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2007-05-16 (Queensbury ZBA Meeting 05/16/07) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING MAY 16, 2007 INDEX Area Variance No. 26-2007 Joseph & Cynthia Didio 1. Tax Map No. 239.20-1-7 Area Variance No. 31-2007 Nicholas F. Daigle d/b/a Fastenal 2. Tax Map No. 303.20-2-33, 34 Area Variance No. 32-2007 Kari Thomas 7. Tax Map No. 301.17-1-37 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 05/16/07) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 16, 2007 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY JOYCE HUNT RICHARD GARRAND CHARLES MC NULTY ALLAN BRYANT ROY URRICO LAND USE PLANNER-SUSAN BARDEN TOWN COUNSEL-FITZGERALD, MORRIS, BAKER FIRTH-MATT FULLER STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE- Good evening, ladies and gentlemen and welcome to the Town of Queensbury Zoning Board of Appeals hearing dated May 16, 2007. Prior to setting this hearing in motion, I would like to acquaint you with information that will familiarize you with the responsibilities of this Board, the mandated legal requirements we are guided by, and the procedures for a hearing before this Board. The function of the Zoning Board of Appeals is to listen to and consider all evidence that appears on the record, and may bear upon the issue we are deciding. This Zoning Board of Appeals can grant (or deny) two types of relief; interpretive and variance. In either case, this Board will affirm, reverse or modify the enforcement officer’s decision. In doing so, this Board will either permit or deny the requested relief. If the appeal is for an interpretation, this Board’s decision will be based on the Town of Queensbury zoning regulations. If the appeal is for a variance, this Board’s decision will be based on the standards of proof contained in NYS Town Law 267-b. Additionally, the Zoning Board of Appeals may only authorize the minimum variance necessary to relieve the applicant. Other than administrative items, public comments will be invited on each appeal, however, in the interest of time please be crisp, organized and limit your comments to only the facts and information given this evening. On opening the public hearing the public will be allowed a maximum of 5 minutes to comment on a specific appeal. The purpose of this time limitation is to provide each member of the public an opportunity to be heard, and also to limit the length of the hearing to a reasonable time frame. All questions from the appellant or the public will be addressed to this Board. All dialogues during the hearing will be between the appellant and this Board, and I’m going to request the Secretary please monitor the time. Mr. Secretary, do we have any correspondence that should be read into the record, and if so, would you be kind enough, please, to read it into the record. AREA VARIANCE NO. 26-2007 SEQRA TYPE: II JOSEPH & CYNTHIA DIDIO OWNER(S): JOSEPH & CYNTHIA DIDIO ZONING: WR-1A LOCATION: 2966 STATE ROUTE 9L APPLICANT HAS CONSTRUCTED IMPROVEMENTS TO THE PROPERTY INCLUDING A 326 SQ. FT. DECK/STAIRWAY STRUCTURE AS WELL AS A 96 SQ. FT. DOCK ADDITION. RELIEF REQUESTED FROM MINIMUM PROPERTY LINE SETBACK AS WELL AS RELIEF FROM THE MINIMUM SHORELINE SETBACK REQUIREMENT. ADDITIONALLY, RELIEF IS REQUESTED FROM THE MAXIMUM IMPERMEABLE PERCENTAGE REQUIREMENT. CROSS REF.: BP 2006-437; SPR ; AV 34-2003; BP 2003-112; BP 2003-347 WARREN COUNTY PLANNING: APRIL 11, 2007 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.17 ACRES TAX MAP NO. 239.20-1-7 SECTION: 179-4-030; 179-5-050 th MR. UNDERWOOD-We received a letter on May 9, this was addressed to Craig Brown, Zoning Administrator, RE: The Didio Area Variance No. 26-2007. “Dear Craig: Per my telephone conference of May 8, 2007, we have been retained to represent Mr. Didio in connection with the above referred to Area Variance. In my initial review of the file, I raised certain questions as to some of the calculations made, and have asked Van Dusen and Steves to verify measurements for this application so that we have a correct presentation as to the area of permeability. Further, my client recognizes the comments of the Zoning Board of Appeals and wishes to amend his application, eliminating the deck that was added onto the wood dock, and relocating on his property the Jacuzzi. th The bottom line of all this is that I will not have sufficient information to meet the May 15 filing date. I would respectfully ask that the matter be tabled until the July meeting of the 1 (Queensbury ZBA Meeting 05/16/07) Zoning Board of Appeals. I will be able to make a timely filing by June 15, 2007. Michael O’Connor Little & O’Connor”. So, I’ll make a motion. MR. ABBATE-Would you make a motion, please. MOTION TO TABLE AREA VARIANCE NO. 26-2007 JOSEPH & CYNTHIA DIDIO, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 2966 State Route 9L. Tabled to one of the July meetings of the Zoning Board of Appeals. th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven to approve, moving Area Variance No. 26-2007 to a meeting in July 2007. MR. UNDERWOOD-The other letter is addressed to William Keniry, Esq., of Tabner, Ryan, & Keniry LLP, and that’s in Albany, New York. RE: The Hoffman Town of Queensbury Planning Board application. “Dear Bill: Following up on the conference with Judge Aulesi from last month, I believe you were going to send the Queensbury ZBA a letter requesting that the May 30, 2007 deadline to have the modifications to the boathouse extended while your client dealt with the deed issues. To the best of my knowledge, that hasn’t been requested. Please request it so that the ZBA may act on the same. Also, is your client planning on attending any meetings in the near future? Her applications were on the agendas of both Boards last month, though she did not appear. Please advise. Thank you. Matt Fuller Town of Queensbury” MR. ABBATE-Okay. Do we have anything else, Mr. Secretary, to read into the record? MR. UNDERWOOD-That’s it. MR. ABBATE-Okay. Thank you, then, we’ll proceed. Ladies and gentlemen of the Board, if you have no objections, what I’d like to do this evening, I’d like to take care of the two appeals that are coming before us and do that first, and then, for the public’s information, this Board will then go into Executive Session. NEW BUSINESS: AREA VARIANCE NO. 31-2007 SEQRA TYPE: UNLISTED NICHOLAS F. DAIGLE/d/b/a FASTENAL OWNER(S): NICHOLAS F. DAIGLE ZONING: LI LOCATION: 15-19 BOULEVARD APPLICANT PROPOSES CONSTRUCTION OF AN 8,000 SQ. FT. COMMERCIAL/WAREHOUSE BUILDING. NEW MAP SUBMTTED FOR MAY 2007 REVIEW. WARREN COUNTY PLANNING: MAY 9, 2007 LOT SIZE: 1.33 ACRES TAX MAP NO. 303.20-2-33, 34 SECTION: 179-4-030 NICHOLAS DAIGLE, PRESENT MR. UNDERWOOD-We had previously granted relief on this project, and I guess they built it and it was closer to the line than what it was originally proposed at. STAFF INPUT Notes from Staff, Area Variance No. 31-2007, Nicholas F. Daigle d/b/a Fastenal, Meeting Date: May 16, 2007 “Project Location: 15-19 Boulevard Description of Proposed Project: Applicant has constructed an 8,000 sq. ft. warehouse building. Previous relief was granted for the structure; specifically, 4-feet of rear setback relief and relief from the minimum permeability requirement (see resolution AV 78-2005). The building, however, was built closer to the rear property line than proposed, and, therefore, noncompliant with the setback relief granted. The overall site permeability appears to be consistent with the previous approval. 2 (Queensbury ZBA Meeting 05/16/07) Relief Required: The applicants request rear setback relief of 12.1-feet, from the minimum 30-feet required, per §179-4-030 for the CI-1A zone. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be able to maintain the constructed building in the existing location. 2. Feasible alternatives: Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the ordinance?: The request for rear setback relief of 12.1-feet from the required 30-feet may be considered moderate at 40%. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-247: Issued 5/12/06, 8000 SQ FT COMMERCIAL BUILDING. SP 59-2005: Approved 11/15/05, Applicant proposes construction of an 8,000 sq. ft. warehouse building. Light Industrial / Retail Uses require review by the Planning Board. AV 78-2005: Approved 10/19/05, 4-feet of rear setback relief, from the minimum 30-feet, and 19% of permeability relief, from the minimum 30%, associated with the proposed construction of an 8,000 sq. ft. warehouse building. AV 43-2004: Approved 5/26/04, 6-feet of rear setback relief and 17.8% of permeability relief, associated with the proposed construction of a 7,500 sq. ft. warehouse building. This approval was never acted upon. Staff comments: Planning Board review and approval is required. The site is currently noncompliant with the associated site plan for the warehouse building (SP 59-2005, see parcel history). The applicant will have to complete the site improvements previously proposed and approved, specifically the removal of hard-surfaced area and replacement with lawn area and planting beds to be compliant with the permeability relief previously granted. SEQR Status: Unlisted, a short EAF was submitted with the application materials.” MR. ABBATE-Good evening, Mr. Daigle. Have you appeared before us before? MR. DAIGLE-I have. MR. ABBATE-Okay. Well, then you know what the procedure is. We’re somewhat informal, if you will, particularly if you’re not accompanied by an attorney, and if there’s anything you don’t understand this evening, stop us and we’ll be more than happy to explain it to you. Okay. Are you ready to proceed? MR. DAIGLE-Okay. I believe so, yes. MR. ABBATE-Please do. MR. DAIGLE-As stated in the notes, I have constructed an 8,000 square foot building. Based upon the information (lost words) to place the corners of the building, we used an existing (lost word) that we used as a benchmark. So we pulled the diagonals off that, 3 (Queensbury ZBA Meeting 05/16/07) and this is how this problem occurred. The existing building was two degrees off on the calculation that was put down on the original survey, which in turn turned the new building by a few degrees, pushing it back into the rear setback. One thing that I would note is that one of the concerns that I did get from this Board was keeping 20 feet between the existing building and the new building, which is what we maintained as required (lost words). The error was an error. It was not intentional. It had no benefit to turn the building a couple of degrees, but that’s basically what happened. As the as built survey was performed, this is when this came to light. MR. ABBATE-Okay, and if at any time during the proceeding there is any information that you may have forgotten to tell us that you believe may support your case, feel free to let us know. Okay. All right. Now, ladies and gentlemen of the Board, do we have any questions of any of the Board members for Mr. Daigle? MR. BRYANT-I have question. MR. ABBATE-Yes, Mr. Bryant, please. MR. BRYANT-You speak about the construction of the building in the first person. Did you have a contractor? MR. DAIGLE-I was the contractor, myself, personally. MR. BRYANT-You were the contractor personally. So you’re the one who basically made the error? MR. DAIGLE-Correct. MR. ABBATE-Any other Board members have any questions for Mr. Daigle. MR. GARRAND-I’ve got a couple of quick questions. Do you have any kind of easement or anything from Ceiba Geigy for use of the property behind there for storage of gravel and that type of stuff, equipment? MR. DAIGLE-No. MR. GARRAND-Okay. So it’s just, this stuff is parked on Ceiba Geigy property. Are they aware of that? MR. DAIGLE-That I cannot say, if they are aware of it or not. It’s been ongoing for many years. MR. GARRAND-Okay. All right. Thank you. MR. ABBATE-Any other questions for Mr. Daigle from members of the Board? Okay. Then I’ll proceed. I’m going to open up the public hearing for Area Variance No. 31- 2007. Do we have any members of the public who’d like to respond to this? If so, would you be kind enough to raise your hand, please? PUBLIC HEARING OPENED MR. ABBATE-All right. I see no hands raised, so we’ll move on. I’m going to ask members of the Board to offer their comments, and I’d like to inform the public that comments offered by members of the Board are directed to the Chairman, and comments expressed by the Board to the Chairman are not open to debate. May I respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated. Additionally, any position you may take must be based on the regulatory review criteria of our laws, and not simply on subjective preferences of not liking a project, and Board members are obligated to make decisions on reliable information contained in the record of the Board’s deliberations. Having said that, I’ll now ask members to volunteer, please, to offer their comments on Area Variance No.31-2007. Do we have any volunteers? MR. BRYANT-Thank you, Mr. Chairman. MR. ABBATE-You’re welcome. 4 (Queensbury ZBA Meeting 05/16/07) MR. BRYANT-We get a lot of these applications where there’s contractor error, regardless of whether the applicant is the contractor or they hire general contractors, independent contractors or what have you. It’s too bad the Town can’t impose some kind of penalty based on the percentage of the relief that’s required as a result of an error, like $10,000 for every 10% or something of that nature, because you’re talking about 40% relief now. In my view, it is substantial. There really isn’t any feasible alternative other than move the building, and that is highly unlikely. So, Mr. Chairman, reluctantly, I’m going to be in favor of the application. MR. ABBATE-All right. Thank you, Mr. Bryant. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I can understand how the building got, if it had just been turned a little bit, it would have been compliant with what we had given you. I would like to see the planting beds and the lawn area taken care of, but I would be in favor. MR. ABBATE-Okay. Thank you. Mr. McNulty, please. MR. MC NULTY-Well, I’m going to be the grumpy old man. As Mr. Bryant said, we get a reasonable number of these things coming through this way. This disturbed me. I see no excuse for it. This was an expensive building. It would have been worth hiring a surveyor to get back in there and put some stakes where they belonged. It seems to me that would be a prudent thing to have done, and there are a couple of solutions. One’s move the building. One’s chop eight feet off the building. Either could be done. I’m sorry, but I find this kind of thing inexcusable. It appears that it doesn’t matter an awful lot right now because the Ceiba Geigy lot is vacant. Who knows whether that will ever be built on, given the hazardous waste problems with Ceiba Geigy property, but at some point in the future there may be somebody that wants to build a building on the Ceiba Geigy property, and this thing’s going to be eight feet closer than what we gave permission for to begin with, but given that we had already said that we would allow an intrusion into the setback, I’m sorry, I just can’t put up with it. So I’m going to be negative. I’m going to vote against it. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-I think it’s understandable how minor changes can have a greater effect on a building construction, you know, when you are off by a few degrees in laying it out, but it is, in essence, parallel to the other concrete block building in the back there. I don’t think there was any advantage that was going to be gained by doing this mistake, and I think it’s strictly an error in judgment. I don’t think there’s any detrimental effect to the neighborhood. The building was construction in a compliant size with what was proposed there, and moving it a few feet this way or that isn’t going to make that much difference. It is a Light Industrial zone down there. So we can expect this. I can live with what happened, and I think it’s a reasonable discourse for us to dispense with this and not worry about it. MR. ABBATE-Okay. Thank you very much. Mr. Urrico, please. MR. URRICO-Yes. I kind of agree with everybody so far, but I don’t think the, it’s unfortunate that the ZBA is put in the position of having to condone a mistake that caused a problem that was not of our making. This applicant came to us in good faith, and we applied that good faith to give him relief, and without taking the necessary course of action to assure that the measurements were correct, they went ahead and built the building and came to us for relief, and I think that’s unfair, and I do agree with Mr. McNulty. I think there are benefits that could be achieved by other means. I think the burden is on the applicant, not on us, to fix the problem. There could be an undesirable change in the neighborhood depending on who builds on the Ceiba Geigy property. In addition, there’s a change in the neighborhood that could happen by people building buildings incorrectly and then coming to us for relief afterwards, plus the relief is substantial. So I’d be against it. MR. ABBATE-Against it. Okay. Mr. Garrand, please. MR. GARRAND-Mr. Chairman, I’d have to say I’m a little bit torn on this one. Seeing that Ceiba Geigy is the only real aggrieved party here, and they’re not here in opposition to this, I can see where the error, in some ways benefits the applicant. The error that the applicant made is, in many ways, to his benefit. One perspective, I’m against it, but on the other hand, when I go through the balancing test, I’d have to be in favor of it because I can’t see where it would in any way have an adverse environmental impact or provide an undesirable change in the neighborhood. So reluctantly I would be in favor of it. 5 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-Okay. Thank you. Mr. McNulty and Mr. Urrico made some excellent points, and so did Mr. Bryant. There is what’s known as due diligence. You have a duty and responsibility to make yourself aware of the rules and regulations of this Town, but unfortunately, the jurisdiction of a quasi-judicial Board stops short of enforcement. Unlike a regular environment where a judge sits and makes a decision, unfortunately we can’t apply any type of penalties or incarceration, whatever the case might be. We stop. We have no enforcement authority, but Mr. McNulty and Mr. Urrico, and I think Mr. Bryant touched upon that. There should be some sort of penalty, but that is not our jurisdiction. I don’t like what’s been done, but if I take into consideration everything that I reminded the Zoning Board to do, is that we should not simply rely on subjective preferences or not liking a particular project, that’s inappropriate. We don’t have that as a duty and a responsibility. We have a duty and a responsibility to take into consideration the evidence that’s contained in the record and based upon that, there are guidelines in which we basically have to go by, and even if one or two of those guidelines are perhaps distasteful, we still have a duty and responsibility to provide due process to individuals appearing before us. So reluctantly, I also am going to say yes. Having said that. This is a Type II? MR. UNDERWOOD-This is Unlisted. MR. ABBATE-It is Unlisted. Okay. MR. UNDERWOOD-We’ve got to do the Short Environmental Assessment Form. MR. ABBATE-Yes. Go ahead, please. MR. UNDERWOOD-The project applicant is Nicholas Daigle. The project location is Queensbury, New York, 15-19 Boulevard. They have constructed an 8,000 square foot building, and it was supposed to be done, will the proposed action comply with the existing zoning or other existing land use restrictions? No, because the setback of 30 feet cannot be met because they constructed the building too close to the property line. What is the present land use in the vicinity of the project? It’s commercial. I would actually say it’s probably industrial because it’s Light Industrially zoned. Does the action involve a permit approval or funding now or ultimately from any other governmental agency, federal, state or local? No. Does any aspect of the action have a current valid permit or approval? I would say no. As a result of the proposed action, will the existing permit approval require modification? They say no, but, I don’t know, I guess we would be modifying what we had previously granted. MR. ABBATE-Okay. MR. UNDERWOOD-Under the Environmental Assessment Form, Part A, “Does the action exceed any Type I Threshold in New York Conservation Regulatory Law?” I would say no. “Will the action receive coordinated review as provided for Unlisted Actions?” I would say no. The Planning Board will be reviewing, however, the permeability. “Could action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?” The only one that would be noted would be that they still have to deal with the drainage issues on site. “Aesthetic, agricultural, archeological, historic, or other natural or cultural resources; or community or neighborhood character?” I would say no. It’s a Light Industrial zone. “Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species?” No. “A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources?” I would say no. “Growth, subsequent development, or related activities likely to be induced by the proposed action?” No. “Long term, short term, cumulative or other effects not identified?” No. “Other impacts including changes in use of quantity or type of energy?” No. “Will the project have an impact on the environmental characteristics that caused the establishment of a Critical Environmental Area?” I would say no. “Is there or is there likely to be controversy related to potential adverse environmental impacts?” I would say no. So I guess that’s it. MR. ABBATE-All right. Our Secretary has read each of the questions on the Environmental Assessment Form for responses by members of this Board. MOTION THAT THE ENVIRONMENTAL ASSESSMENT FORM BE APPROVED, Introduced by Charles Abbate who moved for its adoption, seconded by Richard Garrand: 6 (Queensbury ZBA Meeting 05/16/07) th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mr. Garrand, Mrs. Hunt, Mr. McNulty, Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. Abbate NOES: NONE MR. ABBATE-In a seven yes to zero no, the Environmental Assessment Form is approved. The public hearing is now closed for Area Variance No. 31-2007. PUBLIC HEARING CLOSED MR. ABBATE-And I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, and while State law sets forth five factors to take into consideration, again, unlike a Use Variance test, this Board need not find in favor of the applicant on every one of the five factors. Rather, we must merely take them into account in deciding whether to grant an Area Variance. Please introduce your motion with clarity. Do we have a volunteer to introduce a motion for Area Variance No. 31-2007? MRS. HUNT-I’ll make a motion. MR. ABBATE-Thank you, Mrs. Hunt. MOTION TO APPROVE AREA VARIANCE NO. 31-2007 NICHOLAS DAIGLE d/b/a FASTENAL, Introduced by Joyce Hunt who moved for its adoption, seconded by James Underwood: 15-19 Boulevard. The applicant proposes construction of an 8,000 square foot commercial warehouse building. It has been constructed, and it was built too close to the property line. Whether this benefit could be achieved by other means feasible to the applicant, I don’t think so, and the feasible alternatives seem to be limited. I don’t think there’ll be an undesirable change in the neighborhood or character of nearby properties. The relief could be considered moderate at 40%, that’s 12.1 feet from the required 30 foot setback. The request will not have adverse physical or environmental effects on the commercial neighborhood, industrial neighborhood, and it was self-created in the fact that the error was created by the builder. The Staff comments. Planning Board review and approval is required. The site is currently noncompliant with the associated site plan for the warehouse building (SP 59-2005, see parcel history). The applicant will have to complete the site improvements previously proposed and approved, specifically the removal of hard-surfaced area and replacement with lawn area and planting beds to be compliant with the permeability relief previously granted. I move that we approve this. th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mr. McNulty, Mr. Bryant, Mrs. Hunt, Mr. Garrand, Mr. Abbate NOES: Mr. Urrico, Mr. Underwood MR. ABBATE-The vote for Area Variance No. 31-2007 is five yes, two no. Area Variance No. 31-2007 is approved. Thank you very much. AREA VARIANCE NO. 32-2007 SEQRA TYPE: II KARI THOMAS OWNER(S): KARI THOMAS ZONING: SR-20 LOCATION: 9 MORGAN DRIVE APPLICANT PROPOSES CONSTRUCTION OF A FRONT PORCH AND CONSTRUCTION OF A FRONT PORCH ADDITION AND CONSTRUCTION OF A 935 SQ. FT. GARAGE. RELIEF REQUESTED FROM MINIMUM FRONT SETBACK REQUIREMENTS AND RELIEF FOR MAX. SIZE OF GARAGES. CROSS REF.: BP 2006-685 WARREN COUNTY PLANNING: N/A LOT SIZE: 0.36 ACRES TAX MAP NO. 301.17-1-37 SECTION: 179-4-030; 179-5-030 KARI THOMAS & DAVE GIBSON, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 32-2007, Kari Thomas, Meeting Date: May 16, 2007 “Project Location: 9 Morgan Drive Description of Proposed Project: The 7 (Queensbury ZBA Meeting 05/16/07) applicant proposes construction of a 216 sq. ft. front porch and a 935 sq. ft. attached garage. Both are proposed additions to an existing 1,008 sq. ft. single-family dwelling. Relief Required: The applicant requests 1-foot of front setback relief from the minimum 30-feet for placement of the 216 sq. ft. porch, per §179-4-030 for the SR-20 zone. In addition, 35-ft. of relief is requested from the maximum 900 sq. ft. requirement for garages in residential districts, per §179-5-020. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The applicant would be permitted to construct the proposed (6’ x 36’) porch in the desired location and/or the proposed oversized garage (935 sq. ft.). 2. Feasible alternatives: Feasible alternatives appear to be limited to reducing the width of the porch by 1-foot, resulting in a 5’ x 36’ (180 sq. ft.) porch, thus no relief required. Feasible alternatives to the proposed size of the garage are limited to partial removal of the existing foundation for the garage, which was placed prior to the current owners’ purchase of the property. 3. Is this relief substantial relative to the ordinance?: The request for 1-foot of relief from the minimum 30-feet front setback for the porch is minimal at 3%. The request for 35 sq. ft. of relief from the maximum size of 900 sq. ft. for a garage is minimal at 4%. 4. Effects on the neighborhood or community: Minimal negative effects on the neighborhood may be anticipated as a result of this action. The applicant (in the submitted application) suggests that the proposed would have a positive impact on the neighborhood, “It would only be improvements”. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-685: Pending, 935 SQ FT GARAGE AND 216 SQ FT PORCH. Staff comments: The Board could discuss with the applicant any possible feasible alternatives to either or both requests for relief. Individually, both requests for relief are minimal relative to the ordinance (3% and 4%, respectively) with probable minimal adverse impacts to the neighborhood. However, the Board should also consider the proposed requests cumulatively, and deliberate as to the combined request’s substantiality relative to the ordinance and if any potential negative impacts to the area may result. SEQR Status: Type II 8 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-Would the petitioner of Area Variance No. 32-2007, Mr. and Mrs. Thomas, please be kind enough to come to the table, have a seat speak into the microphone and tell us who you are and where you reside. MS. THOMAS-Kari Thomas, 9 Morgan Drive. MR. GIBSON-I’m Dave Gibson, fiancé. MR. ABBATE-Okay, and have you folks ever appeared before us before? Okay. Let me explain the procedures to you. Very simple. What we’re asking you to do is just tell us why you feel we should approve your appeal, and in very simple language, explain to us why, and if at any time during the hearing there’s something you don’t understand, all you have to do is stop us and we’ll be more than happy to explain it to you, and during the hearing if there’s something else that perhaps you may have forgotten, that will help support your case, stop us and tell us what it is. It’s as simple as that. MS. THOMAS-Well, there’s already an existing foundation there. So we figured that we could just build it, since it was approved by the previous owners, and it would be much easier to do it that way already, and as far as the porch goes, it would just be nice to have a six foot porch to have table chairs on, move around in and have some room. That’s about it. MR. ABBATE-Okay. All right. Would you like to add anything? MR. GIBSON-Well, the fact that the house is, the front of the house faces the north, it doesn’t really get any sun. So, the moisture doesn’t really dry out. There was a lot of mold on the front of the home when we purchased it. The previous owners replaced a little bit of the siding, but that’s just going to continue to grow. So I suggested that we put a covered porch on the house, to keep the drip and driven rain off of the front of the house, to preserve the structure, because of the fact that it really doesn’t get any sunlight there. Plus it would be nice to be able to walk into your house without getting soaked. The garage, the footing was there. It was inspected and approved for the previous owner. I checked it with a site level, and it was perfect all the way around, all four corners. It hasn’t moved. It hasn’t settled. I mean, it’s good. It’s good to build on. The 35 square foot over that it is, is kind of beyond us. Because it was already done. That’s seven by five. We’re proposing an entry way from the west side of the house down into the basement. So you could enter the house from the garage, and that, I believe, is eight foot and change by, there’s about 36 square foot that that entryway would take up of floor space. MR. ABBATE-Is that where you want to put, right there on the right hand side? MS. THOMAS-Yes, right on what’s there. MR. GIBSON-What would happen is I would end up busting out the block, putting a steel eye beam over it, you know, for a header and would have an entry way right into the basement from the garage. That’s like 36 square foot. So that really limits our floor space to 899. MS. THOMAS-Plus it would look a lot better than it does now. MR. GIBSON-It would also eliminate the unsightly shed that’s existing. I could put all my stuff right in the garage and get rid of that shed. That’s really the biggest eyesore, plus the fact that it’s unfinished, you know what I mean? We have signatures of all of the neighbors. MR. ABBATE-You have letters and signatures. Would you like to introduce that into evidence? We’ll be happy to accept it, by all means, and you can present it to our Secretary. He’ll read it. Are you finished as of right now, or do you want to continue with anything else you wish to say? MR. GIBSON-Basically we want the porch for protection in front of the home, and the garage is just, that speaks for itself. MR. ABBATE-Okay. All right. Do you want to read that little statement in, Mr. Secretary? MR. UNDERWOOD-I’ll do it during the public hearing. 9 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-Okay. Sure, that would be fine. All right. Thank you very much. I’m going to move, now, to the ZBA Board members and ask if they have any questions concerning Area Variance No. 32-2007. Mr. Bryant, please. MR. BRYANT-Actually, I have four issues with this application. The first issue is the plans that were drawn up, I’ve got Page Two of Four, Three of Four, I don’t have One of Four, which probably shows the layout and position of the garage and the porch. If not for my site visit and the photographs, based on the paperwork, I’d have no idea where the porch and the garage are going. That’s Number One. Item Number Two, the drawings are not drawn by a licensed architect and of course they don’t need to be. However, I’m just wondering about the accuracy of the drawings, particularly when it comes to the height of the garage and so forth. Number Three, I’ve got a subdivision survey dated 1964. It shows a plot plan for Lot Number One, and Lot Number One is not even on Morgan Avenue. So based on the survey, I’ve got no idea where the house is in relation to the lot. In my judgment, that’s not an adequate survey. Number Four, the applicant had made reference to the existing foundation that was already approved by, when the previous owners had it, and yet as I look at Staff Notes, I don’t see any parcel histories indicating that there was such an approval. So, those are my four concerns about the application. MR. ABBATE-Staff, do me a favor. Not only address his, Mr. Bryant’s concerns, but I don’t see in here a copy of my, of the Chairman’s Completion Review. Did I miss it? MRS. BARDEN-Well, I have it. I guess I didn’t realize that you were putting your Completion Review in the packets, but I do have a copy of it. MR. ABBATE-Yes. Okay, well, the first appeal that came to us this evening it was included in the package, and the second one it wasn’t. I thought we had come to some sort of agreement. I’m not faulting you for this, but I thought I made it quite clear that this should be included in the package. It was included in the first package, but it wasn’t included in the second package. So we have a little inconsistency here. MRS. BARDEN-Okay. MR. ABBATE-Would you do me a favor, please? Would you address Mr. Bryant’s concern. MRS. BARDEN-Absolutely. MR. ABBATE-Thank you. MR. BRYANT-Do you have Sheet One and Four? MRS. BARDEN-I don’t, and I think what happened, and the applicant’s can verify this. I think Sheets One and Four were more construction drawings, were detailed construction drawings. So I told them they didn’t have to submit those. So it’s too bad that these are labeled to make you think that they’re missing. MR. BRYANT-Well, obviously there is a One and Four. They wouldn’t have addressed them Two of Four, Three of Four. MRS. BARDEN-There are One and Four, but again, they were more construction drawings, more suited for the Building Department and the Building Inspector’s review. MR. BRYANT-Well, I think somewhere in my package, someplace on the record, there should be a clear indication where this garage is and where the porch is. There’s nothing. MRS. BARDEN-There’s a plot plan. MR. BRYANT-Where? MRS. BARDEN-There’s a plot plan in their application materials. MR. BRYANT-This plot plan that was done here? There’s no real dimensions, other than the setback. I don’t see where the porch is. Is that the double wide? How wide is the porch? How big is the garage actually physically? I mean, that plot plan doesn’t tell me what I need to know. 10 (Queensbury ZBA Meeting 05/16/07) MRS. BARDEN-The plot plan. MR. BRYANT-The plot plan that was done on your stationary, whatever it is, it shows the garage addition. It doesn’t show the size of the garage. It just shows the distance from the house and so forth and so on, but you have no width of the garage. It shows, I believe, the porch. I’m assuming it’s the porch, the double wide. It doesn’t show how wide it is. I mean, if I’m all wet here, somebody open their mouth, please, but I don’t see any definitive details as to what is going to take place. MS. THOMAS-I thought that the dimensions were on those two plans. MR. GIBSON-There should be a set of elevation drawings that you have. MR. BRYANT-Yes, you have elevations, okay. MR. GIBSON-There should also be a set of foundations for footings, footing 28 foot 8, outside to outside footing? MR. BRYANT-But it does not show me where it is in relationship to the lot. It doesn’t show me anything. MRS. BARDEN-It shows it, I think, as far as the setbacks, better on this plot plan, but the actual dimensions of the garage and the porch are better demonstrated on these larger building elevation drawings. MR. BRYANT-Okay. I see the garage. Where’s the porch? Am I missing something? MR. FULLER-We have Three of Four. You have them right near the caption box on the bottom. MR. BRYANT-Is that that bottom thing here? MRS. BARDEN-Right in the front, yes. MR. BRYANT-That’s the porch? You see, and there’s a detail Four of Four that would clearly identify the porch, but I don’t have Sheet Four. It would show the elevation, the cut through of that porch, and I can’t tell that that’s a porch. Well, anyway. I listed four items. What about the survey? Are you accepting a 1964 survey of a subdivision? It doesn’t even identify the lot? MRS. BARDEN-A waiver was granted. MR. ABBATE-Okay. Now here’s the problem. How do I know a waiver was granted? My Completion Review is not here. I don’t know whether I waived it or not. MR. BRYANT-I don’t see a letter. MRS. BARDEN-If it’s on the agenda, then you granted the waiver. MR. ABBATE-No, it doesn’t work that way. MR. BRYANT-Where’s the letter from the Chairman? MR. ABBATE-Where’s the letter from the Chairman? MRS. BARDEN-I have a letter from the Chairman here. Well, I have your approved for the final agenda dated April 20, 2007. I have that. Would you like it? MR. ABBATE-Ms. Thomas, did you request a waiver? See, I don’t have, right now, I’m at a disadvantage. I do a Chairman Completion Review, and of course I can’t remember everything I do, and it should have been included in the package. So I don’t know where I’m at right now. MS. THOMAS-I did. I did request a waiver. MR. ABBATE-Did I grant you a waiver? Did you get a letter? MS. THOMAS-I assumed that you did because it says to meet here today. 11 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-No. Here’s how it works. Listen to me. MR. BRYANT-There should be a letter. MR. ABBATE-Yes, hang on for a second. I’ll tell you exactly the procedure. I have it right here, okay. If I did this, okay, that’s fine, but if I didn’t do that, then we have a problem. Hopefully we can resolve it. Okay. Hang on for a second. All right. Now, I wrote you a letter. There is what’s known as a Chairman Completion Review, and in there it basically says this, that the requirements are that there be a pre-submission conference with Staff, signed and dated, a denial letter attached to effect standing, application signed authorized agent signed, a deed, a survey dated, stamped and signed, and request for a waiver, no/yes, and any correspondence or requests regarding this application that should be brought to the Chairman’s attention. Now, since I don’t have that in front of me, I know I did that, I know, for a fact, I did it, I don’t know where I’m at. MR. BRYANT-I can tell you, Mr. Chairman, if you look at the package, you’ll see on Page Eight there are Staff Notes here relative to this, and it says copy survey. Now, is this what they’re going to consider the survey? MR. ABBATE-Okay. Hang on for a second. Staff was kind enough to bring something to my attention, now we’ve got to be fair about this. I have here request for a waiver, no. That’s what I checked off, no. Here’s what I checked off, pre-submission conference with Staff signed and dated, yes. Denial letter attached to effect standing, yes. Application signed, yes. Authorized agent, yes. Deed, yes. Survey, dated signed and stamped, okay, survey, dated, signed and stamped. Do we have a survey that’s dated, signed and stamped? MR. BRYANT-It’s dated 1964. It’s a subdivision survey. It’s not the survey of the property. MR. ABBATE-Okay, guys. All right. You made a position. I don’t have a problem with that at all. MRS. BARDEN-This is a letter from you to the applicant saying you need a waiver, and then they submitted a waiver request, which is probably in here as well. So you initially denied the application. They asked for a waiver, and you accepted it. MR. ABBATE-Okay. Let me read this now. Right. That’s exactly right. I initially denied it. I sent you a piece of correspondence that I signed, basically saying to you that you submitted an Area Variance to us. During preliminary review of your submission, we find your application to be incomplete. The application lacks the following: A copy of property deed, a copy of stamped (lost word), and I said please contact the Zoning Administrator, and then subsequent to that, okay, in my completion review for Miss Kari, survey dated, stamped and signed, and I wrote in there, copies of subdivision map does not meet criteria for a survey. Survey dated, stamped and signed, let’s see what we have here now. MR. BRYANT-So you’re of the same opinion that I am. MR. ABBATE-Yes. I don’t see, okay, now, let me go one step further. I say this. Staff is requested to take the following action. Staff action waiver request. Staff is requested to draft approval correspondence for the Chairman’s signature with standard conditions, or standard justification for disapproval. Please phone when correspondence is ready for signature. MR. UNDERWOOD-Why don’t you poll the rest of the Board. MR. ABBATE-Yes. We have to be fair about it. You’ll find we’re a very fair Board. MR. BRYANT-And just the final comment was relative to the applicant’s comments about the pre-existing condition that their previous owner, and I don’t see anything, is there anything relative to that property as far as building permits to build that foundation or the garage? MRS. BARDEN-They do have, I could not find a building permit for what was there. However, they included as well a foundation inspection. MR. UNDERWOOD-Yes, I’ve got that. 12 (Queensbury ZBA Meeting 05/16/07) MRS. BARDEN-Which was with the packet. MR. UNDERWOOD-Basically the foundation inspection came through from the Building and Codes Department saying that it was adequate. They dug down to see if the footers were all right on it. MR. ABBATE-Okay. All right. That’s fine. MRS. BARDEN-But I didn’t see a previous application issuance. MR. BRYANT-Yes. I was just wondering if there was a building permit for. MS. THOMAS-I did see one. I don’t know what office it was, in the County office, but I didn’t get a copy of it. MR. ABBATE-All right. Now you have to understand, we raise this issue. It’s nothing on a personal matter. Please don’t accept it that way, but the Board members, they raise issues and what have you, but when the dust settles, I think you’ll find that we’re a pretty fair Board. Okay. So bear with us, would you, please. Okay. Would anyone else like to comment? Mr. McNulty, please. MR. MC NULTY-Yes, I guess one comment and one question. Regarding the foundation. Partly is a comment just on the problem that we’ve got, and we’ve mentioned this before and partly to explain to the applicants. Assuming that the previous owner did have an inspection, it would have been a foundation inspection. It would have been done to see if the foundation was sufficient to carry the load being proposed for. Those inspections, unfortunately, have nothing to do with zoning issues. So it could have been a 5,000 square foot foundation for a garage, and they wouldn’t have said that’s a problem, even though it was. It also could have been one foot off the lot line and they wouldn’t have said that’s a problem, even though it is. That’s bothered me for a long time, because I think, you know, even though it may not be a building inspector’s job, they ought to recognize some of these simple things and two measurements with a tape would have told them what the square footage of that foundation was, and they could have said, hey, you’ve got a potential problem, but that’s why the issue’s coming up now. There may have been an approval, but it wasn’t an approval for the zoning issues. I think you’ve satisfied me pretty much on the garage. I was going to raise two questions. You kind of intimate in your application that, well, 35 square feet isn’t much, and Staff has agreed, and one foot on the porch isn’t much either, and really that’s what we’re talking about regarding your porch. It’s not whether you can have a porch or not. It’s whether you can have a five foot porch or a six foot porch. So my basic question then becomes, okay, if it’s really minimal, why not shave a foot off the porch, and why not shave 35 square feet off the garage, and as I say, I think you’ve kind of explained the garage, that you could do it if you got rid of your outside, or your entrances in the garage that you want to make to the house and the basement, but the question still remains for the porch. If it’s a minimal thing of just one foot, a five foot porch would still give you protection from rain on the house and all of that. You could still open your door without having to step off the porch. MR. GIBSON-Well, I think my thinking on the six foot porch was to have chairs, a table, and to still be able to egress past that, without sidestepping. Basically that was it. I figured three foot of seating space and three foot of egress past the seating, basically was my thinking. MR. MC NULTY-Okay. So mainly just convenience of furniture layout and such. MR. GIBSON-To be able to walk past somebody that’s sitting there to get to another chair, or sit at a table or whatever. MR. ABBATE-Now, since you are not represented by counsel, let me try and explain something. Everything is negotiable. Okay. All right. So listen to what the rest of us have to say. Anyone else on the Board like to make any kind of comments? Yes, please. MR. UNDERWOOD-I would just make the comment that I think we need to keep it all in perspective. I mean, when you’re asking for one foot of relief from a 30 foot setback, I don’t really consider that to be extreme, and I think that the extra foot, the six foot wide would be about the minimal size porch that anybody could live with. I mean, a five foot one would drive you crazy trying to step over people’s knees when they’re sitting in a 13 (Queensbury ZBA Meeting 05/16/07) chair. As far as the 35 foot, I think Mr. McNulty said it well. I mean, the thing is built that the infrastructure’s there to build a garage at 935 square feet, and I don’t think that’s an extraordinary request that’s going to destroy the neighborhood. MR. ABBATE-Okay. Anyone else on the Board like to address 32-2007? Mrs. Hunt, please. MRS. HUNT-Yes. I have to agree with Mr. Underwood. I don’t think a five foot wide porch is feasible. I think you need six feet, and at first I was thinking you could just move the blocks and, you know, make the garage a little bit smaller, but I’m reading here that they go 48 inches down into the ground, and they’re in good condition. So I would have no problem with that. MR. ABBATE-Okay. Good. MR. BRYANT-Are you polling us? MR. ABBATE-No. Right now this is the beginning. This is Board members having any questions. I’m not polling yet. These are questions. Okay. Any other questions from the Board members? All right. Then we’ll move to the next part. I’m going to open the public hearing for Area Variance No. 32-2007. Is there anyone in the public who’d like t address Area Variance No. 32-2007? If so, raise your hand. PUBLIC HEARING OPENED JOHN SALVADOR MR. SALVADOR-My name is John Salvador. I’m a resident in North Queensbury. I’m confused. You said that in your packet there is a foundation inspection report? MR. UNDERWOOD-That was done on 7/20/06. So they must have gotten called out to see if they could use the foundation that was there on site. MR. SALVADOR-Usually this inspection report refers to a building permit. It’s not on there? MR. UNDERWOOD-No, and it appears from what they told us that this thing, I don’t know when it was put in, probably years ago, and never built on. MR. BRYANT-Can I answer that? On the inspection report, it asks for the building permit number, and they have no number next to that. MR. SALVADOR-Then there’s no authorization for the Building Inspector to arrive on the site. The Building respond and makes a progress inspection of a project in accordance with a building permit. That’s one. Two, and a Building Inspector does not certify that a foundation is adequate to carry any kind of load. That’s not his job. Thank you. MR. ABBATE-Okay. You’re very welcome. Do we have anyone else in the public who’d like to address Area Variance No. 32-2007? Would you be kind enough to raise your hands please? I see no one else. You will have every opportunity to make any kind of statement you’d like to make or rebuttal. It’s entirely up to you. Would you like to respond to what was said? No. Okay. Then I’ll continue. MR. BRYANT-I have couple of questions, Mr. Chairman, for Staff. On this inspection, it says that, under permit number, there’s no number. It’s a site check, and the inspector’s initials, JPC, who’s that? MRS. BARDEN-Joel Clugstone. MR. BRYANT-Now, why would he go and inspect unless it was either requested by the owner or it was in the building permit process. Did you request an inspection? MS. THOMAS-When we applied for the permit, yes. MR. BRYANT-Okay. So that’s the result of the permit application. MS. THOMAS-Yes. MR. BRYANT-Okay. I understand. 14 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-Anybody else? MRS. BARDEN-There’s a Building Permit 2006-685, in your parcel history. MR. MC NULTY-Just one quick thought. It’s conceivable that the work that originally was done on that foundation was a part of the original building permit for building the house and they just never finished it. I’ve seen that happen a couple of times. A deck doesn’t get put on but it was included in the original plan. So that may be why. MR. URRICO-I have a question, Mr. Chairman. MR. ABBATE-Yes, Mr. Urrico, please. MR. URRICO-Since we don’t have a survey that we’re relying on, how do e know what the setback is? MR. ABBATE-That’s a good question. It boils down to the fact of how comfortable or uncomfortable are members of the Board in response to your question. Good question. MR. BRYANT-One other thing, on Mr. Urrico’s question. We just had an application where they made an eight foot error on a major construction project. Without a survey, how do you know that we’re not going to have an eight foot error on the porch? MR. UNDERWOOD-I think that we can say that if we do grant relief, we will grant them relief to build a porch that extends six feet out from the building as it exists, and that’s essentially. MR. BRYANT-Yes, but you don’t know what you’re actually granting. MR. UNDERWOOD-Well, we’re granting them a six foot porch from the building, and if the relief is more than that, then I think that we can write that into it. I mean, having been to the site and looked at it, it would be difficult for me to understand why, you know, if it’s one foot or two foot of relief required from 30 feet, if that’s going to have any negative effect on the front part of that parcel. MR. URRICO-I don’t have a problem writing that in. I’m just saying that we’re going to have to be careful in the motion, be very precise, because we don’t have precise measurements here. MR. ABBATE-Okay. All right. That’s fair. MR. FULLER-I would put in the relief as they’ve requested it, one foot from the setback, and your point is taken. If it turns out to be wrong, then that would be dealt with. I wouldn’t leave it open. MR. ABBATE-Okay. Fair enough. We’ll do it. MR. FULLER-Because you have to grant the minimum relief necessary. So it should be stated what the minimum. MR. UNDERWOOD-Before we do that, too, I needed to read in this letter. MR. ABBATE-Would you, please. MR. UNDERWOOD-To the Queensbury Planning and Zoning Board: We, the undersigned, have no objection to the variance of the proposed garage and front porch at 9 Morgan Drive. The garage will be 35 square feet larger than the allowed zoning of 900 square feet, which would make the garage 935 square feet, and the front porch will have a 29 foot setback, and that’s signed Wayne and Gail Campney at 8 Morgan Drive, the property across the street, I would take it, Bob and Lucille Seeley at 6 Morgan, Ron and Monica Becker at 7 Morgan Drive, Liz and Gary Roberts at 11 Morgan Drive, and Gary and Carolyn Huesel at 10 Morgan Drive. So they’re all the adjacent properties. MR. ABBATE-Okay. All right. Thank you very much. MR. GIBSON-So, if we build this and then have it surveyed, backwards, shall we say, and we are beyond the 29 foot, and we’re at 28 foot, then what would be the repercussions of that? Because I don’t want to take more than I have. 15 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-I understand what you’re saying. There may very well be some type. However, the repercussions wouldn’t come from us. They’d come from enforcement, not from us. MR. GIBSON-Okay. MR. ABBATE-Okay. I think Counselor’s advice was good advice. I think we should include that in the motion, and that way there we know where we’re going to, and you know exactly what we want to do. Okay. All right. MR. MC NULTY-Mr. Chairman, will we be requiring an as built survey on this when they’re finished? MR. UNDERWOOD-It’s already built, in essence. I mean, the only thing that really would be different would be the garage. I mean, we know where the garage is going to because the footings and the block work has already been completed on it. MR. URRICO-I think we should take the precaution of including that in there, in the resolution, and not assume that that foundation meets the requirements as it is stated. MR. ABBATE-I think Mr. McNulty and Mr. Urrico are making an excellent point, and I think it was brought out by Mr. Bryant. Whoever moves the motion, I think we should be very cautious and follow Counselor’s advice to include that in there, and perhaps also mention what Mr. Urrico has just indicated as well, just to be safe, if you will, proper procedurally safe, that type of thing. Okay. Let’s go from there and see what happens. Okay. I’m going to ask Board members to offer their comment on Area Variance No. 32- 2007, and anybody wish to start out? It’s up to you. Any volunteers? MR. URRICO-I’ll go. MR. ABBATE-Would you, Mr. Urrico, please. MR. URRICO-Yes. I don’t have a problem with this application. I think, yes, there are some issues with what’s included in the package, and there’s issues with the survey, but I think, all in all, we’re talking about one foot here on a setback, and 35 feet on a garage, and to me that doesn’t seem like a heck of a lot to worry about. I think the benefit to the applicant is feasible by what they’ve stated to us. It’s a previously poured foundation that they’re trying to take advantage of. I don’t see an undesirable change in this neighborhood. The petition from the nearby residents seem to attest to that. I don’t think the request is substantial. I don’t see any adverse physical or environmental effects, and while the difficulty being self-created is probably because they want a garage and a porch, and I think they’ve done a good job of trying to keep this to a minimum by using what’s there already, and also building a porch that just fits their needs and nothing more. So I’d be in favor of it. MR. ABBATE-Okay. Thank you. We’re going to go right down the line. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, as I said before, I have no problem with the one foot setback. I don’t think a six foot wide porch is a lot to ask for, and I have no problem with the garage, but I wonder if we should have an as built to find out if, you know, it is conforming. MR. ABBATE-Ladies and gentlemen of the Board, that question can be answered by the individual who makes the motion, and certainly we yield to the majority vote on this Board, and if an as built, the majority of the Board feels that an as built survey should be had, that should be included in the motion. So I don’t have any problems with that at all. Okay. All right. Let’s move on to Mr. Underwood, please. MR. UNDERWOOD-This is a minimalist home here. I think that the improvements that are proposed will be a positive for the neighborhood, as well as for the homeowner, and I agree with everybody else when they commented on the fact that a six foot porch is the minimal size porch you probably should build. I would have given you an eight foot porch had you asked me for it. As far as the front setbacks off there, I don’t see this as a major thoroughfare. I don’t see this as a major intrusion and as far as having an as built survey, something that’s going to intrude one or two feet into a 30 foot setback is diminimus, as far as I’m concerned. 16 (Queensbury ZBA Meeting 05/16/07) MR. ABBATE-Okay. MR. UNDERWOOD-As far as the garage goes, it’s a sensible thing to do. Whenever that was constructed, it was constructed for a proposed garage. Whether it was done at the time the building was put up or whenever, it doesn’t make any difference to me either. The 35 square feet is minimal relief. So I’d go for both of them. MR. ABBATE-Okay. Thank you. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I agree with Mr. Underwood and the applicant when they talk about a six foot porch being the minimal that you can have for egress and putting a chair out there and being comfortable, and I agree with that 100%. However, I can’t be absolutely positive that we’re talking about a foot, and even if we restricted in the motion, you know, logically we should have had an accurate survey which would have depicted all the foundation construction and so forth. So I would have preferred to have a survey. Well that being said, with regard to the garage, I know you have the foundation, and I know some of the other Board members feel that the 35 square feet is really minimal, but the building is not built yet, and frankly we’re directed by State law to give the least amount of relief required, and frankly, I understand the porch situation. You need a six foot porch, and I agree with that. Do you need a 935 square foot garage? I don’t think it’s necessary, and that’s one area where you could be compliant. So I’d go along with the porch, but the garage I’m not willing to go along with. MR. ABBATE-Okay. Mr. Garrand, please. MR. GARRAND-Thank you, Mr. Chairman. I think Mr. Bryant is correct. Without a survey, the onus is now on the applicant to ensure that only one foot of front setback is needed here. I think the request for the 35 square feet for the garage is minimal, as well as the one foot of front setback. So at this point I’d be in favor of this application. MR. ABBATE-Okay, and Mr. McNulty, please. MR. MC NULTY-For me this is a tough one. I am bothered a little bit by the depth of the porch, simply because I don’t see anything else quite like it in the immediate neighborhood. On the other hand, I am inclined to agree that I think it’s probably going to improve the appearance of the house, and I don’t like to quibble about who’s going to arrange furniture what way and whether or not one foot’s needed. As I said earlier, I guess one foot’s one foot. It’s minimal, and who takes it up, I don’t know, and I’m also in the same spot on the garage. I, at one time, had a house with an entrance like you’re describing inside the house to the cellar and to the house. So I can understand the convenience and all of that, and the foundation’s in place. It’s not impossible to adjust that foundation, dig down a couple of feet, knock the top couple of rows of blocks off on one wall and dig a trench in just far enough and lay a new wall on that one side and you’ve got yourself a compliant sized garage, but it’s a balancing test, as the Chairman’s pointed out before, and while it wouldn’t be hugely prohibitive to make that change in the foundation, it would cost some money. On the other hand, you’ve got a start already because you’ve got a free foundation, where if you were just building a garage, you’d have to put the foundation in. So you can flip back and forth, but I think on the whole, having said all that, that the balancing test comes down probably in favor of the applicants, given the existing conditions. If you were asking for a 935 square foot garage, and you were starting from scratch, I would say, no, make it work with 900, but given what you’ve got there, I guess I’m just teetering over the edge on being in favor. MR. ABBATE-Fifty-one percent. MR. MC NULTY-Fifty-one percent. MR. ABBATE-That’s my favorite, 51%. Okay. Thank you very much. Mr. McNulty’s right. We have a duty and obligation to what’s called a balancing test, and you heard that read this evening. Again, I said it earlier. I don’t know whether it was this appeal or the appeal before. We simply cannot make decisions on subjective preferences of not liking a particular project. It simply doesn’t work that way, and besides, it’s a violation of the law. We have to make our decisions based upon the reliable evidence that’s contained in the record, but in addition to that, it’s important to also note that as a quasi- judicial Board, we are considered a safety valve. A safety valve to prevent abuse, if you will, or hardship, if you will, on what might be considered difficult Zoning Ordinances, and as a safety valve, I think the majority of this Board made it quite clear, that on a balancing test, and I’m all pushing, we make our decisions on a balancing test, even though all five may not necessarily fall in your favor, it’s my opinion that there is sufficient 17 (Queensbury ZBA Meeting 05/16/07) yeses on the balancing test to go along with approval of your application. Having said that, I’m going to close the public hearing on Area Variance No. 32-2007. PUBLIC HEARING CLOSED MR. ABBATE-And again I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, and while State law sets forth five factors to take into consideration, again, unlike a Use Variance test, this Board need not find in favor of all five of these regulations. That’s what’s called a balancing test. We merely take into account each one and then we make a decision. Now I’m going to request a volunteer to make a motion for Area Variance No. 32-2007. Do we have one? MOTION TO APPROVE AREA VARIANCE NO. 32-2007 KARI THOMAS, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt: 9 Morgan Drive. The applicant is requesting one foot of setback relief from the minimum 30 feet from placement of the 216 foot porch per 179-4-030 for the SR-20 zone. In addition, the applicant is asking for 35 feet of relief from the maximum 900 square feet requirement for garages in a residential district per 179-5-020. In doing so, we’ve addressed the criteria that we try to use when we’re discussing a balancing test. The applicant, to me, has demonstrated the benefit that could be achieved that’s feasible. There will not be an undesirable change in the neighborhood character. The request is barely substantial by our standards, one feet and thirty-five feet for the garage, and there will be no physical or environmental effects that we can see. The difficulty is self-created in that they’re trying to put a garage on their property. It has also been suggested, and I’m not sure I agree with this at this point. I know I said it earlier, but I’m not sure I’m going to ask for, in this motion, an as built survey. I think the applicant understands what the relief is and the burden will be on them to see that that’s followed. th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mrs. Hunt, Mr. Garrand, Mr. McNulty, Mr. Urrico, Mr. Underwood, Mr. Abbate NOES: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 32-2007 is six yes, one no. Area Variance No. 32-2007 is approved. Thank you very much. Thank you, folks. MOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS LITIGATION, Introduced by Charles Abbate who moved for its adoption, seconded by Richard Garrand: th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Underwood, Mr. Bryant, Mr. Garrand, Mr. McNulty, Mr. Abbate NOES: NONE MR. ABBATE-The vote to move into Executive Session is seven yes, zero no. This Board now moves into Executive Session. ARNOLD ABRAMS MR. ABRAMS-The name is Arnold Abrams. I live in Queensbury, and I’ve attended a number of sessions, and I’m trying to learn something about how this group operates. The Chair, tonight, made the statement that, to the effect that we don’t have any enforcement policies, such as penalties or incarceration. MR. ABBATE-Yes. We don’t have any justification. That’s beyond our authority, right. MR. ABRAMS-But you do have the authority to enforce prior actions and prior decisions, I would guess. MR. BRYANT-We have no authority to enforce anything. MR. ABBATE-Well, let him make his statement. 18 (Queensbury ZBA Meeting 05/16/07) MR. ABRAMS-According to the Staff comments, and by the way, I don’t live anywhere near the property on the first zoning case that came up tonight, but the Staff comments were, the second sentence is, applicant will have to complete the site improvements previously proposed and approved, specifically the removal of hard surface of area and replacement with lawn area and fencing that is to be compliant with the permeability relief previously granted. Somebody read that tonight, and my question is, I don’t object to your decision of approving it, but couldn’t you have held back on the approval until such time as this particular prior decision was enforced, and if not, why? MR. UNDERWOOD-They’ve got to go back to the Planning Board for final, at this point, and so, in other words, they’re not going to be issued a Certificate of Occupancy until they meet all the requirements of their application, such as those. MR. ABRAMS-Such as water runoff? MR. ABBATE-Correct. MR. ABRAMS-Okay. MR. ABBATE-Thank you very much, sir, for your comments. It’s always appreciated. MR. ABRAMS-Well, I hope to be here to learn more. MR. ABBATE-You’re always welcome to comment any time you wish. MR. ABRAMS-Thank you. MR. ABBATE-Thank you. We are in Executive Session. MOTION TO COME OUT OF EXECUTIVE SESSION, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: th Duly adopted this 16 day of May, 2007, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Underwood, Mr. Garrand, Mr. Bryant, Mr. McNulty, Mr. Abbate NOES: NONE MR. ABBATE-The vote is seven yes zero no to come out of Executive Session and go into regular session. Having done, I’m going to move a motion that this hearing is adjourned. I don’t think we need a motion on that. Anybody have any questions? This hearing is adjourned. Thank you, ladies and gentlemen. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 19