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1994-10-31 SPECIAL TOWN BOARD MEETING OCTOBER 31, 1994 4:00 P.M. MTG #59 RES 541-547 BOARD MEMBERS PRESENT SUPERVISOR FRED CHAMPAGNE COUNCILMAN BETTY MONAHAN COUNCILMAN DR. R. GEORGE WISW ALL COUNCILMAN NICK CAIMANO COUNCILMAN CAROL PULVER TOWN ATTORNEY PAUL DUSEK TOWN OFFICIAL MR. JAMES MARTIN, EXECUTIVE DIRECTOR OF COMMUNITY DEVELOPMENT RESOLUTIONS Town Board held discussion regarding the resolution of the Wilton Development Disability Service Office and recommended the following resolution: RESOLUTION RESPONDING TO WILTON DEVELOPMENTAL DISABILITY SERVICE OFFICE OFFICIAL LETTER OF INTENT RESOLUTION NO. 541,94 INTRODUCED BY: Mr. Nick Caimano WHO MOVED ITS ADOPTION SECONDED BY: Mr. Fred Champagne WHEREAS, the Town of Queensbury was notified by the Wilton Developmental Disabilities Service Office of its interest and intent to establish a community residence for mentally retarded and developmentally disabled persons at 8 Susan Place, in the Town of Queensbury, and WHEREAS, the Town Board of the Town of Queensbury, as allowed and provided by State Law, held a public hearing, whereat representatives of the Wilton Developmental Disabilities Service Office were provided an opportunity to make a presentation concerning the establishment of a community residence at 8 Susan Place, in the Town of Queensbury, and interested citizens were allowed an opportunity to be heard concerning the establishment of such residence, and WHEREAS, during the course of the aforesaid hearing, many citizens voiced concerns about the nature and character of the roads servicing the neighborhood of 8 Susan Place and the increase in traffic due to the use of the home by the Wilton Developmental Disabilities Service Office, provided certain information concerning vehicle and traffic impact occasioned by a similar home established in the Town of Queensbury, presented concerns of adequate parking on the site for the vehicles that would be necessary to service the home, raised concerns about access to the property during the winter months due to the nature and character of the roads, and generally had concerns about the adequacy of the residence and location, and WHEREAS, in addition to the presentations that were made at the aforesaid public hearing, the Town Board of the Town of Queensbury was advised of the availability of a single family residence on Luzerne Road, which residence has been described as having a number of attributes, such as municipal water, lower price, handicap ramp, easy access, more land, and more space available for parking of vehicles, and WHEREAS, the Town Board of the Town of Queensbury has recognized the importance of and the need for residences for the mentally retarded and developmentally disabled and also notes that citizens speaking at the aforesaid public hearing also indicated an understanding of the need for the same, and WHEREAS, Section 41.34 of the Mental Hygiene Law of the State of New York provides that the municipality shall have 40 days after receipt of the aforesaid notification to provide various responses, and WHEREAS, the law also provides that the response shall be forwarded to the sponsoring agency and the Commissioner, NOW, THEREFORE, BE IT RESOLVED, that the Town Board of the Town of Queensbury, after duly and carefully considering the notification provided by Wilton Developmental Disabilities Service Office of its interest and intent to establish a community residence for mentally retarded and developmentally disabled persons at 8 Susan Place, in the Town of Queensbury, hereby determines it appropriate to take the following action and make, by this resolution, the following response: 1. Object to the establishment of the facility at 8 Susan Place, in the Town of Queensbury, upon the grounds that a more suitable place appears to be available, particularly in view of the character of the area and the concerns raised about the roads leading to the dwelling place, traffic and parking issues, 2. Indicate that the establishment of the facility of the kind described by the sponsoring agency would, because of traffic and parking concerns, affect the character of Susan Place and the surrounding area and would result in a concentration of community facilities for the mentally disabled in that particular area of the Town of Queensbury, and 3. Suggest or recommend to Wilton Developmental Disabilities Service Office to consider the following locations annexed hereto as Exhibit A, as alternative sites which appear to better meet the State's criteria for group homes, and BE IT FURTHER RESOLVED, that the Town Supervisor is hereby authorized to forward this Resolution with a cover letter to the sponsoring agency and the Commissioner and indicating the same as the municipality's response to the notice received by Wilton Developmental Disabilities Service Office. Duly adopted this 31st day of October, 1994, by the following vote: AYES Mrs. Monahan, Dr. Wiswall, Mr. Caimano, Mrs. Pulver, Mr. Champagne NOES : None ABSENT: None RESOLUTION AUTHORIZING FILING OF WATER SUPPLY APPLICATION AND COMMENCEMENT OF SEQRA REVIEW RESOLUTION NO. 542, 94 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED FOR ITS ADOPTION SECONDED BY: Mr. Nick Caimano WHEREAS, the Town Board of the Town of Queensbury has undertaken a review of the West Glens Falls Water District system, including the water supply for that District, and WHEREAS, the Town Board of the Town of Queensbury is of the opinion that certain capital improvements are appropriately considered for the West Glens Falls Water District system and that a change in the source of water from the City of Glens Falls to the Town of Queensbury should also be considered, and WHEREAS, the Town Board of the Town of Queensbury recognizes that certain, additional proceedings will be necessary before any of the improvements or changes identified above are authorized, and WHEREAS, the Town Board of the Town of Queensbury desires to undertake certain preliminary actions and authorize the filing of certain applications which will not commit the Town to a course of action until such time as the aforementioned proceedings are completed, but will allow the Town the flexibility of proceeding expeditiously, NOW, THEREFORE, BE IT RESOLVED, that the Town Board of the Town of Queensbury hereby authorizes Thomas K. Flaherty, as Water Superintendent, to file an application with the New York State Department of Environmental Conservation and the New York State Department of Health for the purposes of obtaining permission to furnish water from the Queensbury Consolidated Water District to the West Glens Falls Water District, and BE IT FURTHER, RESOLVED, that the Town Board of the Town of Queensbury hereby indicates its desire to be lead agent for a SEQRA review in connection with the proposed action for the West Glens Falls Water District, and hereby authorizes the Water Superintendent to notify all involved agencies of the Town Board's desire and that a lead agent must be agreed upon within 30 days of the receipt of notice concerning this request. Duly adopted this 31st day of October, 1994, by the following vote: AYES Dr. Wiswall, Mr. Caimano, Mrs. Pulver, Mrs. Monahan, Mr. Champagne NOES : None ABSENT: None RESOLUTION ACCEPTING RESIGNATION OF EUGENE 1. CHRISTENSEN RESOLUTION NO. 543, 94 INTRODUCED BY: Mr. Nick Caimano WHO MOVED FOR ITS ADOPTION SECONDED BY: Mrs. Carol Pulver RESOLVED, that the Town Board of the Town of Queensbury hereby accepts the resignation of E.1. Christensen, Director of Accounting Services, dated October 21, 1994. Duly adopted this 31st day of October, 1994, by the following vote: AYES Mr. Caimano, Mrs. Pulver, Mrs. Monahan, Dr. Wiswall, Mr. Champagne NOES : None ABSENT: None RESOLUTION AUTHORIZING SATISFACTION AGREEMENT WITH INSURANCE COMPANY RESOLUTION NO. 544, 94 INTRODUCED BY: Mr. Nick Caimano WHO MOVED ITS ADOPTION SECONDED BY: Mr. Fred Champagne WHEREAS, the Director of Accounting Services, working with 1. T. Meisner, Adjuster, has completed a Sworn Statement in Proof of Loss, and WHEREAS, the Proof of Loss was taken in connection with damages sustained to Town computers and equipment during the course of a lightning storm in July of 1994, and WHEREAS, a proposal for agreed upon damages in the amount of $13,196.00 has been proposed as settlement of the Town's claim, and WHEREAS, the Town would receive the sum of $12,946.00 ($13,196.00 less a $250.00 deductible), and the Director of Accounting Services has recommended the settlement to the Town Board, NOW, THEREFORE, BE IT RESOLVED, that the Town Board of the Town of Queensbury, afterreview of the Sworn Statement in Proof of Loss, recommendations of the Director of Accounting Services and other corresponding documents, hereby approves the Satisfaction Agreement and authorizes the Town Supervisor to execute the same on behalf of the Town of Queensbury and place the seal on the same and take such other and further steps as may be necessary or appropriate to complete the processing of the claim and, upon receipt of this check, to deposit the same in the appropriate accounts. Duly adopted this 31st day of October, 1994, by the following vote: AYES Mrs. Pulver, Mrs. Monahan, Dr. Wiswall, Mr. Caimano, Mr. Champagne NOES : None ABSENT: None DISCUSSION - MOORING POST MARINA 4:50 P.M. Attorney Dusek-I know you've got quite a heavy agenda so I'll make this as brief as I can. As you know Mooring Post has been under significant discussions. We had a meeting last week with Mr. Brock and his attorney in an attempt to try to come up with a solution. During the course of this time I've also been studying the aspect of the Mooring Post Marina and the original plans, the new plans and the ZBA and Planning Board and everything else. This Board acted to request a, that Mr. Martin take action to issue a Stop Work Order and also indicated it's views on the site plan based on my recommendations. I indicated at that time though that I'd further review coming back to you and so I wanted to report back to the Board before anything else happened in connection with this matter. I've had some conversations with Mark, albeit very brief last week and a couple of letters from Mark on this matter and I indicated to Mark I would be rendering an opinion today. I have, first of all I've come to the conclusion as a result of my research and based on new information we've received, well, actually it's not new information received actually, it's brought to our attention which may be a better way to put it, that the application that was filed for and upon which a building permit was received, it's my opinion that it was an enlargement of the nature, that it should have gone to the Zoning Board of Appeals. And the reason I say that is, is that the application made certain representations of square footage based on what was under the roof of the building including the overhangs. Whereas the traditional analysis has always been on the basis of a footprint of the building where the foundation walls, you know, actually it's not the overhang. In my mind this was an error that supports the Board in further demanding that the matter go back as it's currently filed with the Zoning Board of Appeals for a variance because of the enlargement. Having said that however, it should also be known to the Board that the applicant, as I understand it has come back with some proposals in attempt to address these concerns and come up with a plan that would hopefully maybe need only site plan approval by the Planning Board. In reviewing this matter and the proposal just very briefly is basically to take off a section of the building approximately seventy-two feet long, I believe which is a significant part of this building and it's also of the same height as the original building. In addition I think the applicant is proposed to make some movement in the building itself as far as setbacks go I think. My feeling on this is that and I struggled with the aspect of saying well can we, oh, the other thing you should know that gets added into this is Dr. and Cheryl Evans have filed an appeal to this matter to the Zoning Board of Appeals which you know, they have a right to do obviously and they did that. But it would be based on the current application, as I understand the appeal because that's the only thing that's of an issue right now. So, we've got kind of an interesting situation, I guess I'm telling you. On the application that's currently filed with the Board, I feel it's appropriate to move ahead if the Board is so inclined to the Zoning Board of Appeals, I think you have a basis. On the other hand, if we're looking at the new application, I have some different feelings on that. I think that the new application, I see a possibility under the basis of the new application of the ordinance being read basically in two different ways and because of that it's my feeling that the matter is still appropriately sent to the Zoning Board of Appeals. But I think that the Zoning Board of Appeals has flexibility in how they look at the thing and how they address it as to whether or not it needs a use variance or whether they can perform some interpretation of the ordinance. But I don't think that that's ajob of the Town Attorney to interpret the ordinance, I still think it goes to the Zoning Board of Appeals as the proper body because of these findings. So, I think they have some flexibility and I think that after they've interpreted the ordinance you could then also have a site plan review by the Planning Board. But this would be based on the new application as I understand it. I've also been informed that the Zoning Board would be in a position to accommodate with an early meeting and I think we're shooting for the 10th of November which would be about one week away, a little over one week at which time the whole matter could be aired before the Board, properly before public hearing and then they can come up with a decision concerning the matter. Councilman Caimano-You've given us two answers. Which one is your, which one is... Attorney Dusek-Well depending upon the site plan, that's why there's two answers. The old site plan, I'm saying that absolutely it should go to the ZBA. Councilman Caimano-The old site plan, the ZBA, the new site plan... Attorney Dusek-The new site plan, still the ZBA but I think they have some flexibility on how they get... Councilman Caimano-I thought you said site plan review... Attorney Dusek-And site plan review, both. Councilman Monahan-They both would require site plan review. Attorney Dusek-You would have to get the ZBA approval first and then you would go on to the... Councilman Caimano-ZBA for both, both site plan review. Attorney Dusek-Right. Councilman Caimano-Okay. I wasn't sure... Attorney Dusek-But in the one instance, in the second instance of their second plan I think the ZBA has more flexibility then they do with the first plan. Supervisor Champagne-When you say more flexibility, what you're saying is there's fewer issues. Attorney Dusek-Right... Councilman Monahan-The plan is more in conformance with the ordinance. Councilman Caimano-But not totally? Attorney Dusek-Well, I think that's up to the ZBA to decide. Councilman Monahan-Yea because there's a little muddiness there in the ordinance, it could be interpreted two ways. Attorney Dusek-That's it. I don't know if you want me to give all the details of the court cases. Councilman Caimano-For the record you have thern. Attorney Dusek-I've done research, legal research and I've obviously read the ordinance ten times over. Councilman Caimano- They can have that information if they want, right? Attorney Dusek-Well, these are research notes that I've plain written out, I mean, I'll share the court cases if necessary but.. . Councilman Caimano-But we're not going to read them verbatim tonight? Attorney Dusek-No. Supervisor Champagne-Any other questions? Attorney Mark Schachner-Yea, I have a question. Supervisor Champagne-Sure. Attorney Schachner-I don't understand Paul, your comment that, I think I jotted it down reasonably accurately, earlier on in your statement you said something about, it could go back as currently filed before the Zoning Board of Appeals for some type of variance. Attorney Dusek-Right, you certainly... Attorney Schachner-There's nothing filed in front of the Zoning Board of Appeals for any type of variance. Attorney Dusek-No. Attorney Schachner-The only thing that's before the Zoning Board of Appeals is the appeal by the Evans of Jim Martin's Zoning Administrative decision to issue a building permit on the original application. The would be applicant, Mr. Brock has not applied for any type of variance from the Zoning Board of Appeals and in terms of my advice to the would be applicant, Mr. Brock is very unlikely to make any such application because I disagree that there's any basis for any zoning or a need for Zoning Board of Appeals variance. So, to the extent that anyone in this table or elsewhere gets their hopes up to think that we may proceed, meaning the applicant proceed to the Zoning Board of Appeals with some type of variance application, not only is that not cast in stone but in fact that's unlikely. Now, there's a proceeding before the Zoning Board of Appeals because as you quite correctly point out, there's a... if you will, there are entities, the Evans who have appealed Jim's decision to the Zoning Board of Appeals. Mr. Brock has a right to participate in that exercise if he wishes, he has no obligation to participate in the exercise if he wishes but my only question is why do you think that there's a variance application pending before the ZBA, if you think that? Attorney Dusek-I never said there was a variance application pending before the ZBA, I think you misunderstood. Attorney Schachner-Okay, okay. Attorney Dusek-What my reference was is the fact that you basically have two plans going right now. You have one plan, an earlier plan which my opinion is, is that I think you've got to have a variance because you have an enlargement beyond square footage of the actual perimeters. You're dealing with the area underneath the roof as opposed to the square footage. Attorney Schachner-Okay, excuse me for interrupting. Does that mean, I would assume that, that would mean that if there could be a revised plan that did not fall into the category you just described meaning if you excluded the square footage outside or under the overhang if you will, then that would not require a variance, is that true, but only on that basis? Attorney Dusek-That goes to the second part of my analysis which I based upon the plan that was offered by you folks this past week. Attorney Schachner-The revised. Attorney Dusek-Which I said that I think in my opinion the Zoning Board of Appeals has flexibility with that plan, that I could see a reading of the ordinance whereby they would not have to require a use variance. Attorney Schachner-Okay, under that scenario, would there be any type of variance required or you're suggesting that the Zoning Board of Appeals could not, not necessarily will but could interpret the ordinance so that there would not be a variance required for the revised plan? Attorney Dusek-That's correct. Attorney Schachner-Okay, that's helpful. Attorney Dusek-But you would still need site plan approval in my opinion of the second plan. Attorney Schachner-Under any scenario? Attorney Dusek-Right. Councilman Caimano-Do you have any problem with that? Attorney Schachner-Yea, not as much of a problem but some. Well, let's flush it out. Councilman Caimano-Do you have a problem with site plan review under either plan? Attorney Schachner-Yea, oh yea but not as much of a problem, that's the question I was answering but let's flush that out. Under the, I understand the analysis under the quote, unquote original plan. Could you articulate why, if you can, why your opinion would be that it would need, that the revised plan, assuming the assumptions we've made about the revised plan, would still need site plan approval from the Planning Board? Attorney Dusek-Because the ordinance requires, it says any enlargement or extension of a non-conforming structure or in use of a structure, alright. The problem you have is that if you look at this as a structure that's being enlarged or a use of a structure as being enlarged, you know, a larger structure, the problem you have is the building itself is going up in stories. It certainly, from everything I've been able to tell, it's higher overall then the five buildings combined and it also has more volume inside. In other words, you just can't look at the square footage in terms of looking at what is a larger building. I found myself over and over again as I was analyzing the thing and talking to other people saying, the new proposal, a bigger building and it became clear to me that this obviously is an enlargement of what was existing there before. So, as soon as you... Attorney Schachner-Based on volume. Attorney Dusek-Based on volume, right. Attorney Schachner-Okay, I don't agree necessarily but I understand that. I didn't understand about the increase in height and why you think, or is it the revised plan, not the original plan? Why would you suggest that there would be an increase in height? Attorney Dusek-Well, because as I understood it, the old buildings, of course I didn't actually see them because they were torn down by the time I got there but that the roofs of the old buildings were much more steep in slope and there was less area covered in terms of, you know, all the way across. You take the new building, it's almost thirty-five or whatever it was, less than thirty-five, somewhere between thirty and thirty-five feet straight across almost with a very slight pitch. The old buildings, as I understood them, came down with a sharper or steeper slope... Attorney Schachner-To me, that's volume as opposed to height. Is it just symmetric or is there a fundamental... Attorney Dusek-Height in different locations. In other words you're going across new lands that you didn't use before... Attorney Schachner-Height at different points. Attorney Dusek-And I might add, you know Mark, what's important to understand here is that there's lots of things in this analysis. This is a piece of it, there are others. As I just mentioned, another piece of my analysis looked towards the fact that you were, you're building is actually going across new land that never went across before. There's also a, the element of the nature of the use of the structures and the stacking and the tiers and the whole method of operation that's changing over there in terms of the way boats used to be stored, how they were serviced, how they were pulled out. As far as the factual issues go, I didn't get into that at all as far as quantities of boats and everything else. I understand there's been some dispute in that area but I did not address that issue because I didn't feel that, that was necessary for me to get into at this point, especially in light of the fact I can't comment absolutely on that issue because I'm not a finder of fact to that extent in this. I think that's up to the ZBA. Attorney Schachner-I understand their position, do you have any questions? Attorney Dusek-Now, the only other thing that I might mention to you just so that, here again we're clear, that was the element we talked about on the enlargement. There is another position, another way the ordinance could be read as to why you might need a variance still which gets into the analysis of a new structure and whether or not it's allowed to be built under the ordinance which I think I went over with you on Friday briefly. Attorney Schachner-But I don't hear you taking that position in terms of advising the town. Attorney Dusek-I'm saying that, well, to be clear on this, I'm saying that the Board could go either way I think. Attorney Schachner-Zoning? Attorney Dusek-It's up to the Board to read this and decide how they want to handle the ordinance. Their job is to interpret and to apply it and as long as they do so in a reasonable fashion, my understanding is the courts will uphold that interpretation. Councilman Caimano- If in fact the argument here is which of two potential scenarios go before the ZBA, why are we sitting here? Attorney Dusek-We are here because, first of all the matter was discussed with the Town Board and I had advised you when I talked to you the last time that I would get back to you and report the full findings and that's what my goal was here. As far as... Councilman Caimano-Okay. You don't expect anything out of us? Attorney Dusek-I don't think anything has to be done at this point by the Board because as Mark mentioned, the matter is going to the ZBA. The Board has also authorized an appeal to the ZBA in any event and so I think alot of it now depends on, I would wait to see what the applicant's desires might be in connection with this before taking further... Councilman Caimano-In fact there is a matter pending before the ZBA and it would be inappropriate for us to say anything. Councilman Monahan-But that could be stopped if the applicant withdrew at, correct me either attorney here, if that application that is presently presented is withdrawn. Councilman Caimano-And. Councilman Monahan-Just withdrawn period, that would stop the appeal process. Councilman Caimano-Yea, okay. But then what is the applicant likely to do? Councilman Monahan-The applicant in fact can put in a new site plan that would be perhaps... Attorney Schachner-A new application. Attorney Dusek-Right. Councilman Monahan-Excuse me, a new application... Councilman Caimano-Which in fact has to go to the ZBA also. Attorney Dusek-Right. Councilman Monahan-Yea but it doesn't have some... Attorney Dusek-Well, it should, I mean, Mr. Martin would have to make that... Councilman Caimano-... my point is that other then informational, this Board neither has to nor should say or do anything at this point. Councilman Monahan-I think Paul is doing what he said he would do when he said he would report. Attorney Schachner-But with all due respect Nick, at least I do not agree that, with the should point of your statement. Meaning, it's correct that there's nothing pending if you will before this Board for action although I could argue on behalf of Mr. Brock that one thing that's pending is that this Board took an action ten days ago by directing the issuance of a Stop Work Order and I could argue that, that Stop Work Order should be rescinded. I don't think based on the Town Attorney's advice, that's likely to happen but as far as the should's side of what you said as to the propriety of this Board saying anything when something's pending before the Zoning Board of Appeals, I mean, it's my opinion that I think this is black, white, cast in stone, I don't think this is just a matter of conjecture, that this Board is a separate entity from the Zoning Board of Appeals. Attorney Dusek-That's correct. Attorney Schachner-In fact there is history not only in this town but elsewhere of the Town Boards and Zoning Board of Appeals not even agreeing on some things. So I guess what I want to say is, I don't think it's necessarily the case that this Board should not or that it would be inappropriate for this Board to say something relative to the ZBA proceeding and in fact, in fact if and when there is a ZBA proceeding, I submit it might be appropriate for this Board to make a, you know, to take a position at that time. Councilman Monahan-I just wanted to say, one other thing that I just asked Jim about and I brought this up before because I want to make sure we're throwing all our cards on the table, okay and whether or not the permeability will meet the new standards or also require a variance, I don't think we can say right at this point. Attorney Schachner-The amount of undeveloped area? Councilman Monahan-Undeveloped, yea, it might need a variance. Attorney Schachner-Was that an issue in your review? Councilman Monahan-But we're looking under it now under that part that talks about non-conforming use in a critical environmental area in the site plan and when you're going to site plan, I assume you'll meet those or you get a variance from those conditions, those requirements. Attorney Dusek -Well, to the extent that the Board finds that he doesn't need any variances, I mean, first of all you're going to want to address those issues. Councilman Monahan-Yea, that's what I'm saying... Attorney Dusek-If you were to go before the Board and I understand... Councilman Monahan-I just want to throw it on the table now so that you know, if it's there. I'm not saying it is there, I'm saying it's a possibility it could be there. Attorney Dusek-I think what Betty is saying, there's a number of provisions in the ordinance that deal with all kinds of things and I guess the question in her mind is whether it would be, if you didn't need any variances for the enlargement per say, does that mean you also don't need any variances for these other criteria. I have my suspicions as to what the answer is but I think it's premature to get into that issue right now. Councilman Monahan-No, but I just didn't want to, when Mark said, is that the only thing we're required, I didn't want... Attorney Dusek-I think Betty is just trying to be up front and raise concerns she has. Councilman Monahan-Yea, I don't want anything else to come up out of the woodwork later. Attorney Schachner-Was there a permeability issue in your initial review? Executive Director, Mr. Martin-No but it gets down to, I think what the question here is the use and what constitutes expansion of the use. Attorney Dusek -Well, I think you have multiple issues here. You've got use and you've got structures. Attorney Schachner-I understood your analysis to focus on structures. Attorney Dusek -Correct. Attorney Schachner-Yea, and not use for two reasons. Number one, he doesn't know the facts nor do I, I mean, I don't mean to make him sound ignorant or anything, we're not fact based. And number two, well it's the same thing, but the information presented really dealt with the structure not the use. So I guess I don't agree with, why in your mind right now do you think the issue is more the use? Executive Director, Mr. Martin-Well, I had thought that permeability was that area of the lot that is covered under roof and or gravel and pavement. Attorney Schachner-That would be the impermeability. Executive Director, Mr. Martin-Yea, well, how it relates to the permeability. I did a calculation of the roof areas here and the gravel areas and the paved areas and I came up with a certain percentage. Attorney Schachner-Okay. Executive Director, Mr. Martin-My initial calculations showed that, that was less under the new plan. Attorney Schachner-Less meaning less impermeability? Executive Director, Mr. Martin-Right less impermeable area. Attorney Schachner-Okay. And let's pretend that this was on sort of a blank slate and didn't have the history it had, did the number comply with the requirement? As if it were a brand new project, would the number.. . Executive Director, Mr. Martin-No, no it wouldn't... Attorney Schachner-It's still less then the project would need if it was from scratch? Executive Director, Mr. Martin-Right. Attorney Schachner-Okay. Councilman Caimano-Potentially, however, you could have permeable area under the roof, certainly an overhang roof, right? Executive Director, Mr. Martin-The way it's been interpreted in the past is that, if it's under roof it's impermeable. Even if you have part of the roof, under the eve is grassed area, it doesn't get that detailed. It's simply the area under the roof. Councilman Caimano-Okay. Councilman Monahan-If water doesn't flow... Councilman Caimano- What? Councilman Monahan-Your water as it comes off the roof, I'm not saying it won't eventually get wet there but when you're talking about where a roof line comes. You know, go out and watch the rain as it comes off the roof. Councilman Caimano-Without getting into a big argument, that's presumptive that there's a straight line drop. Councilman Monahan-But no matter what, if you were... Executive Director, Mr. Martin-I see what you're getting at but it's never gotten that refined. Councilman Caimano-Let's say without getting to far afield, let's say that there's a five foot overhang on a hundred foot building, that's a whole lot and it's grass under that overhang, that's a whole lot... Executive Director, Mr. Martin-From the standpoint of impermeable area, I would... Councilman Caimano- That's not permeable, okay. Councilman Monahan-And again, that's probably something the Zoning Board would determine and we're not even saying, you know, that it absolutely does not. What we're saying at the time, there is this possibility and I just don't want it to come out of the woodwork later so somebody thinks the town held back something. Councilman Caimano-Okay. Councilman Monahan-I'm just trying to be as up front and ... Attorney Schachner -Yea, we appreciate that, certainly. Executive Director, Mr. Martin-But from my standpoint, I'm a great believer in the process. We have a process here, some people are taking advantage of it. It's best before the Board at this point. Attorney Schachner-Now, along those lines, Paul you mentioned awhile ago that the Town Board when it took it's action ten days ago, also authorized, as I understood it, also authorized, it felt if you will, meaning the Town Board to appeal to the ZBA. Attorney Dusek-That's correct. Attorney Schachner-I... but I guess I want to make sure this is clear. Is my understanding correct that since others have chosen to avail themselves of the opportunity, namely the Evans, I assume the Town Board is not going to bother doing it as well? Is that true? Attorney Dusek-I don't have an answer as to how I would recommend the Board to proceed. I think in part, I didn't deal with that issue because I was kind of wondering what the applicant might do at this point because you can change the entire complexion of this thing depending upon your next move. Attorney Schachner-Okay. Councilman Monahan-Mark, I'm assuming that John has told you that if a new application comes in, the time schedule that we would try to do and he's under a very tight gun on when we have to have that completed application. Attorney Dusek-I think that is an important point to mention. I started to get into that and maybe that's where we might have, I might have slipped on variances, where Mark picked up on something I did not mean. But what I wanted, we were talking about it, just so you know, the town has done everything they can in an effort to try accommodate a quick and speedy resolution to this. Including having the Board available, would be the correct way to put it for the 10th to either hear the Evans's Appeal or... Attorney Schachner-This is the Zoning Board? Attorney Dusek-Right, or hearing whatever you may want to bring before them if that should be a direction that you wish to go in. In addition the Board has also, or Jim has made contact with the County to ask them for extensions of time to try to get the application through should you decide to do that. And I understand you'll also be trying to make arrangements with the Planning Board as well... Executive Director, Mr. Martin-Depending on how it falls out. Attorney Dusek-Right but the town is certainly undertaking everything it can do to help try to accommodate a speedy handling of this matter. That was our commitment we made to Mr. Brock when we first got started on this and the town is trying to keep that commitment. Attorney Schachner-Betty, did you say the County Planning Board only if it's a new application? Councilman Monahan-Well, that's what we were talking about but after I said that, I don't know that that's a correct statement or not. Executive Director, Mr. Martin-Appeals aren't heard by the County, as you know. Attorney Schachner-No, I don't mean in terms of Appeal because that's certainly true but the County Planning Board is meeting on I believe Wednesday, November 9th. Executive Director, Mr. Martin-Right. Attorney Schachner-And I guess what I was wondering is, as a result of in essence the reversal of your decision, does that mean that the application, I mean, there clearly, there have been compromised discussions about revised applications...but in terms of what's actual cast in stone as we sit here, all that's cast in stone is there's an existing approved application which has, the approval of which has been suspended, and my question is, is somebody proposing to send that application to the County Planning Board? Attorney Dusek-No, no. Executive Director, Mr. Martin-No, there's no application... Attorney Dusek-The application to the Planning Board, see this is part of the problem, Mark. What we're trying to do is anticipate all possible avenues and have the doors available and open to your clients should you wish to use them. We understand... Attorney Schachner-If we make an application of that, you're prepared to, and you've talked with whomever, Wayne LaMothe... Executive Director, Mr. Martin-Wayne. Attorney Schachner-Okay, you've talked to Wayne LaMothe to see that in fact even though technically the application would had to have been referred by last Wednesday, it can now still be on the County Planning Board Agenda for Wednesday, November 9th? Executive Director, Mr. Martin-Right, he said he would consider that. He was not making any guarantee as to whether they would actually accept... Attorney Schachner-Oh, really? Executive Director, Mr. Martin-Yea, he couldn't speak for the Board but he would accept it and consider it. Attorney Dusek-But the Board I think would certainly ask the county to... Councilman Monahan-Oh yea, our Board I think would entertain... Attorney Dusek-I think what we've tried to do is, we realize what has occurred here and I think the town people have done everything they can do to try to arrange for an expeditious handling of the matter, you know, always of course trying to stay within the confines of the law as we understand it. Councilman Monahan-When was that, if the Zoning, well, the Zoning Board is going to meet November 10th anyway so that will be advertised. But if we're going to advertise Planning Board for site plan very quickly after that, that advertisement will have to hit the paper by, what date do you think? Attorney Dusek-You need five days notice for them too... Councilman Monahan-Either the same day or the next day. Attorney Dusek-I suggested to Jim that there's certainly no problem, here again, should the applicant desire to pursue this avenue, there's no problem with overlapping notices and you know, having one meeting right after the other. Executive Director, Mr. Martin-I guess what we're saying in terms of a variance application or site plan application, we can accept it up through the morning of Monday to meet the County requirements. After that, then we're automatically into December... . Attorney Dusek-Well, the only, the applicant has to make a decision even sooner then that if they want get on before the lOth. You need five days notice, if you choose to take advantage of the Zoning Board of Appeals meeting, you have to meet a five day notice requirement for the paper plus... Attorney Schachner-Saturday is November 5th. Attorney Dusek-But you also need to get it a couple of days ahead of that so it's advertised. Executive Director, Mr. Martin-Yea, we have to get it to the Post Star. Attorney Dusek-Right, so you only have a day or two to make a decision on that. Executive Director, Mr. Martin-And there's obviously the regular scheduled meetings of the month, Planning Board is the 15th and the Zoning Board is the 16th and then there's another meeting in the last week of November because of the holiday. Attorney Dusek -Yea, I should mention, the time restrictions that are on because we're trying to set it up for you in this fashion. Iffor some reason you felt that the 10th was not appropriate, as I understand the 14th is also available, the Zoning Board of Appeals. Executive Director, Mr. Martin-The 14th is available and the regular meeting of the 16th. Attorney Dusek-Right. We just thought if you did want to take advantage of it, you would want to get to one just as quickly as possible and then we felt in the process, nothing was harmed in terms of trying to set up for the 10th because Dr. and Mrs. Evans... Executive Director, Mr. Martin-Again, the County review is required and that can't occur after this coming Monday. Attorney Dusek-Oh, that's true too. Councilman Monahan-Yea, and really the way we talked, we really should have it up there by Friday noon. Executive Director, Mr. Martin-Right. Attorney Schachner-Is that what Wayne LaMothe said, if we're going to review this on Wednesday the 9th, we'll need it by Monday the 7th? Executive Director, Mr. Martin-That's correct for any chance at all. Councilman Monahan-Yea, but he really was more comfortable if he could have it by Friday because he said sometimes the Board likes to have the weekend to go out and do their work. So, you know, he said he would try with the Monday, as I understood your conversation Jim, he would feel more comfortable with the Board going along with it if he could have it by Friday noon. Executive Director, Mr. Martin-See, I don't know how their internal process works, whether they just get the applications in and distribute them to the Board members and then do a staff review or if they do that prior to... Councilman Monahan-But he mentioned that the Board would like to have their paperwork for that weekend, right, correctly, before the Board meeting? Executive Director, Mr. Martin-That's correct. Councilman Monahan-So, probably Friday is a better day to shoot for then Monday. Attorney Schachner-Is it fair to summarize your opinion Paul as under the original application, what I keep calling the original application, you don't view that one as the ZBA having the discretion to decide no variance is required? Attorney Dusek-Well, I can't make the decision for the ZBA, I guess we should be careful about that, that's up to them to decide. But doing the mathematics, it seems to me in reading the laws... Attorney Schachner-... because of the overhang issue? Attorney Dusek-Right, I just don't see how they're going to get by that very easily because you know certainly. . . Attorney Schachner-So, that's why you view alot more discretion on the quote, unquote revised application? Attorney Dusek-Right. Attorney Schachner-Alright, I understand all the issues here. Any questions? Any questions anybody has of us? Thanks for taking us first. Mrs. Cheryl Evans- I just want to be fair on this. So, they're going to be, possibly will be submitting another plan by Friday? Attorney Dusek-Well, we don't know but that's an opportunity they have. Mrs. Evans-Because we need some consideration in regards to time to figure out exactly what he's doing. We want to be fair as fair because if there's a new plan, that's fine, it's okay but right now the plan that he has submitted it's, I mean the whole, we're just representing basically Cleverdale and it's quite... nobody knew about what was going on. So, I want to be able to inform them somehow of what exactly is going on and I need some time to get things in the mail, phone calls because I'm basically representing Cleverdale and it's a really big scale with what we're dealing with. Attorney Dusek-Well, I think it's safe to say that if there's going to be a meeting, first of all, you would know of course the meeting that's scheduled with the ZBA because it's your application. I think Mr. Martin can confirm by tomorrow as to the exact time and date or is that already confirmed? Executive Director, Mr. Martin-I already called your husband today at work. Attorney Dusek-So, you know that much already. So, you know there's going to be a meeting then. As far as new plans are concerned and meetings at which they will be addressed, there again you would have at least seven days notice because it's going to take two days to probably get into the paper, five days advertisement. So, you would have at least that much notice as to that and I'm sure if the applicant chose to go that way, I can't believe he would have any problem with Mr. Martin letting you know when it was filed, if that was what happens. So, you'll have at least that much time to take a look at it from your end. Mrs. Evans-Okay, I just want to give everybody the right... Attorney Schachner-Along those lines, I would be very much enlightened if the appellant could some how define what the meaning of the statement is, I'm here representing Cleverdale. It's my understanding Cleverdale is a geographical area, a physical real property if you will. I guess, I'll say on the record I'm here representing John Brock, the owner of the Mooring Post Marina. I'd sure like to know what the appellant means by, I'm representing Cleverdale. Mrs. Evans-I'm just here... What, I have to be a lawyer to... Attorney Schachner-No, not at all, I just, I don't know what that means. You represent land? You represent people? Councilman Monahan-Homeowners in that area. Mrs. Evans-Yea, I represent the homeowners in that area because we're all affected by this building. Attorney Schachner-How many? Mrs. Evans-Pretty much the majority of Cleverdale. Attorney Schachner-Rough number, how many? Mrs. Evans-I really don't know. There's over a hundred homes and I bet eighty percent. Attorney Schachner-You bet eighty percent of a hundred homes? And you actually formerly represent these? Mrs. Evans-I'm not here on court in front of you so please back off. Attorney Schachner-I'd like to know, if it's fair to ask. If you don't want to answer, you don't answer. My question is, do you formerly represent this eighty percent of a hundred homes? Supervisor Champagne-Mark, I'm going to ask you to hold those questions at this point. Attorney Schachner-Okay, that's fine. Supervisor Champagne-She's here just as an observer, she made a couple of questions and likely so, we tried to answer those the best we can. Attorney Schachner-Good, thanks. Supervisor Champagne-Okay? Attorney Schachner-Sure. Supervisor Champagne-Anything else? Councilman Caimano-I have one more issue regarding this for the Board and that's the fact that we have a, we have a real and potential legal problem that's in front of us. I just want to know, okay, I'll wait until later. I'll wait until later. I guess I don't want to talk about whose going to represent us. Supervisor Champagne-Anything else? Okay, let's move into our discussion then... Attorney Schachner-Is that going to be open to the public? Councilman Caimano-What's that? Attorney Schachner-When you wait until later, is that going to be about Mooring Post at the public portion of the meeting? I mean, I'll wait around. Councilman Caimano-It's not going to be about Mooring Post. I want to, I'll be very honest with you, I want to find out whose representing who and where on potential litigation and that would probably be a part of Executive Session or do you want to talk about it now? Attorney Dusek-I can tell you, I've obviously given this some thought already because I knew, you know, I can see the handwriting on the wall myself. It's not unusual for a Town Attorney to represent obviously all of the agencies in town including the Zoning Board of Appeals and there's been some interesting cases in terms of even DEC lawyers, I think. Mark, is it DEC lawyers who represent the two different...? Attorney Schachner-Yea, sometimes. Attorney Dusek-And they get in the middle of all this stuff. In terms of how they're going to proceed, I guess, here again I hate to defer it but I think it really depends on what's going to happen in the next stages with the applicant. Depending upon the applicant's next move, will dictate on how the town proceeds and I guess we're going to have to wrestle with this issue of exactly what is my role in this whole process and how do we handle it. Councilman Caimano-Okay. Attorney Dusek-You know, that's a very delicate situation. There's timing questions, getting other attorneys if necessary. You know, we're going to have to get into that I suppose. Councilman Caimano-Okay, fair enough. RESOLUTION CALLING FOR EXECUTIVE SESSION RESOLUTION NO. 545,94 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Nick Caimano RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Regular Session and enters Executive Session to discuss matters of litigation. Duly adopted this 31st day of October, 1994, by the following vote: AYES: Mrs. Monahan, Dr. Wiswall, Mr. Caimano, Mrs. Pulver, Mr. Champagne NOES: None ABSENT: None RESOLUTION TO RECONVENE RESOLUTION NO. 546, 94 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED FOR IT'S ADOPTION SECONDED BY: Mr. Nick Caimano RESOLVED, that the Town Board of the Town of Queensbury hereby adjourns from Executive Session and enters Regular Session of the Town Board of the Town of Queensbury. Duly adopted this 31st day of October, 1994, by the following vote: AYES: Dr. Wiswall, Mr. Caimano, Mrs. Pulver, Mrs. Monahan, Mr. Champagne NOES: None ABSENT: None Town Board held Workshop on 1995 Budget. RESOLUTION REGARDING PREPARATION AND APPROVAL OF PRELIMINARY BUDGET RESOLUTION NO. 547, 1994 INTRODUCED BY: Mrs. Carol Pulver WHO MOVED ITS ADOPTION SECONDED BY: Mr. Nick Caimano RESOLVED, that this Town Board having prepared a Preliminary Budget does hereby approve as the Preliminary Budget for the Town of Queensbury and several districts therein contained for the Fiscal Year beginning on the first day of January 1995 the itemized statement of estimated revenues and expenditures hereby attached and made a part of this resolution, and BE IT FURTHER, RESOLVED, that such Preliminary Budget shall be filed in the Office of the Town Clerk where it shall be available for inspection by any interested person at all reasonable hours, and BE IT FURTHER, RESOLVED, that this Town Board shall meet at 7:00 p.rn., on the 9th day of November, 1994 at the Queensbury Activities Center for the purpose of holding a public hearing upon such Preliminary Budget, and BE IT FURTHER, RESOLVED, that the Town Clerk of the Town of Queensbury shall give notice of such public hearing in the manner provided in Section 108 of the Town Law, and that such notice shall be published and posted substantially in the following form: NOTICE OF HEARING ON PRELIMINARY BUDGET FOR THE TOWN OF QUEENSBURY FOR THE YEAR 1995 NOTICE is hereby given that the Preliminary Budget of the Town of Queensbury, County of Warren, State of New York, for the Fiscal Year beginning January 1, 1995 has been completed and filed in the Office of the Town Clerk of said Town, where it is available for inspection by any interested person at all reasonable hours. FURTHER NOTICE is hereby given that the Town Board of said Town of Queensbury will meet and review said Preliminary Budget and hold a public hearing at 7:00 p.rn., on the 9th day of November, 1994 at the Queensbury Activities Center, 531 Bay Road, Queensbury, New York, and that at such hearing any person may be heard in favor or against the Preliminary Budget as compiled, for or against any item or items therein contained. AND FURTHER NOTICE is hereby given, pursuant to Section 108 of the Town Law, that the following are proposed salaries of Town Officers in this Town: SUPERVISOR $ 47,700.00 TOWN COUNCILMAN (4) $ 10,600.00 TOWN CLERK $ 41,500.00 SUPT. OF HIGHWAYS $ 53,000.00 TOWN JUSTICES (2) $ 27,000.00 Duly adopted this 31st day of October, 1994, by the following vote: AYES Mrs. Monahan, Dr. Wiswall, Mr. Caimano, Mrs. Pulver, Mr. Champagne NOES : None ABSENT: None No further action was taken. On motion, the meeting was adjourned. RESPECTFULLY SUBMITTED, DARLEEN M. DOUGHER TOWN CLERK-QUEENSBURY