04-17-2019
(Queensbury ZBA Meeting 04/17/2019)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
APRIL 17, 2019
INDEX
Notice of Appeal No. 1-2018 Charles C. Freihofer, III 2.
Tax Map No. 239.18-1-27.1 & 27.2
Notice of Appeal No. 1-2019 Charles C. Freihofer, III 3.
Tax Map No. 239.18-1-28.1 & 27.2
Area Variance Z-AV-13-2019 Michael D. Canale 20.
Tax Map No. 265.-1-64
Area Variance A-AV-16-2019 Robert Spath 26.
Tax Map No. 240.5-1-10
Area Variance Z-AV-14-2019 Alex & Michelle Wilcox 31.
Tax Map No. 278.20-1-3
Area Variance Z-AV-19-2019 Stewart’s Shops Corp. 40.
Tax Map No. 301.8-1-33
Area Variance Z-AV-18-2019 Schermerhorn Residential Holdings 44.
Tax Map No. 288.-1-64
Sign Variance Z-SV-3-2019 Walmart/Leticia Martinez 48.
Tax Map No. 303.15-1-25.1
THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND
STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTH’S
MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES.
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(Queensbury ZBA Meeting 04/17/2019)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
APRIL 17, 2019
7:00 P.M.
MEMBERS PRESENT
HARRISON FREER, CHAIRMAN
ROY URRICO, SECRETARY
RONALD KUHL
JAMES UNDERWOOD
CATHERINE HAMLIN, ALTERNATE
BRENT MC DEVITT, ALTERNATE
MEMBERS ABSENT
MICHELLE HAYWARD
JOHN HENKEL
MICHAEL MC CABE
ZONING ADMINISTRATOR-CRAIG BROWN
LAND USE PLANNER-LAURA MOORE
TOWN COUNSEL-MILLER, MANNIX, SCHACHNER & HAFNER-MARK SCHACHNER
STENOGRAPHER-SUE HEMINGWAY
MR. FREER-I’d like to open tonight’s meeting of the Queensbury Zoning Board of Appeals
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for April 17. For those who aren’t familiar with the process it’s quite simple. Tonight
might be a little bit unique. There should be Staff Notes on the back table with our agenda.
We’ll call each applicant to the table and we’ll read in the application. We have a little bit
of administrative business to start with and then we have actually a little bit unusual first
couple of items, which is an Appeal, which is not a variance which we normally handle here,
and then we’ll continue with the rest of the variance requests. So we only have six Board
members. A full Board is seven members. So the actions will require four affirmatives to
approve any of the actions, and that’s the same if we had seven members. So if you feel
like you’re being possibly impacted by not having all seven votes, we can discuss it and deal
with it. Because we have public hearings open and advertised for each of the activities, we
will open the public hearing because we don’t have to have somebody have to come back if
they have something to say, he or she has something to say. So we’ll start with the approval
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of minutes for March 20. I’m looking for a motion to approve the minutes of March 20.
APPROVAL OF MINUTES
March 20, 2019
MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING
MINUTES OF MARCH 20, 2019, Introduced by Brent McDevitt who moved for its adoption,
seconded by Catherine Hamlin:
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Duly adopted this 17 day of April, 2019, by the following vote:
AYES: Mr. Urrico, Mr. Underwood, Mrs. Hamlin, Mr. McDevitt
NOES: NONE
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ABSTAINED: Mr. Kuhl, Mr. Freer
MR. FREER-Okay. So now we’re on to the first application which is Charles Freihofer appeal
of Zoning Administrator decision. If somebody here in the audience would like to come up
to the table, please.
NEW BUSINESS:
NOTICE OF APPEAL 1-2018 SEQRA TYPE II CHARLES C. FREIHOFER, III AGENT(S):
JOHN W. CAFFRY, CAFFRY & FLOWER OWNER(S): DARK BAY PROPERTIES, LLC &
LAWRENCE A. DAVIS ZONING: WR LOCATION: 3300 STATE ROUTE 9L
APPELLANT IS APPEALING THE ZONING ADMINISTRATOR’S LETTER OF JULY 26,
2018 COMPLIANCE LETTER FOR SP 67-2017 GREGORY TERESI. SP 67-2017 SITE PLAN
APPROVAL WAS GRANTED BY THE PLANNING BOARD FOR THE CONSTRUCTION OF A
SINGLE-FAMILY HOME. CROSS REF. SP 67-2017. WARREN COUNTY PLANNING:
N/A. LOT SIZE: 1.5 ACRES & 0.23 ACRES. TAX MAP NO. 239.18-1-27.1 & 27.2
SECTION N/A
JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT
MR. FREER-Roy, if you could read in the Staff Notes.
STAFF INPUT
Notes from Staff, Notice of Appeal 1-2018, Charles C. Freihofer, III, Meeting Date: April
17, 2019 “Project Location: 3300 State Route 9L, Description of Proposed Project:
Appellant is appealing to the Zoning Board of Appeals relative to a June 26, 2018 form letter
from the Zoning Administrator relative to the issuance of Site Plan Review approval 67-
2017; Gregory Teresi..
Staff Comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing party
aggrieved?
The appeal was filed within the required timeframe.
The Notice of Appeal application was filed with the Town on July 30, 2018.
While the appellant has not offered any information regarding a direct damage or
harm to them that differs from that of the general public, or an explanation of how
they are aggrieved, they are an adjacent property owner.
Second, Merits of the argument if the appellant is found to have standing:
The appellant is appealing a Zoning Administrator form letter, sent to all applicants that are
issued following either a Planning Board or Zoning Board of Appeals decision. The position
of the appellant is that this form letter constitutes an appealable determination from the
Zoning Administrator.
It is the Zoning Administrator position that the subject letter does not constitute an
interpretation, decision or offer any position or explanation of any section of the Town
Zoning Ordinance that the appellant has referenced.
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The appellant’s main argument appears to be that the property involved in the SP 67-2017
application must be merged with the adjoining lands to the west and, once joined, treated as
one parcel for the purposes of applying the provisions of the Town Zoning Ordinance per
179-13-060, D.
The June 26, 2018 letter from the Zoning Administrator does not refer to this section of
the code or render any determination or interpretation regarding the same.”
MR. FREER-Okay. Thanks, Roy. So this Board just met with Counsel to seek and gain legal
advice, and we will now hear this first activity and one of the discussions is how related
these are. You’ve asked for them both to be done in the same day and the question is
whether the compliance letter was even an appealable determination. The next agenda item
is clearly an appealable determination. So if you could address that when you make your
opening comments. Please identify yourself and add anything you’d like.
MR. CAFFRY-Sure. Good evening I’m John Caffry from Caffry and Flower representing Mr.
Freihofer who’s here with me on my left, and I kind of had the same question of should we
address both of these applications at the same time, do we address them separately?
Because although there’s a procedural issue about the first one, the issues overlap a lot and
I’m not sure how the Board would like to handle that because I don’t see a point in having a
discussion on the same merits issue twice.
MR. FREER-Well we’re trying to deal with this to give you the latitude to handle it as best
you think is proper. It seems to me that the second determination is sort of the same issue,
and so if we’re going to discuss the merits it makes sense that there’s no question about
whether it’s even a determination on the second one, but if you want us to handle them
separately we are prepared to do that.
MR. CAFFRY-Well I think it would make sense to handle them together. So maybe, and I’m
not going to tell you what to do, but maybe Mr. Urrico ought to read the Staff comments on
the notice on the second one. Then we can do them both together.
MR. FREER-Let me make sure that everyone on the Board’s okay with that and seek Counsel’s
advice.
MR. SCHACHNER-You can combine them if you wish. If you wish to combine them then you
can combine them and indicate that the party making the Appeals, plural, will be doing one p
presentation of its position and that the public hearings, plural, will be open on both Appeals
and hear them together. If you wish to do that, you can do that.
MR. FREER-Okay. Is there any objection from any of the Board members on that approach?
Okay, and, Mr. Caffry, are you okay with that?
MR. CAFFRY-I’m okay with that. Yes. Because of the degree of overlap.
MR. FREER-Okay. So let’s proceed and, Roy, then, if you could read the second.
NOTICE OF APPEAL 1-2019 SEQRA TYPE II CHARLES C. FREIHOFER, III AGENT(S)
JOHN W. CAFFRY, CAFFRY & FLOWER OWNER(S) DARK BAY PROPERTIES, LLC &
LAWRENCE A. DAVIS ZONING WR LOCATION: 3300 STATE ROUTE 9L APPELLANT
IS APPEALING THE ZONING ADMINISTRATOR’S DECISION OF JANUARY 4, 2019
WHICH HAS BEEN DETERMINED THAT THE TWO TAX MAP LOTS OWNED BY
LAWRENCE A. DAVIS AND DARK BAY PROPERTIES, LLC ARE LEGALLY PRE-EXISTING
SEPARATE NONCONFORMING LOTS. THE APPEAL IS IN RELATION TO SP 67-2017;
SITE PLAN APPROVAL WAS GRANTED BY THE PLANNING BOARD FOR THE
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CONSTRUCTION OF A SINGLE-FAMILY HOME. CROSS REF SP 67-2017 WARREN
COUNTY PLANNING N/A LOT SIZE 1.5 ACRES & 0.23 ACRES TAX MAP NO. 239.18-
1-27.1 & 27.2 SECTION N/A
JOHN CAFFRY, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal 1-2019, Charles C. Freihofer, III, Meeting Date: April,
17, 2019 “Project Location: 3300 State Route 9L Description of Proposed Project:
Appellant is appealing to the Zoning Board of Appeals relative to a January 4, 2019 letter
from the Zoning Administrator relative to lands of Davis.
Staff Comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing party
aggrieved?
The appeal was filed within the required timeframe.
The Notice of Appeal application was filed with the Town on March 4, 2019.
While the appellant has not offered any information regarding a direct damage or
harm to them that differs from that of the general public, or an explanation of how
they are aggrieved, they are an adjacent property owner.
Second, Merits of the argument if the appellant is found to have standing:
The issue at hand is whether two adjoining parcels are to be treated as one, for zoning
purpose, or to be treated independently.
The Zoning Administrator position is outlined in the January 4, 2019 letter referenced
above. Paraphrased, the position is that the parcels are to be treated independently as they
were under separate ownership at the time of the proposed development.
The appellant’s main argument appears to be that the property involved must be merged with
the adjoining lands to the west and, once joined, treated as one parcel for the purposes of
applying the provisions of the Town Zoning Ordinance per 179-13-060, D.”
MR. FREER-Okay. Does that make sense?
MR. CAFFRY-That’s fine. Thank you. Just briefly on the issue of standing, as the adjoining
property owner I believe there’s a presumption that the adjoining property has standing in
an issue like this, but beyond that this is a very small lot and it requires a shoreline area
variance and the proposed house would be located only 12 feet from the property line
because the lot’s so small it had to be squeezed in there. So there’s potential for a lot of
other impacts from it being such a small lot. So that we believe that that does establish
standing. Regarding whether Mr. Brown’s first letter on our 2018 appeal is appealable, I
think it is because when we appeared in front of the Planning Board when they did Site Plan
Review for a house on this small lot, we raised all those issues and the Planning Board said
that’s not our issue. We rely on Staff or someone else to make those decisions, and I’m
paraphrasing but that’s basically what they said. So they didn’t even want to hear it. They
didn’t let me talk about it and they did not vote on it, and then after that Mr. Brown sends
on something to the applicant and says basically here’s the decision of the Planning Board,
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let us know when you’re ready to take the next steps. I felt that was appealable. Again to
the extent that the issues overlap it may not be necessary to get to that one, but there’s a
couple of issues in that one that were not addressed in Mr. Brown’s later letter. I believe
it came out in January of this year, because that was really a reaction to a letter from the
landowner’s attorney and the issues of side yard setbacks and height variance, which were
raised in the first Appeal, were not addressed by that landowner’s attorney. So they were
not addressed by Mr. Brown. So we couldn’t appeal them on the second Appeal. So there
are those issues that are out there that have never been ruled on by Mr. Brown that are
part of the first Appeal that hopefully this Board will move on. If you decide that that’s
not appealable in the first issue, then those issues will still be out there kind of in lieu of
and have to be addressed in some other way at some other time. Getting now to the merits
of the primary issue on both Appeals, which is whether or not the small lot that the Planning
Board approved a Site Plan for is a legal building lot. Once upon a time probably over 100
years ago there were two separate deed lots and for several decades they were always
owned by the same people, they were always in the same title, and there’s no question, based
on all the documents from the file and their deeds and everything else, tax map records,
that in 1973 these lots were in the same ownership and I’ll get to that in a minute as to why
that’s important. In 2006, Mr. Davis who was the owner at the time, deeded one of them
to Dark Bay Properties, LLC. We don’t know who owns that LLC. It may be Mr. Teresi who’s
been involved with these properties but I really don’t know who owns the LLC. The lots are
nonconforming under both the APA act and the Town Code. One is 1.59 acres. It’s got
three houses on it already. The adjoining lot that was until recently in the same ownership
is .23 acres. It’s a total of 1.82, and this is in a two acre Waterfront zone under the Town
zoning act. Those lot sizes were the same back in 1973. There are also, on the APA map in
a rural use area, which requires eight and a half acres on average per lot and a minimum
shoreline width of 150 feet. Obviously these are undersized for that but that’s not quite
as clear an issue as the shoreline lot width because the smaller lot only has 40 feet of lake
front and Mr. Brown ruled in the letter we’re appealing from that that small lot, the one the
Planning Board approved, needs an Area Variance from the shoreline lot width. We’re not
challenging that part of his ruling because we agree with it. If the current proposal that
the Planning Board approved does go through, there’ll be a total of four houses on less than
two acres in a two acre zone. We think that’s a pretty significant overdevelopment.
MR. FREER-So when you say three houses, I was just there and I couldn’t find the three
houses from the road.
MR. CAFFRY-I was looking at the Site Plan and it seems to show three houses.
MR. FREER-Well it looks like a three car garage with maybe some over, are you calling that
a house?
MR. CAFFRY-No. I’m looking at a Site Plan that’s on the 2018 Appeal the last page and there
are three structures. One says cabin. One says house and the third one says house. So
I’m going off that’s, their survey. There is also a garage on top of that.
MR. SCHACHNER-Mr. Chairman, comment whenever it’s appropriate.
MR. FREER-So I’m just trying to get bearings of what I just looked at. Mr. Freihofer are
you the yellow house? That’s on that property?
CHARLES FREIHOFER
MR. FREIHOFER-No, sir. I’m to the east of all of this. It’s a brown house. From the road
you would see a brown garage at the end of my house.
MR. FREER-What’s the yellow house? Is that on the Davis property?
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MR. FREIHOFER-The yellow house is up at the other end there I think.
MRS. MOORE-This is Mr. Freihofer’s house.
MR. FREIHOFER-Now that’s my property right there. It’s outlined in blue.
MRS. MOORE-This is the property that received the Site Plan.
MR. CAFFRY-Correct. That’s the small lot and the three houses are to the left of that on
the other piece.
MRS. MOORE-And this is the adjoining lot.
MR. FREIHOFER-They’re down here, the yellow house and the other two.
MR. FREER-Okay. Mark?
MR. SCHACHNER-Yes. A comment. I just want to remind the Board that you can ask
whatever questions of Mr. Caffry, his client, or anybody else you like, but I just want to
remind the Board that you’re in an unusual, for you, mode here. You’re reviewing the wisdom,
or lack of wisdom for lack of a better way to put it, of our Zoning Administrator’s
determinations which don’t really relate to how many houses are or are not on the property,
whether it’s an appropriate, whether it’s, you know, a nice project that the neighbor is
proposing for its property or the like. You’re reviewing the, again, for lack of a better way
to put it, the wisdom or lack of wisdom of the Zoning Administrator’s determinations in
interpreting a provision of our Zoning law.
MR. FREER-Okay. Thank you. That’s why we have you. Go ahead, Mr. Caffry.
MR. CAFFRY-Thank you. As I said, sometime last fall, in September the attorney for the
property owners filed a request for an interpretation of Mr. Brown as to whether or not the
two lots were legally separate lots, and in January Mr. Brown issued that decision. He found
that in his opinion they were legally separate lots. That was the first time he really made
a formal written decision on that issue. Again, the previous letter we felt he should have
addressed the issue and didn’t. This time around he clearly addressed the issue. To
summarize our position on the issue of the lots, in looking at Mr. Brown’s decision from
January we seem to be in agreement that there’s a merger provision in the APA statute,
there’s a provision in the Town Code that says pre-existing nonconforming lots under certain
circumstances are to be treated as a single lot. Where we really seem to differ is that he
thinks you measure whether or not they are separate lots at the time the development is
proposed. I think that is very clearly contrary to the Adirondack Park Agency statute and
regulations because they clearly say that the status of the lots has to be determined as of
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the date the Park Agency Act took effect. That was May 22, 1973 and then the APA
regulations include that date right there in that. So as of that date these lots became a
single lot by law per the APA Act and they are still in our opinion a single act or a single lot,
even though the property owner did the deed. We think that was not a valid subdivision.
The APA, the reasoning behind the APA provision I believe was to, where possible, eliminate
pre-existing nonconforming lots on the shoreline in particular to reduce impacts to the lake.
There’s a lot of older developments that were lots carved off that didn’t meet current
standards and they wanted where possible to eliminate them. If you only have one little
undersized lot you are allowed to build on it, but if you have two that joined each other the
APA regulations say they shall be deemed to have merged into one undivided lot as of that
date, even if described in different deeds or acquired at various times. So that took effect
in 1973. These lots were in the same ownership in 1973. The Town zoning, unlike a lot of
towns that are in the Adirondack Park, Queensbury’s half in the Park, half not in the Park.
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So there’s a lot of issues in your Code that are different for part of the Town that are
within the Park, and this is one of them. Sometime 20, 30 years ago the Town passed an
amendment to the Code that grandfathered a lot of pre-existing, nonconforming lots, but
within the Adirondack Park they made the rule different because they had to conform to
the Park Agency Act because the Town has what’s called an approved local land use plan, and
to have jurisdiction over Class B projects in the Park you have to get approval from the APA
from the Code and they wanted to be consistent. So the way that the Town Code is written
is consistent because it refers to Section 811 of the Park Agency Act and incorporates that.
The wording’s a little different, though. It doesn’t use the word merger. It says if the lot
is in a Critical Environmental Area or the Adirondack Park, and it doesn’t comply with the
minimum density or the minimum shoreline width, they will be treated together as one lot
for zoning purposes. That seems to apply. These lots are in the Park. They’re also in two
different kinds of Critical Environmental Areas, one under the APA Act and the other under
the Lake George Park Commission regulations under SEQR for Critical Environmental Areas.
So we believe the Park Agency, this says within the Park in a Critical Environmental Area
that two lots in the same ownership will be treated together, and it’s also clear that this has
to be in accordance, right at the top of this section, 179-13-060.D, that development of
nonconforming lots in these areas have to be in accordance with Section 811, the Park Agency
statute I just referred to. So again really the only difference is a little bit of the wording
but the effect is the same, and I think the Park Agency Act is quite, even though the Town
didn’t pick up the language about the effective date of the Park Agency Act when it wrote
this specifically referred to Section 811 which specifically says as of the effective date.
So therefore we think that these were only two lots and we respectfully disagree with Mr.
Brown when he says that it would only effect, only be analyzed at the date the development
was proposed, and if you think about it his interpretation essentially guts the provision of
the Town Code because it says doesn’t matter what it looks like when you acquired it or in
1973 or whenever, it matters when you go to propose it. So any property owner in this
situation with half a brain is going to split them apart and then say, look, they’re separate
lots. It’s totally contrary. It just creates a loophole that swallows the whole rule. So we
also, so those are the, we think both the Town Code and the APA Act require these be
treated as separate lots. The deed that was done in 2016 that split off one of the lots was
not valid. It was an illegal subdivision. We also would say that these lots were in fact
merged by a prior owner. I won’t go into the details. It’s in the papers we filed, but in
2008 the Wheelers merged them into a single lot, single tax map lot. When Mr. Davis
bought it in 2015 it still only had one tax map number, and then in 2016 he conveyed off one
of the lots. In conclusion, this is a very small, very steep site on the shore of Lake George.
It demonstrates the reason why this rule was there, to try and eliminate overdevelopment
on small lots and we think the Town should treat any claim of exemption with a lot of scrutiny
to make sure that it is doing what it can to enforce this rule and keep these nonconforming
lots from being developed. Any questions at this time?
MR. FREER-We’re going to open a public hearing and receive comments.
MR. CAFFRY-If you have questions after the public hearing.
MR. FREER-I’ll let you come back and comment on anything that you hear at the public
hearing.
MR. CAFFRY-Okay. Great.
MR. FREER-So I’m going to open the public hearing. Is there anybody in the audience who
would like to make a comment on this Appeal? Okay. There is someone. So if you guys
would just step aside and come up and please identify yourselves. We try to keep comments
to three minutes.
PUBLIC HEARING OPENED
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LIONEL BARTHOLD
MR. BARTHOLD-My name’s Lionel Barthold. I’ve been a property owner on Dark Bay for
over 40 years, 43 years or so. We bought a large lot, four and a half acres. It’s now owned
by the Kraskow’s. It was sold two years ago. We also bought a 150 foot lot next door to
us, and I gave a conservation easement to the conservancy so it can never be developed. I
should point out that Mr. Freihofer has done the same with a buildable lot near him. Over
that time, I’ve seen a lot of requests for variances and I’ve attended a number of hearings.
I don’t recall ever having objected to any of them. They always seemed reasonable until
this one, and I should point out that I’ve never seen one that was a universally objected to
by neighbors within the Bay. In the past couple of days I’ve talked to the Denooyer family
that own two lots I think there. I’ve talked to the Boomers. I’ve talked to the Kraskows
who bought our lot. I’ve told them my position and they feel the same so it’s not just my
own. I swam past it every morning before breakfast in my younger days, and it just seems
unreasonable to take a lot that already has three structures on it. You can call them houses
but they’re house sized buildings and intensified the use of that small piece of property in
the way that it’s proposed. It just seems totally inappropriate and I think it’s also a very
bad precedent for Lake George waterfront intensification.
MR. FREER-Okay. Thank you very much. I appreciate it, Lionel. Yes, sir.
JAMIE BROWN
MR. BROWN-Thank you, Mr. Chairman. My name’s Jamie Brown. I’m the Executive
Director of the Lake George Land Conservancy. As you heard we actually own a piece of
land and hold an easement on a piece of land near this property. To be clear we’re not anti-
development. We think that where a development makes sense a plan should be developed.
As far as this particular project, I understand as your Counsel pointed out it makes sense
that, I can’t really say anything that would change what the zoning officer has said, but I
think what may be at stake here is that we work pretty hard to protect this area with these
two properties, and inserting another lot here sort of goes against what we’re trying to do
in protecting the lake and protecting this area, and I think with all due respect it goes
against sort of the larger picture, the concept behind zoning and planning, protecting
resources. I think you heard them talking about how the APA is reducing the impact on the
lake and its natural resources, and so while certainly development in some places makes
sense, this particular one maybe might not make total sense. There may be other
alternatives perhaps. So I think that either not doing this or having other additional
scrutiny to see if this makes sense might be a better alternative I think in our opinion.
MR. FREER-Okay. Thank you.
MR. BROWN-Thank you.
MR. FREER-Anyone else that would like to speak to this? Come on up, sir. I’ll just remind
everyone that we’re just focused on making a determination on the specific actions of our
Administrator. We’re not deciding tonight anything to do with giving variances or not giving
variances. We’re just trying to address the determination made by the Zoning Officer per
our charter to allow people to appeal a determination made by the Zoning Officer. So I
just want everyone to be clear about that. Go ahead, sir.
JIM TOBIN
MR. TOBIN-My name is Jim Tobin. I live at 15 Dark Bay Lane and I’m the President of the
Dark Bay Association, and I speak collectively for nine members of the Association, and
collectively we do not agree with what the Planning Board has done on this property. I’d
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like to talk about a quick parable. It happened almost 30 years ago, and it has relationship
to this project. Thirty years ago there was a storm that came through and blew a number
of trees down, and at that time I had a man named Neil, and Neil was a handyman, and he
came and he was going to help me with the trees, and I was going to cut trees down which
were not falling down but were leaning, and Neil said well I can make that tree straight again
and it will live, and I said Neil it’s a lot easier to cut that tree down, and he said the only
thing we have around here that’s worth preserving are trees and rocks. I remember that.
Neil was not an educated man. He had limited education, but I think the wisdom of that
statement that he made stuck with me for 30 years, and here we have a lot that will probably
be denuded of all trees and I hope that this Board takes this into consideration, that trees
and rocks are very important and that’s why we’re all here. Because there’s no reason to
jam a fourth house into a lot that already only takes one house. Thank you very much.
MR. FREER-Okay. Thank you. Would anyone else here like to make a comment on this?
Yes, sir.
GREG TERESI
MR. TERESI-Good evening. My name is Greg Teresi. I’m the applicant. I’m counsel for
Larry Davis. I’m co-counsel to Jon Lapper who is the attorney that sent the letter in to
Craig Brown, and I’m also the attorney for Dark Bay Properties, LLC. I appreciate being
given the opportunity to be heard. This quandary before you is in large part because of
research that I’ve done. As it’s been stated, the purpose of today is to determine whether
Mr. Brown’s administrative determinations are accurate and are bound or are effective
pursuant to what the law states. The lot in question was created, from what I can tell, back
in 1907. I’ve researched the archives, looked at every deed that went in and out of that lot,
and every deed that I could find and read from 1907 forward references that this lot is the
subdivided lot number three of lot number seven of the French Mountain tract. And one of
the arguments that I had made to Mr. Brown in the letter that Mr. Lapper had signed
indicates that that is one of the basis for determining whether this is a separate lot. Was
it a pre-existing previously subdivided lot, and the letter I’ve given to Laura for your
consideration, albeit I killed a few trees making copies, but I thought it was important for
you to see those arguments. In that letter it references not only deeds but it also
references a survey that’s from 1948 which shows that the lot in question had a two story
stone house. The lot in question had stairs to the lake. The lot in question had a circular
driveway. It was used as a homestead. One of the first things they teach you in law school
in Property 101 is the use runs with the land. My argument to this body is that at some
point this was a pre-existing lot, developable and buildable. It was built on. So I would
argue that the lot itself was clearly pre-existing and it was grandfathered in. The crux of
Mr. Caffry’s arguments largely rely on the legislative intent of APA 811.
MR. FREER-Okay. Finish up please.
MR. TERESI-I will. Those arguments are related to whether or not the language requires
that they be merged, and what Mr. Caffry has done in his arguments before you is cheery
pick certain language and he doesn’t fulfill what the full language of the statute indicates.
What the language in those statutes indicates is that, yes, lots are merged that are owned
in two of the same name. However, in the APA it references at the time of the project.
In the Town law it references at the time of development, and what the case law that I’ve
cited to within my letter to Mr. Brown indicates is that if the legislature wanted this to be
forever forward, forever in time, then they would have put that language in there, but I’d
ask you to consider the fact that the legislature in both, with respect to the Town Board
and the State legislature in enacting both these laws they put the caveat that it was at the
time the project is presented. I didn’t see any law cited by Mr. Caffry to refute that and
therefore I’d ask that you uphold that determination letter that Mr. Brown wrote in
establishing that these lots are two separate lots.
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MR. FREER-Okay.
MR. TERESI-Thank you.
MR. UNDERWOOD-Can I ask a question?
MR. SCHACHNER-Sure.
MR. UNDERWOOD-Which lots do you own there? Is it just the single lot that’s under
review or do those lots adjoin each other?
MR. TERESI-I don’t own any of the lots. I currently live on the larger lot. I’m a tenant. I
rent there. My goal is at some point to try to buy on Lake George, but I am an attorney. I
do represent Larry Davis who owned both of those lots and then transferred the one lot
into the LLC.
MR. FREER-We don’t know who owns the LLC.
MR. FREER-Mark?
MR. SCHACHNER-My only comment is I believe Mr. Teresi’s first statement was that he’s
the applicant and he’s not the applicant. I think he likely means he represents or is the
applicant for the related application that was approved by the Planning Board, but the
applicant this evening would be the appellant Mr. Caffry and his client Mr. Freihofer.
MR. FREER-Okay. Thanks for that clarification. Okay. Is there anyone else in the audience
that would like to make a comment on this application?
MR. KUHL-I have a question for Mark.
MR. FREER-Go ahead.
MR. KUHL-The deeds, when the deeds are issued, these are quit claim deeds. Do they go
to the APA for approval?
MR. SCHACHNER-I’m sorry, I missed one word that you said. These are two what deeds?
MR. KUHL-What we have here is two deeds, correct?
MR. SCHACHNER-Right.
MR. KUHL-For two lots. When the status of those change, either one of them changes, do
they go to the APA for approval or is it just changed in Town and that’s how it is?
MR. SCHACHNER-I believe, and Staff may know this better than I, but I believe here in
Queensbury the two lot subdivision would not require APA approval. It would require
approval by our Planning Board.
MR. BROWN-Yes, but I think the question was, and not to answer for you, but you’re talking
about filing deeds, not subdividing.
MR. KUHL-Right. I mean there’s another instrument called a warranty deed. These two
lots have deeds.
MR. SCHACHNER-A warranty deed is a type of deed.
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MR. KUHL-I understand that. In this situation one of these two deeds changed from Davis
to something else. Correct? Davis owned both of them.
MR. SCHACHNER-Right. I’m not sure what you mean by one of these two deeds changed.
Our understanding is.
MR. KUHL-As part of two lots, Davis went and gave it to Dark Bay, LLC. Right?
MR. SCHACHNER-I believe that’s correct. That’s our understanding.
MR. KUHL-At the point of that instrument changing ownership or title name, does it go to
the APA for approval?
MR. SCHACHNER-That’s what I was trying to answer. That sounds to us like that would be
a two lot subdivision. If it was all one lot at the time of the conveyance that would be a two
lot subdivision which in Queensbury I don’t believe would be subject to APA approval, but
could be subject to our Planning Board subdivision approval.
MR. KUHL-Right, but weren’t these two lots separate, two different lot identification
numbers in our tax maps, owned by one person? Davis owned them both. And then at one
point Davis changed. One of them went to Dark Bay, LLC. At that time, did that have to
be approved by the APA? That’s my question.
MR. SCHACHNER-And we’re trying to say we don’t think so, not by APA.
MR. KUHL-You don’t think it needs approval.
MR. SCHACHNER-By APA we don’t think so.
MR. FREER-Okay. So I have a related question. We talk about tax maps, but is it the Town
or the County that has the bible on the tax map?
MR. BROWN-It’s the County.
MR. SCHACHNER-The County assigns tax map numbers.
MR. FREER-So I think the Town only, in my understanding there’s a Town versus County
thing. To my knowledge APA doesn’t get involved in it.
MR. SCHACHNER-I think that’s correct. I wouldn’t get too hung up on the tax map numbers
thing either because the tax map numbers don’t necessarily correlate to ownership. They
are strategies for getting something called a separate number for tax map purposes only.
I don’t know if you’ve ever heard that phrase, but there are situations where a parcel is
actually owned by one entity and is legally one parcel but the County is, at least was in the
past willing to assign pieces of it to separate tax map numbers and say this is for tax map
number purposes only. We don’t condone that practice. I’m not sure the County still does
that, but I know there was a time when the County did that.
MR. BROWN-So if your question was if there were two deeds to start and one of those
deeds transfers, does the APA review that type of transfer.
MR. KUHL-That’s right.
MR. BROWN-And I think the answer to that is no.
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MR. SCHACHNER-Nor would anybody else have discretionary review authority if there were
two deeds to begin with. If I have a deed to one property I’m allowed to transfer it to
whomever I wish, and as long as I’m not changing the configuration of that property that’s
not subject to anybody’s review.
MR. FREER-Okay. Thank you. Is there anyone else in the audience who’d like to make a
comment on this application? Seeing no one, I’m sorry we’re getting behind, but as I warned
you this is a little unusual and we’re getting a lesson in Town government I guess. So at this
point I would invite the Appellant back to make any comments that you want to make in
reference to the public hearing that we just had and right now I’ve leaving the public hearing
open.
MR. URRICO-I have a letter that was submitted.
MR. FREER-I’m sorry.
MR. URRICO-But it was submitted by Mr. Tobin who already spoke.
MR. FREER-Yes.
MR. URRICO-And addresses the test that we use for a variance. So I need to know
whether I should read this in.
MR. FREER-I would suggest that we’re not dealing with a variance at this point and so that’s
kind of why I made that comment when people were making their comments. So the variance
issue is not with us tonight. We’re just trying to deal with the determination that this is a
buildable lot/it was encourage by the same owner in 1973. So quickly because if you don’t
then the rest of the audience is going to start protesting and I don’t want to get beat up
after the meeting.
MR. CAFFRY-John Caffry again. I have not seen the letter that Mr. Teresi just filed. I
don’t know what it says. I didn’t have time to sit there and read it, but I can kind of guess.
When last fall one of his partners, Mr. Lapper, filed a request for interpretation with Craig
Brown.
MR. SCHACHNER-Excuse me. I apologize for interrupting. You know I don’t usually do
that, but I think this might be relevant, if I could. The letter is not a new letter. It’s the
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September 20, 2018 letter that you were copied on.
MR. CAFFRY-All right. That’s the letter to Craig asking for an interpretation.
MR. SCHACHNER-That’s correct.
MR. CAFFRY-Correct. Okay. So when they did that and we were copied on it, I filed a
letter in response and that is attached to the back of the March 4, 2019 Appeal as Exhibit
Four. It’s very long, very technical, full of legalese and regulations, but the gist of it is
that, yes, the other lot was created in 1907. There may or may not have been a house on
it, but it’s not grandfathered under the Park Agency Act because even though it refers to
Subdivision X of Lot Y French Mountain Tract or whatever it is, it never went through any
kind of review and approval and under the APA regulations for it to be grandfathered in as
a pre-existing, nonconforming lot under what he’s referring to it had to have gone through
review and approval by various agencies, and that’s addressed at great length in that letter,
and I won’t read all of those regulations to you, but that’s really a separate body of law from
what we’re talking about here. Even if it had a lot on it, a house on it, that house is no longer
there anyway, but it never went through a subdivision process. There’s not a filed subdivision
plat. That’s what the APA would look for. It was just deeded out. People can deed out and
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(Queensbury ZBA Meeting 04/17/2019)
they can call it a subdivision but there was no plat, and I would also note that Mr. Brown had
this and he did not rely on that argument when he ruled in Mr. Teresi’s favor. He found
other grounds, and then once it was put into common ownership with the larger lot, they
were merged. Also Mr. Teresi says that under the APA regulations of the case law you look
at these things under, at the time of the project. Again that applies to the separate set
of APA rules that don’t apply here, and the case he’s talking about there’s really only one
decided by the Appellate Court which says in order for a particular parcel of property to
achieve pre-existing subdivision status, there must have been some sort of formalized or
coherently articulated plan of subdivision prior to the effective date of the act, and it’s
referring there to the APA Act of 1973, and that case was called Crater Club versus
Adirondack Park Agency. So what he’s saying doesn’t apply here. There’s also a definition
in the regulations of what a lawful pre-existing subdivision is and it talks about full
compliance with all rules, regulations, permits, etc., and they just don’t have that. So I don’t
believe the law he’s referring to applies to this situation. It doesn’t supersede the laws
that I have recited to you and I think are the issue.
MR. FREER-So I’d like to poll the Board.
MR. UNDERWOOD-What are we specifically deciding?
MR. FREER-Whether we want, I’ll try to summarize, and Mark, jump in if you think I’ve
overstepped or underestimated. I’m trying to get a handle on whether you think the Caffry
Appeal is, you would vote yes to appeal the decision or yes to uphold the determination.
MR. SCHACHNER-What was Choice One? I’m sorry?
MR. FREER-To grant the Appeal. Uphold the determination or overturn the determination.
MR. SCHACHNER-Overturn the determination, or modify the determination. You actually
have three choices.
MR. FREER-Okay. Is that clear, Jim?
MR. UNDERWOOD-Are you asking me?
MR. FREER-Yes.
MR. UNDERWOOD-Yes, I think at this juncture it’s important for us to think about past
history, present requests and the fact of what is before us this evening here, and I think
that, you know, we’ve listened to a lot of Waterfront Residential requests through the years
for variances for whatever reasons they were granted. We’ve either granted or not granted
them, but in this instance here I think that some red flags should have flown clearly from
the beginning of this whole review process here. The mere fact that the Planning Board
approved this with no variances raises a red flag with me and I think that the Zoning
Administrator was probably wrong when he signed off as if there was no problem with this
proceeding with the building permit. I think the mere fact that it’s a 40 foot wide lot at
the waterfront in a Critical Environmental Area should have required a variance. That’s not
before us here this evening. We may have to hear that at some future date, but I think
that, you know, I would not be in support of the Zoning Administrator’s determination
because I don’t think it was complete.
MR. FREER-Okay. Thank you.
MR. SCHACHNER-Process question. It sounds like you’re getting Board deliberation, and
if you want to begin Board deliberation that’s fine, but I would not do so prior to closing the
public hearing.
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MR. BROWN-And, Mr. Chairman, if I could, before you close the public hearing, if you’re
interested, some kind of background, some input on the determination process that I made
and how I got there. So if you get to that point.
MR. FREER-Well let’s do that now.
MR. CAFFRY-Can I just ask one question? You mentioned earlier the opportunity of
applicants to table because you only have six members here.
MR. FREER-Right.
MR. CAFFRY-And assume, once Craig speaks and you have your discussion, you’re done polling,
can I decide at that point whether or not I want to ask to table?
MR. UNDERWOOD-Sure.
MR. FREER-Okay. So we’ll continue, keep the public hearing open, and ask Craig for your
input on your rationale and thoughts.
MR> SCHACHNER-Which does not require keeping the public hearing open, just so you
understand. He’s not a member of the public, but if you want to do that that’s fine.
MR. BROWN-In case anybody else wanted to respond.
MR. SCHACHNER-That’s fine.
MR. BROWN-Well thanks. As you can probably surmise this is a pretty difficult, confusing
kind of position, an issue that has, you know, two clear opposing sides. With all due respect
to the comments and concerns about is the lot developable, it’s steep and we need to
preserve the trees and what I can tell you is none of those components come into the
decision making about is this a separate lot or not, and that’s really the issue at hand is, is
this a separate lot. So the size of the lot, the location of the lot, none of those things come
into play, and they didn’t come into play with this decision. So what’s left if we’re not talking
about the lot or the project or is the lot suitable for development? Well what we’re left
with is the language of the Town Code, all right. So there’s this very complex, as it’s turned
out, legal issue that needs to be decided by somebody who’s not a legal complex person. So
what does that leave me for tools? Well it leaves me reading the Town Code and in my
determination letter I cited the two sections of the Town Code or the one section of the
Town Code and then the one section of the APA Act that’s referred to in our section of the
Town Code. So in my reading of those two sections, and I appreciate Mr. Caffry referring
to another section of the APA regulations that are slightly different than the APA Act, but
that section isn’t referenced in our Town Code so it wasn’t used in my deliberation because
in making these deliberations I go through, and these determinations, I go through what the
Town Code is. I don’t do a lot of Sherlock Holmes and do investigation into, you know, as
far back as time. So the way the Code’s written, it talks about the development of
nonconforming lots. In our section, the Section 179-13- 060, there’s no, as I referenced in
my letter, there’s no indication of when to apply the standard. The timing is the issue here.
There’s a position that the lots were merged in 1973 when the APA Act was created. The
Town Code doesn’t say that. The Town Code says development of nonconforming lots. So I
interpret that as that’s an indication, that’s when that merger provision, if you’re going to
apply it, that’s when it applies at the time of development. So if the lots aren’t under the
same ownership at the time of development, they’re not subject to this language. It goes
on further to say it shall be in accordance with Section 11 of the Executive Law of the APA
Act. So if you read that, it doesn’t really help clear things up in my opinion, and I’ll read
just a couple of sentences from it. Single Family Dwelling on an Existing Lot. One single
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(Queensbury ZBA Meeting 04/17/2019)
family dwelling or mobile home shall be allowed to be built on any vacant lot which was on
record at the date that this Act shall become law, regardless of the overall intensity
guidelines or the minimum lot width provisions of the shoreline regulations. That basically
says you can build on the lot regardless of the size or density requirements. The next
sentence is where it starts to clear things up, and I’m being facetious there. Now it’s talking
about this paragraph as being an exemption. It says for purposes of this exemption, which
it didn’t sound like it was an exemption in the first couple of paragraphs, for the purposes
of this exemption such lots must not adjoin other lots in the same ownership provided,
however, that all such lots in the same ownership may be treated together. Not shall be
treated together. So trying to say that it’s clear on how to merge parcels is kind of an
understatement. I don’t think that it’s very clear to me. As probably witnessed by the
September letter from Mr. Lapper, followed by the January letter from me, in that
timeframe of those months there were several conversations with Town Counsel consisting
of me arguing Mr. Caffry’s side, and Counsel arguing my side and then me arguing my side
and Counsel arguing Caffry’s side and then we both kind of agreed that this is a pretty hard
decision to make. So ultimately my decision was based in the Town Code and the APA section
that’s referenced in the Town Code and the fact that neither one of those sections has a
clear indication of when to apply the standard. So that’s why my position is it’s at the time
of development.
MR. FREER-Okay. Thank you.
MR. BROWN-Thank you.
MR. FREER-And with that I’m going to close the public hearing, and we can start deliberation.
PUBLIC HEARING CLOSED
MRS. MOORE-Mr. Chairman, can you clarify? You’re going to do polling in reference to the
Appeals One and Two, Appeal of 2018 and Appeal of 2019 or are you doing them together?
MR. FREER-From my standpoint, I’d like to focus on the actual determination, but you
decided to discuss them together.
MR. SCHACHNER-Right. So remember at some point, whether now or some other time, you
do technically have two Appeals pending. At some point there should be decisions made on
both.
MR. FREER-Right. We can do that.
MR. SCHACHNER-Whenever.
MR. FREER-Okay. So, Jim?
MR. UNDERWOOD-Okay. Do you want to read off the sheet what the first one is and then
we’ll make the determination on that and then the second one?
MR. KUHL-Well don’t we first have to go and find whether that had standing or not?
Shouldn’t we do that and then do the merits?
MR. UNDERWOOD-Well I think we’ve agreed they have standing already.
MR. KUHL-Does that have to be agreed upon is my question.
MR. SCHACHNER-You seem to be looking to me.
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(Queensbury ZBA Meeting 04/17/2019)
MR. KUHL-Yes.
MR. SCHACHNER-There’s no requirement that the Board make an affirmative determination
about standing.
MR. KUHL-Okay.
MR. SCHACHNER-If you feel an appellant doesn’t have standing you could not review an
appeal based on a determination you made that an appellant doesn’t have standing, but
there’s not a requirement that you make that determination.
MR. KUHL-I just want to give him all the opportunities he deserves. That’s all. So go to
the merits.
MR. FREER-Yes. We’re kind of in the, we’re discussing the Appeal of Freihofer, Mr.
Freihofer, NOA 1-2018 and NOA 1-2019. Okay. So we’ll have to do two separate
determinations because there’s two separate Appeals, but I think whatever we decide, we’re
going to apply. All right. Go ahead, sir.
MR. SCHACHNER-Just one question or comment. One of the members of the public
submitted a pretty lengthy letter that although was originally submitted to our Zoning
Administrator in September, I’m not sure the Board previously has seen it. So this happens.
This is one of the reasons that some municipalities don’t allow such submissions on the night
of public hearing, but I don’t know about you all as ZBA members, but if I were a ZBA
member it would be hard for me to digest this letter this evening while I’m sitting here
shooting from the hip so to speak. So I just want to point out that if you’re going to give
any weight to this letter or want to review this letter, it may be hard to do that on the fly.
None of which should discourage you if you want to start your deliberations. That’s fine
with me, and it’s entirely up to the Board, but I just want to point out that a pretty lengthy,
detailed letter was submitted I think to the Board for the first time this evening even
though the letter is from last September.
MRS. MOORE-This was not in your Appeal.
MR. FREER-This was not in our packet.
MRS. HAMLIN-We never saw this. I didn’t think I saw this.
MR. SCHACHNER-I know. That’s why I made the comment I made.
MR. FREER-Okay. Thank you. So I certainly agree with that advice, but I still would like
to sort of get a handle, get a feel for where folks are in the Appeal.
MR. UNDERWOOD-Okay. So as far as the first one goes, then, it says the Appellant is
appealing the Zoning Administrator’s letter of July 26, 2018 compliance letter for Site Plan
67-2017 Gregory Teresi and that Site Plan 67-2017 approval was granted by the Planning
Board for the construction of a single family home. So do we feel that that is an appealable
item, that’s what we’re being asked for the first one.
MR. FREER-No. So what I’m trying to say is both of those are, I mean we’re going to handle
them both the same. The question is if and when the lots should be considered merged.
Right? Which is their argument it should have been merged in 1973.
MR. SCHACHNER-That’s the ultimate question, but I think Mr. Underwood’s correct if I
understand his line, which is you have two Appeals pending before you, so what I tried to say
earlier but I may not have said it effectively is, at some point you need to decide both
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(Queensbury ZBA Meeting 04/17/2019)
Appeals, and I think he was focusing on the first one, and the first one I think the question,
the threshold question on the first one is exactly as Mr. Underwood stated which is whether
the June 26, 2018 quote unquote compliance letter is even an appealable determination.
That’s I think what you were saying, right, Mr. Underwood?
MR. UNDERWOOD-Right.
MR. URRICO-I would just like to say that there’s a lot of information to digest right now.
We have an additional letter and two Appeals and I really feel like it’s too much to handle
tonight. I really think we need time to, this needs to be tabled so that we can get all the
facts in front of us and not just what we, because if we read this letter it might change the
Appeal.
MR. UNDERWOOD-Well I think that what we should do is proceed because we have to make
a determination are we going to hear an appeal of that, yes or no.
MR. URRICO-Okay. Well when you get to me I’m going to abstain.
MR. UNDERWOOD-We’re not deciding the Appeal, if we decide to hear it or not.
MR. SCHACHNER-You could make part of your decision. There’s nothing that says you have
to make both of your decisions in the same evening. You could decide on the first one and
I think, again, I think Mr. Underwood has properly framed the issue, the threshold issue on
th
the first one. I think he’s properly framed as is the June 26, quote unquote compliance
letter even an appealable determination. You can make, and if you don’t feel prepared to
make that decision this evening, you don’t have to make that decision this evening, but I
think at some point that’s a threshold decision that you should make, and then I think what
everyone has fairly labeled as the question on the merits, so to speak, is what we had earlier
framed as, you know, is the Zoning Administrator’s determination that the two lots exist
separately the proper determination or not.
MR. FREER-Okay. So let’s deal with the number one. Do you think it’s appealable?
MR. UNDERWOOD-Yes.
MR. FREER-Okay. And, Ron, do you believe it’s appealable?
MR. KUHL-Yes.
MR. FREER-Brent?
MR. MC DEVITT-Yes, I would agree it’s appealable.
MR. FREER-Okay. Cathy?
MRS. HAMLIN-I’m a little confused actually. We’re determining the letter itself?
MR. FREER-The first Appeal, the compliance letter, whether that’s even appealable.
MR. SCHACHNER-Whether it’s an appealable determination.
MR. FREER-Correct. An appealable determination.
MRS. HAMLIN-Was the determination about the lots within that particular letter?
Because I’m sorting through all these papers.
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(Queensbury ZBA Meeting 04/17/2019)
th
MR. SCHACHNER-It’s a pretty short, two page compliance letter dated June 26. I think
if you look through it pretty carefully you’ll see there are four numbered items with some
sub letters.
MRS. HAMLIN-No mention of the lots.
MR. SCHACHNER-Not that I’m aware of.
MRS. HAMLIN-So I would be a no, it’s not appealable.
MR. FREER-Okay, and, Roy?
MR. URRICO-I do not think it’s appealable either.
MR. FREER-Okay. Three, two. So we can’t get.
MR. UNDERWOOD-What are you feeling?
MR. FREER-I don’t think it’s appealable either. I think, and it’s really almost in my mind
moot because the real issue is whether the lots are. So we have three against three.
MR. SCHACHNER-Right. So you don’t have a decision this evening as to whether this
constitutes, and just, again, to put it in at least language that’s more meaningful to us as
Town Counsel, what those of you who are saying it’s appealable are saying is this is a
discretionary determination by the Zoning Administrator and therefore appealable. Those
of you who are saying it’s not, quote unquote appealable are saying, in our language, this is
not a discretionary determination by the Zoning Officer, then that would then be appealable,
and it sounds like the Chairman’s right that this evening you have a three, three split. So
that appeal on item number one, that threshold issue, will not be decided. At least not
tonight.
MR. FREER-And now I’d like to go through the second Appeal which we I think collectively
that it is appealable but it is a determination, and that’s what we’re being asked to review,
what your view of that determination is.
MR. UNDERWOOD-So that’s on whether there’s two lots.
MR. FREER-Okay. We all agree that number two is appealable, right? It’s a determination,
and the question is whether you think it’s two lots or not. Because that’s the issue. He
thinks it’s two lots and the Appeal says it was really one lot that was created by the APA
Act.
MR. UNDERWOOD-I don’t think that there’s enough evidence tonight that we can decide
whether it’s two lots or a single lot. I don’t think it’s clear. I think there’s doubt whether
it should have been two lots. I mean the record shows that at some point in time one of the
previous owners joined this together. Town Counsel also gave us some advice saying that
could have been just for tax purposes. I don’t know if that’s true or not or whether it’s on
a deed if they were joined together.
MR. FREER-Okay. Ron, your thoughts?
MR. KUHL-Once two deeds were created, they became nonconforming existing and given
that, that they’re both, that there are two separate deeds, to me they’re two lots and as
long as the governing body that created this thing in 1973, the APA, was not in the approval
process of creating multiple deeds, by Town law, it’s more than one lot. I mean I don’t know
what vehicle the APA had in mind when they said that from here on anything nonconforming,
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(Queensbury ZBA Meeting 04/17/2019)
because we probably didn’t have zoning codes back then. You didn’t have three acre
minimums and so forth, what vehicle they were going to use to bring them together to where
they would be conforming. So based on that, I think it’s pre-existing, nonconforming. It’s
two lots.
MR. UNDERWOOD-Can we ask for a clarification from Davis, the property owner, if those
lots were ever legally joined together? I mean, we don’t know this evening, we don’t have
that information before us. I don’t think we can make a decision based on that.
MR. FREER-Okay. Let’s hold that question, but both of you, from what I just heard, both
of you think it’s two lots?
MR. UNDERWOOD-No, I don’t know whether it’s two lots.
MR. FREER-Okay. You don’t know. You think it’s two lots.
MR. KUHL-I do.
MR. FREER-Brent, what do you think?
MR. MC DEVITT-I guess what I would say is I don’t know what I think, and part of the
reason, is, you know, I appreciate the fact that the letter from Bartlett, Pontiff, Stewart
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& Rhodes was dated September 20, 2018. I got it 30 minutes ago. I haven’t even read
this. So I tend to believe it’s two lots, but I think what I’m saying is that, to be fair to all
parties, I need to do a little more work on this.
MR. FREER-Okay. That’s okay. Cathy?
MRS. HAMLIN-I thought the initial question was is this indeed an appealable determination,
which I agree it’s appealable, but whether or not I can determine how I feel about it being
two lots, I have a lot of questions, and if I might ask our attorney as well, are we allowed
to go to outside sources, including APA, or go to the other statute on our own and to look
for language, and I also have a particular question about where, apparently in 2008 the
owners at that time it appears had put it under one parcel, under one tax parcel, from this
letter we got tonight. Is that a merger? I mean, does that create a merger? The attorney
that submitted this says Mr. Caffry fails to state any statute, case law to support this
theory that that’s a merger. These are questions that for me I need the answers to.
MR. FREER-Okay. That’s fair. Okay. What I’m hearing is you don’t feel like you have
enough information either.
MRS. HAMLIN-And my follow up is from our attorneys can we go outside.
MR. FREER-We’ll have to handle that down the road.
MRS. HAMLIN-Okay.
MR. FREER-I guess that Roy’s going to have a similar problem.
MR. URRICO-Don’t anticipate what I’m going to say.
MR. FREER-Go ahead.
MR. URRICO-I trust that the Zoning Administrator considered all these ramifications when
he considered this application, and I believe that his position is correct in what he applied
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at the time. So I support the Zoning Administrator’s position and his decision at the time.
So I would be against the Appeal.
MR. FREER-Okay. So we have, to make sure I’ve got it. We have three need more
information or uncertain, and we have two folks who support the Zoning Administrator’s
determination.
MR. SCHACHNER-As far as preliminary feedback. You don’t have any vote.
MR. FREER-Preliminary feedback. My view is that the APA intended for this exact situation
to be merged close to the time that the law was passed, and that the County and the Town
struggle with maps and whether it’s a two lot parcel or a three lot parcel, but the intent,
from my understanding of the APA Act, was that these very small could have been divided
parcels under the legislation in ’73 was that they should be merged. Now whether they have
to be merged at the exact minute that the law comes into effect, but I think if splitting
apart a lot to another owner as an LLC sort of allows for, that’s not the intent of the law.
The intent of the law was if they were in the same ownership that they should be merged
and the reason, the comment that it didn’t give a timeframe and your argument that it didn’t
give a timeframe I think was not necessarily on purpose or not. So I would say that I don’t,
I would preliminarily think to overturn the Zoning Administrator’s determination. So with
that, you have three unknowns, three with more questions and two, two lot votes and one,
one lot vote. And so I guess you can table it or we can table it.
MR. CAFFRY-In light of the fact that there’s only six members, and some of them feel they
need more information, I would certainly agree that this should be tabled, and I just have
one request, that when you read the letter that Mr. Teresi filed tonight, you read it in
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conjunction with my response to that letter which is again Exhibit Four to my March 4,
2019 Appeal. I’m sorry I didn’t include that in my package. I assumed that you would be
getting that from the Staff, because that was the genesis of Mr. Brown’s decision, and I
don’t know why they didn’t file t prior to tonight, but I do ask that when you read them you
read them in conjunction because I do respond to all the issues that are raised in that letter.
MR. SCHACHNER-And then my last process point is you don’t really need, I mean, I think
I’m hearing the appellant’s consent to tabling. You don’t need their consent. You don’t need
to take any formal action. I don’t think you’re capable, and this is not a criticism at all. I
don’t think the Board is in a position to make any decision this evening. So you’re just not
going to decide this tonight and that’s fine. You don’t have to. You have 62 days from
tonight in which to decide.
MR. FREER-Okay. We’ll go on to the next. So the question is, I didn’t close the public
hearing yet.
MR. SCHACHNER-Yes, you did.
MRS. MOORE-You did.
MR. SCHACHNER-You did to start the Board’s deliberations.
MR. FREER-Okay. So thank you. Mark, do we need a motion to table this?
MR. SCHACHNER-No.
MR. FREER-Okay. So we’re on to Area Variance Z-AV-13-2019, Michael Canale.
AREA VARIANCE Z-AV-13-2019 SEQRA TYPE II MICHAEL D. CANALE OWNER(S)
MICHAEL D. CANALE ZONING LC-42A LOCATION 15 PICKLE HILL ROAD
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APPLICANT PROPOSES CONSTRUCTION OF A 1,440 SQ. FT. DETACHED GARAGE ON
AN EXISTING 4.42 ACRE PARCEL WHERE A SINGLE-FAMILY HOME WITH AN
ATTACHED GARAGE ALREADY EXISTS. RELIEF REQUESTED FROM MINIMUM
SETBACK REQUIREMENTS AND FOR A SECOND GARAGE WHERE ONLY ONE SUCH
STRUCTURE IS ALLOWABLE PER PARCEL/RESIDENCE. CROSS REF N/A WARREN
COUNTY PLANNING APRIL 2019 LOT SIZE 4.91 ACRES TAX MAP NO. 265.-1-64
SECTION 179-5-020; 179-3-040
GREG CANALE, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance Z-AV-13-2019, Michael D. Canale, Meeting Date: April
17, 2019 “Project Location: 15 Pickle Hill Road Description of Proposed Project: Applicant
proposes construction of a 1,440 sq. ft. detached garage on an existing 4.42 acre parcel
where a single-family home with an attached garage already exists. Relief requested from
minimum setback requirements and for a second garage where only one such structure is
allowable per parcel/residence.
Relief Required:
The applicant requests relief from minimum setback requirements and for a second garage
in the Land Conservation 42 Acres.
Section 179-3-040 –dimensional requirements
The garage is to be located 54.4 ft. from the North property line where a 100 ft. setback
is required.
Section 179-5-010 –garage
The applicant proposes a second garage where one is allowed.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this area variance.
Minor to no impacts to the neighborhood may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives be
considered to include an addition to the existing garage. The applicant has indicated a
garage addition would be located in the existing driveway due to the pool location and
the existing home orientation.
3. Whether the requested area variance is substantial. The relief may be considered
substantial relevant to the code. Relief requested is to allow two garages where only one
is allowed. Relief also requested for setback of 45.6 ft. may be considered moderate to
minimal relevant to the code.
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(Queensbury ZBA Meeting 04/17/2019)
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. The project as proposed may
be considered to have minimal to no impact on the environmental conditions of the site
or area. The applicant has indicated the placement is an existing lawn area of the
property.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes to construct a 1,440 sq. ft. detached garage. The garage is to have
a 12 ft. garage door and a man door adjacent to the garage door. The new garage can be
accessed from the existing gravel drive area. The applicant has indicated the existing
garage is used for storage and a hobby project and the new garage will allow for storage of
items and vehicles. The existing home is one story with an unfinished basement. The site
has one existing shed. The parcel is 4.91 acres. The plans show the location of the new
garage and elevations.”
MR. FREER-Thanks, Roy, and please identify yourself and add anything you’d like to the
application.
MR. CANALE-Mr. Chairman, Board, administrators, Town Counsel, good evening. My name
is Greg Canale. I’m a lawyer in Queensbury. I’m representing my cousin Michael Canale
who’s the applicant. In view of the time and much other business that has to be completed
tonight I’ll get right to the heart of the matter. We agree with most of the five criteria.
I would like to make comment on a couple of issues. Whether the requested Area Variance
is substantial. It is substantial the fact that we’re asking for a second garage. However,
I’d like to point out that the second garage is non visible from any direction during three of
the four seasons, and you can barely see it even in the wintertime. So while it’s substantial
in that regard, it’s minimal relevant to the Code, in that we’re seeking 100 foot setback.
We’re only asking for 54 feet setback which we can build from the northern boundary line.
The only other issue I have is we certainly agree that the project would have minimal to no
impact in the environmental condition as the changing condition of the neighborhood was
always, multiple properties in and around this area that have more than one existing garage.
In fact there’s one that’s being built right now about 1,000 feet away from the Pickle Hill
residents. Whether the alleged difficulty was self-created, these property lines and
setbacks were there when my client purchased the property back in the mid-80’s. So based
on the topography of the property, there’s no other way for him to put this addition on other
than for him to come here and seek the variance. So it’s self-created only in the sense that
he would like to put the structure up there, but the boundary lines and everything else makes
it necessary for him to seek the variance. That being said, because it won’t change the
environment, it has little or no impact on the environment or the condition or character of
the neighborhood, I would respectfully ask if the Board has any questions and we will be glad
to answer them.
MR. FREER-Okay. Thank you. Any questions from the Board for the applicant?
MR. UNDERWOOD-So it’s not going to add any commercial use?
MR. CANALE-No.
MICHAEL CANALE
MR. CANALE-I just retired. I’ve been a Teamster for the last 37 years. Just projects
that I’ve got. I just re-built my floats for my seaplane. I had to do that in another place
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(Queensbury ZBA Meeting 04/17/2019)
because I couldn’t do in my garage in my shop. It’s strictly for my man cave place to put all
my stuff. I have an old ’56 Chevy that will be stored all winter. It goes out in the late
spring or early summer through the summer. I have two cars. My girlfriend has a couple
of cars and my daughter’s at home. She has a car. Everything is out in the driveway. My
snow blower and my motorcycle and everything is packed in. I just would like to have some
more room.
MR. FREER-Any other questions?
MR. KUHL-Are you going to put water and electric in there?
MR. M. CANALE-Just electric.
MR. KUHL-Just electric.
MR. M. CANALE-Yes.
MR. KUHL-Okay.
MR. FREER-Okay. We do have a public hearing scheduled tonight for this application. Is
there anyone in the audience who’d like to make a comment about this application? Seeing
no one, are there any written comments, Roy?
PUBLIC HEARING OPENED
MR. URRICO-There are none.
MR. FREER-With that I’ll close the public hearing and poll the Board.
PUBLIC HEARING CLOSED
MR. FREER-And I’ll start with Ron.
MR. KUHL-A ’56 Chevy was the first car I ever drove. I think the lot size at .49 acres is
big enough to support this. The only thing is that we look at 1,000 square feet for garages
and you’re going to 1450 or 1440. You’re asking for a big garage but I think your lot
supports it, but we’re charged with giving minimal relief. The fact that you’re only putting
electric in and no water would support that you’re probably not going to run a business out
of it. So I’d be in favor of it.
MR. FREER-Okay. Thank you. Brent?
MR. MC DEVITT-Mr. Chairman, I was by the property this afternoon. A lot of trees. I had
to get my binoculars out to even see what was going on out there. So I’m in favor of the
project. As Ron indicates, I think it’s a big enough lot, just under five acres, to absorb what
admittedly is a big structure, but due to the fact that I believe it’s just got a lot of cover
there and a lot of shade. It’s not obvious to people going by on your road. So I would be
in favor of the project.
MR. FREER-Okay. Thank you. Cathy?
MRS. HAMLIN-Yes, I visited the property as well. My only concern always is the
substantiality and we’re talking about 45.6 feet for the setback. I don’t know how other
people feel. Yes, it’s a very large lot, but is that, is it possible to consider that you could
eliminate the shed? And move the garage over more. You’d need less.
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(Queensbury ZBA Meeting 04/17/2019)
MR. M. CANALE-Even removing the shed isn’t going to move the property off the north line.
MRS. HAMLIN-You’re still going to have that, but then it’s not like this hodgepodge. That’s
just the thought I had.
MR. M. CANALE-I planned on taking the shed down anyway.
MRS. HAMLIN-But is that something I can ask for?
MR. M. CANALE-I don’t mind taking down the shed. You don’t even have to make it a
requirement. I planned on taking the shed down anyway. That’s where all my old stuff is,
my lawnmower and my hoses.
MR. FREER-Roy?
MR. URRICO-Yes, I’m in favor of the project.
MR. FREER-Okay. Jim?
MR. UNDERWOOD-Yes, I don’t have a problem with the request.
MRS. HAMLIN-I would say yes, too, by the way.
MR. FREER-So my only question is why we have to have it that close to the north property
line.
MR. M. CANALE-I could bring it about another eight or ten feet, if that would please you.
MR. FREER-So our charge is to give the least variance practical. So if you’ll give us 10 feet,
then that would pass. If there’s a reason it’s way back there.
MR. G. CANALE-The reason is to be able to pull cars out of the driveway. If you bring it
closer, 10 feet closer to the garage, the existing garage, that is going to create some
difficulty in maneuvering the cars, turning those cars around. That’s a long driveway,
winding driveway, and any time you pull into that driveway to turn back around you’ve got to
actually turn your car completely around to drive back out of the driveway. You can’t back
out of that driveway. So I think putting that up 10 feet closer to that, it’s going to box in
the area, the driveway area more.
MR. FREER-Okay. Well you’ve got enough votes to pass without me. I just wanted to ask
that question.
MR. M. CANALE-Actually I wouldn’t mind bringing it about another six feet wouldn’t hurt
anything.
MR. FREER-Well, you can get the variance, if you bring it six feet that’s all good. Okay.
With that I will request a motion.
The Zoning Board of Appeals of the Town of Queensbury has received an application from
Michael D. Canale. Applicant proposes construction of a 1,440 sq. ft. detached garage on an
existing 4.42 acre parcel where a single-family home with an attached garage already exists.
Relief requested from minimum setback requirements and for a second garage where only
one such structure is allowable per parcel/residence.
Relief Required:
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(Queensbury ZBA Meeting 04/17/2019)
The applicant requests relief from minimum setback requirements and for a second garage
in the Land Conservation 42 Acres.
Section 179-3-040 –dimensional requirements
The garage is to be located 54.4 ft. from the North property line where a 100 ft. setback
is required
Section 179-5-010 –garage
The applicant proposes a second garage where one is allowed.
SEQR Type II – no further review required;
A public hearing was advertised and held on Wednesday, April 17, 2019;
Upon review of the application materials, information supplied during the public hearing, and
upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury
Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find
as follows:
1. There is not an undesirable change in the character of the neighborhood nor a
detriment to nearby properties. It’s a five acre lot and being built in an area where
nobody will notice it.
2. Feasible alternatives have been considered by this Board, moving it further back
from the property on the north side, but it’s felt that this is reasonable where it is
being placed.
3. The requested variance is substantial because it’s a second garage for hobby
purposes. It’s oversized at 1440 square feet. It’s still deemed reasonable for a
rural use.
4. There is not an adverse impact on the physical or environmental conditions in the
neighborhood or district.
5. The alleged difficulty is self-created because they want a second garage.
6. In addition the Board finds that the benefit to the applicant from granting the
requested variance would outweigh (approval) the resulting detriment to the health,
safety and welfare of the neighborhood or community;
7. The Board also finds that the variance request under consideration is the minimum
necessary;
8. The Board also proposes the following conditions:
a) Adherence to the items outlined in the follow-up letter sent with this resolution.
BASED ON THE ABOVE FINDINGS, I MAKE A MOTION TO APPROVE AREA VARIANCE
Z-AV-13-2019, MICHAEL D. CANALE, Introduced by James Underwood, who moved for its
adoption, seconded by Ronald Kuhl:
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Duly adopted this 17 day of April 2019 by the following vote:
AYES: Mrs. Hamlin, Mr. Urrico, Mr. McDevitt, Mr. Underwood, Mr. Kuhl, Mr. Freer
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(Queensbury ZBA Meeting 04/17/2019)
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. Good luck.
MR. M. CANALE-Thank you.
MR. FREER-Okay. On to Robert Spath, Area Variance 16-2019.
AREA VARIANCE Z-AV-16-2019 SEQRA TYPE II ROBERT SPATH OWNER(S):
ROBERT SPATH ZONING WR LOCATION 60 RUSSELL HARRIS ROAD APPLICANT
PROPOSES CONSTRUCTION OF TWO RESIDENTIAL ADDITIONS ON EITHER SIDE OF
THE EXISTING HOME. THE FIRST ADDITION WILL BE TO THE SHORELINE SIDE
OF THE HOME; RAISE EXISTING 240 SQ. FT. ROOF TO CREATE A VAULTED CEILING
FOR THE AFFECTED LIVING AREA. THE SECOND ADDITION WILL BE TO REMOVE 98
SQ. FT. OF EXISTING LIVING AREA AND REBUILD THIS PORTION OF THE HOME FOR
NEW LIVING SPACE. PROJECT INCLUDES NEW 33 SQ. FT. ENTRY WITH COVER AND
A 32 SQ. FT. AWNING ROOF AT THE SHORELINE SIDE OF THE HOME. PLANNING
BOARD: SITE PLAN REVIEW REQUIRED FOR EXPANSION OF A NONCONFORMING
STRUCTURE. CROSS REF SP 22-2019; AV 57-2008; BOTH 354-2016 WARREN COUNTY
PLANNING APRIL 2019 ADIRONDACK PARK AGENCY ALD LOT SIZE 0.23 ACRES
TAX MAP NO. 240.5-1-10 SECTION 179-3-040; 179-13-010
ROBERT SPATH, PRESENT
MR. FREER-Roy?
STAFF INPUT
Notes from Staff, Area Variance Z-AV-16-2019, Robert Spath, Meeting Date: April 17,
2019 “Project Location: 60 Russell Harris Road Description of Proposed Project: Applicant
proposes construction of two residential additions on either side of the existing home. The
first addition will be to the shoreline side of the home; raise existing 240 sq. ft. roof to
create a vaulted ceiling for the affected living area. The second addition will be to remove
98 sq. ft. of existing living area and rebuild this portion of the home for new living space.
Project includes new 33 sq. ft. entry with cover and a 32 sq. ft. awning roof at the shoreline
side of the home. Relief requested for setbacks, FAR and permeability. Planning Board: Site
Plan Review required for expansion of a nonconforming structure.
Relief Required:
The applicant requests relief for setbacks, Floor Area Ratio and permeability in the
Waterfront Residential Zone.
179-4-030 Dimensional requirements
The applicant proposes renovations of an existing home –the roadside addition replacement
is to be placed 7.8 ft. from the side property line that requires a 20 ft. setback. The
shoreline addition is 2.9 ft. from the side property line where 20 ft. is required. The new
awning over the basement area on the shoreline side is to be 4.8 ft. where 20 ft. setback is
also required. In addition, relief is requested for floor area ratio that is proposed to be
23% and 22% is the maximum allowed.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
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(Queensbury ZBA Meeting 04/17/2019)
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this area variance.
Minor to no impacts to the neighborhood may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives may be
limited due to the existing home orientation on the parcel and the parcel shape.
3. Whether the requested area variance is substantial. The relief requested may be
considered moderate relevant to the code. Relief for the roadside addition is 12.2 ft.
shoreline side addition is 17.1 ft., and awning is 15.2 ft. The floor area relief is 1% in
excess.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. The project may be considered
to have minimal impact on the physical or the environmental conditions of the area. The
applicant has explained the site contains existing catch basins on site to assist with
stormwater management for the site and surrounding neighborhood where there are no
changes to the catch basins.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes alterations to an existing home that will allow for more use of the
home. The applicant has indicated the roadside addition is needed as the floors in the
portion of the home are in disrepair. The shoreline addition allows for a roof line to use the
space more efficiently. The awning is to move the runoff from the roof farther from the
basement wall. The project also includes relocating the entry door towards the roadside.
The plans show photos of each portion of the home to be altered and the elevation of that
portion.”
MR. URRICO-Then the Planning Board based on its limited review did not identify any
significant adverse impacts that cannot be mitigated with the current project proposal, and
that motion was adopted on April 16, 2019 by a unanimous six zero vote.
MR. FREER-Okay. Welcome. If you could please identify yourself and add anything you’d
like to the application which was just read in.
MR. SPATH-Good evening. I’m Robert Spath, the applicant. Both of my proposed additions
are just to increase the efficiency of the home, the existing construction materials are not
up to Code and I just want to improve on that, and just to keep the snow from piling up
against the front of the house.
MR. FREER-Okay, and any questions from the Board?
MR. KUHL-Is this a primary residence or is this a secondary?
MR. SPATH-It’s a primary residence.
MR. KUHL-Are you good at construction?
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(Queensbury ZBA Meeting 04/17/2019)
MR. SPATH-Yes.
MR. KUHL-You’re going to find out.
MR. SPATH-I already know.
MRS. HAMLIN-Under the awning, so you have that it looks like it might have been a Bilco
door at one time, but you’ve got entry way. It seems to almost slope down to those doors.
Or am I wrong?
MR. SPATH-Actually it’s just excavated in the front.
MRS. HAMLIN-Right. There’s retaining walls. Is it sloping towards your basement? I
mean are you going to alter that I guess is my question. Is that going to be built up or
sloped away in some way?
MR. SPATH-There is a catch basin down there. It’s just about even grade. There isn’t too
much I can do about that.
MRS. HAMLIN-All right.
MR. FREER-Any other questions from the Board? Okay. We have a public hearing
scheduled for this application. Is there anyone in the audience who’d like to make a comment
on this application?
PUBLIC HEARING OPENED
JASON BROWN
MR. BROWN-Good evening. My name’s Jason Brown, 44 Russell Harris Road. I’m here to
fully support Rob in his additions and modifications to his home. I feel it’ll be real nice.
That’s the view from the dock. It will not materially change the view from the lake at all,
and it’ll spruce up the neighborhood. So thank you.
MR. FREER-All right. Is there anyone else who’d like to make a comment?
HEIDI TAFLAN
MRS. TAFLAN-I’m Heidi Taflan, also a neighbor of Rob and Jen Spath, 50 Russell Harris
Road, and my husband and I fully support this plan. You ask if Rob knows construction and
if I could afford to hire him to build my next home I would. He’s excellent. It’ll be an
improvement. It’ll make the home more efficient and more livable space. So we are 100%
behind it.
MR. FREER-Okay. Thank you. Anyone else like to make a comment on this applicant? Seeing
no one, Roy, is there any written comments?
MR. URRICO-There’s no written comments.
MRS. MOORE-Mr. Chairman, could I just share? I did have a call from a neighbor and the
neighbor had just some concerns and questions that are generally brought up on waterfront
projects. The time of construction and hopefully to not block the road during construction.
So maybe the applicant can address that information. Just so that the neighbor can read
the record and understand that that information was brought up and you shared response.
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(Queensbury ZBA Meeting 04/17/2019)
MR. SPATH-The time of construction will primarily unfortunately be in the summer because
I’m a teacher. Actually if the permit comes in time I will probably be able to get the framing
done before the summer and I don’t anticipate any blockage of the road.
MR. FREER-Okay. So when you get stuff delivered, try not to get things delivered on the
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4 of July holiday on Lake George. So it sounds like you’re a reasonable guy and your
neighbors will let you know if there’s a problem. Okay. Thanks, Laura.
MRS. MOORE-Thank you.
MR. FREER-Okay. So with that I’m going to close the public hearing and poll the Board.
PUBLIC HEARING CLOSED
MR. FREER-And I’m going to start with Brent.
MR. MC DEVITT-Thank you, Mr. Chairman. I was by today and saw the site and I would be
in favor of this project. I believe it will increase the efficiency of the home. I also believe
that there’s no impact from the lake. They’re not materially changing anything as far as the
lake is concerned. We see neighbors here who are good neighbors in support of this project.
I view this as an improvement to this parcel. The only thing that I guess I’d ask other’s
feedback on is about time of construction and you’re a reasonable person. Are we going to
any parameters or do we set any parameters relative to what time people can begin projects
in the morning, what time we need to wrap up in the evening? Are those variables important?
To me, I think as long as we make them reasonable that, again, I’m fully in support of the
project.
MR. FREER-Okay. Anybody want to comment on timing? I was thinking of seasons of the
year.
MR. KUHL-I would hope he starts at six a.m. I’m quite sure that this applicant is cognizant
of what his neighbors like and don’t like. I don’t think we have to set a time. I think he
seems to be an upstanding neighborhood person.
MR. FREER-Okay. Cathy?
MRS. HAMLIN-Well actually there’s a lot going on in the neighborhood today, construction
going on. I’m for it.
MR. FREER-Roy?
MR. URRICO-Yes, I’d be in favor of it.
MR. FREER-Jim?
MR. UNDERWOOD-It’s a minor request. The intrusions into the side setbacks aren’t going
to change anything in the neighborhood. He’s got a slight increase in the Floor Area Ratio
and I don’t really think that’s going to have any impact on the lake either.
MR. FREER-Okay, and Ron?
MR. KUHL-Yes, I think it’s an improvement. I’m in support of the project.
MR. FREER-I, too, support the project. When was the original house built? Do you know?
MR. SPATH-1941.
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MR. FREER-Okay. With that I’ll close the public hearing and request a motion.
MR. KUHL-Can I make that motion, Mr. Chairman?
MR. FREER-Please. Go ahead.
The Zoning Board of Appeals of the Town of Queensbury has received an application from
Robert Spath.
Applicant proposes construction of two residential additions on either side of the existing
home. The first addition will be to the shoreline side of the home; raise existing 240 sq. ft.
roof to create a vaulted ceiling for the affected living area. The second addition will be to
remove 98 sq. ft. of existing living area and rebuild this portion of the home for new living
space. Project includes new 33 sq. ft. entry with cover and a 32 sq. ft. awning roof at the
shoreline side of the home. Relief requested for setbacks, FAR and permeability. Planning
Board: Site Plan Review required for expansion of a nonconforming structure.
Relief Required:
The applicant requests relief for setbacks, Floor Area Ratio and permeability in the
Waterfront Residential Zone.
179-4-030 Dimensional requirements
The applicant proposes renovations of an existing home –the roadside addition replacement
is to be placed 7.8 ft. from the side property line that requires a 20 ft. setback. The
shoreline addition is 2.9 ft. from the side property line where 20 ft. is required. The new
awning over the basement area on the shoreline side is to be 4.8 ft. where 20 ft. setback is
also required. In addition, relief is requested for floor area ratio that is proposed to be
23% and 22% is the maximum allowed.
SEQR Type II – no further review required;
A public hearing was advertised and held on Wednesday, April 17, 2019;
Upon review of the application materials, information supplied during the public hearing, and
upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury
Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find
as follows:
1. There is not an undesirable change in the character of the neighborhood nor a
detriment to nearby properties as the effort that this applicant is proposing is an
improvement.
2. Feasible alternatives are really limited, if we want to say they’re really not possible.
3. The requested variance is not substantial again because of improving the roof lines
and changing the door location. It’s a minor impact on anything.
4. There is not an adverse impact on the physical or environmental conditions in the
neighborhood or district.
5. The alleged difficulty is self-created because of the property and the house.
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6. In addition the Board finds that the benefit to the applicant from granting the
requested variance would outweigh (approval) the resulting detriment to the health,
safety and welfare of the neighborhood or community;
7. The Board also finds that the variance request under consideration is the minimum
necessary;
8. The Board also proposes the following conditions:
a) Adherence to the items outlined in the follow-up letter sent with this resolution.
BASED ON THE ABOVE FINDINGS, I MAKE A MOTION TO APPROVE AREA VARIANCE
Z-AV-16-2019 ROBERT SPATH, Introduced by Ronald Kuhl, who moved for its adoption,
seconded by Brent McDevitt:
th
Duly adopted this 17 day of April 2019 by the following vote:
AYES: Mr. Urrico, Mrs. Hamlin, Mr. Underwood, Mr. McDevitt, Mr. Kuhl, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. Good luck.
MR. SPATH-Thank you.
MR. FREER-Just for those in the audience, the reason that we have to go through those
criteria, that’s the State criteria that we’re obligated to review and it prevents discussion
with appeals. So we’re trying to do our due diligence so that we don’t get lengthy appeals
on those kind of issues. Okay. So next up is Alex and Michelle Wilcox, Area Variance 14-
2019.
AREA VARIANCE Z-AV-14-2019 SEQRA TYPE II ALEX & MICHELLE WILCOX
OWNER(S) THOMAS DUBOIS ZONING RR-3A LOCATION CORNER WALKUP
ROAD & MOON HILL ROAD APPLICANT PROPOSES CONSTRUCTION OF A 3,320 SQ.
FT. SINGLE-FAMILY HOME WITH ASSOCIATED SITE WORK. THE HOUSE TO BE
CONSTRUCTED IS LOCATED WITHIN 50 FT. OF 15% SLOPES. THE SITE INCLUDES
GRADING, LOT CLEARING FOR HOUSE, SEPTIC AND WELL. THE APPLICANT HAS
INDICATED FOR LOT CLEARING ACCESS MAY COME FROM WALKUP RD. – A
TEMPORARY CONSTRUCTION ENTRANCE TO BE ADDED TO DRAWINGS. RELIEF IS
SOUGHT FOR SETBACKS IN AN RR-3A ZONE FOR A LOT SIZE OF 1.93 ACRES.
PLANNING BOARD: SITE PLAN REVIEW REQUIRED FOR CONSTRUCTION
OCCURRING WITHIN 50 FT. OF 15% SLOPES. CROSS REF SP 16-2019; AV 32-2018
(VOIDED); DISC 1-2019 WARREN COUNTY PLANNING APRIL 2019 LOT SIZE 1.93
ACRES TAX MAP NO. 278.20-1-3 SECTION 179-3-040
ALEX & MICHELLE WILCOX, PRESENT
MR. FREER-Roy?
STAFF INPUT
Notes from Staff, Area Variance Z-AV-14-2019, Alex & Michelle Wilcox, Meeting Date:
April 17, 2019 “Project Location: Corner Walkup & Moon Hill Road Description of Proposed
Project: Applicant proposes construction of a 3,320 sq. ft. single family home with
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associated site work. The house to be constructed is located within 50 ft. of 15% slopes.
The site includes grading, lot clearing for house, septic and well. The applicant has indicated
for lot clearing, access may come from Walkup Rd. with a temporary construction entrance.
Relief is sought for setbacks in a RR 3A zone for a lot size of 1.93 acres. Planning Board:
Site Plan Review required for construction occurring within 50 ft. of 15% slopes.
Relief Required:
The applicant requests relief for setbacks in a Rural Residential 3 acre zone for a lot size
of 1.93 acres.
Section 179-3-040 Dimensional requirements
The applicant proposes to locate a home 64.98 ft. from Walkup Road,64.7 ft. from Moon Hill
Road, and 59.73 from the West property line where a 100 ft. setback is required for each.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this area variance.
Minor to no impacts to the neighborhood character may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives may be
considered limited due to lot size of 1.93 ac parcel.
3. Whether the requested area variance is substantial. The relief requested may be
considered moderate relevant to the code. Relief is requested for setback on Walkup
Road of 35.02 ft. on Moon Hill Road of 35.3 ft. and on the West property line of 40.7
ft.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. Minor to no impact to the
physical or environmental conditions in the neighborhood may be anticipated. The project
includes stormwater management for the site and a waste water system. The applicant
has located the home at the top of the slope.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes to construct a new home and associated site work. The applicant has
submitted information on the site conditions of the parcel – topographic survey. The plans
show the grading, stormwater management and a septic system. The construction access is
shown as a temporary access on Walkup Road. The house location and new driveway are also
shown to have the access from Moon Hill Road.”
MR. FREER-Okay. Welcome. Please identify yourself and make any additional comments
that you’d like.
MR. WILCOX-Good evening. My name is Alex Wilcox. This is my wife Michele Wilcox. I
am a contractor and carpenter, owner of ACW Family Builders. We are in the process of
purchasing the property at 0 Walkup Road from the current landowners Tom and Ellen
Dubois. We are planning to build our personal home at this site. We were informed that
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the land was zoned RR-3A and we require setbacks would not accommodate a home being
built on this site. As you can see on the grading plan the lot is only 1.93 acres and only has
a width of 212 feet. With 100 foot setbacks from most sides there is inefficient room to
build. We are hoping that the Board can see our vision for what this property can be and
are ready to answer any of your questions.
MR. FREER-Okay. Any questions from the Board? Okay. We have a public hearing
scheduled for this application. I’m going to open the public hearing and see if there’s
anybody in the audience that would like to make a comment. Okay. So would you step aside
and welcome. Please identify yourself.
PUBLIC HEARING OPENED
DR. RICHARD DIMICK
DR. DIMICK-Good evening. My name’s Dr. Richard Dimick. My wife Karen and I have lived
a 717 Moon Hill Road since 2004. If you look at the map we’re the immediate next door
property to the right. First of all I’d like to welcome the Wilcox’s to the area. I’d wish
them very good luck if everything works out for them. Our main concern for being here
tonight is we’re concerned about the closeness of their house as written on the construction
plans to our house. It’s an area with fairly large lots. Our lot is 2.9 acres theirs is 1.9
acres, and if constructed as laid out, our two houses will be closer together than almost
every house in the area. Moon Hill is sort of a winding country road. So is Walkup, and if
you look at the neighborhood, if that easement is built as it is, or at least as proposed, the
two houses are going to be fairly close together, sort of for the detriment of both
properties. Looking at the property as laid out there’s a couple of different options I think
for rearrangement of the property. The lot to the left there, on the opposite side, I don’t
know the right word, it’s not a buildable lot. It has utility poles in it and I think it’s wetlands.
I don’t think there’s ever going to be a house on there. So one of the alternatives is to
move the house further away from our property line toward the other side of the lot. I
don’t think the slope there is prohibitive for them to do that. Another option is that if you
look at the blueprints of the house, all the living areas of the house, the garage is to left,
the living area is to the right, probably the closest part of their house to ours and our dog
yard is off to our side, toward that property line. So I’m thinking that these two houses as
proposed are going to be pretty close together and we came to ask the Board to sort of
reconsider house the lot is laid out, their house is laid out on the lot. Again, we want to
welcome them to their project.
MR. FREER-Okay. Thank you, and someone else had a comment.
DR. DIMICK-Thank you.
LYNSEY WHITING
MRS. WHITING-Good evening, Zoning Board members of the Town of Queensbury. My
name is Lynsey Whiting and I reside at 49 Walkup with my husband Kevin Whiting. I have
lived on Walkup with my family the Hayes for over 30 years and I consider myself to be a
lifetime resident. For over 30 years my family and neighbors have maintained, preserved
and enhanced the area in which we live on Walkup. We have all respected the Rural
Residential code. I truly feel our lives have been blessed by living in one of Queensbury
natural beauties. I have many concerns regarding the proposed 3300 square foot project
on the corner of Moon Hill and Walkup by the Wilcox and Dubois and greatly feel my family
and neighbors will be negatively affected. The Wilcox’s state that their proposed 3300
square foot project is consistent with the visions, goals and policies of our Town’s
Comprehensive Plan. I believe it is not at all consistent. Our Town vows to protect
important natural areas and view sheds, especially unique landforms like ridges and slopes.
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The size of this project doesn’t live in harmony with its own lot. The proposed excavation
and removal of mature trees for the 3300 square foot home plus septic and well, plus the
clear cutting of the road and surpassing the 100 foot setback on both sides will have an
adverse impact on the natural, the scenic, aesthetic, ecological, wildlife, historic,
recreational area. Their proposed project will forever change the landscape and rural
design. This proposal is not consistent with maintaining the natural area. The corner of
Walkup is a part of the natural slope and backdrop of the wetlands. The hardwoods and
pines act as habitat for wildlife and as a natural buffer from noise and light pollution from
Moon Hill. The wetlands and wildlife on Walkup deserve to be protected. Allowing such
variance and approval will no doubt adversely impact this Rural Residential district. Our
Town is about sustaining lifelong residents. All of Walkup residents have resided here for
30, 40 if not more years, all of whom have maintained and preserved our rural neighborhood.
Our Town is active and Walkup has and continues to be a positive walkable neighborhood. In
fact neighbors from Sunnyside and Dream Lake, Tee Hill, Martindale, Glen Lake and Moon
Hill recreate on this natural, rural road. Clear cutting a road and deconstructing minimally
three quarters of an acre on a 1.9 corner lot will have a negative impact scenically. Walkup
reflects and maintains the rural heritage and natural environment. Our rural residential
codes are written with great intentions. We must honor and maintain the preservation of
its rural character and protect the natural environment. This proposed project is not
abiding by our district code. A variance should not be given, and I ask the Town of
Queensbury to maintain its natural beauty for all residents.
MR. FREER-Thank you. Okay. Sir, come on up.
TOM DUBOIS
MR. DUBOIS-Hello. My name’s Tom Dubois. I’m the current owner of the land, and I’d like
to speak in support of what Alex and Michelle are planning to do. Naturally construction of
any home on a wooded lot requires cutting of trees, but I thought when I purchased this lot
30 years ago that it was a very attractive building lot. At the same time I purchased a lot
in the Town of Keene New York up near Lake Placid and as my plans developed I ended up
building my retirement home in Keene rather than in Queensbury. So I found myself with
this lot with no intention to build on it, but had I gone ahead with plans to build on it I would
have been planning something similar to what the Wilcox’s are planning. I believe they’ve
selected the best location on the property for a home and certainly taking into account what
Rich Dimick said, there may be some adjustments that could be made, but it seems to me
that that’s the best spot to put a home on it, and of course when the lot was originally
subdivided and when I purchased it 30 years ago the zoning did not include the setbacks
that have subsequently been applied. When the Town zoned the lot, zoned the whole area
three acres, there are lots within that area that were not three acres. So there was
automatically a difficulty created just by the purpose of that additional zoning that was put
in place about maybe 15 years ago, and I think that what they’re doing is in keeping with the
finding of the Staff Notes. I don’t think it’s going to have a great negative impact and I
think it’s very attractive.
MR. FREER-Okay. Thank you.
MR. DUBOIS-Thank you.
MR. FREER-Okay. Is there anyone else? Sir?
PHILIP ROBERTSON
MR. ROBERTSON-Good evening. My name is Philip Robertson, and for close to four decades
I’ve been the owner and the land steward of approximately 20 acres directly across Walkup
Road from the proposed construction project. I hope that the Zoning Administrator, Land
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(Queensbury ZBA Meeting 04/17/2019)
Use Planner and all the Queensbury decision makers involved with any possible variance for
this project will please think long and hard before granting any variance regarding the
proposed construction that will most certainly have a negative impact on the surrounding
neighborhood. It is a not a small structure that will be hidden from sight in the woods.
After speaking with the logging contractor, Chris Jenkins, I was informed that the large
trees that exist on the property were all to be removed, some of the pines reaching 90 feet.
The clear cutting of this wooded lot will change the character of this area forever. The
surrounding Glen Lake brook ecosystem will also be negatively impacted if the proposed
construction is permitted. I can only imagine the muck and debris that will flow from the
work site over the next year or more if clear cutting and construction is allowed to
commence. There’s already a great deal of runoff off of this lot. The Wilcox’ are asking
for not just one or two setback allowances but several, allowing a logging construction
entrance from Walkup Road. I am strongly opposed to this temporary entrance as it will
most certainly damage the newly surfaced road and become a defacto entrance to the
property. Will the new owners re-surface the damaged Walkup Road the logging and
construction equipment will likely create? If the Wilcox’ feel they must proceed I would
strongly suggest a smaller structure that is more in keeping with the setting. The smaller
structure could be re-situated so that only one setback variance is required, leaving the tall
pines and as many trees as possible on the southwest side. That will act as sound attenuation
from the very busy Moon Hill Road. Leaving the existing trees will also mask the new
construction on a substandard lot according to the Rural Residential 3A. If the 200 foot
wide property is not suited for the 90 foot proposed house, may be a more suitable location
in Queensbury would be in order. I would implore that the decision makers come to my
home and view for themselves what impact the approval of this variance would have on this
idyllic area. Thank you for your consideration.
MR. FREER-Okay. Thank you. Is there anyone else who wants to make a comment? Yes,
sir.
EDWARD HAYES
MR. HAYES-Evening. My name’s Edward Hayes. I’ve been on Walkup Road for over 30
years now. I’ll read from my notes. My family and I have resided on Walkup Road for over
30 years and probably my home was the first, an original Walkup family farmhouse. We’ve
had the privilege of enjoying the quiet serene beauty of Queensbury’s rural gem here. The
Town has designated this area of Town rural. To us that means that none of us can see any
of our neighbors’ homes. We see no homes on the south side of Walkup Road whatsoever,
except for an old barn right across from my home, no structures to ruin the beauty of this
road. We cannot see any homes on Moon Hill Road, even though they’ve built eight homes in
the last 30 or 20 years up there. Even in the winter you can’t see anything up on Moon Hill
from Walkup. We may see a twinkle of light up there, but it’s not affected the Walkup
residents at all. The homes directly across from the proposed building lots, location rather,
have beautiful views of tall pines and Moon Hill vistas and surrounding areas with no homes
in the view. That’s rural. Now the applicants want to build a large home on a too small
triangular lot of under two acres and at the same time enhance their views to the detriment
of our views. They want the Town to forego the Town Codes for this huge home to be built.
The propose logging these huge pines whereby they have just, we have just recently, recently
we’ve been viewing a pair of bald eagles and ospreys that are frequenting those woods, you
know, staying up in those trees. They have proposed a temporary road to be built on Walkup
like you’ve heard for the convenience of land clearing which will forever alter the view, look
and feel of the woods along Walkup. No matter how they use the word temporary and by
the way most loggers take only the wood they want and leave the brush piles. They may say
they’ve going to re-plant and seed and everything but that’s still going to take a long, long
time to hide that scar of the temporary road. I hope you don’t consider that. The Town
asks if there’s any way to eliminate the need for the variances, well there is. Put in a home
that is more in line, smaller than proposed, not being necessary for setback variances and
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not being 40 feet high and having to take out many of the 90 foot trees. So I ask does the
Town really feel it necessary to bend and alter the established codes? Please take the time
to come by and take a view that the long-time residents have had and then picture how this
project will ruin forever that beautiful vista. Please vote no to the variances and the
temporary Walkup Road access. This is not a necessary variance request. Thank you.
MR. FREER-Anybody else? Okay. If the applicants could come back please and make any
brief comments in response to the public hearing, please.
MR. WILCOX-A lot of people have mentioned that there’s going to be like clear cutting of
the trees. I just recently had Ms. Jenkins walk the property just to see where and I even
showed her the plans of the house. Obviously the trees would have to come down where
the structure was being built. I had them go over just to see like what trees were on the
property and he just mentioned that there were some trees, if you walk the property like
large pines that could potentially hit the house and that are also like on their way out.
They’re not even growing any new growth. So just basically thinning out the trees that are
like anywhere that could kind of hit the house. Like if it’s a pine tree that’s still growing,
that’s fine, but minimal effect. Like we’re not going to clear cut the land at all. We’re
trying to, in that envelope, hide the home, especially way up on the hill, and there’s a plethora
of trees and that’s why we didn’t push, as Richard Dimick said, he was thinking about pushing
the house over to the left side, according to this map. We wanted to kind of keep a tree
line in between both sides of Walkup and Richard Dimick. If Dr. Dimick would like us to try
and shift the house further to the left side to put some more tree barrier there, then we
would be obliged to do so.
MR. FREER-Okay. Thank you. I’m sorry, Roy, do we have written comments?
MR. URRICO-Well there was written comment, but Mr. Robertson read it in when he
presented it.
MR. FREER-Okay.
MR. URRICO-Did you speak about Mr. Barrili as well?
MR. ROBERTSON-I didn’t speak about that.
MR. URRICO-Well he, in his letter he mentions, let me get to it here, “In addition because
another Walkup Road resident is unable to attend this meeting due to health reasons, I have
been granted permission to speak on his behalf. Ted Barrili is also adamantly opposed to
this project. His concerns echo what I and the other neighbors have spoken about. There
is no part of this proposed project that lives in harmony with the current landscape or the
area. The deed restrictions spelled out by Island View Enterprises do not allow for what is
proposed. Granting a variance to destroy our views so that one person has a view of French
Mountain from their motel size home is a noxious and offensive activity and should not be
allowed.”
MR. FREER-Thanks, Roy. Okay. We’ll close the public hearing, and if you have questions
for Staff.
PUBLIC HEARING CLOSED
MR. KUHL-How about swapping the house, putting the garage on the other side? Just swap
the house. That would satisfy your neighbors.
MR. WILCOX-Yes, we could potentially do something like that. The main reason why that’s
on the left hand side is the slope of Moon Hill and the access point of where the grade of
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the home. Everything kind of pitches towards, you can start to see on the topographic map
that there’s a steep hill. I don’t know if any of you have been by, but the closer you get to
that hill, and that’s kind of also why that house footprint is positioned where it is, because
the closer we get to the disturbance area of that 50 feet then we don’t want to disturb that
hillside.
MR. UNDERWOOD-The question I had is your entrance off of Walkup, if you could eliminate
that, and I don’t if you need that.
MR. WILCOX-I would have to talk to the tree guy if we could definitely eliminate that,
potentially pull the trees up the hill.
MR. UNDERWOOD-They should be able to winch them up.
MR. WILCOX-Yes. So we could definitely eliminate that for sure.
MR. UNDERWOOD-I think like some of the comments about the closeness to your neighbor
to the east there and minimizing the number of trees that you take down. Remember that
when you start taking trees down in a thick forest, you get wind throw as a result because
the trees aren’t braced. I think it’s always a concern with trees around your house, the
maturity of the trees, but those trees have been there a long time. They would have blown
down years ago, you know. Usually it’s big nor’easters and you’re on the far side from the
northeast. So I don’t think you have to worry and cut them down. You’re up on the hill
there above Glen Lake.
MR. KUHL-You’re not going to clear cut is what you’re saying.
MR. WILCOX-We’re definitely not going to clear cut. Like I said, Chris Jenkins, I just had
him walk the land. I wasn’t even present. He hasn’t seen the house drawings. It’s basically
just going to be within probably 15 or 20 feet of the house to just allow a little bit of yard
around the house and then obviously we’ll have to cut down trees where the septic system
goes, but it’s not going to be a full clear cut by any means.
MR. FREER-Okay. So I’m going to close the public hearing and poll the Board and start with
Cathy.
MRS. HAMLIN-First, I have to say for disclosure, Mr. Robertson approached me today when
I was visiting the site and spoke to me. He didn’t say anything different here than he said
to me that would influence me, but just so it’s on the record. Just so I disclose that he let
me look from his property.
MR. FREER-Okay.
MRS. HAMLIN-Initially when I first looked at this proposal I thought the setbacks were
very substantial and that’s what the zoning is and what it was from (due to problems with
feedback on tape some comment was lost) I know you have a three car garage. I mean, you
know, it is a pretty big house for that site, for that area as zoned.
MR. FREER-Okay. Thank you, Cathy. Roy?
MR. URRICO-Yes. First I’d like to say that you have every right to build on this lot. It’s
a buildable lot and you have every right to put a house there, but I think you also have to
consider what your restrictions are there in terms of where the lot is located. The house
you’re proposing to me seems way too big for that lot and it’s creating the need for all these
substantial variances. So based on what you’ve submitted so far I would not be in support
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of it because of the number of variances and the amount and size of them as well. So I
would consider maybe an alternative.
MR. FREER-Thank you. Jim?
MR. UNDERWOOD-Yes, most of what you’re requesting here is for setbacks from the steep
slopes and from the roads, and although it’s 100 foot setbacks from the roads, you know,
you’re at 50 feet. You’re 64 feet from Walkup Road; 64 feet from Moon Hill; 59 feet from
the west property line where a 100 foot setback is required for each one of those. I think
that, you know, if you shrunk the size of the house down somewhat that, you know, you’ve
got a three car garage on the west side, that’s going to be protruding out further towards
the trees. You’re going to have to be removing things like that. I think you could come
back with something a little more reasonable and we’d probably approve it.
MR. FREER-Okay, thanks, Jim. Ron?
MR. KUHL-My turn? The fact that people say you’re going to ruin their views, the young
lady, Lynsey, I’m sorry I didn’t get your last name, very eloquent in what you said, but I
reality it’s a nonconforming lot and the fact that people want to move into the neighborhoods,
that’s just what happens today and, you know, the trees and everything, as long as an
applicant comes up here and he’s not going to clear cut and he’s, they monitor and try to do
the best they can, this applicant, and you are asking for a lot. I think you could modify it.
The thing that frustrates me is people talk about the new people coming in, spoiling their
views. When we buy land we don’t buy views. We buy land and dirt to build and to raise
our families, but I think you’re asking for a lot. I think you could take a better look at it.
You’ve heard a lot of what the people are saying and as, I mean, you could separate that
garage. I’m not going to re-engineer your proposal because the way you’ve presented it, I’m
not in favor of it. Okay, but you could separate that garage and that would shrink your
pocket. You could put the garage behind the house. You could do things to satisfy a lot of
people’s concerns.
MR. FREER-Okay. Thank you, and Brent.
MR> MC DEVITT-And I would agree with what I just heard that I believe your project has
legs, okay, but for this Board member, as presented, it doesn’t have legs though. And to
be specific, I believe that a smaller structure, somewhat smaller structure, where I believe
one setback variance would be required would be more palatable for me. So I believe the
project can come to fruition but I think it needs to be tweaked and massaged a little bit to
kind of get it where it needs to be.
MR. UNDERWOOD-I would strongly make the suggestion also, look at what your neighbors
have done that adjoin you and come up with a cutting plan that mimics what you already have
there so you fit in with the neighborhood so that you don’t stick out like a sore thumb.
MR. WILCOX-I’m sorry, if I could follow up on that response there. Basically, as far as our
footprint and house, I mean it’s a little bit different than Dr. Dimick’s house, but there’s a
three car garage and I know his property is longer and deeper and one more acre because
of the length and I understand his concerns of pushing the property to the left, but as far
as house size and positioning, it’s somewhat the same. We tried to go off Dr. Dimick’s house
and the other homes that are on that road. There’s a bunch of homes on that road, that
are on Moon Hill, that are close to the road, like 35 feet, 25 feet, a couple of them. So we
tried to basically put our home even further back than any of the ones, besides some of the
ones that are way up on top of a hill.
MR. FREER-Okay, but what I hope you heard from the Board is that as presented we’re not
going to approve you.
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(Queensbury ZBA Meeting 04/17/2019)
MR. WILCOX-Most definitely. Yes.
MR. FREER-We don’t want you to be discouraged because as Roy tried to point out you have
a couple of acres and you should be able to figure this out, but given the zoning test. So
you could table the application and go back to the builder and take the feedback from the
neighbors and try to do something more accommodating. That probably makes the most
sense, but we can’t force you to do that. You’re not going to get approval tonight. So would
you like to table this?
MR. WILCOX-We would like to table it.
MR. FREER-Okay. Can I get a motion to table this application? We have to decide when.
MRS. MOORE-To a June meeting.
MR. FREER-A June meeting. Okay. So a June meeting requires a re-submission or
amendment by?
th
MRS. MOORE-May 15.
th
MR. FREER-May 15. Is that doable?
MR. WILCOX-Yes.
MR. FREER-Okay.
The Zoning Board of Appeals of the Town of Queensbury has received an application for
Alex & Michelle Wilcox. Applicant proposes construction of a 3,320 sq. ft. single family
home with associated site work. The house to be constructed is located within 50 ft. of 15%
slopes. The site includes grading, lot clearing for house, septic and well. The applicant has
indicated for lot clearing access may come from Walkup Rd. with a temporary construction
entrance. Relief is sought for setbacks in a RR 3A zone for a lot size of 1.93 acres. Planning
Board: Site Plan Review required for construction occurring within 50 ft. of 15% slopes.
MOTION TO TABLE AREA VARIANCE Z-AV-14-2019 ALEX & MICHELLE WILCOX,
Introduced by Brent McDevitt who moved for its adoption, seconded by Ronald Kuhl:
Tabled to the June 2019 Zoning Board of Appeals meeting with re-submission of materials
by May 15, 2019.
th
Duly adopted this 17 day of April, 2019, by the following vote:
AYES: Mrs. Hamlin, Mr. Urrico, Mr. Underwood, Mr. Kuhl, Mr. McDevitt, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. Good luck.
MRS. WILCOX-Thank you. We appreciate it.
MR. FREER-Okay. The next application is Stewart’s Shops Corp.
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(Queensbury ZBA Meeting 04/17/2019)
AREA VARIANCE Z-AV-19-2019 SEQRA TYPE II STEWART’S SHOPS CORP.
AGENT(S) CHRIS POTTER OWNER(S) STEWART’S SHOPS CORP. ZONING NC
LOCATION 347 AVIATION ROAD APPLICANT HAS REVISED PLANS FOR THE
DEMOLITION OF THE EXISTING 4,935 SQ. FT. BUILDING TO CONSTRUCT A 3,696
SQ. FT. BUILDING (PREVIOUSLY 3,855 SQ. FT.) THE FUEL CANOPY IS ALSO TO BE
REMOVED, A NEW ONE TO BE INSTALLED OF 1,460 SQ. FT. (PREVIOUSLY 2,000 SQ.
FT.). PLAN REVISION NO LONGER REQUIRES PERMEABILITY RELIEF AND SIDE
SETBACK HAS INCREASED FROM 8 FT. TO 15 FT. RELIEF REQUESTED FROM
MINIMUM SETBACK REQUIREMENTS OF THE NC ZONING DISTRICT. PLANNING
BOARD: SITE PLAN REVIEW FOR NEW BUILDING AND ASSOCIATED SITE
IMPROVEMENTS. CROSS REF SP 7-2019; AV 5-2019; SV 1-2019; SP 22-93; SP 17-93; SP
20-94; SP 24-99; SP 5-2006; SP 72-2010 WARREN COUNTY PLANNING N/A LOT
SIZE 1.04 ACRES TAX MAP NO. 301.8-1-33 SECTION 179-3-040
CHRIS POTTER, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance Z-AV-19-2019, Stewart’s Shops Corp., Meeting Date:
April 17, 2019 “Project Location: 347 Aviation Road Description of Proposed Project:
Applicant has revised plans for the demolition of the existing 4,935 sq. ft. building to
construct a 3,696 sq. ft. building (previously 3,855 sq. ft.) The fuel canopy is also to be
removed, a new one to be installed of 1,460 sq. ft. (previously 2,000 sq. ft.). Plan revision no
longer requires permeability relief and side setback has increased from 8 ft. to 15 ft. Relief
requested from minimum setback requirements of the NC zoning district. Planning Board:
Site Plan Review for new building and associated site improvements.
Relief Required:
The applicant requests relief from minimum setback requirements of the Neighborhood
Commercial zoning district.
Section 179-3-040 –Dimensional Requirements
The building is proposed to be located 15 ft. from the West property line where a 20 ft.
setback is required.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this area variance.
Minor impacts to the neighborhood may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives may be
limited for setbacks for the building due to the configuration of the parcel. The
applicant has reduced the size of the building and adjusted the setback 15 ft.
3. Whether the requested area variance is substantial. The relief requested may be
considered minimal relevant to the code.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. The project will have minimal
to no adverse effects or impact on the physical or environmental conditions of the
neighborhood.
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(Queensbury ZBA Meeting 04/17/2019)
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes to remove an existing commercial building that was used for a
convenience store and other businesses to replace the building. The newer building is to be
3,696 sq. ft. with a fuel canopy of 1,460 sq. ft. The building is to be orientated perpendicular
to the site with two separate entrances. The plans show the building and site work.”
MR. FREER-Welcome back. Thank you for taking our feedback. Would you like to add
anything?
MR. POTTER-Sure.
MR. FREER-Just state your name.
MR. POTTER-Chris Potter from Stewart’s. From the last meeting we were able to decrease
the building size as well as shifted to the east which now gets us to the 15 foot setback and
only require a five foot variance. We’ve also reduced parking so now we no longer need the
green space variance. So that’s something that we, in the past, we did meet with the Jones’,
the neighbors to the west, and after speaking with them we agreed to add some additional
large trees at the rear of the building to help screen, per their request. So we don’t have
an issue with that. There’s also an existing walkway in between the two properties that we
agreed to remove, as well as add some additional plantings from that front west corner down
to the road. We showed some smaller planters and we’re willing to make that one large
planter with some trees and different shrubs as well as keep, there’s an existing hedge now.
That would remain. So what’s shown on this plan would actually be increased. There’d be
some additional larger trees and then that planter bed would actually be increased in depth
as well as go closer to the building, and this plan doesn’t show larger trees behind, but after
meeting with the neighbors we would change that also.
MR. FREER-Okay. Thank you. Questions from the Board?
MRS. HAMLIN-I’ve got one. You’ve got some sizes here on the fuel canopy. So you reduced
it not from what was proposed before but actually from the existing size as well?
MR. POTTER-No, we reduced it from what was proposed previously. We had four dispensers
and we’re down to three now.
MRS. HAMLIN-Okay. So it is actually going to be bigger than what exists.
MR. POTTER-Correct.
MRS. HAMLIN-All right. I wasn’t clear.
MR. FREER-Okay. Any other questions from the Board? We have a public hearing that’s
been kept open. So is there anyone in the audience that wants to make a comment about
this application? Seeing no one, Roy, is there any written comment?
PUBLIC HEARING OPEN
MR. URRICO-Yes. “We are of the opinion that despite the modifications proposed to the
project Stewart’s is still overdeveloping the site and that overdevelopment will have
undesirable impacts to nearby properties and the neighborhood. They are still proposing to
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(Queensbury ZBA Meeting 04/17/2019)
construct the new shop in the 25’ wide access easement on the west side of the property.
The benefit sought by the applicant could be achieved by further downsizing the proposed
building. This would eliminate the need for a side yard setback variance. Sincerely, Richard
Jones 339 Aviation Road”
MR. FREER-Okay. Thank you. Okay. So I’m going to close the public hearing and poll the
Board.
PUBLIC HEARING CLOSED
MR. FREER-And I’ll start with Roy.
MR. URRICO-Yes. We’ve already gone over this project pretty much in detail and I made
my comments last time. I’m going to be in favor of it this time.
MR. FREER-Okay. Thank you. Jim?
MR. UNDERWOOD-Yes, I’m satisfied that the changes that Mr. Jones requested on the
west side are moving it in the right direction. You only need five feet of relief on that side
now and I still think that what you proposed previously was reasonable. This is even more
reasonable. So I would be all in favor of it.
MR. FREER-Thanks, Jim. Ron?
MR. KUHL-I missed the first opportunity on this, but I’m in favor of the way it’s presented.
MR. FREER-Okay. Brent?
MR. MC DEVITT-I believe that Stewart’s has listened to the neighbors. You’ve added some
trees. You’ve worked on some plantings. Larger trees. We’ve shrunk some footprints. I
think the project as now presented is a viable project and I would be in favor.
MR. FREER-Okay. Thanks. Cathy?
MRS. HAMLIN-Yes, I have my notes from the last time and you’ve addressed everything
that we asked you to address. Therefore I would vote in favor this time.
MR. FREER-I can support these variances as well, and I think we all appreciate the effort
to minimize the number, length and size of the variances. With that I’ll seek a motion.
The Zoning Board of Appeals of the Town of Queensbury has received an application from
Stewart’s Shops Corp. Applicant has revised plans for the demolition of the existing 4,935
sq. ft. building to construct a 3,696 sq. ft. building (previously 3,855 sq. ft.) The fuel canopy
is also to be removed, a new one to be installed of 1,460 sq. ft. (previously 2,000 sq. ft.).
Plan revision no longer requires permeability relief and side setback has increased from 8
ft. to 15 ft. Relief requested from minimum setback requirements of the NC zoning district.
Planning Board: Site Plan Review for new building and associated site improvements. Having
previously presented this application they have modified the application significantly and
the Board at this point feels that the only variance that’s necessary is five feet of relief
from the 20 foot setback on the west side of the building.
Relief Required:
The applicant requests relief from minimum setback requirements of the Neighborhood
Commercial zoning district.
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(Queensbury ZBA Meeting 04/17/2019)
Section 179-3-040 –Dimensional Requirements
The building is proposed to be located 15 ft. from the West property line where a 20 ft.
setback is required.
SEQR Type II – no further review required;
A public hearing was advertised and held on Wednesday, April 17, 2019;
Upon review of the application materials, information supplied during the public hearing, and
upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury
Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find
as follows:
1. There is not an undesirable change in the character of the neighborhood nor a
detriment to nearby properties. It’ll be updating an old Stewart’s store and changing
the ergonomics of the whole site to better accommodate the public’s safety and
welfare.
2. Feasible alternatives were considered by this Board. The applicant has shrunk the
building size down. Changed the setbacks from the side setbacks and permeability.
Those are not even needed at this point.
3. The requested variance is not substantial. The five feet of relief we deem is not
substantial because even though it’s a tight fit on the site it’s much more reasonable
than what was originally proposed.
4. There is not an adverse impact on the physical or environmental conditions in the
neighborhood or district. We feel it would be a plus based upon the design of the
old store. The new store will be much more accommodating as far as traffic flow
patterns.
5. As far as the alleged difficulty, it’s a little over an acre lot and we feel that they’ve
worked with the Town to achieve only needing one variance. It’s self-created only in
the sense that it’s a small lot.
6. In addition the Board finds that the benefit to the applicant from granting the
requested variance would outweigh (approval) the resulting detriment to the health,
safety and welfare of the neighborhood or community; Even though the nearest
neighbor is still complaining about the five feet of relief needed.
7. The Board also finds that the variance request under consideration is the minimum
necessary;
8. The Board also proposes the following conditions:
a) Adherence to the items outlined in the follow-up letter sent with this resolution.
BASED ON THE ABOVE FINDINGS, I MAKE A MOTION TO APPROVE AREA VARIANCE
Z-AV-19-2019 STEWART’S SHOPS CORP., Introduced by James Underwood, who moved
for its adoption, seconded by Brent McDevitt:
th
Duly adopted this 17 day of April 2019 by the following vote:
AYES: Mr. Kuhl, Mrs. Hamlin, Mr. Urrico, Mr. Underwood, Mr. McDevitt, Mr. Freer
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(Queensbury ZBA Meeting 04/17/2019)
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. We’re ready for Area Variance 18-2019, Schermerhorn Residential
Holdings.
AREA VARIANCE Z-AV-18-2019 SEQRA TYPE II SCHERMERHORN RESIDENTIAL
HOLDINGS AGENT(S) NACE ENGINEERING, BPSR OWNER(S) SCHERMERHORN
RESIDENTIAL HOLDINGS ZONING O LOCATION 1260-1264 WEST MOUNTAIN
ROAD, EAST SIDE OF WEST MT. ROAD, SOUTH OF GURNEY LANE APPLICANT
PROPOSES CONSTRUCTION OF A 16,530 SQ. FT. 3-STORY MULTI-UNIT RESIDENTIAL
STRUCTURE FOR 35 UNITS ASSOCIATED WITH EXISTING MULTI-UNIT
RESIDENTIAL BUILDINGS. THE PROJECT IS PHASE THREE OF WESTBROOK THAT
COMPLETES THE PHASED PLAN WHERE THE SITE HAS 2 BUILDINGS EXISTING.
RELIEF REQUESTED FROM MAXIMUM ALLOWABLE HEIGHT RESTRICTIONS. CROSS
REF SP 23-2019; PZ 6-2003; SP 48-2007; SP 11-2010 FOR 60 UNITS; SP 69-2014 FOR
35 UNITS PHASE 2 WARREN COUNTY PLANNING APRIL 2019 LOT SIZE 16.53
ACRES TAX MAP NO. 288.-1-64 SECTION 179-3-040
JON LAPPER & TOM NACE, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance Z-AV-18-2019, Schermerhorn Residential Holdings,
Meeting Date: April 17, 2019 “Project Location: 1260-1264 West Mountain Road, east
side of West Mt. Road, south of Gurney Lane Description of Proposed Project: Applicant
proposes construction of a 16,530 sq. ft. 3-story multi-unit residential structure for 35
units associated with existing multi-unit residential buildings. The project is Phase Three
of Westbrook that completes the phased plan where the site has 2 buildings existing. Relief
requested from maximum allowable height restrictions.
Relief Required:
The applicant requests relief from maximum allowable height restrictions in the Office
Zone.
Section 179-3-040- Dimensional Requirements
The applicant proposes to construct a 44.9 ft. in height building where the maximum height
allowed is 40 ft.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this area variance.
Minor impacts to the neighborhood may be anticipated.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than an area variance. Feasible alternatives may be
available to relocate the building on the parcel. The applicant has indicated the location
of the building requires fill to be brought in.
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(Queensbury ZBA Meeting 04/17/2019)
3. Whether the requested area variance is substantial. The relief requested may be
considered minimal relevant to the code. Relief is for 4.9 ft. in excess.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. The relief requested may have
minimal to no adverse impacts.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes to construct a 16,530 sq. ft. (footprint) senior apartment building
with 3 stories and 35 units. The site has an existing 3 story 60 unit senior apartment
building on the site that is 29,536 sq. ft. (footprint). The applicant has indicated that fill
is needed for the building and the area is to include a retaining wall section. The plans show
the location and elevation of the proposed building. The applicant had a similar variance
request in 2014 for the existing 35 unit complex where the height granted was 43.7 ft.”
MR. URRICO-And the Planning Board based on its limited review did not identify any
significant adverse impacts that cannot be mitigated with the current project proposal. And
that was approved April 16, 2019 by a unanimous six zero vote.
MR. FREER-Thanks, Roy. Welcome. Please identify yourself and add anything briefly that
you’d like.
MR. LAPPER-Certainly. Good evening. For the record, Jon Lapper with project engineer
Tom Nace. Very simply the building will be under 40 feet in height and therefore it will not
appear too tall, just like the other buildings. The only reason for the height variance is
because it would be rare to find a 16,000 square foot footprint that was already perfectly
level in nature and we didn’t find that here. So the 4.9 feet of relief is just to make it a
flat site, but of course the way it’s measured under the Town Code it goes from the pre-
existing grade to the finished height of the building. So it’s still a 39. something high
building but measured from where it is now it comes to 44.9 feet. So the building’s not too
big. It’s just a slight change in grade. So it’s been a very successful project at kind of a
quiet part of Town, even though it’s near the Northway and Rich had previously dedicated
part of the Rush Pond Trail to the Town so that it actually accesses this project which is
nice for the residents of the project and the Town, just a little grade work. The drainage
and everything on this site will go into the existing facilities, the existing stormwater basin
that’s there, and it’s going to connect to the existing parking lot, but I’ll let Tom go through
the site plan briefly.
MR. NACE-Actually there’s very little to add. It’s late so you probably want to get going.
As Jon said, we’re using existing facilities. Stormwater will all be infiltrated up through
the 100 year storm. The sewer is connected to the city sewer system, and an existing pump
station serves the two existing buildings.
MR. FREER-Okay. Thank you. Any questions from the Board?
MR. URRICO-I have one. The last building was 43.7 feet and this is 44.9 feet. That much
of a difference?
MR. NACE-It’s just the existing land is five feet lower on one end than the other.
MR. UNDERWOOD-You’ve got a steep bank coming off the top of the hill there.
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(Queensbury ZBA Meeting 04/17/2019)
MR. LAPPER-Exactly. So the building isn’t bigger. It’s just the land.
MR. URRICO-Okay.
MRS. HAMLIN-I’m a little nitpicky about things. On the SEQR, I think they’re just
mistakes possibly. A few things, for example, will.
MRS. MOORE-But that’s Site Plan. He may have included that, but for the variance.
MRS. HAMLIN-All right. Well when you do Site Plan, take those into consideration.
MRS. MOORE-The Area Variance it’s a Type II.
MRS. HAMLIN-Okay. Well there’s some stuff.
MR. LAPPER-Saved by the Type II.
MRS. HAMLIN-I’m good.
MR. FREER-Okay. So we got all our questions answered. I only see one Wal-Mart person.
So I’m guessing there’s nobody in the audience that wants to make a comment. Do we have
any written comments?
PUBLIC HEARING OPENED
MR. URRICO-There’s no written comment.
MR. FREER-Okay. I’m going to open the public hearing and close the public hearing and poll
the Board.
PUBLIC HEARING CLOSED
MR. FREER-And I’ll start with Jim.
MR. UNDERWOOD-Yes the project is in keeping with all the previous phases we’ve approved.
I assume this is the last one, this is the final phase.
MR. LAPPER-Yes.
MR. UNDERWOOD-So it’s only topographically that you need that extra height variance
because of that steep bank that drops off from the top of the hill. I don’t really think it’s
going to stick out. I think it’s located on the highest part of the property, but you’re really
not going to see it from West Mountain Road or the Northway. I don’t have a problem with
it.
MR. FREER-Ron?
MR. KUHL-Yes you mentioned the name Rich. I assume it’s Mr. Schermerhorn.
MR. LAPPER-Yes, sir.
MR. KUHL-This is good to complete this project. So I’d be in favor of it.
MR. MC DEVITT-I’m in favor of the project.
MR. FREER-Cathy?
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(Queensbury ZBA Meeting 04/17/2019)
MRS. HAMLIN-Yes, I would vote in favor.
MR. FREER-Roy?
MR. URRICO-Yes. I’m in favor.
MR. FREER-Okay. I, too, can support this variance. So with that I’m going to close the
public hearing and request a motion.
The Zoning Board of Appeals of the Town of Queensbury has received an application for
Schermerhorn Residential Holdings. Applicant proposes construction of a 16,530 sq. ft. 3-
story multi-unit residential structure for 35 units associated with existing multi-unit
residential buildings. The project is Phase Three of Westbrook that completes the phased
plan where the site has 2 buildings existing. Relief requested from maximum allowable
height restrictions.
Relief Required:
The applicant requests relief from maximum allowable height restrictions in the Office
Zone.
Section 179-3-040- Dimensional Requirements
The applicant proposes to construct a 44.9 ft. in height building where the maximum height
allowed is 40 ft.
SEQR Type II – no further review required;
A public hearing was advertised and held on Wed., April 17, 2019;
Upon review of the application materials, information supplied during the public hearing, and
upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury
Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find
as follows:
1. There is not an undesirable change in the character of the neighborhood nor a
detriment to nearby properties. This keeps with the previous buildings and only
topographically are we talking about any sort of real change here. I think it is nominal
to less than nominal in this case.
2. Feasible alternatives have been considered. There’s not anything that is standing
out here in this capacity for the minimum size.
3. The requested variance is not substantial. It keeps in character with the overall
area, the other buildings in the area.
4. There is not an adverse impact on the physical or environmental conditions in the
neighborhood or the district. Again, the relief is minimal. The existing stormwater
infiltration is all going into the same catch basin.
5. The alleged difficulty, while it could be suggested as self-created, I don’t believe
that it is major in that capacity.
6. In addition, the Board finds that the benefit to the applicant from granting the
requested variance would outweigh (approval) the resulting detriment to the health,
safety and welfare of the neighborhood or community;
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(Queensbury ZBA Meeting 04/17/2019)
7. The Board also finds that the variance request under consideration is the minimum
necessary;
8. The Board also proposes the following conditions:
a) Adherence to the items outlined in the follow-up letter sent with this resolution.
BASED ON THE ABOVE FINDINGS, I MAKE A MOTION TO APPROVE AREA VARIANCE
Z-AV-18-2019 SCHERMERHORN RESIDENTIAL HOLDINGS, Introduced by Brent
McDevitt, who moved for its adoption, seconded by James Underwood:
th
Duly adopted this 17 day of April 2019 by the following vote:
AYES: Mr. Urrico, Mrs. Hamlin, Mr. Kuhl, Mr. McDevitt, Mr. Underwood, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. LAPPER-Thanks, everybody.
MR. FREER-Okay. On to our last item of the night, Wal-Mart/Leticia Martinez, Sign
Variance 3-2019.
SIGN VARIANCE Z-SV-3-2019 SEQRA TYPE UNLISTED WALMART/LETICIA
MARTINEZ AGENT(S) LETICIA MARTINEZ OWNER(S) WALMART REAL ESTATE
BUSINESS TRUST ZONING CI LOCATION 24 QUAKER RIDGE BOULEVARD
APPLICANT PROPOSES INSTALLATION FOR A NUMBER OF WALL SIGNS THAT ARE
IN EXCESS OF BOTH THE MAXIMUM NUMBER OF SIGNS AS WELL AS THE PREVIOUS
SIGN VARIANCE APPROVAL IN 2009. RELIEF REQUESTED FROM MAXIMUM NUMBER
OF ALLOWABLE SIGNS FOR THE BUSINESS. CROSS REF SP 9-2019 ; SP 59-2017; SV
9-2017; SP 61-2007; SV 1-2009 WARREN COUNTY PLANNING APRIL 2019 LOT SIZE
33.27 ACRES TAX MAP NO. 303.15-1-25.1 SECTION CHAPTER 140
STAFF INPUT
Notes from Staff, Sign Variance Z-SV-3-2019, Walmart/Leticia Martinez, Meeting Date:
April 17, 2019 “Project Location: 24 Quaker Ridge Boulevard Description of Proposed
Project: Applicant proposes installation for a number of wall signs that are in excess of
both the maximum number of signs as well as the previous Sign Variance approval in 2009.
Relief requested from maximum number of allowable signs for the business.
Relief Required:
The applicant requests relief from maximum number of allowable signs for the business.
Chapter 140- Signs
The applicant proposes the following signage where only one sign at 30 sq. ft. is allowed
unless the building is setback further than 100 ft. where a maximum one wall sign is allowed
at 200 sq. ft. SV 1-2009 granted Walmart five signs.
o Front Sign Walmart with Spark 220 sq. ft. –remains the same
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(Queensbury ZBA Meeting 04/17/2019)
o New Grocery and Pharmacy -51.70 sq. ft. reduced to 40.80 sq. ft. ( was Market
and Pharmacy)
o Home and Living -31.23 sq. ft. reduced from 35.74 sq. ft.
o Pick Up with spark -38.69 sq. ft. –New Sign
o Lawn and Garden -29.14 sq. ft. reduced from 39.35 sq. ft. (was Outdoor
Living)
o Vision Center -7.42 sq. ft. –New Sign
o Recycle - 4.84 sq. ft. –remains the same
Criteria for considering a Sign Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the neighborhood
or a detriment to nearby properties will be created by the granting of this sign variance.
Minor impacts to the neighborhood may be anticipated as 5 of the signs are
replacements.
2. Whether the benefit sought by the applicant can be achieved by some method, feasible
for the applicant to pursue, other than a sign variance. Feasible alternatives may be
considered to adjust the number of signs.
3. Whether the requested sign variance is substantial. The relief requested may be
considered substantial relevant to the code. The relief requested for the number of wall
signs is 6 and only 1 is allowed.
4. Whether the proposed variance will have an adverse effect or impact on the physical or
environmental conditions in the neighborhood or district. The project as proposed may
have minimal impact on the environmental conditions of the district.
5. Whether the alleged difficulty was self-created. The difficulty may be considered self-
created.
Staff comments:
The applicant proposes signage with the new grocery on-line pick up service with the intent
to update the building. The plans show the location of the wall signs and sizes. In addition,
the applicant has included a photo simulation of each of the signs.”
MR. URRICO-And then the Planning Board based on its limited review did not identify any
significant adverse impacts that cannot be mitigated with the current project proposal, and
that was adopted April 16, 2019 by a unanimous six zero vote.
MR. FREER-Okay. Welcome. Sorry to keep you so late, but go ahead and identify yourself
please and add anything you’d like.
MS. MARTINEZ-Good evening. My name is Leticia and I’m representing Wal-Mart. So
we’re basically trying to add two more signs to the Wal-Mart in order to advertise to the
customers that go to that Wal-Mart. Some of them may not know that a pick up is provided
and also a vision center is being added. So that’s what the signs are. Either changing in
name or existing.
MR. UNDERWOOD-Are you changing to a blue sign on your main signage for the Wal-Mart
with spark?
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(Queensbury ZBA Meeting 04/17/2019)
MS. MARTINEZ-Behind it? So for this store we have proposed that at first and we were
told that we had to take in the whole blue badge in square footage into our numbers and that
increased the square footage. So we decided to keep it as colors to remain.
MR. URRICO-I have a question for Staff. The 100 feet, where does that start, to be
counted?
MRS. MOORE-From the front property line.
MR. URRICO-That’s not from Quaker Road, right?
MRS. MOORE-No, it’s from the front, wherever the front property line stands.
MR. FREER-Any other questions?
MRS. HAMLIN-Well the follow up to that. So do they or do they not have, what’s the
maximum allowable for that one sign?
MRS. MOORE-The max allowed for that Wal-Mart sign is 200 square feet.
MRS. HAMLIN-Okay. Thank you.
MRS. MOORE-Yes.
MR. FREER-Okay. I don’t see anybody in the audience. So I’m going to open the public
hearing and are there any written comments?
PUBLIC HEARING OPENED
MR. URRICO-There are no written comments of any kind.
MR. FREER-Okay, and I’m going to close the public hearing and poll the Board.
PUBLIC HEARING CLOSED
MR. FREER-And I’ll start with Ron.
MR. KUHL-It’s hard to turn this down. I think we should change, but I’m in favor of this
project because of the Wal-Mart brand and the size of their stores, but I think in our specs
we should go to maxi these stores on the sign variances for sign requirements. We’ve got
small stores. We’ve got 20 foot wide stores that they have the same regulation as this
store. That would be a recommendation I would give to Staff. That we should take a look
at changing the sign requirements for these maxi stores, but anyway I’m in favor of the
project.
MR. FREER-Okay. Brent?
MR. MC DEVITT-I’m in favor of the project.
MR. FREER-Okay. Cathy?
MRS. HAMLIN-I’m not in favor of the project.
MR. FREER-Roy?
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(Queensbury ZBA Meeting 04/17/2019)
MR. URRICO-Yes, I think most of these signs are not even visible from Quaker Road. The
only sign that’s visible is the big Wal-Mart sign. I know we have this push and pull sometimes
with Wal-Mart because you guys come in with like 25 sign variances and we want you to
reduce it down to seven and we accept that. We did a good job with this project originally,
but I think the fact that they downsized some of the signs here and the two that you added
on seem relatively small to me. So I’d be in favor.
MR. FREER-Okay. Jim?
MR. UNDERWOOD-Yes in essence we’re reducing the size of the signage on most of it or
keeping it the same. The only thing we’re adding really is the pick-up with the spark sign.
That’s the only real change that you’re going to see on the side of that building. So I think
that it’s in keeping with what the original approvals were and I think I can live with that
slight change.
MR. FREER-I, too, can support this variance. It seems like this pick-up thing is really a
change in the business evolution if you will. So we shouldn’t stymy that decision that you
guys have made to compete with Amazon. So I will support it, and with that discussion I
guess I would request a motion.
MOTION REGARDING SIGN VARIANCE NO. Z-SV-3-2019, WALMART / LETICIA
MARTINEZ BASED UPON THE INFORMATION AND THE ANALYSIS OF THE ABOVE
SUPPORTING DOCUMENTATION PROVIDED BY THE APPLICANT, THIS BOARD FINDS
THAT THIS WILL NOT RESULT IN ANY SIGNIFICANT ADVERSE ENVIRONMENTAL
IMPACT. SO WE GIVE IT A NEGATIVE DECLARATION, Introduced by James Underwood
who moved for its adoption, seconded by Ronald Kuhl:
th
Duly adopted this 17 day of April 2019, by the following vote:
AYES: Mrs. Hamlin, Mr. Urrico, Mr. Kuhl, Mr. Underwood, Mr. McDevitt, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. Now we can make the motion on the Sign Variance.
The Zoning Board of Appeals of the Town of Queensbury has received an application from
Walmart /Leticia Martinez for a variance from Chapter 140 of the Sign Code of The Town
of Queensbury.
Applicant proposes installation for a number of wall signs that are in excess of both the
maximum number of signs as well as the previous Sign Variance approval in 2009. Relief
requested from maximum number of allowable signs for the business.
Relief Required:
The applicant requests relief from maximum number of allowable signs for the business.
Chapter 140- Signs
The applicant proposes the following signage where only one sign at 30 sq. ft. is allowed
unless the building is setback further than 100 ft. where a maximum one wall sign is allowed
at 200 sq. ft. SV 1-2009 granted Walmart five signs.
o Front Sign Walmart with Spark 220 sq. ft. –remains the same
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(Queensbury ZBA Meeting 04/17/2019)
o New Grocery and Pharmacy -51.70 sq. ft. reduced to 40.80 sq. ft. (was Market
and Pharmacy)
o Home and Living -31.23 sq. ft. reduced from 35.74 sq. ft.
o Pick Up with spark -38.69 sq. ft. –New Sign
o Lawn and Garden -29.14 sq. ft. reduced from 39.35 sq. ft. (was Outdoor Living)
o Vision Center -7.42 sq. ft. –New Sign
o Recycle -4.84 sq. ft. –remains the same
SEQR Type: Unlisted \[ Resolution / Action Required for SEQR\]
Motion regarding Sign Variance No. Z-SV-3-2019, Walmart / Leticia Martinez based upon
the information and the analysis of the above supporting documentation provided by the
applicant, this Board finds that this will not result in any significant adverse environmental
impact. So we give it a Negative Declaration, Introduced by James Underwood who moved
for its adoption, seconded by Ronald Kuhl:
th
Duly adopted this 17 day of April 2019, by the following vote:
AYES: Mrs. Hamlin, Mr. Urrico, Mr. Kuhl, Mr. Underwood, Mr. McDevitt, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
A public hearing was advertised and held on Wed., April 17, 2019;
Upon review of the application materials, information supplied during the public hearing, and
upon consideration of the criteria specified in Section 179-14-080(A) of the Queensbury
Town Code and Chapter 267 of NYS Town Law and after discussion and deliberation, we find
as follows:
1. Will an undesirable change be produced in the character of the neighborhood or will a
detriment to the nearby properties be created by the granting of the requested sign
variance? No.
2. Can the benefit sought by the applicant be achieved by some method, feasible for the
applicant to pursue, other than a sign variance? I guess we could ask for less signage,
but they’re only adding one sign and they’ve shrunk the size of the current signage
previously approved.
3. Is the requested sign variance substantial? It’s slightly more than what we had
previously approved but less in square footage.
4. Will the proposed sign variance have an adverse impact on the physical or environmental
conditions in the neighborhood or district? None of these signs, other than the front
entryway sign, are visible from Quaker Road. So I don’t really see that as a detriment
or any negative impact.
5. Is the alleged difficulty self-created? Yes, it is because they want to add one extra
sign to the side.
6. In addition the Board finds that the benefit to the applicant from granting the
requested variance would outweigh the resulting detriment to the health, safety and
welfare of the neighborhood or community;
7. The Board also finds that the variance request under consideration is the minimum
necessary; They’ve shrunk most of their signage down smaller than what was previously
approved. It’s an update to the signage.
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(Queensbury ZBA Meeting 04/17/2019)
BASED ON THE ABOVE FINDINGS I MAKE A MOTION TO APPROVE SIGN VARIANCE
NO. Z-SV-3-2019 WALMART / LETICIA MARTINEZ, Introduced by James Underwood,
who moved for its adoption, seconded by Ronald Kuhl:
As per the resolution prepared by staff with the following:
A. The variance approval is valid for one (1) year from the date of approval; you may
request an extension of approval before the one (1) year time frame expires;
B. If the property is located within the Adirondack Park, the approved variance is
subject to review by the Adirondack Park Agency (APA). The applicant is cautioned
against taking any action until the APA’s review is completed;
C. Final approved plans in compliance with an approved variance must be submitted to
the Community Development Department before any further review by the Zoning
Administrator or Building & Codes personnel’
D. Subsequent issuance of further permits, including sign permits are dependent on
receipt of these final plans;
E. Upon approval of the application; review and approval of final plans by the Community
Development Department the applicant can apply for a sign permit unless the
proposed project requires review, approval, or permit from the Town Planning Board
and/or the Adirondack Park Agency, Lake George Park Commission or other State
agency or department.
th
Duly adopted this 17 day of April 2019, by the following vote:
AYES: Mr. Urrico, Mr. McDevitt, Mr. Kuhl, Mr. Underwood, Mr. Freer
NOES: Mrs. Hamlin
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
MR. FREER-Okay. Thanks. Good luck. A couple of administrative notes. Realize everyone
that the Wilcox variance was tabled and you should keep your information. And so I guess
my other question, well, let’s adjourn.
MOTION TO ADJOURN THE QUEENSBURY ZONING BOARD OF APPEALS MEETING OF
APRIL 17, 2019, Introduced by Harrison Freer who moved for its adoption, seconded by Roy
Urrico:
th
Duly adopted this 17 day of April, 2019, by the following vote:
AYES: Mr. Kuhl, Mr. Underwood, Mr. Urrico, Mrs. Hamlin, Mr. McDevitt, Mr. Freer
NOES: NONE
ABSENT: Mrs. Hayward, Mr. Henkel, Mr. McCabe
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Harrison Freer, Chairman
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