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1994-10-21 SPECIAL TOWN BOARD MEETING OCTOBER 21, 1994 2:50 P.M. MTG # 56 RES 534 BOARD MEMBERS PRESENT DEPUTY SUPERVISOR NICK CAIMANO COUNCILMAN BETTY MONAHAN COUNCILMAN DR. R. GEORGE WISW ALL COUNCILMAN CAROL PULVER BOARD MEMBER ABSENT SUPERVISOR FRED CHAMPAGNE TOWN ATTORNEY PAUL DUSEK TOWN OFFICIALS MR. JAMES MARTIN-EXECUTIVE DIRECTOR OF COMMUNITY DEVELOPMENT MR. SCOTT HARLICKER-ASSISTANT PLANNER DR. ROBERT EV ANS- TOWN HEALTH OFFICER PRESS: GF POST STAR Deputy Supervisor Nick Caimano called meeting to order ... this is not a public hearing, this is a discussion by the board regarding the matter of the Mooring Post. Attorney Dusek-The Mooring Post is constructing or plans to construct two fairly large buildings and replacing five smaller buildings that were located on the premises. When doing that a number of issues are raised. The issues that struck me as, obviously the two main issues are, do they need to go to, it's a nonconforming use, we all know that, do they need to go to the Zoning Board for that nonconforming use to get a variance to allow them to do what they're doing or do they perhaps need a review by the Planning Board, is another question mark that arises and it's based on the language that you see right here in 179-79. The nonconforming use aspects I have not fully resolved and I think that I want to take some more time before I advise this board on those particular aspects because the repercussions of that are significant in the sense of where the project goes to in terms of the Zoning Board of Appeals and the interpretations concerning the ordinances. However, I've also found in the ordinance a provision that says, site plan approval by the Planning Board shall be required for any, and I stress the word any, enlargement or extension of a nonconforming structure or use of a structure containing a nonconforming use existing within a critical environmental area. Now, I have confirmed with Jim Martin today that the area is, I think we confirmed it yesterday but I reconfirmed it again with him today that, that area where the Mooring Post is located is in fact in a critical environmental area. If since that's the case and if you read the language, it would seem to me they stress any enlargement, not just footprint but any enlargement of a building would need site plan review. It's also my understanding that this project has not received site plan review from the Planning Board. In view of that, I note that the Queensbury Code provides under 179-109 that when, in the case of any violation or threatened violation of any provision of this chapter referring to the zoning or conditions imposed by a building permit in addition to remedies herein provided, the town may institute any appropriate action or proceedings to prevent unlawful erections, structural alteration, reconstruction, etcetera and to prevent occupancy. In view of the abilities that are given to the Town Board there, I feel, I am of the opinion that the Town Board has the ability to indicate to the Zoning Administrator it's position concerning this matter and if your position is that site plan approval is needed as I have reviewed this ordinance with you, if that is your position then you may request that the, among many of your other alternatives, you may request that your administrator issue a stop work order on the project. Also, you may appeal as a Board his decision that he made to date. My advice to the Board is, that although certainly the issue of enlargement and extension, I think gets into some what issues of fact. I think that as a matter of law, you could almost say that enlargement means almost any kind of increase in size and I have read some court cases that give a very wide interpretation to enlargement. I've also gone through the dictionary to read enlargement and extend and the terms seem to be very broad. It does not seem to be confined anywhere that I have read to a situation where you simply add up the square feet of the current occupancy area of the building and that's what, you know no matter how tall it gets, it can still be there. I think enlargement is very broad in a sense of a larger structure. If the Town Board agrees that this situation is an enlargement and if you feel that the site plan review is necessary, I feel that as a first step to order a stop work order rather then revoke the permit, leaves the town with some flexibility in terms of how it will continue to handle this matter but at least puts the property on notice of your position as a Town Board. And I think the remaining issues, there's still a number of issues that need to be resolved though and that is the issue of the nonconforming use and whether zoning variances are needed and things and I think those have yet to be addressed. But I found initially this thing and I wanted to bring it to the Board's attention because of the critical nature of the advancement of the project and putting the owner on adequate notice. I thought I should give you at least the piece that I feel I've uncovered to date. Deputy Supervisor Caimano-Okay, in plain language, you're advising that we pass a resolution today asking the Zoning Administrator to stop work immediately until we can further examine this thing. Is that what you're saying? Attorney Dusek-Ask him to issue a stop work order to the person he gave the building permit which stop work order would indicate that the permit is basically temporarily suspended and there's no right to proceed under that permit. Councilman Monahan-If that's the will of the Board I would suggest we have Paul dictate a resolution so that we can all hear it. Councilman Pulver-I'll go for that. Attorney Dusek-Then the Board after hearing discussions from the Town Attorney as well as a brief discussion of it's own the resolution proposed would be: RESOLUTION REQUESTING STOP WORK ORDER MOORING POST MARINA RESOLUTION NO. 534, 954 INTRODUCED BY: Mrs. Betty Monahan WHO MOVED FOR ITS ADOPTION SECONDED BY: Mrs. Carol Pulver RESOLVED, that the Town Board of the Town of Queensbury hereby determines that in its opinion the project being commenced by the Mooring Post Marina should be reviewed by the Planning Board in accordance with the Zoning Code, Section 179-79F, and in light of that determination the Town Board hereby requests that the Zoning Administrator issue a Stop Work Order on the project and also authorizes the Town Supervisor or the Deputy Supervisor as the case may be to file an application with the Zoning Board for a review of the decision made by the Zoning Administrator which will include not only the issue of the site plan, but also any issues relative to the Zoning Ordinance and the application of the Zoning Ordinance to this project. Duly adopted this 21st, day of October, 1994, by the following vote: Ayes: Dr. Wiswall, Mrs. Pulver, Mrs. Monahan, Mr. Caimano Noes: None Absent: Mr. Champagne DISCUSSION BEFORE VOTE: Councilman Pulver-I have one question. Will you Paul be at the meeting with the ZBA to represent the Town Board? Attorney Dusek-I definitely will be at the meeting and I guess we're going to have to be very careful in terms of, you know, how the representation comes about and everything, I'll have to give that some thought but certainly I will be part of this all the way through. Councilman Monahan-All we're talking about right now is asking Jim to issue a stop work order. I don't think we're talking about right now appealing his decision or anything else. Attorney Dusek-But you've authorized .... Councilman Monahan-Alright, okay, I just want to make sure where we are. Deputy Supervisor Caimano-But you're question was? Councilman Pulver-Well, my question is how are we going to handle the appeal to the ZBA? Whose going to present it to the ZBA, you know, is our attorney going to represent the Town Board at the ZBA? Deputy Supervisor Caimano-Well, we go back into this never ending cycle and as far as I'm concerned, that man represents the Town Board. Councilman Pulver-Well, he's going to, that's my question, is he going to represent the ... Attorney Dusek-I think we have some time on that issue. Councilman Pulver-We'll have to further discuss that I guess. Deputy Supervisor Caimano-Anything further? (vote was taken) Attorney Dusek-Before you adjourn the meeting, could I ask just a question of the Zoning Administrator based on conversations I've had with hirn. Is it my understanding that, you know, you and I have had some discussions over the past several days obviously and you've heard now this matter pertaining to the Planning Board review. We're not talking about the Zoning Board or any other interpretations of the Zoning Ordinance. Based on our understanding, can you tell me whether you will be honoring the request of the Town Board? Executive Director, Mr. James Martin-Yes, I'll honor their request. Deputy Supervisor Caimano- That was my question too. Councilman Monahan-How will this notice be given? Deputy Supervisor Caimano-First of all, it's not a public notice because the press is here but are you going to mail them a letter and do I have to sign anything? Attorney Dusek-Normally, a Stop Work Order, Jim? Executive Director, Mr. Martin-I can sign that and I will hand deliver that before four p.m. this afternoon and I would like to have a copy of that resolution to attach to it. If that's not to much of a imposition, Caroline? Deputy Town Clerk, Mrs. Barber-No, not at all. Deputy Supervisor Caimano-Okay, any other questions. (Councilman Pulver left meeting) Deputy Supervisor Caimano- Y ou mentioned something else that the Supervisor or Deputy Supervisor had to do. Attorney Dusek-Just a mere authorization to file an appeal. Quite honestly, I don't know if that is absolutely necessary under the circumstances. However, I thought it would be advisable to have that as part of this whole process at this point. It may be in the end that you don't appeal but let's, I, just as first stop gap measure. Keep in mind that the research and study of this problem is ongoing and I anticipate that either the Board may have other options or decide to do other things or maybe even the Zoning Administrator will decide to do other things next week but this was the first phase of the review. Deputy Supervisor Caimano-Just let me say this Caroline, there's a slew of correspondence regarding this issue and I'm not going to read it. I'm going to enter it into the record though including your memo. Executive Director, Mr. Martin-Right and all those records that I have been sent are in the building permit file. Deputy Supervisor Caimano-For the public even though it's not a public hearing, if there's any questions that you have and you don't understand what happened, basically we stopped work on this project and we will keep you informed. If you have any questions, after the meeting, I guess, any Town Official would be glad to help you. Dr. Robert Evans-One last question, it goes now to the Planning Board? Attorney Dusek-The first thing that would happen is that the Stop Work Order merely stops work on the project. We would hope that the applicant would honor that obviously. If he doesn't, then we'll have to address that but the site plan review application is only necessary if he should desire to continue with the project. Attorney Mike O'Connor-Don't you have to make a determination of whether any variances are required before you can file a site plan review. Attorney Dusek-During the course of this next week, that's the aspect of this thing and I'm still studying. What I've indicated to the Board today is based upon all available information concerning the facts and everything else and based on my reading of the law that I believe that this is an appropriate position for the Town Board to take currently. Further legal study may reveal other positions that they should take. Dr. Evans-How would we be notified if something were to happen? Deputy Supervisor Caimano-Well, I think in view of the situation we will set up a communications network, probably through Kim, through Supervisor Champagne's office so that you will be aware of what's happening. Attorney O'Connor-Can we register to be on a list for notification? Deputy Supervisor Caimano-I think that would be alright. I don't see any problem with that, Betty? Councilman Monahan-No, I have no problem, I was just going to ask Jim a question. Jim, are properties signed when they're up for site plan review or just for subdivision review, that you have the big placard so people are aware that something is going on with that property? Executive Director, Mr. Martin-The thing that is put up now as an aide to the Planning Board to find the location of the project, we put up a florescent red marker, site plan project here or something like that is written on it. The only larger placard is for subdivision but we do put up a florescent red notice. Councilman Monahan-So, your florescent thing is about this size? Executive Director, Mr. Martin-Exactly that size. Councilman Monahan-So, they can also be on the lookout for that as a double protection. Executive Director, Mr. Martin-I have no problem if a representative of the neighborhood, I can have regular, I will keep them in regular contact. We do that on a number of projects. If it's the Evans or something like that, I can keep you notified of every ... that occurs. Dr. Evans-Good. Thank you, we're very appreciative. Deputy Supervisor Caimano-Before you leave the room, give Kim your name and address and you'll be on the list of notification. If there's nothing else, the meeting is officially adjourned. Thank you. (The letters from the following residents were made a part of the record on file in the Town Clerk's Office: Cheryl Evans, Lillian Adamson - President of East Side Property Owners Association, Kathleen M. Tarrant, Lawrence & Christine Busino, William Wetherbee, Donald Billings Wheeler, Kathy A. Vilmar- Representing Lake George Association, Inc., John Brock) No further action was taken. RESPECTFULLY SUBMITTED, DARLEEN M. DOUGHER TOWN CLERK - TOWN OF QUEENSBURY