on reliable evidence contained in the record of the Board’s deliberations. I would like to bring to the attention of every Board member this evening the following. 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, all of the following. Number 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 is being affected by unique or at least highly uncommon circumstances. Three, that the variance, if granted, will not alter the essential character of the neighborhood, and, Four, that the hardship is not self- created. Note, if any one or more of the factors is not proven, State law requires that the Zoning Board of Appeals deny the variance. Now, I’m going to ask Board members to please offer their comments on Use Variance No. 2-2007. Do I have a volunteer? MR. BRYANT-I have a question, Mr. Chairman. MR. ABBATE-Yes, sir. MR. BRYANT-You just mentioned that you’ve got a little apartment in the back of the garage. Is that part of the two family? Okay. So when the two family is complete, that’s going to be just a garage, right? MR. UNDERWOOD-They’re living there right now. MR. BRYANT-Yes, I understand that. Once the renovations are complete and they’ve got a two family house, are they going to still have an apartment in the garage? MR. UNDERWOOD-Yes. MR. ABBATE-I’d like an answer from the appellant, please. MR. KRUGER-Yes, it would be the same as before. MR. ABBATE-Okay. All right, ladies and gentlemen of the Board, again, I’m going to ask members to offer their comments. Do I have a volunteer? MRS. JENKIN-I do have some opinion. If we’re dealing only with the expansion of the house and improvement of the house, after visiting it, I think that improvements would be a definite advantage to the neighborhood, if you improve the house and the lot with it. I noticed that there’s a lot of unfinished, there’s no landscaping or anything, and I didn’t know whether you would be planning to landscape and improve the property with the proper driveway and everything. MRS. KRUGER-Yes. MRS. JENKIN-But I feel that going through the different things, your hardship is unique because it’s not livable right now. You’ve had your tenants move out. By fixing it up, you’ll realize a better return on your property, and you’ll improve the neighborhood. If 23 (Queensbury ZBA Meeting 01/17/07) you have plans as they are, as you’ve planned them, they will be better. So, the only problem I have is if the variance is legal, the original variance is legal. So, if that’s a problem, then I would probably say that you need to get that fixed first, but if it’s just the expansion of the two family home, then I would think that we should go ahead with that. MR. ABBATE-Okay. Thank you very much. Do we have anyone else on the Board who’d like to go next? MR. BRYANT-I’ll take a shot at it. Mr. Chairman, I really don’t know where I’m going to fall down on this. I’ll tell you quite frankly it’s very confusing, because I know theoretically we’re only talking about the expansion as it relates to the use, but in reality, we’ve got a piece of property that’s been used since the 70’s, according to one of the public that spoke, and it’s been a nonconforming use forever and ever and ever but also as you look through the Staff Notes it’s always been on the public record, you know, the deed was transferred in 2002, and it was all in the public record. They knew it was Single Family Residential. The other problem that I have is that it’s my understanding, and I may be incorrect, okay, but it’s my understanding that when we look at a Use Variance, we look at all the different possible uses in that zone, okay, and, you know, they’ve provided us detailed financial information, very complete financial information, but they don’t even talk about the single family use, and I think, I understand what Mr. Underwood is saying, that it’s been that way forever, but however I think that’s a consideration, and when you consider, when you start to look at a single family use and a building that’s supposed to be a single family use, I mean, how do you, I mean, in reality every single family house in Queensbury then would be subject to being a duplex. Do you understand what I’m saying? MR. ABBATE-I understand what you’re saying. MR. BRYANT-I mean, there’s a value there that you can’t really put on a single family that’s not in black in white. So I’m pretty much confused and I’d like to hear what the other Board members have to say. MR. ABBATE-That’s fair enough. I don’t have any problems with that. Should we move to Mr. Underwood. Please. MR. UNDERWOOD-I think if we look at the change of the property here, we had multiple usage occurring on site. We have a slight change in the nature of the business that’s operating on the property out of that garage apartment in the back of the unit here. These people have come in, and I think that when a new owner buys a piece of property and wishes to upgrade that property without changing the number of units on the property, I don’t think that’s an unreasonable request. I think that, you know, we’re sort of between a rock and a hard place with having to justify these four, you know, important ideas here that we’ve gone through here, but of course the property could be changed back to a single family residential dwelling, but as mentioned by the applicants, it would be the only one on that side of that street, and across, you know, with the large apartment complex on the other side of the road there, I don’t think that anyone notices that there’s multiple dwellings on site here, and I think that the fact that they’ve acted in good faith in improving the property and that they intend to continue improving the property, including the grounds on the property, the Town lists it as a multiple dwelling, as an apartment. I think that, you know, the request doesn’t really justify or trigger something in my mind that 192 square feet of addition is going to, you know, blow it up into some huge apartment complex. It’s just going to make the apartment dwellings more reasonable. It’s going to make them more usable, and he’s probably going to see a better return on his investment if he improves the dwelling as he’s requested to do here. So I don’t have a problem with it. I think it’s reasonable. MR. ABBATE-Okay. Thank you very much. Mrs. Hunt, would you like to go next, please. MRS. HUNT-I’m still confused. As Mr. Underwood said, the Town of Queensbury, the parcel is listed as apartment class, and yet it’s in a single family zone. So already we’ve got a confusion there. I don’t know, really haven’t listened to evidence that a reasonable return couldn’t be shown by using it as a single family home. I’m not sure about that, and yet it’s been a two family house for quite a while. I don’t know. I’m really confused at this point. MR. ABBATE-Okay. Thank you very much. Mr. McNulty, please. 24 (Queensbury ZBA Meeting 01/17/07) MR. MC NULTY-Well, I’ll join the confusion. I’ve been struggling trying to figure out just how to treat this. Certainly if all the uses that are present on this property now were coming in with the applicant and they were asking permission to initiate them, we would be comparing this to a single family residence and I think it would be pretty difficult to say that you couldn’t get a reasonable return off that piece of property with a single family residence on it. I mean, there’s been no real argument that says somebody doesn’t want to live there because there’s a storage unit down the street or there’s O’Connor’s construction down the street or whatever. So, it’s probably viable as a single family property. On the other hand, historically that’s not what this property has been, regardless of what the zoning is. It’s been a multi use property, multi family and multi use with some sort of commercial operation, and I suspect it’s had that kind of a problem for years because the minutes from the Zoning Board meeting that were included with our materials kind of indicated they were struggling with the same issues that we are and finally said we’re going to take care of one thing and we’re kind of going to leave the rest of it for the applicant to figure out later on somehow, and I guess that’s kind of where I’m going to come from with this. I think an argument could be made that most of the other uses that are there in one form or another are grandfathered, whether according to the rules or some other way. They’ve been there for a long time. So I’m not sure that it can be said that they are illegal at this point, and that issue isn’t before us. So I’m looking at it strictly as can they get a reasonable return off that house now as it sits with two apartments in it, or do they need relief so that they can do some work on it and make it more of a viable two unit rental? And in this case I think I can say that, okay, the way it sits now with the conditions that they found when they went to work on it and the fact that they’ve indicated they’ve lost two tenants because of conditions in the house, that probably it was not a viable, or possible to get a viable return out of it as it existed, and they need some relief in order to make the property, put it in a condition that we’ll give them a reasonable return. So on that basis, I think they probably have proven their points. As far as financial return, they’ve certainly given us a lot of figures, and the fact that they lost two renters, I think supports the idea that they need some financial relief that way. Again, focusing strictly on the fact that it’s a two family residential building that we’re looking at, I think that you can argue that the alleged hardship is unique to that particular piece of property. If we were looking at the commercial and other operations, then, no, there’s a lot of commercial operations on single family residential lots down that road, but in this case it applies strictly to a residential building. It certainly isn’t going to alter the character of the neighborhood if they’re allowed to make this minor addition on the back of that, at least no negative alteration. If anything it’s going to improve the character, which some of the other members have already indicated, and as far as the hardship being self-created. It strikes me that it was a pre-existing condition in the building that might not have been totally self-evident when the property was purchased, and it’s something that they’ve identified a condition and they’re responding to it, rather than creating it themselves. So I think that we’re home free on that one. So I guess I’d be in favor of granting the Use Variance with it specifically to making the minor expansions they’re asking for on this particular building. MR. ABBATE-Okay. Thank you very much. Mr. Urrico, please. MR. URRICO-I’m tempted to say ditto to Mr. McNulty’s comments, but because of the pay, we get paid here, so I want to make sure I get my money’s worth. Typically when we’re asked to vote on a Use Variance, we’re talking about something that’s blatantly different from the surrounding community and what’s zoned for that community, but what we have up and down Meadowbrook Road, for instance, is pretty much a checkerboard of different types of uses. We have businesses. We have multi family residences there. We have Planned Unit Developments. We have the Girl Scouts, and we have pretty much, and if you want to take the cross street Cronin Road there’s even more like that. We’re talking about a difference in use here, I really don’t see it. What I see is a location that’s been the same for a number of years, somebody that’s looking to improve their property. If this were a business trying to expand, we wouldn’t give it a second thought, but here we’re giving these folks a thorough going over for a piece of property that really is recognized by most people as what it is, apartment building or a small apartment building. Anyway, we’re here, and I feel that the applicants have demonstrated to me, they’ve satisfied the criteria of a Use Variance, and I want to point out that it also says that to allow a use not otherwise allowed in zoning an applicant must demonstrate to the Board unnecessary hardship. Well, the use is allowed in that area, in certain locations, but not this specific location. So I would say that the applicant has demonstrated the financial requirements, I think, to prove that they need this property to realize a reasonable return. I also think that the alleged hardship is unique and does not apply to a substantial portion of the neighborhood because I don’t think anybody else in the neighborhood has to go through this. They’re either multi family or single family residence, but there’s so many of them mixed in there, I think the multi family residences 25 (Queensbury ZBA Meeting 01/17/07) and the business actually overwhelm the single family residences. So I don’t see this as being necessarily unique in that way, but I think for this criteria I think it does satisfy it, and I agree that the variance will not alter the essential character of the neighborhood because it is a checkerboard neighborhood. It has different uses, and the hardship was not self-created. I think they inherited it. So I’d be in favor of this application. MR. ABBATE-Okay. Thank you very much. We have a rather unique set of circumstances here. I’d like to go back, if I may, to get a little clarity to Mrs. Jenkin, as well as Mr. Bryant. Joan, at this time, has any of this cleared up for you? MRS. JENKIN-Yes, I guess it has, but it’s still, because we’re only dealing with the expansion, and if we’re only dealing with the expansion and not the original lack of a proper variance given to multi family, then I’m definitely for the expansion. I think it will help. It will help the neighborhood. MR. ABBATE-Okay. Thank you very much. Mr. Bryant, please. MR. BRYANT-Well, I think Mr. McNulty and Mr. Urrico stated it well, but the things that are going around in my mind, you know, we’re talking about a duplex that they’re going to expand, but we’ve got an existing apartment and the garage. So we’ve got really a three family property in a single family unit. MR. ABBATE-Would you like to think about it while I move on? MR. BRYANT-Yes. MR. ABBATE-Okay. I’d be more than happy to do that. MRS. JENKIN-Could I just make one more comment? MR. ABBATE-By all means, please. MRS. JENKIN-That’s the thing that I’m worried about, because if we grant this variance and they do the improvements, is it going to come back to haunt them that the other variances have not been approved in the future? Will it come back to say? MR. BRYANT-See, the other point that she’s making, I think she’s tried to make, also, is that, you know, the logic that’s being used all along on this, you know, Mr. Underwood and Mr. McNulty, Mr. Urrico, the logic that it’s been a two family house since Noah and the Ark and so therefore now how long has it been a three family house and how long have there been two businesses on that property? So I mean we get into a situation that because all these circumstances exist for a period of time, then do we assume that therefore somewhere along the line they must be legal? MR. ABBATE-Yes, you’re right. Good point. MR. BRYANT-So, I mean, that’s what’s confusing me. MR. ABBATE-And these circumstances should have been addressed by the Town a long time ago. Anybody else have any other comments before I continue here? Mr. Secretary, I think we have a Long Form on this, do we not? MR. UNDERWOOD-We have a Short Form. MR. ABBATE-Is it a Short Form? MR. UNDERWOOD-Yes, it’s an Unlisted Action. I’ve got to go through it. I’ll go through the form. Describe the project briefly. The rear portion of the two family unit will be removed and replaced by an addition eight feet deeper than the portion removed. Will the proposed action comply with the existing zoning or other existing land use restrictions? They’ve checked it off as yes. I’m just going to through their form and then we’ll go through our form. What is the present land use in the vicinity of the project? It’s residential and commercial. Across the street are apartment buildings, Regency, and to the north is a commercial property, O’Connor, and to the south are single family residences. Does the action involve a permit approval or funding now or ultimately from any other governmental agency State or Local? Yes, it’s got to have approval from the Town of Queensbury. Does the action have a currently valid permit or approval. A Town of Queensbury demolition permit. Now we’ll go through our form. Does the action exceed any Type I Threshold in 6NYCRR? I would say no. 26 (Queensbury ZBA Meeting 01/17/07) MR. MC NULTY-No. MR. UNDERWOOD-Will the action receive coordinated review as provided for Unlisted Actions in 6NYCRR? I would say no. MR. MC NULTY-No. MR. UNDERWOOD-Could the action result in any adverse effects associated with the following: Air quality, surface or groundwater quality or quantity, noise levels, traffic patterns, solid waste production or disposal? I would say no. MR. MC NULTY-No. MR. UNDERWOOD-Aesthetic, agricultural, archeological, historic or other natural or cultural resources, or change in neighborhood character? I would say no. MRS. HUNT-No. MR. UNDERWOOD-Vegetation, fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species? No. MR. MC NULTY-No. MR. UNDERWOOD-A community’s existing plans or goals as officially adopted or a change in use or intensity of use of land or other natural resources? I would say no. MR. MC NULTY-Agreed. MR. UNDERWOOD-Growth, subsequent development or related activities likely to be induced by the proposed action? I would say no. It will maintain what they have there already. Long term, short term, cumulative or other effects not identified? No. Other impacts including changes in use of either quantity or type or energy? I would say no. MRS. HUNT-No. MR. UNDERWOOD-Will the project have an impact on the environmental characteristics that cause the establishment of a Critical Environmental Area? No. Is there or is there likely to be controversy related to potential adverse environmental impacts? I would say no. MR. MC NULTY-Agreed. MR. UNDERWOOD-I guess we could go for its approval, then, if you want to vote. MR. ABBATE-Yes, let’s do it. MOTION THAT RECOGNIZING THAT THE ENVIRONMENTAL ASSESSMENT FORM HAS BEEN GONE THROUGH, THAT WE APPROVE THAT THERE ARE NO SIGNIFICANT ENVIRONMENTAL THRESHOLDS THAT WILL BE CROSSED BY THE ADDITION OF THIS PROJECT, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. McNulty, Mrs. Jenkin, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes, zero no. The Environmental Assessment Form as read by the Secretary is approved. Let me continue on then. I’m going to, at this point, close the public hearing for Use Variance No. 2-2007. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area as well as the fact that State Statutes spell out four factors that must be proven in order to be granted a Use 27 (Queensbury ZBA Meeting 01/17/07) Variance. Again, if any one or more of the factors is not proven, State law requires that the ZBA must deny the variance. I’m going to ask for a motion and request that your motion be made with clarity. The motion itself will not be open to debate. Ladies and gentlemen of the Board, having said that, do I have a volunteer for a motion for Use Variance No. 2-2007? MOTION TO APPROVE USE VARIANCE NO. 2-2007 PAUL KRUGER, Introduced by Charles McNulty who moved for its adoption, seconded by Roy Urrico: 131 Meadowbrook Road. The applicant is seeking to expand an existing duplex structure. The applicant requests relief from the allowable uses of the single family residential SFR-1A zone, per Section 179-4-020. In approving this, we’ve considered the four criteria, specifically Number One, can the applicant realize a reasonable return provided that lack of return is substantial as demonstrated by competent financial evidence, and the applicant has provided us with a fair volume of financial data. I should explain that we are looking at this in relationship to the two family structure and not necessarily to the entire complex of businesses and activities on this piece of property, and it’s been shown that the applicant lost two tenants out of this building because of problems within the building, and this is what he’s seeking to resolve by replacing a portion of the building on the rear and expand it by a slight amount. Given that, with the absence of renters in the building at this point, return is zero, and I think it’s reasonable to allow him to do what’s necessary to be able to repopulate the building with good tenants that will bring in a reasonable return. Number Two, 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. Again, focusing on the two family structure that we’re dealing with, I would say that this is unique within the neighborhood. So we meet that qualification. Will the requested Use Variance, if granted, alter the essential character of the neighborhood? I think not. As has been mentioned in our discussion, there are several multi family dwellings up and down this road and in the immediate neighborhood, and any alteration in the character of the neighborhood will be for the positive when this project is complete, and is the alleged hardship self-created? Again, it apparently has existed in the building for a while. It’s not something that the applicant created, either by causing it himself or deciding that he wanted to do something drastically different than what’s there. So I think that we can say that it is not self- created. Given those criteria and, again, focusing on this one particular building, I think we can approve this. So I’m recommending that we approve the variance. th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mr. Urrico, Mr. Underwood, Mr. McNulty, Mrs. Jenkin, Mrs. Hunt, Mr. Abbate NOES: Mr. Bryant MR. ABBATE-The vote is six in favor, one against. The vote to approve Use Variance No. 2-2007 is approved. Thank you very much. AREA VARIANCE NO. 3-2007 SEQRA TYPE: II LAURA AND JAMES COLVIN OWNER(S): LAURA AND JAMES COLVIN ZONING: SR-1A LOCATION: 31 THOMAS STREET APPLICANT PROPOSES CONSTRUCTION OF A SECOND FLOOR ADDITION. RELIEF REQUESTED FROM SETBACK REQUIREMENTS AND FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS REF.: BP 2006-806 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.25 ACRES TAX MAP NO. 309.15-1-27 SECTION: 179-4-030 LAURA & JAMES COLVIN, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 3-2007, Laura and James Colvin, Meeting Date: January 17, 2007 “Project Location: 31 Thomas Street Description of Proposed Project: Applicants propose a 1,024 sq. ft. second-story addition (existing is 524 sq. ft.) to an existing 1,536 sq. ft. single-family dwelling with attached garage. Relief Required: The applicants request front setback relief of 3.54-feet, from the minimum 30-feet required, and 9.34-feet of side setback relief from the minimum total of 30-feet, both per §179-4-030 for the SR-1A zone. 28 (Queensbury ZBA Meeting 01/17/07) In addition, relief for expansion of a nonconforming structure is requested. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicants would be able to construct the proposed second-story addition in the desired location. 2. Feasible alternatives: A feasible alternative may be to locate the addition on the back of the existing single- family dwelling. 3. Is this relief substantial relative to the ordinance?: The request for front setback relief of 3.54-feet from the required 30-feet may be considered minimal at 11.8%. The request for 9.34-feet of side setback relief from the required total of 30-feet may be deemed moderate at 31.13%. 4. Effects on the neighborhood or community: Minimal 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 2006-806: Pending, 1024 SQ FT RESIDENTIAL ALTERATION 2ND FLOOR RAISING THE ROOF GOING UP 8 FT SIDES REMOVING KNEE WALLS. BP 2001-304: Issued 5/16/02, SEPTIC ALTERATION AS PER PLOT PLAN AND SPECIFICATIONS. Staff comments: Staff has included the floor plans for the proposed addition. These were submitted with the building permit application only. The addition will increase the total number of bedrooms from 2 to 4, the existing septic system is sized for a 3-bedroom single-family dwelling (BP 2001-304). Therefore, a septic alteration may be required. It does not appear that any negative impacts to the neighborhood or community would result (applicant indicates in his application that the result should be a positive impact on the neighborhood). However, feasible alternatives could be explored. SEQR Status: Type II” MR. ABBATE-All right. Would the petitioner of Area Variance No. 3-2007 come to the table, please, speak into the microphone and identify yourself, please. MRS. COLVIN-I’m Laura Colvin. MR. COLVIN-I’m James Colvin. MR. ABBATE-Good evening. Were you here earlier when I explained our procedures and what have you? MRS. COLVIN-No. MR. COLVIN-No, I wasn’t. MR. ABBATE-You were not. Are either of you attorneys? MR. COLVIN-No. 29 (Queensbury ZBA Meeting 01/17/07) MR. ABBATE-All right. Fine. Basically this is what happened. You are appearing before us because you’re going to present an appeal to us. Hopefully the information you’re going to provide us will convince us to grant what you are looking for. If at any time during the course of this hearing there’s anything you don’t understand, stop us, raise your hand, and we’d be more than happy to listen to what you have to say. If at any time during the course of this hearing there’s information that you feel will support your appeal and that you may have forgotten to tell us, stop, raise your hand, and tell us what it’s all about. Okay. Do we understand each other? Are you prepared to proceed? MR. COLVIN-Yes, sir. MR. ABBATE-All right. Now you tell us why you believe we should approve your appeal. MRS. COLVIN-Because right now we have a two bedroom home, and we have one child and one child on the way. So we don’t have bedroom for this child. So we would like to expand our upstairs so that we can have that third bedroom and a bathroom. MR. ABBATE-Okay. Is there anything else you’d like to add? MRS. COLVIN-One other thing I heard. When you were talking earlier about the fourth bedroom and have it maybe an alteration. We have decided, which we had though about earlier, to make our bedroom just a one big suite. So there is only going to be three bedrooms, not four bedrooms at this point. After we got the paperwork in the mail, we talked about it and decided to make it so that it’s just a third, one large bedroom. MR. ABBATE-Okay. So in effect what you’re doing, you’re modifying your request from four bedrooms to three. MRS. COLVIN-Right. MR. ABBATE-Okay. That’s fine. Is there anything else you’d like to bring to our attention at this time? MRS. COLVIN-I don’t think so. MR. ABBATE-Okay. Then I’m going to continue on. Do any of the Board members have any questions for the appellant? MR. BRYANT-Mr. Chairman, actually I have a couple of questions. The sketch that you provided, it’s not very clear, the second floor addition really doesn’t protrude anymore into the setback areas than your current house, is that correct? MR. COLVIN-That’s correct. MR. BRYANT-Okay. You show on the front elevation, you show a porch, and then on the side elevation it’s kind of, did you consider the porch in the setback calculation? MRS. COLVIN-No. MR. BRYANT-Is that how the porch is going to remain? It’s not going to be a larger? MR. COLVIN-Yes. That little step is going to still be there. MR. BRYANT-Okay, and was the original, is the setback, is it actually measured from the porch? The porch is not shown on the survey. MR. COLVIN-No, I went from the, when I took a measurement, I went right from the bottom of the house to the road or, you know, to the property line, because obviously you can’t use the road, because that’s not ours. So I did not use that little stoop you’ve got you see right in the front. MR. BRYANT-That’s all it is, right, is a stoop? You’re not going to build? MR. COLVIN-Yes. MR. BRYANT-Because the elevation shows like it’s a bigger porch. MR. COLVIN-No. 30 (Queensbury ZBA Meeting 01/17/07) MRS. COLVIN-There’s a porch on the back, perhaps, that you might be. MR. BRYANT-Okay. It’s not clear. The drawings are not really clear. Okay. MR. ABBATE-Any other members of the Board have any questions for Mr. or Mrs. Colvin? If no other questions, then I’m going to move on, and I’m going to open up the public hearing for Area Variance No. 3-2007, and if we have anyone in the audience who wishes to comment on Area Variance No. 3-2007 raise your hand, I’ll acknowledge you and ask you to come forward. Anyone in the public? PUBLIC HEARING OPENED MR. ABBATE-I see no hands. All right. Then I’ll move on. Again I’m going to ask Board members to offer their comments. I’d like to inform the public, again, that the comments offered by members are directed to the Chairman and they’re not subject to debate. Now I’ve respectfully reminded the members that precedence mandates our requirements for evidence and the requirements of the law to base a decision. I don’t feel I have to go over it again. I’m going to ask members, now, to offer their comments on Area Variance No. 3-2007. MR. BRYANT-Actually, this is a reasonable request. I think that we’re not really changing the current situation. We’re not adding more or requiring more setback. Basically it’s not extending beyond what the house is now. I have no objection to the application at all. I’d be in favor of it. MR. ABBATE-Thank you very much. Anyone else? MRS. HUNT-I consider this a reasonable request. I don’t think it’s going to change the character of the nearby properties. It’s not substantial, and I would be in favor. MR. ABBATE-Thank you. Mr. Urrico? MR. URRICO-I agree. I think this is a good application and I would be in favor of it. MR. ABBATE-Thank you. Mr. Underwood? MR. UNDERWOOD-I’m in agreement. MR. ABBATE-Thank you very much. Mr. McNulty? MR. MC NULTY-Likewise. As long as it’s not extending beyond the existing house walls, and I think there’s enough higher roofs in the neighborhood that I don’t think it’s going to effect the character of the neighborhood. MR. ABBATE-Would you be comfortable with a condition? Do you feel it’s necessary? MR. MC NULTY-I don’t feel that it’s necessary. They’ve presented their drawing and they’ve indicated that it’s basically just raising a roof. MR. ABBATE-And it’s on the record that’s exactly what you’re doing. That’s fine. MR. COLVIN-That’s correct. MR. ABBATE-Mrs. Jenkin? MRS. JENKIN-I’m in favor. MR. ABBATE-Okay. Thank you very much, and I listened, again, to what you had to say and what my fellow Board members had to say, and overwhelmingly they are in support of your application and I am as well. Having said that, I’m going to move on and I’m going to ask that we have a request for a motion. I went through, earlier, explaining to the Board what State law requires and the five factors that we must take into consideration. Again, I just want to remind you, unlike a Use Variance test, we need not find in favor of the applicant on every one of the five factors. That’s not necessary. All we have to merely do is take into account in deciding whether to grant an Area Variance each of those. Now, I’m going to ask for a motion. I’m going to ask that it be made with clarity. Do we have a motion for Area Variance No. 3-2007? 31 (Queensbury ZBA Meeting 01/17/07) MOTION TO APPROVE AREA VARIANCE NO. 3-2007 LAURA AND JAMES COLVIN, Introduced by Joyce Hunt who moved for its adoption, seconded by Allan Bryant: 31 Thomas Street. The applicants propose a 1,024 square foot second story addition. The existing is 524 square feet, to an existing 1536 square foot single family dwelling with attached garage. The applicants request front setback relief of 3.54 feet from the minimum 30 foot required and 9.34 feet from the side setback relief from the minimum total of 30 feet, both per Section 179-4-030 for the Single Family One Acre zone. In addition, relief for expansion of a nonconforming structure is requested. I don’t think the benefit could be achieved by any other means feasible to the applicant. They need more room and this is the easiest way to do it. There will not be an undesirable change in the neighborhood character or to nearby properties. I think the request is modest. It will not have physical or environmental effects, and it could be said it’s self-created, but only because they want an another bedroom. So I propose we pass Area Variance No. 3- 2007. th Duly adopted this 17 day of January, 2007, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mrs. Jenkin, Mrs. Hunt, Mr. McNulty, Mr. Abbate NOES: NONE MS. GAGLIARDI-Did you close the public hearing? MR. ABBATE-If not, I’ll do it right now. The public hearing is now closed. PUBLIC HEARING CLOSED MR. ABBATE-Thank you, Maria. The vote for Area Variance No. 3-2007 is seven yes, zero no. Area Variance No. 3-2007 is approved. Good luck to you. MRS. COLVIN-Thank you so much. MR. COLVIN-Thank you very much. MR. ABBATE-Thank you, ladies and gentlemen. Do we have any other discussion before I close the hearing this evening? Anybody else have anything they wish to say? I hearing nothing. This hearing is closed. Thank you, guys. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 32