2008.01.16
(Queensbury ZBA Meeting 01/16/08)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
JANUARY 16,2008
INDEX
Area Variance No. 42-2007 Morgan Vittengl 1.
Tax Map No. 289.17-1-48
Notice of Appeal No. 11-2007 Robert & Victoria Glandon 5.
Tax Map No. 239.7-1-14
Area Variance No. 1-2008 Brian McCall 38.
Tax Map No. 302.08-1-39, 38
Sign Variance No. 2-2008 Comfort Suites Hotel/George Stark 53.
Tax Map No. 288.8-1-5.2
Area Variance No. 3-2008 Frederick W. & Alice D. Schmalkuche 58.
T ax Map No. 226.19-1-95
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.
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(Queensbury ZBA Meeting 01/16/08)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
JANUARY 16,2008
7:00 P.M.
MEMBERS PRESENT
CHARLES MC NULTY, CHAIRMAN
JAMES UNDERWOOD, SECRETARY
CHARLES ABBATE
ALLAN BRYANT
RICHARD GARRAND
JOYCE HUNT
ROY URRICO
ZONING ADMINISTRATOR-CRAIG BROWN
STENOGRAPHER-MARIA GAGLIARDI
MR. MC NULTY-Good evening, ladies and gentlemen. I'll call to order this meeting of
the Town of Queensbury Zoning Board of Appeals, January 16,2008. First off, let me do
a quick review of our procedures in general. For each case, I'll call the application by
name and number. The secretary will read in the pertinent parts of the application, Staff
Notes and Warren County Planning Board decision if applicable. The applicant then will
be invited to the table and be asked to provide any information that they wish to add to
their application. The Board, then, will ask question of the applicant. Following that,
we'll open the public hearing. I'd caution that the public hearing is not a vote. It's a way
to gather and understand information about concerns, real or perceived, and it's a way to
gather information, insight in general, about the issue at hand. It should function to help
the Board members make a wise, informed decision, but it does not make the decision
for the Board members. As always, we'll have a five minute limit on each speaker. So
that basically says tell us everything you want us to know in five minutes. A speaker may
speak again if, after listening to the other speakers, the speaker believes they have new
information to present. Following that, we'll read correspondence into the record. Then
the applicant will have an opportunity to react and respond to the public comment and
Board members will discuss the variance request with the applicant. Following that, the
Board members will be polled to explain their positions on the application, and then we'll
close the public hearing, unless there's reason to leave it open if it looks like the
application will be continued to another meeting, and finally we'll have a motion to
approve or disapprove or table and a vote.
ADMINISTRATIVE ITEM:
AREA VARIANCE NO. 42-2007 SEQRA TYPE II MORGAN VITTENGL OWNER(S):
MORGAN VITTENGL ZONING: WR-1A LOCATION: 155 BIRDSALL ROAD
APPLICANT HAS CONSTRUCTED A 168 SQ. FT. CONNECTION (ADDITION)
BETWEEN THE HOUSE AND GARAGE. RELIEF REQUESTED FROM SIDE YARD
SETBACK REQUIREMENTS AND FLOOR AREA RATIO REQUIREMENTS.
ADDITIONALLY, RELIEF REQUESTED FOR EXPANSION OF A NONCONFORMING
STRUCTURE. CROSS REF.: BP 97-247 GARAGE WARREN COUNTY PLANNING:
N/A LOT SIZE: 0.29 ACRES TAX MAP NO. 289.17-1-48 SECTION: 179-4-030
MR. MC NULTY-The first item on the agenda is an application for Morgan Vittengl, Area
Variance No. 42-2007. Mr. Secretary, do we have anything to read into the record for
that?
MR. UNDERWOOD-Yes. I will.
MR. MC NULTY-Okay.
MR. UNDERWOOD-I'm going to read Staff Notes in. That pretty much explains it.
STAFF INPUT
Notes from Staff, Area Variance No. 42-2007, Morgan Vittengl, Meeting Date: June 27,
2007 "Project Location: 155 Birdsall Road
NOTE: This application has been tabled for further information four times in 2007; 6/20,
7/25, 9/19, and most recently on 11/21 with a return date of Jan 16, 2008. Staff has met
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with the applicant, most recently on December 12, 2007. To date, no new information
has been submitted.
Description of Proposed Project: The Applicant has constructed a 168 sf connector
addition between the existing home and garage on the subject property.
Relief Required:
Applicant requests 6.46 feet of relief from the 15 foot minimum side setback requirement
of the WR-1A zone. Additionally, the applicant seeks 183 sf of Floor Area Ratio relief.
The addition creates a 23.42% FAR condition on the property. Further, the applicant
seeks relief for the expansion of a non conforming structure as the existing home
violates the current minimum setback requirements.
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 addition and have an enclosed
passage way between house and garage.
2. Feasible alternatives:
Construction of an addition that meets the setbacks, appears possible. Such addition
may be smaller or require relocation of the septic tank, but possible.
3. Is this relief substantial relative to the ordinance:
6.46 feet of relief against the 15 foot minimum requirement (43%) may be interpreted as
moderate to substantial when viewed against the Town Zoning requirements. A 23.42%
FAR versus the 22% requirement may be interpreted as minimal to moderate.
4. Effects on the neighborhood or community:
No letters of support or opposition were submitted with the application.
5. Is this difficulty self-created?
The difficulty in this proposal could be interpreted as self created.
Parcel History (construction/site plan/variance, etc.):
Previously, the applicant had constructed a smaller enclosed porch area at the garage
door area between the garage and home. This work was performed without a building
permit and without an area variance. We informed the applicant of the need for both
approvals and ultimately the applicant removed the enclosure.
A V 5-1996 Setback relief for Single Family Dwelling and garage approved 6/19/96
A V 9-1998 Additional setback relief after A V 5-1995 approved 4/22/98
Staff comments:
The addition does not encroach any further into the property line setback area than the
previously approved house and garage, which were granted an Area Variance and an
additional Area Variance after construction. Has the area above the garage been
finished as living space that might further affect the FAR calculation? Are there plans to
do so? If so, what assurances can be provided that proper approvals will be sought prior
to performing the work?
SEQR Status:
Type II"
MR. UNDERWOOD-We did receive a letter today from their attorneys, and I'll read that
into the record. RE: Morgan Vittengl, Area Variance No. 42-2007, and again, it's 155
Birdsall Road. "Dear Craig: As you are aware, on December 12, 2007 you met with Jon
Lapper and Morgan Vittengl to discuss the application. We are in receipt of the staff
notes relative to this application being heard on January 16, 2008. However, at that
meeting, it was left that you would discuss with Dave Hatin the possibility of making
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certain changes and whether or not that would remove the area above the garage from
the living space calculation. To date we have not heard a response, and as a result we
have not yet been able to make a resubmission. If you would kindly provide us with a
response, we would pass it along to our clients so that he can make the revisions
required. Your prompt attention is appreciated. Sincerely, Bartlett, Pontiff, Stewart &
Rhodes, P.C. Stefanie DiLallo Bitter" That's it.
MR. MC NULTY-Okay. Is there anybody here representing the applicant in this case
tonight? Okay. That's what I suspected. Craig, you've talked with them. Do you want
to bring us up to date?
MR. BROWN-Yes. I can confirm everything that was in that letter. I actually had a
telephone conversation with one of the attorneys involved, Stephanie Bitter, I think it was
today. It could have been yesterday. There was some confusion. They thought I was
going to check with Dave on Building Code requirements. I thought they were. Neither
one of us did, until this letter came in. I followed up with Dave, and I need to reduce all
the findings to writing and get it to them so they know exactly what we're going to count a
Floor Area Ratio. They need to contact Dave and deal with a bunch of other Building
Code issues for fire separation between structures and garages, but that doesn't have
anything to do with this variance request. So, bottom line, I need to get them a letter that
tells them what they need to do or what variance they need to pursue. They need to get
that to you, so you can go forward with the variance.
MR. MC NULTY-Okay.
MR. BRYANT-I have a question, Mr. Chairman.
MR. MC NULTY-Yes.
MR. BRYANT-With that in mind, I mean, this has been going on for seven months and
five visits to this Board, and actually a couple of times there was a no show. Isn't this
just another stalling tactic?
MR. BROWN-I don't think that it is. Obviously, you know, tabling is always at the
discretion of the Board. You guys can do that. I just wanted to let you know that the
letter that you got from the applicant's agent, I can confirm that we did have those
conversations, and there was confusion over who was going to follow up. I did the follow
up. I need to get them another letter. So, there's nothing intentional. I don't believe
there is.
MR. BRYANT-So it's taken seven months to come to this point where they're having now
discussions? Is this discussions for let's make a deal?
MR. BROWN-I don't have an answer to that.
MR. GARRAND-I've got a question.
MR. MC NULTY-Yes.
MR. GARRAND-Yes, Craig, have we been out there to do an accurate Floor Area Ratio
calculation at all?
MR. BROWN-Have we?
MR. GARRAND-Yes.
MR. BROWN-No, that's incumbent on the applicant to give us that accurate information,
and that's what we've asked for, and they have the plans, and that's all going to be
included in the letter that I need to get them.
MR. GARRAND-Okay. Are you going to independently go out there and verify this?
MR. BROWN-No, we typically don't do that. If we, and if this Board chooses to request
that the applicant provide a stamped set of plans for a surveyor or architect, that's going
to be the person who's going to certify that it's accurate. They're the licensed individual,
you know, licensed to do that kind of work. We're not surveyors or engineers. We don't
have the expertise to go and do that. Sure we can stretch a tape measure, but when it
comes to certifying the accuracy, you want to leave that to a professional to do that.
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MR. GARRAND-Okay. I'd feel a lot more comfortable if you or Dave Hatin had gone out
there and verified, you know, the area above the garage, is that living space. I mean,
what are we actually dealing with?
MR. BROWN-I've absolutely been to the building. I've inspected the interior, I know
what's there. I know what's not supposed to be there. I didn't do any measurements.
We have the floor plans that they've submitted for the building permit application. I'm
proceeding along the assumption, with the assumption that they've built according to the
plans ad the dimensions that were on those plans, but I didn't verify it with a tape
measure, but I can tell you that they have finished that area above the garage to the level
where I would call it living space, and they need to either remove certain components,
insulation, wiring, wall board lights, heating, all those things need to come out, or they
need to pursue the Area Variance for the additional floor area. So that's where we are.
They just haven't decided what they want to do yet.
MR. GARRAND-Thank you.
MR. URRICO-Craig, what was different about the last meeting as opposed to the
previous times we had asked for information from them?
MR. BROWN-I don't think anything.
MR. URRICO-Okay. They didn't get anymore information?
MR. BROWN-We had a brief meeting, and we discussed what I thought was living
space. There was a question of who was going to follow up with Dave who enforces the
Building Code as to what constitutes living space per him and the Building Code, and
that's what I referenced earlier.
MR. URRICO-Did they have that information before that last meeting?
MR. BROWN-No.
MR. MC NULTY-Any other questions from the Board? Comments? It all comes down to
whether we want to table it or not.
MR. BRYANT-Mr. Chairman, I have a motion.
MOTION TO DENY AREA VARIANCE NO. 42-2007 MORGAN VITTENGL, Introduced
by Allan Bryant who moved for its adoption, seconded by Charles Abbate:
155 Birdsall Road. This denial is based upon the following facts contained in the record
and the evidence relied upon in reaching my motion to deny. Background. The
appellant has constructed a 168 square foot connection or addition between the house
and the garage. Relief requested from side yard setback requirements and floor area
ratio requirement. Additional relief requested for expansion of a nonconforming
structure. The records will show that the appellant is seeking an after the fact variance.
Additionally, it should be noted that this property is nonconforming. In addition, Mr.
Vittengl, ignoring the invitations of the Zoning Board of Appeals to present his case, his
delaying tactics have denied this Board an opportunity to ask critical questions. The
appellant's tactic of delay has allowed him to enjoy the unlawful fruits of his labor.
Specifically over the past seven months there have been four motions to table, in
addition to two instances where neither the appellant, nor his attorney, appeared. This
evening is another example of the appellant's delaying tactic by ignoring, again, another
invitation to appear before the Board. For the record, a motion to table on Wednesday,
June 20, 2007 to August 15, 2007 with a condition that the appellant is to provide
information no later than 4:30 p.m. July 16, 2007. That never happened. Motion to table
July 25, 2007, until September 19, 2007. A motion to table September 19, 2007 to
November 21, 2007. At that particular meeting, neither the appellant nor the attorney for
the appellant were present at the meeting. A request to table by Counsel on November
8th to January 16th, and now we receive a letter dated January 14th, describing
discussions with Staff relative to this variance, seven months after the fact, and then
tonight, January 16th, again, no show by the appellant or Counsel. The appellant has
ignored ZBA requests five times to provide deadlines of additional information. My
motion to deny is based on the fact that Mr. Vittengl has had, during the period of August
15, 2007, until today, January 16, 2008, five opportunities to appear before this Board,
and on each occasion has failed to appear and justify his request for the following
variance. The burden of responsibility falls directly on the shoulders of appellant to
prove his case, not on the Zoning Board of Appeals to encourage noncompliance
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behavior. Based upon the facts I have presented, I move that Area Variance No. 42-
2007 be denied.
Duly adopted this 16th day of January, 2008, by the following vote:
MR. MC NULTY-Okay. The only other thing I think I would offer as we consider this is
noting that the attorney in this case is Stephanie Bitter and we do have communication
from her on another issue indicating that she's tied up tonight because of illness in the
family. So she cannot be here, and in the other case she also attempted to get her
cohort in the firm to show up and he, apparently, was tied up as well. So it isn't
necessarily deliberate that the attorney is not here. No other comments. Let's vote and
see what happens.
MR. BRYANT-I just want to comment on that. I mean, they're not the only two people in
the firm. It's not a two person firm. It's a large firm.
MR. MC NULTY-True. I'm just pointing out that that's the main attorney. That's why.
That's not necessarily an excuse.
MR. BRYANT-I understand, but just one more comment on the letter. This discussion
took place on December 12th. It's now January 16th, and a lot of time has gone by, and I
understand there was a miscommunication, you know, but this is an eleventh hour
attempt. Okay, and frankly five times is a little bit too much.
MR. MC NULTY-I'll agree on that part. That's stretching it some, and this doesn't
necessarily prohibit the applicant from coming back with another variance request, if they
want to.
MR. BRYANT-Exactly. If they're going to remove the living space, as Staff indicates, or
whatever they're going to do. That's fine, they come back with a new application and
then we'll hear it properly with all the details.
MR. MC NULTY-Right. Okay. All right. Maria, can we have a vote please.
AYES: Mr. Abbate, Mr. Underwood, Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Garrand,
Mr. McNulty
NOES: NONE
MR. MC NULTY-Okay. Then Area Variance No. 42-2007 is denied.
NOTICE OF APPEAL NO. 11-2007 SEQRA TYPE: N/A ROBERT & VICTORIA
GLANDON OWNER(S): RICHARD SALOMON ZONING: WR-1A LOCATION: 67
KNOX ROAD APPELLANT IS APPEALING THE ZONING ADMINISTRATOR'S
DETERMINATION OF OCTOBER 23, 2007 REGARDING SITE DEVELOPMENT
ISSUES AT 67 KNOX ROAD. CROSS REF.: BP 2006-271 SFD; BP 2004-539 SEPTIC
AL T.; BP 2006-273 DEMO SFD; BP 2005-945 DEMO WARREN COUNTY PLANNING:
N/A ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.45 ACRES TAX MAP NO.
239.7-1-14 SECTION: 179-4-020; 179-16-050
ROBERT & VICTORIA GLANDON, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 11-2007, Robert & Victoria Glandon, Meeting
Date: January 16, 2008 "Project Location: 67 Knox Road Description of Proposed
Project: Appellant is appealing to the Zoning Board of Appeals relative to an October 23,
2007 decision made by the Zoning Administrator regarding the necessity for Area
Variances for the project at 67 Knox Road.
I Staff comments: I
The filed appeal appears to address information other than what the appellant originally
inquired about and other than the October 23, 2007 Zoning Administrator decision.
The appellants, October 23, 2007 letter of inquiry addressed 5 items:
. Building Height
. Side yard setbacks
. Stop work order
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. Stormwater
. Erosion Control
The October 23, 2007 Zoning Administrator decision addressed the same 5 items.
The current appeal addresses 4 items:
. Side yard setbacks
. Building Height
. Lot Coverage
. Septic System
Following the October 23, 2007 issues please note the following;
Building Height:
Historically, building height measurements have been taken from final grade. In the
instance of the subject property, actual field measurements taken confirmed that the
height of the structure does not exceed 28 feet from final grade. The current code does
offer two methods of measurement; natural grade and final grade.
Side Yard Setbacks:
As noted in the October 23, 2007 Zoning Administrator decision, the "wing walls" are not
considered structures and are not required to meet the minimum setback requirements
for such. The concrete walls are to be considered landscaping elements and as such,
like a sidewalk or a stone wall, are not subject to setback requirements. Additionally, if
any open stairway is proposed, per 179-2-010, Definitions for Building Line: "All yard
requirements are measured to the building line, except open steps that provide access to
the ground floor or basement of the building..."
The remaining two items referenced in the appeal; Lot coverage and Septic System were
not originally identified in the appellants October 23, 2007 inquiry nor were they
commented on in the October 23,2007 Zoning Administrator determination."
MR. UNDERWOOD-I'm going to read the letter in from the Glandon's, and this letter
dates back to October 23, 2007. It's from Robert and Victoria Glandon, at 63 Knox Road
in Lake George, and again, it's RE: The Appeal for the Zoning Review of Construction at
67 Knox Road. "To Whom It May Concern: We are following up on the hearings at the
Planning Board Meeting of October 23, 2007 and on an email response received from
Craig Brown on October 23rd (attached) regarding our concerns on the improper
construction that is taking place at 67 Knox Road, Lake George. Please take this letter
as a formal appeal for a review, explanation and action by the Town of Queensbury to
address the activities that are underway at 67 Knox Road, Assembly Point, that appear
to be in substantial non-compliance with the Town's codes and ordinances. Our
property is located immediately to the South of this property and has already been
adversely affected by the lack of compliance. Based on Site Plans dated 9/12/07 and
filed with the Planning Board for the October 23, 2007, Public Hearing, it is now
confirmed (per plan details) that the structure fails to meet the codes. For this reason,
we are requesting an immediate review and correction of the situation by the Town of
Queensbury. My wife and I are appealing to the Zoning Board to review the following
four major aspects of the construction that are in substantial non-compliance with the
Town of Queensbury's codes and have not been subject to variance hearing (of which
we, as adjacent property owners, should have been notified): 1. Side Yard
Encroachment: Two 20 foot long and 9 foot high wing walls, connected to the building,
are fully in the side yards on both the South and the North side of the property and come
within 8 feet of the property lines. Additionally, a major, three-level outdoor staircase is
shown in the submitted plans and is fully in the side yard next to our house. These wing
walls and stairs should be removed from the side yards. The walls were only put in place
to allow the grading to provide for the artificial measurement of building height. a. Craig
Browns October 23rd email response is that this walls are not part of the structure and
are not subject to side yard setbacks. b. These walls are an integral part of the building
and are also the structural support for a grand staircase in the side yard that is used to
access the outside deck and, as such, are clearly part of the structure and regulated by
the setback requirements. You should ask yourselves, if these were to go into the lake-
side setback requirements, would the town consider them to not be part of the structure?
2. Building is over the 28 foot limit due to a faulty interpretation of your codes. The
building should be measured from "natural grade" as indicated in the definitions of the
Zoning code (see below). I point out that, though the illustration labels the measurement
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as "finished grade", the text does not and that text overrules drawings in the regulations.
Legal precedence has shown in the development of codes and statutes that the specific
language of the definition will control over the example provided. Also, please note that
the "finished grade" is allowed to be used in an area of a cut into the natural grade and
so the drawing is correct for measuring into a cut. However, please note that the
lakeside of the house and the North side is outside of any cut into the hill and should be
measured against the natural grade. Page 8 of Queensbury Zoning BUILDING HEIGHT
- The vertical distance measured from the lowest portion of the natural grade of the
building site coverage by the building or finished grade of cut required to accommodate
the building to the highest point of the structure. The measurement is exclusive of
church spires, cupolas, chimneys, ventilators, cooling towers, mechanical equipment or
similar features customarily carried above roof level. Craig Brown, in our August phone
call (referred to in the email attachments) said the "new regulations they are working on"
would measure from Finish Grade which would let them manipulate building height......But
those are NOT in place yet Even with measurements from the artificial finished grade,
this building is bordering on (or possibly) exceeding the code. When measured from the
original natural grade, it appears to be exceeding the code on the south side and could
be between 5 or 8 feet too high on the north side of the structure. The plans submitted to
the Planning Board clearly show the following problems: On the North side clearly
shows an artificial fill from the original natural elevation of 340 up to 347 feet to provide
an artificial platform to measure the 28 foot height. Per code, this area must be
measured from the natural grade and so is approximately 7 feet too high. On the South
side, the grade has been artificially raised 3 feet (from 344 to 347) resulting in the
structure being approximately 3 feet higher than allowed. 3. Building lot coverage is
now at 30% rather than 22% allowed by code This house exceeds 6000 square feet in
size. On a 100 foot x 200 foot lot, this is 30% coverage when your code does not allow it
to exceed 22% (4400 square feet). The main part of this house has 3 floors (including
the basement with a bedroom and bath) that are 60 feet by 25 feet each for a total of
4500 square feet in the main section alone. Additionally, there is a wing to the side with
1540 square feet (it has a 35 foot by 22 foot living space, with bath, over the garage for
an additional 770 square feet and also 35 feet by 22 feet for the first floor garage and
mudroom/bath; an additional 770 square feet. Since the basement is full walk out to the
lake with major windows and entries (along with a bedroom and full bath in the
basement), this basement area must be included in the calculations. Since detached
garages are also included in floor area ratio calculations, I am assuming that the
attached garage floor area is also. Per the Queensbury Code: BUILDING FLOOR
AREA, TOTAL -- 1. The combined area of: a. All floors of the primary structure and
covered porches, as measured from the outside walls, including the basement when at
least three feet in height of one wall is exposed and the space meets the requirements
for living space as described in Section 711 and 712 of the New York State Building
Code. 4. There is no room for a legal septic system without several variances. The field
is to be located between the house and the road. Per the submitted plan, there is only
33 feet from the house to the lot line (which is about 2 feet in from the paved surface of
Knox Road). A field needs to be 20 feet from the dwelling (the garage side of the house
with a living unit above it) and 10 feet from the lot line. This leaves no real room for a
field. Also, on the house side - there will be a wall dropping about 10 feet to the level of
the garage (with a 6 foot walk-around space) so the 20 feet will be partially air and
partially a near-vertical wall for the septic field water to leach out through. Since this
home is being advertised as 4 bedrooms with one "bonus room" upstairs (where there
are 2 bedrooms and 2 baths) and a second "bonus room with a bath" over the garage, it
would appear this septic would need to handle 6 bedrooms which is a substantial field!
The Eljen system designed per the Site Plan had two 40 foot runs for 4 bedrooms and so
needs an additional 40 feet added to cover 6 bedrooms. Finally, since the location near
the road originally dropped off about 6 feet in the first 20 feet (30%), it appears this may
not be a sufficient place for a "fill" system. Section 136-10 (B) (2) indicates "Maximum
allowable existing natural ground surface slope for a built-up shall be 10%". This would
be a 2 foot drop in 20 feet. Please consider this letter as a request for a formal appeal
for a review of the code and ordinance compliance of this structure and a request that
the Zoning Board and the Town of Queensbury immediately take actions to correct the
violations which have an adverse impact to the lake, our property and the adjoining
areas. We are now requesting that the Town please respond in writing to us immediately
to let us know of your findings and the actions you will take. Regards, Robert Glandon &
Victoria Glandon" Okay. Subsequent to that letter, the Planning Board did meet and
we were provided with minutes of that. I'm not going to read those into the record, since
they've already been previously addressed, but we did receive a letter this evening, at
the eleventh hour. This is addressed to Chairman Charles McNulty of the Town of
Queensbury Zoning Board of Appeals RE: The Robert & Victoria Glandon, 67 Knox
Road Property Owner: Richard Solomon, Notice of Appeal No. 11-2007. "Dear
Chairman McNulty: Please be advised that we represent the 67 Knox Road property
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owner Richard Salomon with respect to the above captioned appeal. It has recently
come to our attention that Robert and Victoria Glandon have filed a Notice of Appeal with
respect to a determination made by the Zoning Administrator Craig Brown regarding to
the height requirements for 67 Knox Road. Although Mr. Salomon is the property owner
of record and therefore the real party in interest to this appeal, he did not receive any
notice of the determination made by Zoning Administrator Brown nor the fact that this
was appealed and placed on the December 26, 2007 agenda. It is only at this juncture,
less than one week before the Wednesday, January 16, 2008 meeting that Mr. Salomon
received any notice that anything was being brought to the Zoning Board of Appeals with
respect to his property. Due to the fact that Mr. Salomon is the real party in interest as
he is the property owner and it is his project and Building Permit which is being
appealed, it is necessary that Mr. Salomon be permitted to appear and provide a case in
defense of his project. This is akin to the well-settled rule that owners of real property
whose interests will be inequitably affected must be parties in an Article 78 proceeding
Cuyle v. Town Board of Town of Oxford, 301 AD2d 838,840 (3d Dept 2003) (Article 78
dismissed based on failure to join owner of property in question whose interests and land
use may be adversely affected by potential judgment); Manupella v. Troy City Zoning
Board of Appeals 272 AD2d 761 (3d Dept 2000) (property owner is a necessary party
because owner will be inequitably and adversely be impacted). Mr. Salomon did not
receive any notice of the underlying papers or application in this matter, and, as a
response to a FOIL request we received those papers just today, due process dictates
that Mr. Salomon be permitted adequate time to prepare his presentation to defend his
case. Due to this due process requirement, and the fact that we only today received the
actual supporting documents, we request that this appeal be tabled until the February
2008 meeting. I appreciate your time and consideration in this matter. Very truly yours,
BARTLETT, PONTIFF, STEWART & RHODES, P.C. Karla William Buettner" And that
was received today, dated January 14th. I don't know if you want to respond to that, but I
did check to see what the follow up letter was from Craig, and I think you would agree
with me that they had been cc'd information after that Planning Board meeting, I think,
was the latest that they would have received it.
MR. BROWN-The Salomon?
MR. UNDERWOOD-Salomon should have received it. It was cc'd to them.
MR. BROWN-The Zoning Board resolution from the December meeting was cc'd to
them. That's correct, and I did, before the meeting, review the list of 500 foot notification
of the hearing, and the Salomon name wasn't on there. My guess is that the previous
owner was probably notified, and the transfer of sale hadn't updated in our records. So it
happens from time to time where notice is sent to a previous property owner. So it
doesn't look like they were officially notified of the hearing, other than being provided
with a copy of the resolution from the last Zoning Board meeting.
MR. MC NULTY-Okay. So we've got several things. I guess the next thing, though, is,
are the Glandons here? Do you want to come on up to the table. Whether we decide to
eventually table this and allow the Salomons a chance to come back later, or whether we
proceed, I think we still should hear from the appellants tonight, since they are here, and
proceed through the majority of this, if there's anybody else that's here to comment, hear
from them, and then make a decision at that point what direction we want to go. Before
we get started, I would point out that this is an appeal. It's not considering a variance or
anything else to do with this project. We're not here to approve or disapprove of the
project. There's been mention of things like septic system. Septic system belongs to the
Town Board of Health, primarily, and not to this Board. As Staff has pointed out in the
notes. Properly we should consider only those things that were contained in his
determination that have been appealed, and that, at least at first glance, would seem to
settle down to the side yard setbacks and the building height issues.
MR. ABBATE-Mr. Chairman, I'm going to take exception to you, to that rule, and I'm
going to quote some law for you, when it comes to my time. So I'd like to comment when
you're done.
MR. MC NULTY-Okay. I would expect that we would hear other thoughts as we move
on, and that's what I would intend.
MR. ABBATE-Okay.
MR. MC NULTY-But at this point let's let the appellants tell us where they're at and what
they want us to know on this issue. Identify yourself first, please.
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(Queensbury ZBA Meeting 01/16/08)
MR. GLANDON-I'm Robert Glandon. This is my wife Victoria Glandon, with me here.
You read through it all, so I think you've covered the gist of it. By the way, I appreciate
you all tabling this on the December 26th meeting. That way I got to be with my
granddaughter. I do appreciate that. The October 23rd was to flesh out an August
conversation that I had, a phone conversation with Craig Brown and followed up with an
email, raising concerns, and that was not answered at any time, and so it was after the
Planning Board meeting when we got detailed plans and site plans, and they got
construction up, that I made this request to have you look at what zoning rulings, I guess,
that have been made to date. The wing walls in the side yard are a vehicle to do building
height, and so I think, I mean, we really get down to that's the main point, this building
height. The other one that I don't think we need to go into more detail on, because you
read the details, is that we're at 30% Floor Area Ratio, and that, I believe, is a zoning
determination. I know the Planning Board was not happy when they saw that on the
plans either. So I don't know who enforces 30%, but I heard you all saying that 22.4%
was considered mild to moderate. So I don't know what 30% versus 22 would be, but it's
substantial. For building height, this is actually a scaled drawing, but I want to apologize
if it's not too easy to see. This is a side view looking south. So that would be from the
Rosenburg's property. We're on the, this is from the north looking south. So this is
looking to the south, and this is where we have the greatest overbuild. The black line
down here at the bottom is the actually grade from 340, 340, 338. This is the area of the
building. The road, this is, at this point we're 60 feet from the road, and the road is up at
360, 358 right up there. So the lot drops and then flattens off, runs down to the lake at
about 320 I think it is at the lakeside, or in that neighborhood, 324 I think. What has
been built is a full walkout basement, a full second story, and then a third story with
dormers with full eight foot height on that. So if you take the grade line, the natural
grade, which is the black, and you draw your 28 foot vertical, per Code, this red dotted
line is your legal building limit. What they've done instead is put this wing wall that
radiates out at a 45 degree angle, and it's nine or ten feet high here at the building. It's
structurally part of the building, tie-rods into it, and it's poured concrete and comes out
into the 20 foot side yard within eight feet of the lot lines on both sides to do this, and the
blue line here is now the new artificial grade that they're going to put to. If you then go
from that artificial grade and measure it to the peak, you've got your 28 feet. On this
front with the dormer, when they originally measured it, it came out about 28 and a half
feet, down to this point here. So in the doorways here they've put a six inch lip. What
used to be a flat walk out has a six inch lip so that they could bring the dirt in front up six
inches to be able to get a measurement at that point to 28. I mean, that's how close
they've pushed this to get this thing up. What you end up with here is three stories.
You're seeing that if you've looked at it from the lake and I've got a picture I'll be glad to
give you here. This is the only three story house on Assembly Point. Everyone else has
stuck with two, and that's all you can get into a 28 foot limit, but this has been stretched,
and it's ended up, because of this artificial height, to get a full three stories in. Front side
of the house, then, you're looking at is two stories, with this walk out. The Code says,
and when you were reading it, I don't know if it's the pause or not, but there's a, it says
it's measured from the natural grade or finished grade of a cut. All right. So that's the
key wording there that where there's a cut you end up measuring from the cut. So if this
black line is your natural grade, then this is the legal building height on the 28 foot
vertical. If you do a cut, then you take the finished grade of the cut and you measure
your 28 foot. So with a cut, your legal building height then follows the contour and then
goes in the cut, all right, and what we've done here, what has been done here, is a build
up of a false finished grade, using walls or whatever, to get a new building height. So if
you think of this table as your lot, and you build a 28 foot house sitting on this lot, if I first
build up a 50 foot mound of dirt, I can now build my house up here, and you can build it
up by just putting walls. So there's no reason, in any of this, that uses an artificial
finished grade above natural grade. That just allows you to build a huge pimple and
build a house on top of it, and unfortunately that's what we've done here, or what has
been done next door. So you have a three story house that is at least eight feet, seven
to eight feet above legal limit on the north side. Because of the grade that was there on
the south side, which is our side, it's about three feet over height, and then the wing goes
straight back for the garage. So that even continues. So it's not just on the peak, but
then the wing back that has the bonus room over the garage. So that's the point I was
hoping to make, and it's really, any use of a finished grade that is artificial, creates an
artificial building height and is going to just give us nothing but trouble all around the
lake, and that's the only way you can get a three story house on Lake George. This is
the first three story house that I've seen on the lake, in I think probably, at least in the
Assembly Point area. Maybe they're pulling that off up in Hague or something like that,
but down here I don't think it's happening. So that, because of these walls, to build up
the artificial grade, they've put these wings into the side yard, and when they delivered
plans to the Planning Board, they showed a grand staircase that went down into the side
yard. So it's 45 feet long, and we read off the details on it. The Code allows for stairs for
9
(Queensbury ZBA Meeting 01/16/08)
access to a first floor or a basement. So I would assume that's probably something like a
Bilco hatch down into a basement or, you know, five or six steps down off your screen
porch in the side yard, but certainly not something that's 45 feet long, four to five feet
wide, with landings. So I think that what they've got, with these nine foot high walls, is a
part of the structure and certainly their stairwell is excessive for in a side yard. So I
would think both of those are encroachments that you all should look at, and then I
already addressed the building area, the Floor Area Ratio, and I assume that's for you all
to decide, and then finally, on the septic, I can understand that you would think the Town
Board does that, but somewhere in a zoning approval there's got to be a view of what the
building looks like, and what's legal, and with 30 feet, 33 feet to the lot line, and 20 feet
with this wall, there's just no way that a septic should have ever, the house shouldn't
have been sited where it is, and it shouldn't have been built as large as it is. I would
request, we would request that you all would strictly enforce your rules. I'd like to see the
roof come down. If they knock a bay out of their garage, they can get a legal septic in
there I suppose, but we live next door. We've had to jump through hoops to improve a
50 year old septic system, to replace it, and go to extra expense, weren't even allowed to
take a pumped up through a side yard because that was a side yard encroachment, and
I got that enforced on us, and then to see this go on next door, it's shocking, along with
the clear cutting that was done. I mean, this piece of property has been raped, and the
lake is detrimental. We've had more silt in our water this last year than I've ever seen.
So I think we've adversely affected our house and the lake. So if you have questions for
me.
MR. MC NULTY-Any questions from the Board?
MR. BRYANT-Mr. Chairman, I'd like to see the photographs you have.
MR. GLANDON-I've got lots. This is the main photo that shows the original natural,
somewhat natural grade. I have multiple small copies. This is a blow up of that same
area.
MR. BRYANT-I'm really interested in the view from the lake.
MR. GLANDON-View from the lake. Okay. Sorry. This was the original view from the
lake, beautiful trees. This is the new view from the lake. You're going to have to look at
it a little carefully because it's, sorry. You can see the three full stories. You can see the
wing walls on either side. That was taken in I think December, it was November or
December, but let me give you this one, too. So you've got it. This will tell you how
much was clear cut in trees. I'm sorry, I only have one copy of that one.
MR. BRYANT-I have a question for Staff. Mr. Chairman, is that okay?
MR. MC NULTY-Go ahead.
MR. BRYANT-In the past we've had situations where there was a height problem, and
they brought, you know, some soil in and made up the difference by changing the grade,
and we've done that before in our Board. What about these retaining walls? I mean,
isn't that, wouldn't that be part of the structure and not, I mean, why are we measuring
down to the wall? I'm not understanding the thought process here.
MR. BROWN-So is the question are the walls part of the structure?
MR. BRYANT-Yes.
MR. BROWN-No.
MR. BRYANT-They're not an integral part of the structure at all?
MR. BROWN-Not to consider them requiring to meet the building setback.
MR. BRYANT-What about the height requirement? I mean, if you measure down to the
wall, wouldn't that be tantamount to measuring down to an extended story or something?
MR. BROWN-Yes, I don't think anybody's represented that they've measured to the wall.
I think that what's been presented is that the wall acts to hold the fill that's in place to use
to make the measurement.
MR. BRYANT-Okay. So that is a retaining wall, though?
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(Queensbury ZBA Meeting 01/16/08)
MR. BROWN-Yes.
MR. UNDERWOOD-Because in this picture here, it clearly shows what the natural grade
would have been, and then you've increased it by putting those wing walls on there. You
totally changed the artificial grade. Just two months ago we dealt with one of these over
on Glen Lake and we denied it for the same reason, and they wanted to go down into the
ground, as you guys will recall. They were going to measure from the actual inset of
where you would enter the ground story of that building there and we denied that one.
Mrs. Hopper's place up there, you know, heading out on Pilot Knob Road, those are
previous instances that we've dealt with the same type of proposal here, but I don't
understand in this one how you can tacitly ignore the fact that that's natural grade. You
can't raise the grade up and tell me that that's, you know, by any way, shape or means
going to be not a complete alteration of the neighborhood there. I mean, every other
property, if you went up there and you walked it, or if you went down to the lakeshore
there, it clearly shows that, you know, you're asking us to totally ignore the fact that
everybody else is compliant. This one is going to be totally noncompliant. I don't
understand why you did that.
MR. ABBA TE-Mr. Chairman, may I introduce my information?
MR. MC NULTY-Yes. Before you do, Mr. Abbate, let me make just one more comment,
without trying to limit what we introduce or what we consider, but bear in mind that this is
a house that is nearly complete, and, worst case scenario for the builder is, we create
enough of a problem, he's got to make major changes to the house. Therefore,
whatever we consider in making this decision needs to stay pretty close to the guidelines
of we're dealing with an appeal, not approving the project. We don't want to take action
based on the fact that we don't like the color of the house or something else.
MR. ABBATE-I agree.
MR. MC NULTY-That being said, go ahead with whatever strikes you as pertinent.
MR. ABBATE-I agree, Mr. Chairman. However, there's more to the story than meets the
eye. I'm going to preface my remarks with the fact that I have reviewed the four pages of
the appellant's appeal and in addition to the 17 pages of the 10/23/07 Planning Board
hearings related to the same property, referred to in Mr. and Mrs. Glandon's appeal to
this Board, 11-2007, dated October the 31st. Now I'm going to offer the following
evidence and information which are relevant to the appeal before us. In New York State
Zoning Law and Practice, both Anderson and McKinney make it quite clear. Quote, the
law is cleared. Evidence relied upon by the ZBA must be introduced into the public
hearing, and that's what I intend to do. The ZBA may not rely on information gained
through interviews with public officials and the examination of records outside the
hearing room. Reliance on evidence not adducted at the hearing amounts to a denial of
a hearing and renders the actions of the record subject to annulment by a court. The
findings of the ZBA must fully disclose, and that's what I intend to do, and that's what I
intend to do this evening, all the evidence relied on by the Board in reaching a decision,
and only by full disclosure can the reviewing Board determine whether the Board's
decision is based upon facts, which are supported by evidence in the record, and
reversal on remand in the event such facts are absent or affirm, in the event the Board's
decision is supported by evidence. This need can be simply met by making the evidence
relied upon part of the record during the hearing and available to all parties, unquote.
Now, what is evidence. Well, legal scholars have stated the following, quote, in its
broadest sense, evidence includes anything that is used to determine or demonstrate the
truth of an assertion, unquote. Further, the courts have ruled that where evidence goes
no further than to present a fairly debatable issue, it will be sustained, and before I offer
evidence directly addressing the appeal before us, I would respectfully remind the ladies
and gentlemen of this Board that while it is true the ZBA is a safety valve for the
community, nonetheless we are duty bound to do substantial justice between the owner
who wishes to improve his property, and the owners of nearby property that will be
affected by the building to be erected. The construction at 67 Knox Road has one thing
in common, the appellants, members of the Planning Board, the Lake George Water
Keeper, adjacent property owners, and the public are all in agreement that nearby
properties have been adversely affected as well as the waters of Lake George. I now
offer the following evidence and information into the record, and it should be noted that
the secretary has made the Planning Board minutes of 10/23/07 a matter of record. A, in
the hearing of the Planning Board dated October 23, 2007, Mr. Seguljic, I hope I said it
right, asked Mr. Baker, quote, why was a stop work order issued for this, unquote. Mr.
Baker states, quote, the Stop Work Order, as I understand it, a Stop Work Order was
issued because Staff came to the understanding that the project should have had a
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(Queensbury ZBA Meeting 01/16/08)
Stormwater Management Permit, as per Chapter 147, and that hadn't occurred.,
unquote. In the initial communication from the appellants dated Friday, August 10, 2007,
at 11 :27 a.m., that communication, Mr. Brown expressed concerns and issues as
follows. One, height, grading and runoff, neighboring properties and other matters. Two,
on October 17, 2007, additional correspondence, four pages of typed information, was
sent from the appellant via registered mail to the Chairman of the Planning Board, Chris
Hunsinger, with a copy to Dan Stec, a copy to Craig Brown, the Zoning Administrator,
and the Secretary of the Planning Board, Gretchen Steffan, spelling out grading and
construction at 67 Knox Road, Lake George. The appellant states, quote, I am following
up on my conversation of August the 10th, now this is August the 10th 2007 at 9 a.m. I did
not receive any responses, though I asked in both the call and the email, please take this
letter as a formal request for explanation and action by the Town of Queensbury to
address the activities that are underway at 67 Knox Road. There appears to be
substantial noncompliance with Town Codes and Ordinances regarding building,
stormwater and possibly septic. Our property, located immediately to the south of this
property, has already been adversely effected by the lack of compliance, unquote. In an
email dated August 10, 2007, at 11 :26 a.m., Mr. Brown, Zoning Administrator, states,
quote, they must grade their property so water is not diverted onto neighboring property,
unquote. Mr. Brown was again aware of the problem on October 17, 2007, and was
quoted by the appellant as saying, quote, new regulations they are working on would
measure from the finished grade, which would let them manipulate building height, but
they are not in place yet, unquote. On Friday, August 10, 2007, at 11 :27, the appellant
sent an email to Craig Brown, Zoning Administrator, subject, zoning concerns regarding
67 Knox Road, construction subject, height, grading, runoff, and making it clear, quote,
we already had a great deal of dirt washed into the water, Lake George, after they back
hoed the bank to bury a water line. If you look at the lake bottom at the shore you will
see all the rocks that have been on the bottom are now covered with mud, dirt and we
have seen our drinking water has much more sediment this year than it has for the past
four years, unquote. Now, my comment is this. The appellant requested action from
both Chris Hunsinger, the Chairman of the Planning Board, and Mr. Brown, the Zoning
Administrator, to address runoff into Lake George, but again to no avail. Approximately
two months and ten days later, in an email datedOctober22.2007at3:23p.m..Mr.
Brown apologized to the appellant and communicates the following statement, quote, my
apologies for the delayed response. I apparently had mistakenly assumed that you were
aware of the pending Site Plan Review applications before the Planning Board, unquote.
Mr. Brown then states, quote, with regards to the height of the structure, that applicant
has offered an acceptable method of site grading construction to meet the maximum
height limitations, unquote. Comment, mine, the Zoning Administrator delayed a
response to the concerns of possible health, safety and welfare conditions affecting not
only the property owners, Mr. and Mrs. Glandon, from August the 10, 2007 to October
22,2007, but adjacent property owners as well. The appellants were unequivocally clear
in expressing their concerns, claiming that their property is in jeopardy due to
questionable construction activities taking place at 67 Knox Road, and initially,
interpretation by the Zoning Administrator allowing that. The question then becomes, is
it not the duty of the Zoning Administrator to take into consideration the security, safety
and health of the members of not only our community and any possible adverse impact
on Lake George as well, and to address all these concerns quickly and efficiently? On
October 23, 2007 at 10:44 a.m., the appellant sent an email to Mr. Brown as follows,
quote, you will note that the detailed letter I sent last week identifies the issues more
clearly and raises other concerns that you have not added here still need to be formally
addressed by the Town of Queensbury. There was a Stop Work Order. Since I became
aware of that, the following has occurred. One, final 60% roofing was completed. Two,
deck facing the lake was built. Three, most of the windows have been installed. Four,
north facing basement window has been cemented in with block. Five, work has been
done again in the lake, unquote. Comment, my comment, where was the Zoning
Administrator and Code Enforcement? On October 23, 2007, Mr. Brown was notified of
concerns that might adversely affect the safety, health and welfare of not only the
appellant, but adjacent property owners as well. Mr. Brown sends out an email dated
October 23,2007 at 12:14 p.m. expressing his position to the appellant. In the minutes
of the 10/23/07 Planning Board hearings, several interesting and revealing comments
directly impacting this appeal were made. I hope I pronounce it right. Mr. Seguljic said
to Stu Baker who is our Senior Planner, why was a Stop Work Order issued? Mr. Baker,
the Stop Work Order, as I understand it, a Stop Work Order was issued because Staff
came to the understanding that the project should have had a Stormwater Management
Permit, as per Chapter 147, and that hadn't occurred. Mr. Seguljic to Mr. Esposito,
quote, So you never had a Phase I stormwater permit. Can I point out a few things why I
think it should be major? You're in a CEA, that means Critical Environmental Area, and
Number Two it says if you take a 100 foot line across the center of the site and your
slope exceeds 15%, you become a major project, and in your notes yourself, you say
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(Queensbury ZBA Meeting 01/16/08)
yourself, the site, the existing slopes running from 14 to 22%, and when I drew the line
across the center of the site, you are 20%. Therefore you're a Major Project. Comment,
was Mr. Brown aware of this? Mr. Esposito, quote, Well, again, you know, when we
were there last at the property with Craig Brown and Dave Hatin. Mr. Seguljic, So you're
now doing inspections? Mr. Esposito, well, again, we were told to stop work on the site.
Mr. Seguljic, did they say to stop inspections? Mr. Esposito, that was our understanding.
Mr. Seguljic, there are a lot of issues. I'm concerned that you got a building permit, first
of all, without this being, as I understand it, you got a building permit without this being
reviewed for a stormwater permit. Is that correct? Mr. Stu Baker, Senior Planner, that's
my understanding. Mr. Seguljic, which is just wrong in the first place. This only got
caught after the fact. I think it has to be designated Major, for two reasons. One, you're
in a CEA, which I don't notice on any of your plans. Mr. Sipp, I don't know, and Mr. Sipp
is here this evening, Mr. Sipp, I don't know how they figure the FAR, Floor Area Ratio,
but it's got to be up in the 30% area, because in the basement there's a living space that
opens out into the lawn. It gets to a point where all of a sudden we're involved in here for
somebody else's, their mistakes, and I'm getting sick of it. Somebody's got to get a
handle on this whole thing here. If this hadn't occurred, we would never had this house
built. Mr. Sipp then expresses his dismay by stating, Mr. Sipp, quote, I'm just totally
appalled at what we're getting ourselves into without any, I'm just appalled at the lack of
forethought here in getting this done. Mr. Seguljic, have you done any test pits on site?
Mr. Esposito, well, and goes into long explanation, Mr. Ford, so the answer to that
question is, no. Mr. Seguljic, How big is this house, area wise? Mr. Esposito,
approximately 1600 feet with a garage and it's 3100 total. Well, the attic's over the
garage, but it's consistent with the original building plans. Mr. Seguljic, how tall is the
ceiling in the attic? Mr. Salomon, it's a second floor living space. There is no attic. Mr.
Ford, over the garage? That's an attic. Mr. Esposito, it's a full height storage area to the
peak. The ridge is 20 feet, it's an eight foot high full height. Mr. Seguljic also expresses
a position, similar to Mr. Sipp, stating, I am appalled at our Building Department
personally, unquote. Mr. Navitsky, I hope I pronounced that right, the Lake George
Water Keeper, makes damaging statement. Mr. Navitsky, quote, photographs were
forwarded to the Town of Queensbury on May 25, 2007 regarding the compliance with
stormwater regulations. At that time, I was informed the Town that they had no problem
with the proposed construction and clearing limits and the stormwater plan was covered,
unquote. Mr. Navitsky continues. The stormwater plan and report submitted does not
comply with the Town Code. There's been no calculation provided regarding the
reduction of flow volumes as required by the Town Stormwater Management Ordinance.
The plan does direct runoff onto adjoining properties, creating erosive conditions, 136-9B
states that no sewage disposal fill may be placed within 200 feet of the shoreline of Lake
George. Complete failure to properly address erosion and sediment control and
development of site which cannot provide adequate wastewater treatment, unquote. Mr.
Glandon, the appellant, testifies and sets out on a very lengthy narrative of his concerns,
again raising basically the same issues he raised with Mr. Brown back in August of 2007.
Mr. Baker reads into the record citizens concerns, quote, earlier this summer, trucks
began carving the hillside at an extraordinary pace and the removal of tons of soil
caused me to contact the Town with my concerns and photograph the site, unquote. Mr.
Seguljic substantially states, quote, I think you weren't given direction. Oversight has
been pretty lax and I think a lot of things have just been pushed off, unquote. Mr. Ford
asks Mr. Esposito, so there were no modifications, and this is crucial, so there were no
modifications in the original structural designs? Mr. Esposito responds no. It's always
been a walkout basement, consulted with the Building Department and said, well, do you
want to revert this to windows and have not walk out to me it was a basement, unquote.
Mr. Ford, quote, says, well, let's talk about being cute. You're talking about a structure or
a bedroom now we find with a bath over the garage, and you refer to it as storage,
unquote. Mr. Salomon, quote, no, it's a bonus room, sir, it's a bonus room, unquote.
The appellants pleas for written responses as well as requesting return calls from Mr.
Brown and others, concerning the activities at 67 Knox Road is best described by a
Planning Board member as follows, quote, this whole mess is appalling. I think you
weren't given direction, and direction, oversight has been lax, and I think a lot of things
have just been pushed off, unquote. For the record, it's worth reiterating that the
appellant's four page appeal in which the appellants claim substantially the following,
One, based on the Site Plans, 9/12/07, 9/12/07, and filed with the Planning Board for
October 23, 2007, is now confirmed per plan details that the structure fails to meet the
Codes. Two, the four major aspects of the construction are in substantial non-
compliance with the Town of Queensbury Codes and have not been subject to a
variance hearing, of which we, as adjacent property owners, should have been notified.
Three, side yard encroachment, two 20 foot long and 9 foot high wing walls connected to
the building are fully in side yards on both south and north side of the property, and come
with eight feet of the property lines. Additionally, a major three level outdoor staircase is
shown in the submitted plans and is fully in the side yard next to our house. These wing
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(Queensbury ZBA Meeting 01/16/08)
walls and stairs should be removed from the side yards. The walls were only put in place
to allow the grading to provide for the artificial measurement of the building height. Four,
the October 23rd email from Mr. Brown is that these walls are not part of the structure,
and are not subject to side yard setbacks. These walls are an integral part of the
building and are also the structural support for a grand staircase in the side yard that is
used to access the outside deck, and as such are clearly part of the structure and
regulated by setback requirements. My comment, a rational person would find it difficult
to disagree with the appellant's position. In the event the Zoning Administrator argues
differently, then the Codes are ambiguous and favor the appellant. The appellants
describe the structure at 67 Knox Road as over 28 feet limit due to a faulty interpretation
of Codes. The appellants argue that the building should be measured from a natural
grade, as indicated in the definition of Zoning Code. Five, my comment, Page Eight of
the Queensbury Zoning Code addresses building heights and states as follows, quote,
the vertical distance measured from the lowest portion of natural grade of the building or
finished grade of cut required to accommodate the building to the highest point of
structure. The measurement is exclusive of church spires, cupolas, chimneys,
ventilators, cooling towers, mechanical equipment or similar features customarily carried
above roof level, unquote. It should also be noted that the appellants made reference to
telephone calls in August of 2007 to Mr. Brown who states, quote, new regulations they
are working on would, unquote, would measure from finish grade which would let them
manipulate building height but those are not in place yet. In response, the appellants
argue, quote, even so, it would appear that even using regulations not in place yet when
measured from the original natural grade, appear to be exceeding the code on the south
side from five and eight feet too high on the north side of the structure, unquote. The
appellants argue that the plans submitted to the Planning Board also show, one, artificial
fill on the north side from the original natural elevation of 340 up to 347 feet, and would
provide an artificial platform to measure the 28 height per code. On the south side, the
grade has also been raised three feet, from 344 to 347, which now results in the
structure being approximately three feet higher than allowed. Two, based on the
information submitted to the Planning Board and the comments made by Planning Board
members, it would appear that the building lot coverage is now at approximately 30%
rather than the 22% allowed. Three, it should be noted that the testimony given by Mr.
Esposito during the hearing answered the question from Mr. Seguljic, how big is this
house? Mr. Esposito responded, it's 3,100 feet total, unquote. The appellants claim the
house exceeds 6,000 square feet in size, and that a lot of 100 by 200 does not allow it to
exceed 22%, which is approximately 4400 square feet. The appellants further quote the
Queensbury Building Code Floor Area code as follows, quote, the combination of all
floors of the primary structure and covered porches, as measured from outside walls,
including the basement when at least three feet in height of one wall is exposed and the
space meets the requirements for living space as described in Section 711 and 712 of
the New York Building Code, unquote. In paragraph four of the appeal, the appellant
claims there is no room for a legal septic system without variances. Based on the fact
this home is being advertised as a four bedroom with one bonus room upstairs where
there are two bedrooms and two baths and a second bonus room, and that boggles my
mind, bonus rooms, with a bath over the garage, the septic system would need to handle
six bedrooms which are substantial. The appellant asserts that the Eljen system
described per the site plan had a two, 40 foot runs for four bedrooms and so needs an
additional 40 feet added to cover six bedrooms. Mr. Stu Bakers remarks contained in the
10/23/07 Planning Board minutes also raise issues of timing when he stated, quote, Staff
came to the understanding that the project should have had a Stormwater Management
Permit as per 147 and that hadn't happened. In summary, Mr. Seguljic stated, I'm
concerned that you got a building permit first of all. You got a building permit without this
being reviewed for stormwater permit, which is wrong in the first place. This only got
caught after the fact. You're in a CEA and I didn't notice it in the first place. I am
appalled at our Building Department personally. I think a lot of things have just been
pushed aside, unquote. Mr. Sipp, quote, who's here this evening, I don't know how they
figure the FAR but it's going to be up to 30% because there's living space that opens
onto the yard. I'm getting a little sick of this. I'm just totally appalled. Mr. Ford, quote, so
there were no modifications in the original structure designs, now we find a bath over the
garage and you refer to it as storage, unquote. Mr. Navitsky, I hope I'm right on that,
okay, he's here this evening, the Lake George Water Keeper, quote, photographs were
forwarded to the Town of Queensbury on May 25, 2007 regarding the compliance with
stormwater regulation. At that time I was informed by the Town they had no problems
with the proposed construction and stormwater plan. Mr. Stu Baker stated, quote, Staff
came to an understanding. Certainly that is correct. However, only after pressure from
the appellant, the public, the Lake George Waterkeeper and others criticizing the
intention of the Zoning Administrator to properly address this entire fiasco. Thank you
very much, Mr. Chairman, for the opportunity to express myself.
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MR. MC NULTY-Okay. Any other comments from the Board at this point, or questions of
the appellant? Well, then following our tradition of looking for public comment, I'll open
the public hearing and ask if there's anybody that wishes to make a comment on this. I
have a couple of hands.
PUBLIC HEARING OPENED
MR. BROWN-Mr. Chairman, just for the record, I believe Ms. Buettner is here. You
received a letter from her on behalf of Salomon. Just so, I just wanted you to know that I
believe she's here tonight.
MR. MC NULTY-Okay.
TOM WEST
MR. WEST-Thank you, Mr. Chairman. My name is Tom West and I'm an attorney. I
represent Dr. Stuart Rosenburg, as well as Dr. Roseburg's wife, Bonnie Roseburg, who's
seated over there. Bonnie Roseburg owns the property immediately to the north, and
what I'm going to try and do is add a little more evidence. I appreciate a gentleman who
appreciates evidence, and that's what this is all about.
MR. ABBATE-Do you challenge anything I've said, Counselor?
MR. WEST-Not at all. Not at all. I think you did an excellent job. Let me just give you a
little more background. This is an unfortunate example of how bad development can get,
and I'm glad that there are people here who are willing to pay attention to what we have
to say. Dr. Rosenburg and his wife Bonnie bought this property over 20 years ago. They
bought it from the Bowmans. At that time, and for many, many years, probably decades
before, there was a shared driveway that went across this lot into the Rosenburg
property. It was something that the Bowmans had paved. It was something that the
Rosenburgs believed that they were acquiring rights to when they bought this property.
The map that was recorded in the Warren Clerk's Office included that driveway, and the
Rosenburgs thought that they had the right to use that. When Mr. Salomon bought this
property, and he has other partners, but I'll leave their names out of it, we reached out to
them, through their attorney, and the law firm, who apparently is here, but has difficulty
making these meetings, and I was told point blank, in direct conversations and emails,
that we would work something out, they would have a shared driveway agreement.
Those conversations went all the way up to this Spring, until Dr. Rosenburg drove up one
weekend to find that the bulldozers had taken the driveway out and put large stones,
blocking any access. Now fortunately he has another very steep driveway, but that gave
us an idea of what we were dealing with. Almost immediately thereafter, on behalf of the
Rosenburgs, I started making outreach to the Building Department that would have been
in June, early July. I know I visited their office on three occasions. I wrote several
letters, one in July and another one in August, August 21st, addressing some of the very
same issues that Mr. Glandon has raised in this appeal, and I can tell you, to date, I
haven't had a formal response. I wrote Mr. Brown at one point about a month ago asking
for a response to my letter so we could take an appeal and be here as appellants, joined
in this appeal. Finally, I think it was a couple of weeks ago, I called him up and said just
please send me something. He sent me a copy of the email that he had sent to Mr.
Glandon, last week, which presumably has started our 60 day clock to take an appeal.
We are likely going to be taking an appeal, but I want to get to some procedural issues.
I'd like to, just for the benefit of the Board here, give you copies of my letters because
they do address some of the very same issues. They also document, how early, I'll
present them to the Secretary, Mr. Underwood, how early in the process we were
bringing these to the attention of the Building Department, and let me tell you, I have
occasion, we live just north of the Rosenburgs. So I have occasion to see this property
many times during the summer, and we watched it being framed, and during the course
of the summer it was being framed, and we wanted to bring these issues to the attention
of the Building Department at the time they were being framed. Mr. McNulty, I
appreciate your concern that the house is closed in and that there's been substantial
construction, but from our perspective, we tried to get these issues addressed, right at
the beginning while the house was being framed, so that modifications could be made to
the design to deal with this issue, and we couldn't get anybody to pay attention. I also
have some photographs that I would like to present. The first one, the first two are very
similar, but what they show is the side of the house during construction, that the
Rosenburg's view. That's Bonnie there, and that was before a lot of the fill was put in, up
against the wing wall. The wing wall is on the right hand side of this. You'll see it is a
substantial poured concrete structure that is connected to the house with rebar. These
photographs I'd like to present to the Secretary. The next photograph is sort of in the
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middle of construction. I'm sorry, the next photograph, is during the middle of
construction, and what you'll see is that they had put a board over the window that was
planned to be one of the windows for the bedroom in the basement, and they put a
temporary board over there to block up the space so that they could backfill up against it.
About that time, we started measuring off, based upon the lines on the building, and we
figured out what kind of height violations were in existence here. We also looked at the
front of the building, and the front of the building was framed with two by fours all the way
down to the slab. All right, and there were going to be windows or a walk out door on
either side of this basement living space. We took a look at the measurement, and as
my August 21st letter indicates, we believe that there was about 29 feet of height from the
roofline on the gable down to the bottom of two by fours, meaning the highest that they
could fix. Well, what was happening is, as we brought these issues to the attention of
the Building Department, somehow that information was filtered back to the owners, who
didn't know anything about this appeal, and then the owners were taking corrective
action. Well, what did they do? They replaced the board that blocks up the window that
you see in the one picture with concrete block. They also put concrete block, they
replaced some of the studs in the front of the house where it was going to be concrete
grade with concrete of some sort so that they could backfill up to that point. Now, let me
go back and just address some of the procedural issues, if I could. I heard, at the
beginning of this Appeal, that the Building Department is taking that the position that a
couple of the issues are not before you, including the Floor Area Ratio, and I would hope
that that would not be the case, because it's very difficult to, as a member of the public,
or even an attorney representing members of the public, to get an issue before this
Board if you don't get a straight answer from the Building Department on an issue so that
you can take an Appeal, and you can have a well framed appeal, and that's exactly
what's happened here. So I would hope that whatever you decide, that you decide that
at least issues are squarely before you, the building height issue, which was the subject
matter of Mr. Glandon's inquiries from Day One, and which Mr. Brown specifically
addressed in his email denying it, and I think the Floor Area Ratio issue should be before
this Board as well, based upon all the evidence that's been added, based upon the fact
that the Planning Board minutes are here, and based upon the fact that Mr. Glandon
raised that. If that's not, for some reason, then I'm going to file a letter with the Building
Department asking for a determination on that issue, and if it doesn't meet the Floor Area
Ratio, we're going to take an appeal, and we do not want to take up anymore time and
prolong the appeal process, but we'll do what's necessary to get a proper record before
this Board because it's critical. Now let me just address the building height issue, and I'll
be brief on this because I know I'm close to my five minutes. In my letter, I cited some
cases, my August 21st letter, which says that basically the written law of the Code
controls. It's a very simple proposition. If you have an example given, like you have in
your Code, with a, this crude example that is reprinted in the Code, you look at the
printed language of the Code, not the example. We have essentially three terms that
appear. One is natural grade. Two is finished grade, finished grade of a cut, and then
you have finished grade in the example. If I didn't make that clear, let me go over it
again. You have three phrases, natural grade, finished grade of a cut, and then you
have finished grade in the example. The Building Height definition makes it clear that
you have to use the natural grade unless it's a cut, and that's designed to keep people
from doing what Mr. Glandon said, of building up the property, building wing walls, to
make all this artificial height so you get a structure that is more than 28 feet beyond the
natural grade. It's a very simple concept. It appears in Zoning Ordinances throughout
the State, and whatever you've done in the past that bases a decision upon finished
grade and allows fills, those mistakes don't justify making another mistake. You have to
set it right. The way you look at the example that's given in the Code, which says
finished grade is to refer back to the language finished grade of a cut. That example can
only be a cut area, because if there was natural grade in there, it would have said that,
and that's the way you have to properly interpret it. Now, the facts are very simple. The
members of the public have been legitimately making complaints to the Building
Department about the excessive height of this building since it first was being framed, all
right. We have not gotten any straight responses from that until the email response that
precipitated this Appeal. The Code is crystal clear, you have to base this on natural
grade. If you base it upon natural grade, Mr. Glandon has demonstrated, you've got to
take about eight feet off of this house. It's that simple. I would respectfully request that
this Board direct the Building Department to stop all work on this project, so that we don't
have anymore equities being built up against the public who have a right to have this
Code enforced properly. If you're going to give the other side time to come in and make
a presentation, you know, that's your prerogative, but we should not be prejudiced by
work continuing in the meantime. There are other very significant issues. There's
stormwater issues being addressed by the Planning Board. There's this whole septic
system that they're trying to build on a cliff. The way they cut into this property and
excavated down through Dr. Rosenburg's and Bonnie Rosenburg's driveway, they have
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a very steep driveway that's unsafe to get in and out of that place. They have filed plans
with the Building Department that show driveway arrangement going on to the
Rosenburg property that the Rosenburgs have not consented to, and they've left
themselves where they have virtually an earthen cliff between Knox Road and their
basement, and how they propose to put a compliant septic system in there, I don't know,
but we recognize that those kinds of issues have to be decided. That's being reviewed
now by the Building Department. It's being reviewed by the Town Engineer. We're
going to weigh in on that. We'll take an appeal to the Town Health Board if we have to
on those issues because we cannot have noncompliant septic systems built in Lake
George. It's just too fragile. So we hope that, Number One, you clarify that both of these
issues are properly before you. We hope that you take this evidence seriously, and that
you set the record straight, and that if the owners are going to ask for more time, they do
it on their own time, with a Stop Work Order in effect, so that there's no more quote
unquote prejudice by any building that may occur. Thank you.
MR. MC NULTY-Okay. Thank you.
MR. WEST-Any questions?
MR. BRYANT-Can I just comment, Mr. Chairman?
MR. MC NULTY-Yes.
MR. BRYANT-Mr. West, when you talk about natural grade, and you talk about, you
know, finished grade and that sort of stuff, in the past, what we've done, if it matches the
topography, you know, to bring in some fill to adjust the height, okay, but when you bring
in nine feet, that doesn't match the topography. I don't think that's the intent of the Code,
and just to make the building 35 feet high. Okay. So as far as mistakes versus, you
know, we've been very reasonable when it comes to that fill issue. I do have a question
of Staff, as I'm looking at these pictures. The wing walls are on the side of the building,
right?
MR. WEST-If you look at the picture, on the right side of the picture.
MR. BRYANT-No, I'm looking at this picture of the lake view.
MR. WEST-Okay. They're on either side.
MR. BRYANT-In measuring the lakeside building height, you would extrapolate the peak
of the building out over the? No?
MR. BROWN-No. You measure directly up from the grade at that point that you're
measuring from.
MR. BRYANT-Yes, I understand that, but it's not to the edge of the end of the roof. It's
extrapolated from the peak of the building, right?
MR. BROWN-Well, I don't know where you're pointing to on that photo.
MR. BRYANT-Well, why don't you pass this down to Craig so he has it.
MR. BROWN-In the case on the lakeside of the house, the measurement is taken from
the grade at the face of the house, directly vertical to where the eave intersects that
vertical line. You don't go back up to the peak and extend that imaginary line out and
measure to that.
MR. BRYANT-That doesn't make any sense.
MR. ABBATE-None whatsoever.
MR. BROWN-That's the way the Code's written.
MR. WEST-Well, we would agree with you, and if the peak were facing the lake, it'd be
very simple. You'd take a line, and you'd measure from the peak down to the ground,
and if it's more than 28 feet, you're in trouble. Okay. What they did here, what their
architect did, to try and take advantage of the very steep slope, 20, whatever percent it
was, at natural grade before construction, was to put the peak of the roof across the
slope.
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(Queensbury ZBA Meeting 01/16/08)
MR. BRYANT-Yes, well, that's an easy way to get away with that height.
MR. WEST-And what we measured, when we measured the 29 foot height, before they
started jury-rigging by putting concrete and cutting the two by fours out so that they could
play this artificial game, we measured from the eaves of the dormer, again, which
doesn't have a peak, it comes out flat, as a shed roof, to that point. We were right. The
Building Department didn't stop them. They just said they'd fix it and the Building
Department allowed this rope-a-dope process to go on, while the public doesn't get any
relief from the Building Department, and that's what we're here to complain about
tonight. Now, I think that as you go forward and revise your Code, I would hope you
would use this as an example of how you don't allow people to build sloping structures
that go back and use the peak across the grain, so to speak, to be able to avoid what
shouldn't be allowed.
MR. BRYANT-Well, the natural measurement should be from the peak, and if the peak is
reversed to extrapolate it over the area that you measure.
MR. WEST-And when I pointed out in my letter, that if you measure from the peak down
to the grade, you're in trouble, and that if they were going to intend a window well, you'd
have to measure to the bottom of the window well, they filled in the window. Okay, and
it's been a cat and mouse game for the last five or six months, and now we come here
and the owners claim they didn't know about any of this. I told them, we met extensively
with one of the owners to try and negotiate this driveway situation. We now filed a
motion for summary judgment on that. I told them I said you ought to go look at my
August 21st letter, because we can't retract that, and we raised some issues about
building height that are very serious, and so they've been on notice of this building height
issue for many, many months, and for them not to be here tonight, I'm just shocked. I
mean, the Glandons came from Connecticut. The Rosenburgs and I came from Albany.
Other people came long distances.
MR. BRYANT-I'm just curious about something else you said relative to the fact that
other neighbors have done the same kind of thing that you've done. I mean, they've
contacted the Building Department with complaints, and I'm just wondering why some of
these letters are not in our package.
MR. ABBATE-That's my, before we get to that point, let me clear something up,
Counselor, when did you first initiate communications requesting responses?
MR. WEST-I would say, sir, that it occurred in late June or early July.
MR. ABBATE-Okay.
MR. WEST-And I can guarantee you it was by early July, and it probably was some time
around the week of the Fourth of July, because I remember commuting down to Albany
from the lake and stopping there several mornings. So I was probably in there two or
three times over the course of the summer.
MR. ABBATE-Okay. How many communications have you forwarded, approximately,
including telephone calls?
MR. WEST-There were at least two or three telephone calls. There were the two letters.
There was the third letter I wrote asking for a formal response to my letters, and that
would be it. I'm not quite as active as Mr. Glandon is.
MR. ABBATE-And when did you receive your first response from this Town, from Staff?
MR. WEST-It would have been last week, I got a.
MR. ABBATE-January of 2008?
MR. WEST-Mr. Brown forwarded me.
MR. BROWN-That wasn't the first response you had, though. We've had several
conversations. I don't want to interrupt you.
MR. WEST-No, no, you're right. I don't want to mislead the Board. I want to be
accurate. I think there was a letter that came back addressing some of the issues that I
had raised and then I filed my August 21st letter, and we wanted an answer on the
August 21st letter because that's when we raised the building height issue specifically,
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and it wasn't until recently that I got an email communication on that. Is that about right,
Craig?
MR. BROWN-I don't have all the documentation in front of me.
MR. ABBATE-Okay.
MR. WEST-I appreciate your attention to detail, and I can assure you the next time I
come before this Board, I will have my full email file with me so that I can try and keep up
with you.
MR. ABBATE-And copies for us as well.
MR. WEST-Yes.
MR. MC NULTY-Are there any other questions of this group?
MR. UNDERWOOD-I just had one question. I mean, you alluded to there were other
partners on this project. Is this just some spec house they're building here, in essence,
or, I mean, do you know anything about that?
MR. WEST-What I can tell you about that, and because we have enough information and
belief to have named them in our complaint, that Mr. Rotundo is a partner in it, as is Mr.
Quinn, and that Mr. Quinn told us that he was sorry that he was not involved with some
of the site development because it would have come out differently, when we met him
during one of our conferences about the driveway. I know Mr. Rotundo has reached out
recently to both neighbors to indicate his desire maybe to move into the space. He built
a property up in Pilot Knob that had similar controversy, a lot of talking with the bulldozer
first, and then no effort to really work it out thereafter, and he's just sold that property,
and so he may be willing to move into this property but we would suspect that that would
be a temporary situation and that they would look to get through the approval process, let
the controversy die down, and then sell the property off. It is a spec house. It's been on
the market since Mr. Salomon bought it, it was on the market with the old cabin. After
the cabin was razed, it was on the market as a vacant lot, and there's been a For Sale
sign up there, with my sister's real estate agency, throughout the summer.
MR. UNDERWOOD-Thanks.
MR. MC NULTY-Okay. Thank you.
MR. WEST-Thank you.
MR. MC NULTY-Is there anybody else that would like to comment? Please.
KARLA BUETTNER
MS. BUETTNER-Good evening. My name is Karla Buettner, and I am an attorney at the
Bartlett, Pontiff firm, and I do want to say that, with respect to the first, the Vittengl
matter, I know nothing about that matter, so I did not comment on that letter, and I have
no instructions on that matter, but I do want to take a little issue with a comment Attorney
West just said that we don't show up. I don't think the characterization was proper
before this Board. I did write a letter to Chairman McNulty dated January 14th. It was to
be faxed and sent to you that day, asking that this be tabled. We represent Richard
Salomon, the owner of the property, the actual party in interest here. We have never
said we didn't have notice that there was going to be a fight with this property. We are in
litigation with Attorney West's firm and the Rosenburgs and have been for quite some
time with respect to this property. What we take issue with is that Mr. Salomon did not
get proper due process notice of this particular, either the letter to Craig Brown with
respect to what his determination on the height is, or the Notice of Appeal until after your
December meeting. Therefore, Mr. Salomon was unable to come and prepare any
documents, prepare to defend his case. I have been sitting in the back listening to the
murmurs. Actually I think I've been sitting in the midst of the murmurs, which is slightly
uncomfortable, but I can make do, and I appreciate that the neighbors do have strong
positions on this matter. However, Mr. Salomon, first, is not even in the State right now.
He's been away for a few weeks, so was unable to attend tonight. Second, we only
received notice of this last week, and as his representative sent a letter, a FOIL request,
requesting documents. We received documents Monday. It's Wednesday. Forty-eight
hours later we're expected to present a case. We did not get notice. I know that there's
nothing in writing in your Code saying that the property owner has to get notice of an
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appeal. I appreciate that. However, I also know that this Board has successfully before
the Supreme Courts of this State gotten Article 78's dismissed for failing to join property
owners.
MR. ABBATE-Excuse me, Counsel, cite those cases. I've been on the Board for nine
years.
MS. BUETTNER-Ritano vs. the Town of Queensbury Zoning Board of Appeals.
MR. ABBATE-No, no, that's not resolved yet, Counselor. That's before the Appellate
Division. It has not been resolved yet.
MS. BUETTNER-With all due respect, Vice Chairman Abbate, I'm the attorney who is
doing that appeal. We have taken the appeal. The appeal has not been perfected, but
Judge Aulisi did determine that we should have named the property owner. The case,
Manupella vs. The City of Troy, the Troy case, you have to name the property owner. It's
his right, it's his property, he is the permittee here.
MR. ABBATE-Question, is it before the Appellate Division, yes or no?
MS. BUETTNER-You would have to define before.
MR. ABBATE-Is it before, all I'm asking is a simple question. Is the Ritano case before
the Appellate Division, yes or no.
MS. BUETTNER-An appeal has been taken but not perfected.
MR. ABBATE-That's okay. Thank you very much. You've answered my question, and
by the way, if you want to discuss the Manupella vs. the Troy City, I'd be more than
happy to discuss that with you.
MS. BUETTNER-I bring that to your attention only as a likeness to this case. We're not
saying take it off. We're just saying can we have a little time to come here. Mr.
Salomon's not in the State. He's not here. He would like to be able to come and
address these issues. That is what we're requesting. I believe I put that forth in my
letter. I don't know if this Board would like me to address the merits. I really can't,
because Mr. Salomon's not here. I have not been to the property. I do know that
ambiguousness in Codes, we've been talking about, well, it says natural, but it also says
finished grade to cut, but it also says finished grade. Well, there is an ambiguity.
Ambiguities are not in favor of the appellant, but they're in favor of the property owner,
Mr. Salomon.
MR. ABBATE-Counselor, I disagree with you. There are statutes which say if a Code is
ambiguous, it favors the appellant.
MS. BUETTNER-Where the appellant is the property owner. That's why this is a slightly
unorthodox case. He is not the property owner. Again, we're just asking for the
opportunity to come and be able to present the case before you. You have the right to
table it. It's in your discretion. I understand that. I appreciate that. I'm just asking for
Mr. Salomon's due process rights to be looked at, be ascertained and to be followed
here.
MR. BRYANT-Well, we haven't denied that yet. Basically we're opening the public
hearing because it was advertised.
MS. BUETTNER-I understand.
MR. BRYANT-And I agree with you, I think that's fair.
MS. BUETTNER-And that's why, but, being the public hearing, I am here just putting
forth my case, and my case is I don't have a case yet because we did not receive proper
notice.
MR. ABBATE-I agree with you.
MS. BUETTNER-And I would request that this be tabled, so that Mr. Salomon can come
in and provide a defense, and at that point, your decision is your decision.
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MR. ABBATE-Maybe after we hear the case, towards the end, we may come to that
conclusion.
MS. BUETTNER-That's a fair enough statement.
MR. MC NULTY-Okay. Any other questions? All right. Thanks, we will address this at
the end.
MS. BUETTNER-Thank you.
CHRIS NAVITSKY
MR. NAVITSKY-Good evening. My name is Chris Navitsky for the record. I would just
like to describe a few, my involvement with the property, provide some photographs for
the Board, and then some thoughts on the site development. I was first contacted about
a year and a half ago by Dr. Rosenburg, who was concerned about the purchase of the
property and what may happen. He expressed that concern and asked what can be
done because of the past history of the developer, and I said we can't do anything,
unfortunately, until something is done and it's probably too late, but I said what you need
to do is document what the site is initially, what does it look like, so at least we have a
baseline to go by. So I'd like to submit into the record a group of photographs, probably
about 12, that were taken by Dr. Rosenburg. These were submitted to, and these are
actually referred to by the Planning Board, they asked about what the initial site
conditions were, if there was any record. I said that we could obtain those, and I
forwarded a copy to Craig Brown in November, and also copied to the Planning Board.
So I'll submit this. I was next contacted the Friday of Memorial Day weekend this year,
May 25th, that the site had been clear cut, and at that point, that's when I had visited the
site, taken photographs, and forwarded concerns to the Town. I'd like to submit this
group of photographs into the record for, to document what the site conditions were in
May of '07. Now regarding building height, we visited the site the second week of June
this year, right when the footings were being put in. I have two photographs right here
which I think really can show what existing grade was. It shows the cuts down to the
footings, and it was before the slabs were even poured, but it shows the height of the
footings, and I think it gives you a good idea of what the existing grade was prior to any
earthwork, prior to any retaining walls. It shows it in relation to the neighbor's property,
and again, I think the interpretation of the Code as far as building height by the APA,
which actually, as I'm sure the Board knows, the Town of Queensbury has a locally
approved plan, but the APA has oversight of any type of zoning issues within the
Adirondack Park, and they go by natural existing grade, period. So, these are from June,
which will give you a good perspective from the Rosenburg property looking south to the
appellant's property. As far as the site development, I think it's clear there's been
significant impacts to the neighborhood. The site has been clear cut, that was
documented early to the Town. Regarding stormwater management, my contact with the
Town was referred to. There has been none on site. There's a complete lack of
understanding by the applicant's engineer. In fact, they submitted calculations to the
Town that actually said once you take a forested site, clear cut it, that you'll actually have
less runoff in the post development conditions, based on their groundcover coefficients,
which is ludicrous. So I do not know how stormwater management can be met on this
site, within the Town Code, within the setbacks that you need from the lake, you need to
keep your stormwater management 100 feet away from the lake, unless you apply for a
variance. The wastewater, it is really impossible to fit it on site. They need a fill system.
That system cannot be placed within 200 feet of the lake, and this property is only 200
feet deep. So basically this is a classic case of poor site design and management of site
review and compliance. This site cannot support the level of development proposed,
period. This site has been permanently altered with little hope of an level of restoration
and mitigation. That's all I have to say at this point. If there's any questions or
clarifications I can provide, I'd be glad to provide that.
MR. URRICO-I'd like clarification from Mr. Brown regarding the APA standards versus
the Town of Queensbury standards on the building height.
MR. BROWN-I don't believe there are any similarities. I mean, if the question is, does
the APA regulate height, they do in jurisdictions, or municipalities where there's no
approved land use plan. In the Town of Queensbury, which is what applies here, we
have an approved land use plan from the Park Commission, or it's been approved by the
Park Agency. So we have the final say on the height. If there are any variances that are
granted by this Board within the Park, we forward them to the APA. They do have, I
think, 30 or 60 day review period to comment on those variances. Typically, their issues
are shoreline setbacks. I don't have any history to tell you what they may do with a
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height variance, but they certainly don't have any regulatory or enforcement powers in
the Town to come in and say, hey, this is too tall, that I'm aware of.
MR. ABBATE-I have a question. Am I correct that you stated, your forwarded
photographs to the Town of Queensbury on May 25, 2007, regarding the compliance
with stormwater regulations?
MR. NAVITSKY-That's correct.
MR. ABBATE-And you were told by someone in the Town that they had no problems
with the proposed construction?
MR. NAVITSKY-That's correct.
MR. ABBATE-Would you tell us who made that statement?
MR. NAVITSKY-I forwarded the email to Craig's office.
MR. ABBATE-The Zoning Administrator made that statement?
MR. NAVITSKY-To Craig Brown, yes, I did. I, unfortunately, I do not have that email.
My computer was upgraded after that and my emails were wiped out prior to the second
week of June, but that was my, the photograph that I took, and I forwarded them
immediately to the Town, because this was an issue. As I stated earlier, Dr. Rosenburg
notified our office early on about this and said there was concerns about what may
happen, and I said unfortunately, until something is done, we cannot do anything at that
point, it's too late, but we needed to be proactive on that, as quickly and as rapidly as we
could.
MR. ABBATE-Would you do me, also, a favor, if you can do it, if you don't have the
references there, just from memory would be fine. You also indicated that creating
erosive conditions, Paragraph 136-9B. That deals with sewage disposal. Could you
give me about 60 seconds on that, what you meant by that? I'll say it again. You
basically said that the Town Stormwater Management ordinance, the plan does not
direct runoff onto adjoining properties. Creating erosive conditions, 136-9B, states that
no sewage disposal fill may be placed within 200 feet of the shoreline of Lake George.
MR. NAVITSKY-Yes. I'm confused on those two statements, because one is regarding
erosion, and one is regarding the wastewater. The Wastewater Code, 136-9B, states no
sewage disposal fill may be located within 200 feet of the shorelines of Lake George.
This system proposes the installation of fill with a retaining wall to support the absorption
field within that 200 feet. Again, the next statement, 136-9C states that no leaching
facility will be permitted within 200 feet of the mean high water mark of a lake, river,
pond, if percolation rate is between zero and three minutes. They claim that their
percolation rate was three minutes. Again, so there's these items. Regarding erosion,
136-9 doesn't refer to erosion. That refers to the, 136 is the sewer ordinance code.
MR. ABBATE-The sewer, okay.
MR. NA VITSKY -I don't know if there was misinterpretation of that.
MR. ABBATE-Let me ask you this. Should that have been taken into consideration
initially?
MR. NAVITSKY-Yes.
MR. ABBATE-The answer is yes.
MR. NAVITSKY-Yes. For any site development, you need to consider all.
MR. ABBATE-But apparently it wasn't.
MR. NAVITSKY-Apparently not.
MR. ABBATE-Okay. Thank you.
MR. UNDERWOOD-What's the estimated depth to bedrock on that cut that they've done
there right now? I mean, have you got any estimate as to how far down you're going to
go?
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MR. NAVITSKY-Depth to bedrock?
MR. UNDERWOOD-Yes. I mean, you must be pretty close right there, looking at the
lake basin.
MR. NAVITSKY-I mean, that could vary. I think that you could be hit or miss on that. I
don't want to answer that.
MR. UNDERWOOD-Sure.
MR. MC NULTY-Okay. Gentlemen, let me interrupt for a minute. Now we're getting way
afield. Let me go back to what I said before. This is an Appeal. The items that we're
going to end up deciding on the Appeal, whether it's tonight or another night, is going to
be the building height and the side yard setbacks, whether wing walls are subject to side
yard setbacks. All the other issues that we're pursuing, and both the people from the
public, but also in questions we're asking, are things that may be important on the total
environmental evaluation of this site, but they do not pertain to the Appeal before us.
MR. ABBATE-I disagree. Let me quote the law for you, okay. The legal scholars state,
quote, in its broadest sense, evidence includes anything that is used to determine or
demonstrate the truth of an assertion, unquote. The assertion of the appellant. Now we
have a number of attorneys here. If I'm wrong feel free to correct me.
MR. MC NULTY-The point is that the, it's not the assertion of whatever anybody says
about erosion, septic system or whatever.
MR. ABBATE-Quote the law, would you, please, for your position. I just quoted my
position. Quote the law.
MR. MC NULTY-Let me put it this way, if we decide against the Zoning Administrator,
which is a possibility, obviously, and we cause significant harm to the plans of the
builder, this is going to end up in court, very possibly.
MR. ABBATE-No, no, no. That should not even be a consideration in our deliberations.
MR. MC NULTY-Nevertheless, when it lands in court, if all our deliberations and our
decisions are based on we're concerned about what the Town did or did not do, we're
concerned about erosion, we're concerned about septic, it's going to get tossed. We
need to make this decision based on the issues that are being appealed that the Zoning
Administrator made decisions on.
MR. ABBATE-It's not as easy as you are making it out, and I'd like Counsel to respond.
MR. BROWN-If I could just ask a question. Are we seeking legal comment from a
member of the public?
MR. ABBATE-Not at all?
MR. WEST-No, I'm not offering legal advice, free or otherwise. What I'd like to address
is, I was very concerned when I first heard this meeting open up, that the Appeal was
going to be limited to two issues, and the Floor Area Ratio issue would not be heard.
After I heard Vice Chairman Abbate's extensive review of the email correspondence, and
now that you've gotten a flavor for the many verbal inquiries that have been made and
discussions that have occurred with the Building Department, I think it's only fair,
particularly if you grant the owners additional time, to say that the Floor Area Ratio issue
is squarely before this Board as well, because we can't have houses overbuilt on .45
acre lots where they consume an additional 50% of what the Code allows. That's what
the whole problem is here, it's overbuilt, and I'd like to just go back to the early days of
this project, and something that I said in my July 27th letter, which I think is why there
may have been some misunderstanding, why Mr. Brown may have been lulled into a
false sense of security. When I went in and reviewed the original plans for this project,
the original plans and the grades that were shown on the original plans had no
relationship to reality. They made the site look like it was much flatter, and as a
consequence, those plans misrepresented the site conditions, and it's very possible that
that may have mislead the Building Department. I pointed that out in my July 27th letter.
Now one legal principal that you can follow, which is if plans are filed with the Building
Department that mislead them, and a building permit is granted based upon that, that
building permit should be revoked, all right, and I think if you go back and you look at the
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original plans, you'll see what I saw, that I'm looking for a steep lot, and I'm seeing a
relatively flat lot. I pointed out some of those issues in my July 27th letter that's before
you, and I think that's how this all got off to a bad start. It was based upon plans that
misrepresented the actual site conditions.
MR. ABBATE-And I agree, because even Mr. Esposito, and I agree with you, Chuck,
don't misunderstand, but this is all a part of it, what he's saying, it's not a simple thing.
Mr. Esposito, one of the Planning Board members said something, is this the original
plans that were submitted. Based upon the original plans that were submitted, the
Zoning Administrator made a decision.
MR. UNDERWOOD-Can I ask Craig a question? Normally, when you receive plans, do
you go out to the site, or do you just look at them whenever you get it submitted?
MR. BROWN-No, we don't go to the site. There's no need to do that, and I do have a
lengthy response, once we get through the public hearing, if you wish.
MR. UNDERWOOD-Sure.
MR. MC NULTY-Again, the point, though, you mentioned Floor Area Ratio. That's not
before this Board tonight. It should be at some point.
MR. WEST-Well, if it's not before the Board, then I'm going to ask, I'm going to send a
one paragraph letter to Mr. Brown tomorrow asking if the project, as it's currently
proposed, complies with the Floor Area Ratio requirements, and if I get an answer to
that, I'll take an appeal.
MR. MC NULTY-Good. That's the way to go.
MR. BROWN-I can shed a little bit of light on that right now, in answer to that specific
question. Is it compliant with the way it's proposed? I would say, yes. Is it compliant in
the way that it's been constructed? I don't know. We haven't made an inspection of the
site to see if they've finished areas that they didn't have planned in their building permit
plans, but the building permit was issued because the proposal was compliant. If they've
build in excess of what they've proposed, that's a problem for them, but we haven't
determined that yet. That may very well be the case.
MR. WEST-That's called a misrepresentation, and I think it's part of what's going on
here.
MR. ABBATE-That's exactly my point.
MR. BROWN-Well, I mean, it's called a violation. They've exceeded the limits of their
permit.
MR. ABBATE-In the final analysis, the majority rules on this Board.
MR. WEST-I would hope, and I will file the letter, and I would hope that the Building
Department would go out and make an inspection of the property and if necessary take
measurements, and if you don't feel like you can take measurements, hire the Town
Engineer to verify measurements, all right, so that we can get to the bottom of this.
Because the thing's been built, and you've got bonus rooms and bathrooms and finished
basements that used to have windows that got boarded up and got cemented up
because the neighbors complained, but it's still finished living space. It was going to
have walkout doors that are now going to be windows because they've got to play games
with the grade on the front of the house as well, but it's not rocket science to go out there
and take measurements and figure out how much space there is in relation to the lot.
MR. BROWN-Don't get me wrong. I'm not disagreeing with you. I'm just saying we just
haven't made that determination. The Building Department hasn't even been requested
to do a framing inspection of the home, yet. So, you know, it's up to the applicant, the
building permit applicant, to say, I'm ready for this inspection. Please come inspect.
They haven't done that, yet, so we haven't been required to go to the site, and in
response to all the evidence that's going to be gathered tonight at the public hearing, is it
likely that myself and probably the Director of the Building and Codes Department will
visit this site and do an inspection? Absolutely.
MR. ABBATE-Yes, see, and that was my position. I think, I'm not blaming the Zoning
Administrator or Staff. I think there was misrepresentation, and based on the information
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that they received, they made a decision, but unfortunately, it didn't work out. My other
question, who authorizes bonus rooms with bathrooms.
MR. WEST-I like to learn something new every day, and I've never heard about a bonus
room with a bathroom before.
MR. ABBATE-So I maintain that this is all part of what my position here. The Zoning
Administrator made a decision. Okay. He made a decision perhaps on fraudulent
information. That's all I'm saying.
MR. WEST-Well, and I heard the definition of Ratio, Floor Area Ratio, and am I correct, if
the basement's finished, you include the basement?
MR. UNDERWOOD-If it's walkout.
MR. ABBATE-If it's walkout.
MR. BROWN-If it meets the requirements for habitable space.
MR. WEST-Well, I mean, you know, I've looked at it. It's got nine foot ceilings. It was
intended with, it was framed for either walkout doors or windows, bay windows, as part of
the overall structure, and it was clear that it was designed to be living space, and I think
we've heard that there are plumbing facilities planned in that area.
MR. ABBATE-And one other thing, too. The Zoning Administrator, I'm sure, is going to
go out with the code inspection, there's no doubt in my mind that they're going to take a
close view and they can, he has the authority, to revoke this based upon fraudulent
information that was submitted. So I don't have a problem with that, and I'm not blaming
the Zoning Administrator.
MR. WEST-I'll give him the letter. He should do the inspection, take the measurements,
shed some light on this subject, for the benefit of all of us in his response to me, and if
they confirm, with measurements and including the bonus rooms and bathrooms and all
that, that it meets the Code, then I won't take an appeal. If it doesn't, then I don't think I
have to take an appeal because we have a misrepresentation, the building permit should
be revoked. Thank you.
MR. MC NUL TY-Mr. Salvador, come on up.
JOHN SALVADOR
MR. SALVADOR-Good evening. My name is John Salvador, and I'll try to stay on point.
Firstly, I'd like to talk to the background of the subject. That is building height. I was
directly involved in the formulation of that sketch. I was directly involved in the issue of
building height definition. The reason this sketch was put in was not that we would cut
into the terrain, but that the building could follow the terrain. In other words, some sites
have steep slopes, and so if you stuck to the building height from the front, okay, then all
the people could do is, their building would die right into the slope, and they'd have no
building. So this was prepared to allow the building to walk up the slope, without cutting.
That's the purpose of this. In any case, prior to the adoption of Chapter 179, in 1976,
that's this Code, excuse me, 1996, the previous Code required a 75 foot setback from
the lake, and with that, the allowable building height could rise to 35 feet. That was the
Code prior to 1996, and of course the presumption was from finished grade we would
measure the 35 feet. There was, of course, a variance parade. People couldn't live with
a 75 foot setback on some of these lots. By the time you put the building in, the septic
system in, all you need is a bunch of variances, and so there was an outcry for changing
the Code so that we could relieve the variance Board of all this traffic. Together with
that, there was a great concern for this 35 foot height, in that we were creating what a lot
of people refer to as visual pollution. We had these tall buildings with glass fronts,
reflective glass, and people took issue with that. So we put, this was the Comprehensive
Planning Committee that put these two problems together and came up with the solution
of the 50 foot setback, okay, as we bring the building closer to the lake, we want to bring
the building down. That was the idea of the 28 feet. We did address this issue, and
that's the solution we came up with. Now, one of the very first dwellings that ran into this
Code was the Phil Morse project, okay, and went through all of this, and the issue of the
building height came up, and also this Code prior to 1996 did not exempt, the way the
present Code does, chimneys, and all these appurtenances on the roof. They're
included, and by the way, I'd like to digress here for a minute. I believe the APA Code
limits building height to 40 feet, but it includes the chimney. It includes the chimney, and
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our Code also included the chimney when it was 35 feet, but the Phil Morse project came
along and they designed that to 28 feet, and Dave Hatin accepted 28 feet to the
ridgeline. His interpretation of the Code was building height was to the ridgeline, it did
not include the chimney. Okay. So there was the first instance of a misunderstanding.
That wasn't our understanding. Our understanding of the 28 feet was it included the
chimney height.
MR. ABBATE-Excuse me. Your understanding or your intent when you first read that,
when you first designed?
MR. SALVADOR-I'm talking about the recommendations of the Comprehensive Planning
Committee.
MR. ABBATE-It was the intent.
MR. SALVADOR-Yes.
MR. ABBATE-Okay.
MR. SALVADOR-Okay. So with that, of course, we had to change the Code again, and
that's this Code, this present Code we have. We changed it in 2002, and it exempts the
chimney. So now all of a sudden we grew that height. We're up to 28 feet. It's the
ridgeline. I have some notes here prepared, and always we figured that the
measurement was to be taken from the grade of the cut, which is necessary to
accommodate the building, and fill is never talked about. It's the, the grade of the cut
necessary to accommodate the building. Now, if you decide to cut in, that's what you
have to live with, okay. As the Zoning Administrator has interpreted this height, there's
really no need for the Code. Surely no need for a Code. You can build it any way you
want to. The idea was to limit the height, the view, the appearance of the building from
the lake. Now, someone said something about it's getting bad, and I can show you here,
if we continue this, it's going to get worse. I have a photograph here of a project in the
Town of Lake George. Now this is how they're taking care of building height. This is
how they're taking care of building height. They're not cutting. They're filling. Isn't that
going to look beautiful? It's that going to look beautiful? Now that building, that Code
Enforcement Officer has determined that building height is measured from the finished
grade. That is not even stability in construction. So I implore you, we have to do
something about this. The fact that the Zoning Administrator has determined that a wing
wall is not a structure is absurd. It's designed as a structure. The Code requires it. The
Building Code of the State of New York quotes for retaining walls, and a wing wall is
nothing but a retaining wall. It's there to hold something back. Retaining walls shall be
designed to ensure stability against overturning, sliding, excessive foundation pressure,
and water uplift. Retaining walls shall be designed for a safety factor of 1.5 against
lateral sliding and overturning. I'd like to see the design calculations for that wing wall,
that they meet the Code.
MR. ABBATE-I'm not an engineer, so you're going to have to help me out.
MR. SALVADOR-I am.
MR. ABBATE-I know you are. What's the difference between a wing wall and a retaining
wall?
MR. SALVADOR-Absolutely nothing.
MR. ABBATE-Okay.
MR. SALVADOR-One is the other.
MR. ABBATE-So, I don't have that reference in front of me. So is that basically saying
that a wing wall is part of the construction. Is that what that?
MR. SALVADOR-A wing wall is a special type of retaining wall.
MR. ABBATE-Right. Okay.
MR. SALVADOR-It's a special type of retaining wall.
MR. ABBATE-Whatever you're referencing, does that indicate that it is part of the
structure?
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MR. SALVADOR-The very design requirement for a retaining wall dictates that it's a
structure, okay.
MR. ABBATE-Where do you get that from?
MR. SALVADOR-The Code.
MR. ABBATE-So it's in there.
MR. SALVADOR-Yes.
MR. ABBATE-Okay, and what is it that you have there?
MR. SALVADOR-I'm reading from the Building Code of New York State.
MR. ABBATE-Okay, and what paragraph, section?
MR. SALVADOR-Section 1806.
MR. ABBATE-Okay. Thanks.
MR. BROWN-So that's not the Town of Queensbury Code, though, right?
MR. SALVADOR-Your building inspector is compelled to enforce this.
MR. BROWN-No, I just wanted to make sure that that's the Building Code.
MR. SALVADOR-I said, the Building Code of the State of New York.
MR. BROWN-Okay.
MR. SALVADOR-And they don't pay attention to this. They don't pay any attention.
MR. ABBATE-Whose they?
MR. SALVADOR-The Building Department. They don't pay any attention to the
requirements of the State in this thing, and that's what's getting us into trouble. The
other thing, if I might mention, that when this project had it's beginning, we were still in
the debate as to whether or not the lakeshore area was in a Critical Environmental Area.
You'll notice on the Staff, on the outline description of the project, they don't say anything
about CEA. Okay. So we were still in that debate, and because we didn't recognize it as
being in a CEA, it slid under the stormwater radar. We weren't doing anything about
Chapter 147 when this project had its inception, and that's why it slid under. Very, very
sloppy review, if I might say so, but it can get worse. So I would say, my
recommendation is that you uphold the appeal, and if this public hearing is to remain
open, I'll be back. Thank you.
MR. MC NULTY-Thank you.
MR. BRYANT-I have a question for Mr. Salvador. Is that okay?
MR. MC NULTY-Okay.
MR. BRYANT-You talked about that sketch, and I was looking at the sketch earlier, and I
noticed that, in order to accommodate the building, they extrapolate the peak towards
the upside of the building. In other words, when they measure the building height from
the higher end of the building, they don't go to the peak. What they do is they go to the
extrapolation of that peak. So, since you were talking about the intent of the Code and
so forth and so on, why is it that that doesn't hold true when the peak is reversed?
MR. SALVADOR-It was never intended that the peak would be reversed. You take a
look, what's the standard construction, okay, and that was what was before us. I mean,
these innovative designs they have these days to take advantage and to try to weave
through the requirements of the Code, they're novel, but believe me, in 1996 they weren't
on the table. This concept, this kind of design. What's happened here is, you know,
we're not creating anymore lakefront land. The land is becoming dear, and even these
small lots have tremendous value. You can't put a cottage on them any longer. You just
can't justify it, and so what they're doing is they're moving out and up and every way they
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can, and what's happening is the land is being overdeveloped, and it's being
overdeveloped through a salami game of variance granting variances, but that's
unfortunate that that's happening. It's happening all over, and you can see that example
I showed you in the Town of Lake George how innovative they can get, and I understand
from Chris Navitsky that mound is going higher. It's not finished yet, and if you notice
from the photograph, it's a loamy soil. It's going to be very unstable when it gets
activated. It's going to be a trick designing that retaining wall, but they don't see to be
worried about it.
MR. MC NULTY-Okay. Thank you. Does anybody else from the audience wish to make
a comment on this?
PETER BROTHERS
MR. BROTHERS-Good evening. My name is Peter Brothers, and I won't make it long. I
know it's been a long evening. I concur entirely with the testimony of Mr. West who is
representing Dr. Rosenburg, and I find it just outrageous that this person has been able
to do what they have done and gotten to this point, and I know of other people who've
said, Boards before, there's a pattern of selective zoning in this Town, and I know of
other people who have had minimally invasive projects on their property, for the
neighbors themselves, and they're thrown to the wolves, and then you get a project like
this, and there's others in this Town on the lakeshore where they go through and they
have no review whatsoever. I just, I think it's an outrage, and I'd support the
recommendation of Attorney West and hope you follow through.
MR. MC NULTY-Okay. Thank you. Anyone else?
MR. GLANDON-I want to address the issue on Floor Area Ratio, as to whether or not
this is a subject of this Appeal. You talked about the possibility of the owner/builder
playing fancy footwork. Respectfully, Mr. Brown, I think you've done the same. This is a
timeline that I've drawn up here. August 9th I made the call. August 10th I emailed,
received no answer. Once I got the information on the Planning Board, on October 17th I
sent a registered mail to the Town covering five issues, and in it I said I had a call from a
9th and an email from the 10th. I haven't heard back, here's the issues, and I want you to
look at them, and it was grading, side yard encroachments, Floor Area Ratio exceeding
30%, height greater than 28%, and no room for a legal septic. Those are the five items
in my registered letter of October 23rd. The fancy footwork is that on October 22nd, Craig
Brown answered my August 10th email. I seem to recall that was done back in the Bay of
Pigs. We decided not to answer the latest facts from the Russians. We went back one
to avoid a missile launch. That was great at that time, but here it's fancy footwork. I
came back immediately after that saying there was other stuff in my letter and identified
a few of them. Okay. My October 31st appeal, then, was to go right on my October 17th
letter that covered those five items, and those are the items, I left the grade and runoff off
of my Appeal to you all because I understood that was the Planning Board, but those
items were in my October 17th registered letter. Craig Brown only answered me after
that came in and he answered the prior email, and it wasn't until your agenda came out
that this thing was called an Appeal of an October 22nd letter, or October 23rd, and that
was the Zoning Administrator calling it that. Those were his words. I was appealing
based on my registered letter of October 17th. So Floor Area Ratio, I think, is definitely
before this Board.
MR. MC NULTY-Okay. The problem is, did the Zoning Administrator make a
determination regarding the Floor Area Ratio?
MR. GLANDON-Your Zoning Administrator is silent.
MR. MC NULTY-Then you have nothing to appeal. You've got to get an answer from
him. Now, I'm not saying that it's not important, and I'm not saying that it shouldn't be
addressed, but the way the legal process works is you can only appeal a decision of the
Zoning Administrator. If he did not make a determination.
MR. GLANDON-I was appealing to the Town of Queensbury to enforce its codes, and
you haven't done it here. So this is out here. So if he just never answers my letter, I
don't have anything to talk about I guess is you're telling me?
MR. MC NULTY-That's, unfortunately, the way some of this works now. I think you're
going to have an answer on that shortly, because we have someone that said that he is
going to request specifically a Floor Area Ratio determination and then he will appeal it.
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MR. GLANDON-And in my August 9th call and in my August 10th email, I specifically
suggested to Mr. Brown that I was up here every weekend and many Fridays, and I
would be glad to meet him at the site and walk through the concerns. Okay, and I think
you've heard he doesn't do site visits, or something like that. So I feel this answering, if
he had properly answered the letter that was there, you wouldn't be talking to me about
Floor Area Ratio not being in it. So I think he pulled a game on us here, and I'm here in
front of you saying your Zoning Administrator was silent on it. Therefore, I take that as
acquiescence on his part, or whatever the right word is, and so now I'm appealing his
obvious decision that it's okay, just because everything on this site was okay as far as he
was concerned.
MR. MC NULTY-Okay.
MR. GLANDON-Thank you.
MR. MC NULTY-Okay. Does the Board have any further questions? I understand
there's somebody that wants to respond again, if it can be brief.
MR. SALVADOR-Very. With regard to the Zoning Administrator's lack of an answer or
addressing the question. The old Zoning Code used to say that an appeal from any
action, omission, decision or rule by the Zoning Administrator can be appealed. The
word omission is in here. He fails to answer. In the new Code we drop the word
omission out of there. Isn't that cute?
MR. BRYANT-Well, Mr. Salvador, you had something to do with the new Code, right?
MR. SALVADOR-Not the Code. The planning.
MR. MC NULTY-Okay. If there's no other questions, Mr. Secretary, do we have any
correspondence pertaining to this that we haven't covered?
MR. UNDERWOOD-No more.
MR. MC NULTY-Okay.
MR. URRICO-Mr. McNulty, are we going to hear from Mr. Brown?
MR. MC NULTY-That's the next step. We'll hear from Mr. Brown, and then we'll decide
what steps we want to take.
MR. BROWN-I was just scanning through this August 10th email from Mr. Glandon, the
one that you reference that you mentioned Floor Area Ratio, and I believe it's in the
package of information that was submitted to everybody.
MR. ABBATE-It was, Craig.
MR. BROWN-I don't see anything in here that, and again, I just scanned through it quick
while I was listening to the rest, but I don't see anything in here that deals with Floor Area
Ratio. I just wanted to say that because I was reading it.
MR. GLANDON-October 17th.
MR. BROWN-I thought you said August 10th.
MR. GLANDON-I'm sorry, you couldn't see this.
MR. BROWN-Okay. Regardless. I was reading the wrong document, then, if you were
at a different date. I guess I would first start with, we've been on this application for a
couple of hours, and I know timing is not everything, but it is important to the other
people that are here waiting. I think if it's a potential for the Board to consider giving the
property owner next door time to come back, you may want to do that relatively soon so
that everybody else is not here until three o'clock in the morning. Not to rush you to a
decision at all, but just, I know there are people here, and if we could be sensitive to that,
that would be good. Having said that, it's too bad that Mr. Sipp just left. He walked out
the door. Because I think he could clear a lot of this up, and I guess first of all I'd like to
congratulate Mr. Abbate on your presentation there. That was very entertaining, and I
think you missed your calling. You should try the mystery reader at the library. That was
very good.
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MR. ABBATE-What are you challenging specifically? Because I have 10 more pages. If
you want to challenge something, I'd be happy to.
MR. BROWN-No, I'd love to have a copy of it.
MR. URRICO-Guys, I think we're getting way off point now. Can we keep this to the
topic, on target here, Craig? We're starting to stray, I think, a little.
MR. BROWN-Absolutely. I'm not starting to stray.
MR. URRICO-You are. I'm reading it that way.
MR. BROWN-Okay.
MR. ABBATE-Well, let me say this, guys. Quite frankly, if you have a problem, I would
request you exercise your right for a judicial review and file an Article 78, and let the
Supreme Court decide whether I'm right or wrong.
MR. BROWN-Well, there's been no decisions made by the Board. So there's no need to
do that. I'm simply saying that my interpretation of your presentation was that it
contained certain inflections in the reading that were inflammatory, and I just take
exception to it, and I just wanted to put it on the record.
MR. ABBATE-Specifically what? You challenged me, I want an answer. Specifically
what. Did I misquote the members of the Planning Board? Did I misquote this
gentleman right here? Who did I misquote?
MR. BROWN-Having said that, I just wanted to put that on the record.
MR. ABBATE-Put what on the record?
MR. BROWN-If you go through, and, like I said, I'm sorry Mr. Sipp just left. There were
several quotes that were made tonight about a comment that Mr. Baker made that Staff
has now become aware that this project should have received a stormwater
management plan, that's why they're before the Planning Board. The reason for that is
the building permit that was issued, didn't slid under, as Mr. Salvador would have you
believe. It didn't slid past the radar. They filed a stormwater management permit
application for a minor project because the disturbance on the site, the new impermeable
surfaces on the site, allowed them to qualify as a minor project. What they actually did,
and the work that they performed in the field, didn't match the permit that we'd issued
them. We received complaints from Mr. Navitsky on clearing. We immediately went to
the site, investigated the site, and this is a little off topic from the Appeal, but we
investigated the site. There was a silt fence in place. There was no evidence that trees
had been removed. Well, there was evidence that trees had been removed, but MR.
HUTCHINS- ere were no stumps to determine how close to the shore they were, if they
were within the 35 feet they'd been removed, but there were no stormwater issues at that
time. The major concern at that time when I received the first complaint from Mr.
Navitsky was tree cutting within 35 feet of the shore. There has been no definitive
information supplied to me that show, here's a tree within 35 feet in this photo, here's a
photo where it's not there. I'd be happy to entertain those things. They haven't been
submitted.
MR. ABBATE-Let me stop you for a second. I never mentioned tree cutting. In this 10
page document, I never mentioned the word tree cutting at all.
MR. BROWN-I'm not talking about that at all. I'm way past that.
MR. ABBATE-Okay.
MR. BROWN-We found that they were in violation of their building permit. We
immediately issued a Stop Work Order. We immediately required them to file for a major
stormwater permit with the Planning Board and a Site Plan Review. That's how it got in
the process, and like I said, if Mr. Sipp was here, after that meeting that you quoted all
those, you know, this is outrageous, I can't believe this has happened. I met with Mr.
Sipp, Mr. Seguljic, and Tom Ford, who's another Planning Board member. I explained to
them what had happened, why the applicant was before them. It's because they
exceeded the conditions that were part of their building permit that were issued. We
issued a permit that was complaint. They exceeded those limits. That's why we said
you've gone beyond your permit. You have to go get approval to do this. Stop, don't do
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(Queensbury ZBA Meeting 01/16/08)
anymore work, protect the site from any erosion or sediment loss on the site, and then go
to the Zoning Board for an approval. That's how it got before the Planning Board.
There's no, let them do what we want. Nothing's been brushed under the rug. We
haven't slid anything by. So I just wanted to make that clear on the record that we found
the violation. We required them to come to the Planning Board for review, and that's
how they got before the Planning Board. With regards to the Floor Area Ratio. A similar
situation. We issued a building permit that was for a compliant square footage home. If
they've exceeded that, if they've constructed more square footage than what the Code
allows for or what their building permit allows for, we're going to ring them up for that.
We haven't made that determination yet. Nobody's been to the site to make that
determination. We haven't been requested to come back to the site and do a framing
inspection. If they're not done building it to the point where we can determine it, how can
we make that determination whether they're over the Floor Area Ratio?
MR. URRICO-And that's because you normally don't go back to the site until the
applicant requests?
MR. BROWN-We're done with the framing. Come do us a framing inspection.
MR. URRICO-Or you have to, you have to issue a Certificate of Occupancy.
MR. BROWN-Yes. There's, if anybody's ever gotten a building permit, you know there's,
you know, a dozen steps you have to go through, right from the footing right to the, you
know, foundation work, framing, insulation, you know, all the way up, different
inspections. The next one that they're scheduled for is a framing inspection, which
means inspect how the structure is built before we start covering up with insulation and
wiring and sheetrock and all those types of things. So, once we go and do that
inspection, if areas have been completed or constructed that don't match the plans,
that's something that the applicant has to deal with. I'm not saying that they haven't. I'm
not saying that their project is fine and it's going to go away and we don't care about it.
We just haven't made that decision yet. So they may very well be back before this
Board, either the applicant or the neighbor, one with an appeal or one with a variance
request. You haven't addressed that one yet. What has been addressed is the building
height. Lots of accusations that we've had all these inquiries, we've had all these
questions about building height. We've been ignored. Our determination, our
interpretation, my interpretation of the building height was such that the plans that were
submitted met the height. Until the roof goes up and there's something for us to
measure to, I can't give them an answer that it's too tall or it's not too tall. Once that was
available, we went and made the determinations, and I can't, unfortunately, I guess
fortunately, I can't disagree with the appellant that the Code is a bit ambiguous. It gives
you multiple ways to determine height. One place it says finished grade. The other
place it says natural grade. I don't disagree with that ambiguity, and I think when
whoever looks up the actual reference for ambiguity, the reference is probably going to
say to the public. The determinations or the interpretations of the Code, where it's
ambiguous, should be found in favor of the public. A little ambiguous. They don't say
applicant. They don't say appellant. I believe it's going to read public when you do that
research. So, you know, with building height, it is something that needs to be cleared up
in the Code. There's no question about that. There's no dispute. Mr. West made a
comment that, you know, if a determination or if an appeal needs to be taken, then he'll
get an determination and then come back with an appeal. Obviously that's the proper
course. We don't want to add anything to this Appeal that hasn't been determined, and
I'm more than willing to make those determinations, once we have information to use to
make the determination. If we haven't made the determination of how much Floor Area
has been constructed, I can't tell you if it's okay or not. So, that's certainly forthcoming
once we do that, and I think that's all I have. I don't want to go too long. Like I said, I
know there are other cases that are waiting, and you guys have to make a decision
about who's going to go tonight and who's not, but that's all I have, unless there's any
other questions, and that's it.
MR. UNDERWOOD-Can I just ask a question, Craig?
MR. BROWN-Sure.
MR. UNDERWOOD-Based upon the letter that Mr. Glandon sent to you on October 17th,
I know that originally you responded to his letter of August 10th, I think his requests on
that one, but I think that the October 17th letter is probably what precipitated your
response because it occurred soon after that. I'm just wondering why there was such a
long period of time before getting back to him? You know, was it not considered a formal
request, the August letter, or, I guess that was a fax, right?
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MR. BROWN-I don't have the timeframe. The October 17th, was that a letter you sent to
the Planning Board?
MR. GLANDON-It was registered to the Planning Board, Town Supervisor, to Craig
Brown, Queensbury Zoning Administrator.
MR. BROWN-Who was it titled to? Was it titled to the Planning Board?
MR. GLANDON-It was sent to everyone. Multiple copies. Everybody that got a copy
had a copy sent here, all went to the Town Clerk.
MR. BROWN-No, I realize that, but I'm just trying to figure out who would have
responded to it? Who has it, Dear?
MR. GLANDON-It was To the Planning Board, the Town Supervisor, and Roger Boor,
Councilman for that area. It was copied to you, Dave Hatin, and Gretchen Steffan.
MR. BROWN-Okay. I wouldn't, I don't normally respond to mail, I mean, if it's not
directly.
MR. GLANDON-You responded right after this came out, when I said you didn't do the
August. So to claim that now that all of a sudden you answered an August letter.
MR. UNDERWOOD-My only request would be this, you know, we've gone through this
numerous times with the Ritano case, all these other ones, where we, after the fact,
finally make these determinations, etc., etc.
MR. BROWN-Well, again, the after the fact determination here was because of the
project change. The applicant did something they weren't supposed to do, and we
caught them doing it.
MR. UNDERWOOD-Exactly, and I think that part of what's broken down here, and it was
suggested during the PORC Committee hearings, was that Site Plan Review of projects
located within Critical Environmental Areas should come to the forefront, and I know
you've said that you're packed up with work, you know, the review process is such that
it's sometimes cursory or it's not really a, I mean, I'm sure you do a full job on it when you
do it at the same time, but I think in this instance here, all these subjects that have been
brought up here tonight, whether it's Floor Area Ratio, sideline setbacks, the wing walls,
whatever, I think that what I would like to see before we table this to some future
meeting, would be that you fully respond to all the concerns that have been expressed
here this evening, and I think that if you want those all, a list of those from us or a list of
those, I mean, I think that that could be supplied to you at this time, but I think that, really
what we want to do here is make sure that we iron out the problems that we have with
this project here. I mean, everybody from the Planning Board, to all the environmental
organizations up on Lake George, the neighborhood up there. Everyone's very
concerned with this project, and I think for us to adopt a cavalier attitude about it would
be improper, not to suggest that that's what your attitude is about it, either, but I think at
the same time, we want to make sure that we deal with this and deal with everything at
the same time. I don't want to do a piecemeal approach like we did with Irish Bay, where
we keep coming up, every time, with, we forgot this, we forgot that, but let's just deal with
it all at one time, and I think that, in the interim period between now and then, I think you
can get together with the neighbors, you can get together with the original applicants
who came in with this project who were not here this evening, and I think you can get
together with the Planning Board. I mean, if they have any other concerns, there are
outstanding issues, I know, with sewage and stuff like that up there. When you've got all
the information, then you can come back to this Board, you know, we can set it up, you
know, on the time schedule, but there's no sense in doing that until that time, when all
the information's there, and I think all the questions that have been raised, as far as the
height of the building, I want you to look at it from both points of view, from natural grade
as well as the fill grade, and I want you to present both cases to us in your Staff Notes as
to, you know, the two scenarios that we have to work with up there, and I think one of the
prime ways you can do that is to look at the adjacent properties on either side to see
what's been done there, okay. If you can provide me with other examples of buildings
that have been built to this great height that we have here, that have been allowed up on
the lake, I'm certain there probably are a few that have been built over height, as this one
has been, too, but I think in general we've been pretty strict as far as follow up on these,
so they don't occur, and I would expect that you can make a determination that's going to
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be in the interest of the betterment of the lake, you know, it's not so much the betterment
of somebody making an extra buck.
MR. ABBATE-Craig, one question. This property is at 67 Knox Road. When this was
submitted to you, this application, were you aware of the fact it was in a Critical
Environmental Area?
MR. BROWN-Of course.
MR. ABBATE-Why is it not even mentioned here anywhere?
MR. BROWN-I mean, our agendas don't identify Critical Environmental Areas.
MR. GLANDON-Just to clarify the letters in timing, there was an August 9th call to Mr.
Brown, followed up by an August 10th email to Mr. Brown and copied to Dave Hatin
because he was building, so I thought Floor Area and stuff, I didn't know who, you know,
who to go to on that, and that was what had no response, and then when I did my
October 17th registered letter, it was to Mr. Hunsinger, Dan Stec, Roger Boor, and copied
Craig Brown, Dave Hatin, and Gretchen Steffan. At that point, two days letter, the
original August 10th email gets answered. This is an email that was to Craig Brown and
Hatin, but when that email is responded to this time, it's responded to by Mr. Brown and
it copies Mr. Hatin, but it also copies Dan Stec, Roger Boor, Chris Hunsinger and
Gretchen Steffan, the people that were in my August, my October 17th mail. So he was
responding to my October 17th kick in the pants, registered mail, that he did read. He
was copied and give a copy, but he chose just to respond in a narrow manner, and so,
you know, to say that he wasn't aware of this somehow or he doesn't read the cc's, if he
doesn't read something he's cc'd on, that's registered mail, but yet he copies all those
people on the email.
MR. MC NULTY-I want to cut this off.
MR. URRICO-I just want to ask a question of you.
MR. MC NULTY-Wait. First off, if he had responded to a letter you wrote to Dan Stec, he
would have got his head taken off. Somebody on staff does not respond to a letter to the
Town Supervisor. It's the Town Supervisor that responds. That's just the way things
work. Now, we need to cut this off. We've gone way beyond what we should.
MR. URRICO-I just want to ask about where we're heading here. Okay. We're starting
a, we're going to start a series of appeals that are eventually going to lead to a decisive
meeting of some sort, and I want to know if we can get to that decisive meeting first,
rather than waiting for these appeals to go back and forth? Can we ask Mr. Brown, or
the Planning Department, to move ahead, review the project one more time, come back
to us with what they suggest are the variances that are going to be needed, if they are
needed, and let us take care of it in one meeting or two meetings, whatever it takes,
rather than waiting for the public to make appeals for each of these cases that are
eventually going to require us to really look at the project, like we've done tonight.
MR. MC NULTY-This would be nice if it can be done. I'm not sure whether it's totally
practical because, as Mr. Brown has indicated, there are some things, such as Floor
Area Ratio, that he's got to see enough of what's built before he can say whether or not it
complies.
MR. UNDERWOOD-It's completely framed already.
MR. ABBATE-This thing is already framed up. You mean to tell me you can't take a
framed up home and determine Floor Area Ratio?
MR. MC NULTY-Chuck, cool it.
MR. ABBATE-You cool it, Mr. Chairman.
MR. BROWN-I just said we haven't done it yet. I didn't say we couldn't do it. I just said
we haven't done it yet, and to answer Roy's, Mr. Urrico's procedural question. Can we
do that? Can I technically do that? No. I wouldn't do that. I'd bet you a nickel, though,
that in my mailbox tomorrow there's going to be a letter from Mr. West that asks for
determinations on about this many things, and when I respond to that letter, based on
those answers, there will be one, my guess is, one mass appeal that deals with all these
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(Queensbury ZBA Meeting 01/16/08)
things, and we can certainly do that, but I think that's the way. There should be a
determination and an appeal, if there's any disagreement.
MR. URRICO-So we cannot consolidate the appeals?
MR. BROWN-I think they can certainly amend the Appeal that they have to include
additional information, which is, again, my guess is what's probably going to happen.
MR. ABBATE-To answer your question, you can consolidate appeals, yes.
MR. WEST-What I'd like to suggest is the following, and the project sponsor's counsel is
here tonight. So perhaps she'd be willing to stipulate to this. I think Mr. Urrico makes a
lot of sense, that if we start getting multiple appeals, multiple determinations, the next
thing you're going to get is variance applications. If you tell them they're not in
compliance, they're just then going to make a variance application, and we're going to
get a series of variance applications, and we're going to have a God awful procedural
mess. So how do we deal with that? One suggestion is along the lines of the following.
I've heard enough from Mr. Glandon's presentation to know that he has squarely asked
the Building Department a Floor Area Ratio question. I'm happy to file a letter tomorrow,
but I think that's clearly before the Building Department, but I think it's unfortunate that
we have to tell Mr. Brown that he has to go out there with his tape measure to try and
make some sense of this. Because the way it's supposed to happen is the applicant is
supposed to make, they're supposed to file plans that are stamped by engineers or
architects that give those calculations and they're only supposed to check those
calculations. So I think we're doing things here a little bit out of order. I think what
should happen is that we should stipulate that there are three issues that are properly
before this Board. One is the building height. That's clearly on the table to be decided
tonight. The wing wall issue is before the Board as well. Whether that's subsumed in
the building height issue, is separate, it's before you, and I think the Floor Area Ratio one
is open to debate. I'd like to see the project sponsor's counsel stipulate that the Floor
Area Ratio is before the Board, have her agree that she will file stamped calculations
from a licensed professional engineer as to what the actual area is of all the various
aspects of the house, whatever they call them, because that's, we're going to get into
that game, what's a bonus room, what's the basement intended for, so that you can have
the facts, let the Building Department make a determination as to whether that's accurate
or not, and get the information that Mr. Underwood legitimately requested, which is a
calculation of building height versus natural grade, versus finished grade, fill and cut
areas, so that you have accurate facts before you, and I would also add that if the project
sponsor feels that they're going to need to request a variance or feels vulnerable, they
should put the variance applications before this Board and try and demonstrate hardship
in these conditions. You can schedule this process to go out a couple of months,
whatever it takes for that process to transpire, and we can all come back one night and
try and make some sense of this, and I think that would be a logical way. The only thing I
would request, if you do that, and it's fair, only fair to the public and all the people who
have expressed concerns, that construction be stopped in the meantime, because we've
already heard from the Building Inspector tonight that the project was built at variance
from the plans that were filed, and I've told you, if you go look at the original plans, they
don't match the lot, and so it's only fair to shut down construction, have them submit their
certified calculation of Floor Area Ratio, and other areas in the building, let's get all the
facts, let everybody argue it. If they want to argue that they're entitled to variances under
these circumstances, let them bring it on, and we'll have one meeting where you can
make all your decisions, and then if this has to go to court, which it probably well, let it go
to court and let the chips fall where they may.
MR. ABBATE-Yes, and I agree that Mr. Urrico's recommendation and Mr. Underwood's
recommendation is appropriate.
MR. WEST-We would have no problem coming back in a couple of months, and I believe
Mr. Glandon would agree to that. If the project sponsor's counsel would agree to this
procedure, and particularly if they would agree to stop work, get some updated
calculations before this Board and the Planning Board, so everybody can look at Floor
Area Ratio, have the Building Department confirm those, and then let's make decisions
based on the actual facts.
MR. MC NULTY-Okay.
MS. BUETTNER-I appreciate everybody wanting to get this over with in one meeting,
and being six months pregnant, I would, too. However, I don't have any authority from
my client to agree to anything that Mr. West has said, and I apologize, but I have no
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(Queensbury ZBA Meeting 01/16/08)
authority to agree to stop work, and again, I don't know all of the merits. I thought there
was a Stop Work Order, and that it was listed solely to winterize, and Craig, I think I saw
that somewhere, it was to winterize this process.
MR. BROWN-To complete the outside to keep the elements out. That's it.
MS. BUETTNER-Right, and I know that they're not working right now and that it's not
roughed in inside, it's framed, but not fully framed inside. I do think there are some facts
that are askew here, but, you know, I think tonight, I still, first think it should be tabled
and Mr. Salomon could come back, but I do think the only thing on the Appeal is the
Appeal, the building height, and the wing wall, whether it meets the setback. The Floor
Area Ratio, I appreciate everyone trying to consolidate, but, under the law, you have to
wait for a determination, and you have to then appeal from it, and I apologize if that's
going to cause problems for people, but we try to abide by everything that the law wants
us to do. So, again, I apologize. I don't have the authority to agree to anything that
Attorney West said. I mean, obviously, as a Board, you can do what you do, but I don't
have that authority tonight.
MR. MC NULTY-Okay. What I would suggest is that we consider tabling this at least
until a meeting in February, and not necessarily putting a date on it, and asking counsel
for the parties involved to try to get together and determine what they can do for
consolidation, whether or not it would work out better to amend this appeal that's before
us now to include everything or not, and let Counsel make that determination perhaps in
consultation with Staff, if they see a need for additional determinations from Staff, to
make things clear, and then once we hear back from that effort, then Staff and I can sit
down and schedule whatever we find that we're going to need, whether it's going to be
simply bringing this Appeal back and solving that and then moving on, or whether it's a
consolidated appeal, because this was my thought. I expected you to come up and say,
I don't have authority, I haven't talked to my client, and that's perfectly understandable,
that the landowner's attorney cannot respond tonight.
MR. URRICO-That was going to be my suggestion.
MR. MC NULTY-Okay, then let me make a motion and see where we go with this.
MS. BUETTNER-I'm sorry. I just need to clarify. Mr. West is not the appellant's counsel
tonight. So I don't know if they do have counsel. I would be happy to confer with
counsel, but it's my understanding that Mr. West is the Rosenburg's counsel, and they're
not here, they're here speaking, but they're not the ones with the Appeal.
MR. WEST-Let me clarify. We're here tonight for the Rosenburgs. I'm sure Mr. Glandon
will give me authorization to represent him in connection with this Appeal, and what we'll
do is we'll file the request with Mr. Brown, relative to the Floor Area Ratio, and we would
be happy to coordinate with Counsel. As soon as we get a decision from Mr. Brown on
that, and my prior letters, we'll file an appeal. We'll be happy to coordinate with counsel
for the applicant to stipulate to consolidation of appeals, so that we can have all of the
issues before you, it may take a little bit of time to do that. We'll move as quickly as we
can. Obviously we have to wait for responses from Mr. Brown. We have to file the
appeal, and then we have to sit down with counsel. So it may be February or March.
What I'm hearing, first of all, (lost words) the building is completely framed, closed in, all
the windows and doors are in.
MS. BUETTNER-There's plywood.
MR. WEST-Exterior. So the building is not in any jeopardy. If I understand that there's
no work, I think it should be clear from the Town, based upon the record that's been
made tonight, that there should be no work until this until this Board and the Planning
Board makes its decision concerning what might have to be adjusted in those plans, and
unfortunately they're probably going to need to hear from the Health Board, too.
Because I'm still at a loss as to how they're building a septic system on the left, and so
we'll probably have to get three Board decisions here, and I would hope that this Town,
through the Building Department or a directive from this Board, would direct that there be
no further construction until these issues are heard and determined. We'll come back
here. We're not out to delay anybody. We just want to get a complete record and a set
of decisions, and so that if anybody's dissatisfied, we can go to court and do it once.
MR. MC NULTY-Okay. Let me make a motion and see if we can get something passed.
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(Queensbury ZBA Meeting 01/16/08)
MOTION TO TABLE NOTICE OF APPEAL NO. 11-2007 ROBERT & VICTORIA
GLANDON, Introduced by Charles McNulty who moved for its adoption, seconded by
Roy Urrico:
67 Knox Road. Tabled pending communication and conference between all the parties
involved and Staff, to consider consolidation and organization of this matter, and with the
understanding I think that at any point the appellant can notify us that he wants to
proceed with this particular Appeal and allow him to do so, but the goal being to
consolidate all the major issues so that we can address them all in one shot one time,
and hopefully facilitate this whole process, not only for the Board, but for the applicants
and the land owners. Tabled to March 26, 2008, with the understanding and
acknowledgement, like we have in some of the other cases, we may have to address this
and table again, depending on how schedules go, with a February 15th submittal date to
provide the information.
Duly adopted this 16th day of January, 2008, by the following vote:
MR. WEST-Could I have a question? Am I correct in understanding that there's a Stop
Work Order in effect now?
MR. BROWN-That's correct.
MR. WEST-Could we also have an understanding that if that situation is going to be
changed, that the parties would be notified through their counsel, so that we could make
the request for the appropriate relief from the Board, that this be brought back
immediately?
MR. UNDERWOOD-Yes. I don't know if there's pending from the Planning Board as far
as re-vegetation or anything like that. That's probably going to have to occur ASAP in
the spring. Plus monitoring all the silt fences and all that stuff.
MR. WEST-I just would like to be notified if the status quo changes, because as long as
there's no construction, we will move this forward as quickly as possible, but I don't want
to see the Stop Work Order lifted and find out about it a month or two later.
MR. URRICO-Can we make this up to 60 days with the stipulation that no work is to
begin on this project until it comes back to us, at the very least?
MR. MC NULTY-We can try that. I'm not sure we've got total authority to do what you
say, stop work, but.
MR. ABBATE-Say that one more time.
MR. URRICO-In other words, until we re-hear this Appeal, 60 days from now, whatever
shape it comes into us, no more work is to begin on the project.
MR. ABBATE-Well, we have up to 60 days to make a decision.
MR. URRICO-Right.
MR. ABBATE-Right.
MR. URRICO-And that's the 60 days I'm talking about.
MR. MC NULTY-I don't know. Craig, what are the implications? If we put a proviso in
our tabling that says no more work on the project, if an emergency situation comes up
and something needs to be done, does that create a problem?
MR. BROWN-That's a good question. I'd have to think about that. I mean, there's a
Stop Work Order that's been issued already. So I don't know what additionally.
MR. MC NULTY-I think probably the safe thing is, instead, for us to request that Staff
ensure that the parties that are involved here tonight are notified if the status of the Stop
Work Order changes, which I think is what you were basically asking.
MR. WEST-We'd be satisfied with that, so as not to create any question of whether that's
a proper. I appreciate your offer. Because, let me tell you, if work is authorized on this,
we're going to be asking the Board.
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(Queensbury ZBA Meeting 01/16/08)
MR. MC NULTY-My fear is we get a big rainstorm or something else happens and work
needs to be authorized right away to solve a problem, that I don't want this Board
hanging it up.
MR. URRICO-I understand that, but if that happens, how quickly are we going to be able
to hear that case, in that situation? It's not going to change the way we schedule it.
MR. BRYANT-That's really an enforcement issue, Mr. Chairman.
MR. ABBATE-That's none of our business.
MR. BRYANT-Yes, I'm more inclined to be concerned about, there were some
allegations made that the building is not built to the original plan, blueprint, that the
permit was granted on, somehow we've got to verify that because Staff makes a good
point that he's not going to be able to determine the Floor Area ratio until it starts to take
shape and the building's, you know, the rooms you can identify as, so forth and so on.
The permit wasn't granted on 30% Floor Area Ratio, okay, and now other people have
made allegations that the building is not necessarily built according to the original plan.
So somewhere we've got to have some kind of verification on that.
MS. BUETTNER-I would agree that you've got to have verification. I am not familiar with
the building itself. I don't know what the plans look like. I don't know what the building
looks like right now.
MR. BRYANT-Well, you've got 60 days to get up to speed, counselor. That's a major
question in my mind. I mean, we're really not an enforcement agency.
MR. ABBATE-No, not at all.
MR. BRYANT-And it's up to Staff to enforce that.
MR. URRICO-Then I second Chuck's motion as presented.
MR. BROWN-I don't know, was there a specific time put in there? I don't think you
picked a date. I think February may be too soon, if I could be so bold. You probably
want to consider a March date. There's a lot of information to gather here.
MR. MC NULTY-Well, how about we just say up to 60 days.
MR. BROWN-Yes, I'd pick a specific meeting date. I mean, you've got members of the
public here, and they should hear it. It's going to be published again, but for the benefit
of those that are here, we should probably pick a date for them.
MR. URRICO-March 17th.
MR. MC NULTY-No, March 19th or March 26th.
MR. UNDERWOOD-The 26th means you've got to have it in by the 15th, right?
MR. ABBATE-By the 15th of February for a March hearing.
MR. MC NULTY-So, well, let's pick March 26th is a far out date.
MR. BROWN-Okay.
MR. MC NULTY-And with the understanding and acknowledgement like we have in
some of the other cases we may have to address this and table again, depending on
how schedules go.
MR. BROWN-Okay. So March 26th return date to this Board.
MR. MC NULTY-To this Board.
MR. BROWN-With a February 15th submittal date to provide the information.
MR. MC NULTY-Right.
MR. BROWN-Okay.
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MR. URRICO-Is that the 27th the Wednesday?
MR. MC NULTY-Unless I screwed up, it's the 19th and the 26th are Wednesdays.
MR. URRICO-You're right.
MR. MC NULTY-We can always address it, if there's a legitimate reason to continue the
tabling, then we can do it, but otherwise, picking the 26th hopefully gets things settled and
lets them get on with their building. Okay. Everybody in agreement to that? Then let's
have a vote, Maria.
AYES: Mr. Urrico, Mr. Bryant, Mr. Underwood, Mr. Abbate, Mrs. Hunt, Mr. Garrand,
Mr. McNulty
NOES: NONE
MR. MC NULTY-Okay. Thank you all.
MR. GLANDON-Thank you very much.
MR. ABBATE-Yes, you're welcome.
MR. MC NULTY-Did I hear a call for a break for a minute?
MRS. HUNT-Yes.
MR. BRYANT-Yes.
MR. MC NULTY-Okay. Five minute break, and it needs to be five minutes. First off, let
me ask if there's anybody here for the Area Variance 3-2008, 246 Assembly Point Road?
Okay. Good. We'll leave that to where it is on last, then. Okay.
NEW BUSINESS:
AREA VARIANCE NO. 1-2008 SEQRA TYPE: II BRIAN MC CALL AGENT(S):
ALBERT S. MUGRACE OWNER(S): BRIAN MC CALL ZONING: HC-INT.
LOCATION: 274 QUAKER ROAD APPLICANT PROPOSES CONSTRUCTION OF AN
2,550 SQ. FT. METAL ADDITION; 3 WORK BAYS AND STORAGE TO THE EXISTING
TIRE REPLACEMENT FACILITY/OFFICE/STORAGE. RELIEF REQUESTED FROM
SETBACK REQUIREMENTS AND FLOOR AREA RATIO REQUIREMENTS. WARREN
COUNTY PLANNING: JANUARY 9,2007 LOT SIZE: TAX MAP NO. 302.08-1-39,
38 SECTION: 179-4-030
AL MUGRACE, REPRESENTING APPLICANT, PRESENT
MR. ABBATE-Before we do that, Mr. Chairman, I have an early morning commitment at
six o'clock in the morning. So I'm going to have to leave. We have Joan who could
always sit in, I guess, or Brian, whatever, but I have to go.
MR. MC NULTY-Okay. Thanks, Mr. Abbate.
MR. UNDERWOOD-It's Brian's turn, I think.
MR. MC NUL TY-Brian's turn.
STAFF INPUT
Notes from Staff, Area Variance No. 1-2008, Brian McCall, Meeting Date: January 16,
2008 "Project Location: 274 Quaker Road Description of Proposed Project: Applicant
proposes construction of 2550 sf addition to the existing Auto Service Facility.
I Relief Required: I
Applicant requests 1.8 feet for relief from the 50 foot minimum total side setback
requirement and 1556 sf of relief from the maximum allowable Floor Area Ratio
requirement for the Highway Commercial, (HC-Int) zoning district. Specifically, the
applicant is proposing a 35% FAR for the site.
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(Queensbury ZBA Meeting 01/16/08)
I Criteria for considering an Area Variance according to Chapter 267 of Town Law: I
1. Benefit to the applicant:
Applicant would be permitted to construct the structure in the preferred location.
2. Feasible alternatives:
There appears to be ample area available for construction in conformance with the
setback requirements, and, it would appear as though a smaller addition (994sf) would
meet the FAR requirements.
3. Is this relief substantial relative to the ordinance?:
The request for 1.8 feet of setback relief from the 50 foot requirement may be interpreted
as minimal (3.6%). The proposed 35% FAR total may be interpreted as moderate.
4. Effects on the neighborhood or community:
No letters of support were submitted with the application materials. Given the apparent
sharing of access aisles with at least three adjacent properties, effects on such
arrangements should be considered.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
I Parcel History (construction/site plan/variance, etc.): I
SPR 64-2007 pending 2550 sf addition to Auto Use
SV 59-2001 8/22/01 setback relief for sign in ROW
SPR 44-1998 8/18/98 Auto Service Use ( Tire Warehouse)
I Staff comments: I
Given the apparent limitations for the parking and drive aisles on the site together with
the Floor Area Ratio relief on a site with 90% impermeability, the Board may wish to
consider seeking a recommendation from the Planning Board prior to acting on the
variance requests. It would appear as though the on site areas for Stormwater Control
are limited and will be further tested with the addition to the building.
I SEQR Status: I
Type II"
MR. UNDERWOOD-"Warren County Planning Board Project Review and Referral Form
January 9, 2008 Project Name: McCall, Brian Owner(s): Brian McCall ID Number:
QBY-08-AV-1 County Project#: Jan08-14 Current Zoning: HC-Int. Community:
Queensbury Project Description: Applicant proposes construction of a 2,550 sq. ft.
metal addition; 3 work bays and storage to the existing Tire Replacement
Facility/Office/Storage. Relief requested from setback requirements and Floor Area
Ratio requirements. Site Location: 274 Quaker Road Tax Map Number(s): 302.08-1-
39, 38 Staff Notes: Area Variance: The applicant proposes to demolish a portion of a
building to construct a 2,550 sq. ft. addition. The addition is to be used for two additional
service bays and tire storage. The site currently has a four bay, showroom, and office
area. The lot coverage is 90% where a 30% permeability is required. The information
submitted shows the building elevation and site layout including landscaping. Staff does
not identify an impact on county resources based on the information submitted. Staff
recommends no county impact. Warren County Planning Board Recommendation: No
County Impact" Signed by Richard C. Merrill, Warren County Planning Board 1/10/08.
MR. MC NULTY-Okay. Would the applicant identify themselves.
MR. MUGRACE-My name is Albert Mugrace. I'm an architect, and I'm responsible for
the drawing here that you see, and I'm accompanied by Brian McCall. He's the owner of
the premises, the property.
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(Queensbury ZBA Meeting 01/16/08)
MR. MC NULTY-Okay.
MR. MUGRACE-As you've already read, we pretty much concur with everything that was
read. There is an issue with the side setbacks. We're short 1.8 feet from meeting the
Town requirements. The FAR has also shortened our respect by roughly 1800 square
feet. We are allowed, as you've stated, 900 and some change square feet, under the
present zoning laws. However, by strictly conforming to the letter of the law, it would not
make much sense from a construction point of view, and the expense associated with
putting up basically a 900 square foot addition. It's not economically feasible. I'm just an
architect. I'm not a lawyer. So I'm here for any questions or comments in regard to the
project. Whatever I cannot answer, I'm sure Brian might be able to help us out, and I'm
just hoping for any questions.
MR. MC NULTY-Okay. Now this has a slice of a property on the backside that is on a
separate deed?
MR. MUGRACE-Yes. Well, we're not sure about that.
BRIAN MC CALL
MR. MC CALL-It's being merged.
MR. MC NULTY-It's being merged, but it's not merged yet?
MR. MC CALL-Right.
MR. MC NULTY-Okay. That's one thing for us to consider.
MR. CLEMENTS-Is it included on this map?
MR. MC CALL-Yes.
MR. MUGRACE-Yes, it's included. It's this section right here, there is a lot line
designation there. You can see it on the plan. Anything that would be south of that
would be the other, the additional lot.
MR. MC NULTY-As I recall, the map I was looking at, it seems to slice through a corner
of the addition.
MR. MUGRACE-Well, yes, it goes right here.
MR. URRICO-The side setback that you're requesting, you've already basically, you're
not extending any further than what you already have right now?
MR. MUGRACE-Exactly. We're just following what's already existing there. We have a
survey here to confirm those setbacks.
MR. URRICO-Now where you have your four service bays on one side of the building,
the opposite side of the building used to be, it used to be a bakery building right?
MR. MUGRACE-Yes.
MR. URRICO-And it has delivery bays there of some sort?
MR. MUGRACE-Yes, there's some loading docks. There's four.
MR. URRICO-Loading docks, and you're going to keep them as loading docks?
MR. MUGRACE-Yes. That's going to remain as is. As a matter of fact, I've prepared
some elevations. I don't know if you have copies of those. You should.
MR. URRICO-I probably do. You need all four of those loading bays?
MR. MC CALL-For the four bays in the back, we utilize maybe two of them for that
purpose. The other ones are, they were just there when we purchased the building.
MR. URRICO-Okay.
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MR. GARRAND-I've got a quick question. Do you realize, are you aware that the Town
is being sued because of the water problems being created in that area due to the lack of
permeability, and you're asking us to increase the impermeability in that area?
MR. MC CALL-Right, well, I'm sure as you're aware, that we're working with the Town of
Queensbury and our neighbors, Minogue's Beverage and Time Warner Cable, to correct
this problem. We're going to be doing a project to re-do that whole culvert system there.
MR. GARRAND-Yes, part of that, though, is the contention is that the impermeability of
that area and the development that the Town has allowed has caused the problems
down there, resulting in lawsuits from people over on Homer Avenue. This is all part of
the Meadowbrook Road watershed study, and some of the recommendations of that
were basically no further development or, you know, increased permeability in a lot of
these areas.
MR. MC CALL-Well, we are going to be increasing the drain water capabilities with that
project that we're working with with the Town on now.
MR. BRYANT-I think the problem was not permeability, correct me if I'm wrong. I think
those culverts went under one of the buildings there and they got plugged up or
something, is that what happened?
MR. BROWN-Yes, not to get too far off track, but the culverts that run from the south end
of actually behind the Minogue's property northeasterly and come out in front of the Tire
Warehouse property are old, by today's standards, and the flows of stormwater that
come out of the City, basically, because the water comes from the Bay Road cemetery
area, basically, through the Kubricky property, through Homer Avenue, and then
ultimately to Halfway, but that stormwater volume has increased over the years. These
pipes haven't increased with anything except a bed load of sediment in the pipes. So it's
very, very little to do with the impermeability of this site. It's the upstream sites that have
increased the flows where these pipes can't handle it anymore.
MR. BRYANT-I just want to add one more question to that, for Mr. Brown. When they
calculated the Floor Area Ratio, did they take into consideration the merger of the two
lots?
MR. BROWN-That would be a question for them. Yes, I would think so.
MR. MUGRACE-Yes, that's, the FAR is based on the whole parcel, you know, the
combined.
MR. BROWN-And that can be a condition of an approval or of any decision that you
make, you know, that they merge the lots, because the deed that's in the file describes
both parcel in one deed, but they're described separately. They have separate tax
maps. I'd like to see, you know, for clarity and for cleanliness, is one description that
describes the four sides and there's no parcel one and parcel two. It's one big parcel.
That's a consolidation deed, and that's something they can do. They're probably
working on that.
MR. MUGRACE-That's something that our lawyer is currently working on. As a matter of
fact, he was supposed to be here tonight in place of me, but he had some previous
commitments he had to attend to, and if I can go back to the issue of permeability there,
this site, and Craig knows the site pretty well, at this point is basically impermeable.
There's no amount of green space there to speak of. As a matter of fact, we might
mitigate that situation with the addition, believe it or not.
MR. UNDERWOOD-Is the Planning Board going to do Site Plan Review on this, Craig?
think they have to.
MR. BROWN-Yes.
MR. UNDERWOOD-That's what I thought.
MR. GARRAND-Okay. Employee parking, where's that going to be? Normally they park
behind the building.
MR. MUGRACE-Well, we've got a few spots right here. That's, you know, we tried to do
the best we could with the site.
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MR. GARRAND-You've got also two tractor trailer size dumpsters in the back of the
building.
MR. MUGRACE-Yes, those are going to be removed, removed from the site.
MR. GAR RAND-What about access for tractor trailers? Are they going to be able to turn
around in that easement to go to Minogue's?
MR. MUGRACE-Originally we wanted to make this addition somewhere around 40, 42
feet, and because we were concerned about that, we dropped it down to 34 feet. We
have done some traffic studies there. We have investigated turning radiuses and stuff
like that for, you know, for good size tractor trailers. I'm not saying that two 55 foot
trailers crossing each other there might not have a little problem. They probably would,
but, you know, for the traffic that's, and Brian can maybe, you know, he can elaborate on
that. What kind of traffic do you get back there?
MR. MC CALL-The traffic that travels behind there, we determined that the drawings
here would have the appropriate space available to have that type of traffic behind there.
MR. MUGRACE-I mean, normally goes through there?
MR. MC CALL-Yes, maybe one car at a time. I know our neighbors next door,
Minogue's, they have a tractor trailer that will come through to back up to their loading
dock and there shouldn't be any problem for that truck to get through.
MR. MUGRACE-Where is the loading dock, here?
MR. MC CALL-Over on Minogue's property, to the top of that. The loading dock for
Minogue's is right here. The truck comes right up through here and then backs up to
there.
MR. GARRAND-Time Warner also has tractor trailers coming in there also?
MR. MC CALL-No, they have small Astro Vans, like minivans that come through, and
they come right into here.
MR. BRYANT-Do you have an agreement with Minogue's to allow these tractor trailers to
come up?
MR. MUGRACE-Well, there's an easement that goes through there, yes.
MR. BRYANT-You have an easement?
MR. MUGRACE-Yes.
MR. MC CALL-There's a common right of way between the landowners for use of this as
a right of way. It's common between the landowners.
MR. BRYANT-Yes, but is that big enough? I mean, you've only got 23 feet plus maybe
another six or eight feet to the end of the right of way. That's not enough room for a
tractor trailer to back in there.
MR. MUGRACE-Well, this is what's there now, 23 feet, 23.5 feet is the condition that's
already existing.
MR. BRYANT-Yes, I know, but the right of way doesn't extend much further than that.
So my question is, you've got a right of way, I understand that, but do you have the right
to put a trailer on Minogue's property?
MR. MUGRACE-Yes. If you'll notice this dashed line here, that straddles the property
line, and that's where the common agreement between all the adjacent landowners
comes into play.
MR. BRYANT-Yes, but I don't think you're understanding my question, okay. My
question is, I can see clearly the right of way, okay. I can see the property line. Twenty-
three feet plus that little bit of right of way on Minogue's property is not sufficient for a
tractor trailer to back up into that bay. You've only got, what, 25, 28, 30 feet maybe.
Your average tractor trailer, with the cab and the trailer, is 60 feet.
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(Queensbury ZBA Meeting 01/16/08)
MR. MUGRACE-Well, it's not enough to do a maneuver there, you know, like a U-turn or
something, but it can definitely go, as Brian explained here, he can drive through here,
and then back up to the loading dock.
MR. BRYANT-Yes, but you're not answering my question. I just want to know if the
tractor, you don't have enough room, even in your right of way, to bring a tractor trailer
into one of these overhead doors. That's what I'm trying to understand. I don't
understand it.
MR. MC CALL-Are you referring to our property that we're going to have tractor trailers
backing up to our bay doors?
MR. BRYANT-Yes.
MR. MC CALL-Yes. We don't have that happen, and we're not going to be having tractor
trailers backing up to the bay doors.
MR. MUGRACE-It's not happening now and it's not going to happen in the future.
MR. BRYANT-Okay. That's alii wanted to know. I was under the impression that you
were going to bring the tractor trailers in.
MR. MC CALL-I thought you were referencing the tractor trailers for Minogue's going
through.
MR. BRYANT-Okay. Thank you.
MR. MC NULTY-Any other questions? Okay. Then I'll open the public hearing. Is there
anybody that wants to comment on this? Please remember to identify yourselves and
speak into the microphone.
PUBLIC HEARING OPENED
JEFF MEYER
MR. MEYER-Certainly. My name is Jeff Meyer. I'm an attorney with Fitzgerald, Morris,
Baker, Firth. There's a letter circulating, which is just a copy of the remarks that I'm
going to present right now, in case I forget something or you guys want to read along at
your own pace. I'm here on behalf of my client, Rob Doin, who is the owner of
Adirondack Wine Merchants, which is the business tenant with a purchase option that
will be exercised in a matter of weeks. So in a couple of weeks he'll be the owner of the
adjoining property. He's presently the tenant there, and it's the adjoining property to the
east. It goes Minogue's, Tire Warehouse, Adirondack Wine Merchants. We're here to
object to the proposal and request that the Board deny this variance. The proposal is
insufficient and it's clearly detrimental to the health, safety, and general welfare of the
neighborhood. Foremost, the applicant hasn't submitted a complete application. There
are no stormwater plans. Everyone knows that stormwater is a huge issue in this area.
Though the impermeability figures aren't necessarily changing, the manner in which the
water is going to leave the property certainly will. You're adding a pitched roof, which will
drain water onto my client's property or could potentially drain water onto my client's
property, which may, you know, make him a party to this big agreement if all of a sudden
water is being channeled off of these problem lots onto my client's lot. The property as it
exists is nonconforming. The side setbacks just aren't there, and it has insufficient
access to the loading docks on the east side of the building, which are my client's
primary concern. The 25, which should be at least 20 feet, according to the regulations,
for the composite of the 50 feet, you know, regardless of that, there isn't enough room for
the use. They're loading docks that cannot be used by trucks without trespassing onto
my client's property, and that is actually a huge problem which we will be dealing with
separately, but it is going to be an ongoing, recurring theme to my discussion.
Additionally, there are a number of containers, storage containers, that are located on
the property. They've been there for at least three years. Right now there's electricity
running to those. We request that those be addressed prior to the Board taking any
action on this application. In examining the merits of this particular variance, the
applicant has made no showing of hardship. He's presented simple yes, no responses
which are insufficient. Looking at the first criteria of the undesirable change and the
detriment to the surrounding property owners, it is detrimental to my clients and the
larger area. We have the stormwater problems. There's presently sinkholes in the front
of the boundary of this lot and my client's lot, which are directly related to the stormwater
issues. Again, the pitch of the roof is going to drain water towards my client's property,
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(Queensbury ZBA Meeting 01/16/08)
and what's also missing is, you know, any sort of provisions for snow removal. You have
a lot that's developed, fully developed. There's very little room to maneuver and/or park
cars, and there is nowhere to place snow. Presently it's my understanding that the snow
gets plowed onto my client's property and onto the Minogue's property, and we will be
putting a stop to that so the applicant should address that in his application to the
satisfaction of the Board. Again, the trespass that has occurred across our property is an
issue. There is not sufficient access to use those storage doors, nor will there be
sufficient access to utilize the dumpster where it's located. There's no way to get a truck
in there to empty that dumpster without crossing on to my client's property, which is not
permitted and we will object to. Additionally, you know, getting into those parking
spaces, compact cars, yes, they can most likely get in and out of those spaces. You get
a larger vehicle, you're going to have issues and my client doesn't want any trespass
onto his property. The benefit sought can be achieved by other methods. It's clear they
can construct a smaller building, a smaller addition that won't interfere with the setbacks,
that won't interfere with the Floor Area Ratio, and this variance is substantial. If you look
at it strictly from a numerical standpoint, you know, the numbers aren't that offensive, but
when you place them into context, it's a substantial variance that this Board should deny.
The use is excessive. The trucks and vehicles that use the lot are excessive. There
really isn't any way to get in and out of this property without either crossing on my client's
property or onto Minogue's, and by getting in and out, I'm referring to utilizing the bays
and utilizing the storage, and we would ask that the Board do request documentation
supporting the turn radiuses that they alleged would be able to maneuver safely within
these small confines, because we would like the opportunity to review that. Moving on to
the parking. Though technically it fits, the Code only requires two spots for each bay,
and two additional spots. They do meet that, based on the drawing in a vacuum, you
know, parking spot number seven is located directly in front of the door, and without any
buffer between that spot or even a line showing where that spot ends and where the door
begins, you know, you can't maintain egress. You're going to violate the Building Code.
You're going to violate the Americans with Disabilities Acts. There's serious issues and
that spot needs to get automatically tossed. You look at parking spots nine through
twelve that are along the west side of the property, in order to travel around those, to
reach the bays, you're going to require trespass. It's going to require you to either figure
out what exactly the terms of that shared easement are that he spoke of and whether this
additional use would be acceptable or you're just going to have to flat out trespass onto
the lands of Minogue, and lastly, examining the substantial nature of the variance,
another concern for us is the construction process. A few years ago there was an issue
with the DEC, they had to excavate a corner of the property due to a spill, and, you know,
we allowed the DEC to park some equipment on our property and gain access to our
property in order to perform the job. I don't foresee our generosity extending to this
project, and, you know, there's no place for construction workers. There's no place for
equipment. If the business is going to be ongoing while they're doing the construction,
which we assume it would be, you know, where's all this overflow going to be located?
We've shown that this proposed variance will have an adverse effect on the physical and
environmental conditions, in discussing our previous points, primarily stormwater, and
the snow removal issues, and the alleged difficulty is entirely self-created. There's no
God given right to fully exploit your property and put a building to the four corners, to the
detriment of the neighborhood and the community, and that's why we feel it should be
denied. So, based on the foregoing, the proposal is detrimental to the health, safety, and
welfare and general welfare of the neighborhood and the community. We thank you for
the opportunity to present this material, and would welcome any questions that the Board
may have.
MR. BRYANT-I have a question. Your property is the Murray property?
MR. MEYER-Yes.
MR. BRYANT-Okay. You have a contract for that property?
ROB DOIN
MR. DOIN-Yes, we do.
MR. BRYANT-Okay and you're set to close, you said, pretty soon.
MR. DOIN-Yes, we were supposed to close on the 31st of December, but Ed was out of
town and we were busy. So we put a, we're going to do it in the next two weeks, but we
can do it up to March 31 st.
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MR. BRYANT-Okay. You stated, counselor, that there's difficulty driving on the site.
You've got 25 feet here between the building and the property line.
MR. DOIN-Driving on which side, on?
MR. BRYANT-On your side.
MR. DOIN-The reason that that is, is because of the way that they use the property. The
green storage containers that are back there are about two feet off the property line in
the back. So in order for them, and Mr. McCall parks his black pickup truck backed into
one of those bays on my side, as well as the bookkeeper parks on that side. So when
you take a car, a full size truck, and you park it directly facing into the building or facing
out, you've essentially extended onto my property already. So the only way that they can
get a car by is to drive onto my property or to drive onto Minogue's property, which is
what's happening right now, and has been for three and a half years. I've made several
attempts to talk to them about please do not use our property. If you would like to
negotiate some kind of use of the property, I'd be happy to, to no avail. I mean, it's to the
point where it's a ridiculous situation that when I walk over there and express myself, I'm
essentially laughed at. We'll do what we want.
MR. BRYANT-Well, the solution is to put a fence.
MR. DOIN-That's where we're going, and since I will have the property in the next two
months, or next two weeks, then I will be able to do that as soon as the snow's gone.
We have put a fence up, and it was torn down by the applicant.
MR. UNDERWOOD-Do you utilize that part of the property on the side facing them for
parking?
MR. DOIN-Yes, we need to. In fact, we looked at the possibility of putting a second floor
on that building with an elevator and so forth. It doesn't look like that's, A, financially
going to be affordable for my wife and I, but more importantly it doesn't look like there's
going to be nearly enough parking spaces, without getting some type of lot agreement
from Tom Ross behind me, or the Della's across the street. So that's kind of, you know,
we pushed that to the backside and we're focusing on the business as it stands right
now. That being said, we did a lot of modifications to the inside of the building, and we
spent some money and a lot of hard effort and time to beautify the inside of that building.
We see a lot of traffic on Quaker Road. So it's really important to us that the next stage
of the development of that property, which will certainly come before all appropriate
Boards, that we make it look as pretty as we made the inside. We need to make it look
the outside. So, put a fence up, we're going to put a fence up, but it's going to have to be
an attractive fence. Tom Ross has got cherry trees in the back. We want to put some
cherry trees up. So it's just taking a little bit more time than I had hoped. It's been an
arduous three and a half years with my neighbor, and I don't need to get into everything
for you guys, but it's a situation where, if I don't put up a fence, if I don't drop boulders
the size of a full size truck, there is no stopping him. He will do what he wants, no matter
what I say.
MR. BRYANT-Well, I don't want to get into a neighbor thing, but do you occupy the
building now?
MR. DOIN-Yes, we have for three and a half years.
MR. BRYANT-Okay. Now I understand what you're talking about.
MR. DOIN-Right.
MR. BRYANT-Okay. Those are my questions.
MR. MC NULTY-Any other questions?
MR. UNDERWOOD-Yes, I just had a question. If you put the fence up, would you have
any objection then, at that point, because they're not going to be able to access onto
your property at that point?
MR. DOIN-I really don't have an objection with, other than stormwater issues. I don't
want, when the big flood happened on Homer Avenue, and it was four feet high on the
side of Minogue's, it was coming around the back of my building. So there is definite
concern that I have. I mean, I was planning on wheeling out boxed wine, because it's
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wrapped in cellophane, to dam up the back door of my building, because it is on a slab
and it's just going to come straight through, so, yes, I have some concerns with that.
Really, my issue is that the way the building is right now, with the storage containers
there, the applicant cannot use the property without trespassing on my property and
Minogue's property. So therefore, by taking away those storage containers and merely
building a building that's almost the size, we've just exacerbated the problem. Nothing
has changed. He still can't use his property the way he would like to without trespass.
So, no.
MR. MEYER-And just to add another quick point is that, you know, presently trucks do
back in front of the Adirondack Wine Merchants, and park there.
MR. DOIN-Absolutely.
MR. MEYER-Sometimes idling, sometimes they don't, but I mean, they do completely
block the front of our building in utilizing theirs, and it's a little unfair for you guys to, we'd
be hesitant to have to put up a fence because they want to use their property in deviation
from what's permitted by the Town.
MR. UNDERWOOD-That fence line, you wouldn't be able to extend that probably all the
way out to the right of way in front anyway on Quaker, right? Because you have a
shared access?
MR. DOIN-Not in the front of the building.
MR. UNDERWOOD-Not in the front?
MR. DOIN-Not in the front.
MR. MEYER-There is no shared access along the front of the building.
MR. DOIN-And I certainly would do that, as long as I could get approvals, because,
again, if, as I see it over the last three and a half years, if that's not done, they're just
going to drive around the fence and come in.
MR. UNDERWOOD-Well, I know everybody drives across the front of the property.
MR. DOIN-And, you know what, I would rather leave it open. I mean, I've talked to
people for three and a half years as this problem's gone on, and it's been there for 20
years. I don't necessarily want to do that, and Rob Minogue and I know that there's
shared interest in the people that shop there. So easy of access makes sense. What do
you do? I mean, you get into a spot where you don't have much of a choice. What I'm
trying to do is protect the value of that property for a five year old and seven year old that
I have at my house. That's all I'm trying to do.
MR. MC NULTY-Any other questions? Brian?
MR. CLEMENTS-Are you working with the Town on this drainage problem right here,
because it says existing underground drain goes through your property and through the
property next door?
MR. UNDERWOOD-No, that's through their.
MR. BRYANT-That's on the other side.
MR. CLEMENTS-Okay.
MR. DOIN-I'm next door, between Cool Beans.
MR. MC NULTY-Okay. Any other questions? Okay. Thank you.
MR. DOIN-Thank you very much.
MR. MC NULTY-Anybody else wish to make comment? Come on up. Give us your
name first, please.
ROBERT MINOGUE
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(Queensbury ZBA Meeting 01/16/08)
MR. MINOGUE-Robert Minogue. I'm one of the owners of Minogue's Beverage on
Quaker Road. I have a number of issues with the proposed building. Some of them
have been referenced already, but I'll start right from the top. I will start from the top and
go down, but I would like to first mention, when Brian was asked regarding the tractor
trailer access into the rear of his building, I'd just like it to be known for the record that
that continues to happen, that there are tractor, he has tractor trailers that come in and
unload his used tires from the storage containers that he has occupying on the rear of his
property, and as of this morning, I was in work and one of my employees came in and
said, Rob, there's a truck driver out there and he wants you to move your vehicle, parked
on my property in the back of my building, wanted me to move my vehicle so he could
pull in to the back of my property and back up to Brian's storage container to unload
tires. I said it's not happening. I said my truck's parked right there, and I've got two
tractor trailers coming in within the next hour, and I said you're going to have to figure
something else out. So, he proceeded to angle the tractor trailer around the building,
and in its position, as he had done so, he was still over the property line, the tractor was
over the property line on my property. Now, I had an incident a couple of months ago
with one of the drivers that came in to pick up the tires, and that one wasn't as pleasant.
He was a real truck driver. So I didn't really appreciate having to go through that, but I
have to police my property. So, that being said, there's inadequate employee parking.
Tire Warehouse employees use my rear parking for their parking. There's inadequate
customer parking. The Tire Warehouse employees have used, and use, Minogue's
designated customer parking area for their customer vehicles at their own discretion.
This happened just about a month ago, and I had gone over there and one of the fellow
employees there that was working there, Brian, had apologized for that, and had told me
that. That evening I got a call from my mother, this is on a Saturday. I wasn't there. I
was actually hunting, and I got a call that evening from my mother, and she had
explained to me that you probably should have been at the store because we were
awfully busy when I went by this afternoon. Well, I know it wasn't any busier than a
normal Saturday this time of year, and what the case was was a break in the weather
and there were the Tire Warehouse cars parked in my parking lot. That's not acceptable.
I'd like to continue. On the front side of the Tire Warehouse building, facing my building,
there are a pair of designated parking spaces there. When Brian's Uncle John got the
property, and was handling it and on premise of his business, he was asked and told and
agreed to not parking vehicles on that side of the building because it prohibited our
tractor trailers coming in and pulling around and backing into our loading dock. There
was a fence put up, and it was an ugly situation. It was not appreciated, but he had
agreed that that wouldn't continue. That continues today. Inadequate storage area for
used tires. The placement of the existing storage trailers. I'm not sure if there's a permit
required for that, and there are more than two containers. I believe four, and they
occupy and come very close to the easement that Minogue's has on that corridor to the
rear. Again, we've already addressed this at this point. Method of removal of stored
tires. The tractor trailer that comes to pick up the tires has no area to back up and then
forward, and therefore encroaches on Minogue property to do so. We've already hit that
one. I just wanted to clarify that, right up front. Next. The current road that's proposed, I
was addressed by Brian the other afternoon to go out and take a look, and I'm not sure
what afternoon it was. So we went out and took a quick look, and he started to show me
basically was going to go on, and it's been, that was my immediate concern, that the
building far exceeded the limits of his property, not leaving safe boundary, meaning that
his building was going to be too close to that easement on that road and prohibit my
tractor trailers that I have coming in and my truck from coming in successfully, and I
expressed that to Brian, and it was raining and I said I don't believe that I want to stand
out here in the rain and talk anymore. I will speak with my brother about this, but I can
tell you right now, I said, I'm not going to speak for him, but from my standpoint, this isn't
going to happen. My brother came up, two days following, and we talked about it, and I
can tell you right now, my brother is not in favor of this. He is away this weekend, or the
next few days. He would have been up here, but he is bringing my nephew to look at a
college. So he's not here this evening. Now, this has been something that I learned
tonight by sitting here for so long, and that is I had written down here because it's a
natural concern was the height and the length, the extension off of the existing building,
for the new building, and that, for me, is a concern because it's going not only to narrow,
what it's going to do is narrow the field of view for vehicles passing through that corridor,
making for hazardous driving conditions, okay, and that was my concern, and there
again, with the size of the proposed addition, that is not going to allow, it's going to
basically occupy the same amount of space that is already occupied by the storage
containers. Also, what's going to happen is there's going to be, there's a nice access,
with this corridor in the rear, from Everts to my parking lot to Rob's parking lot, to Tom
Ross's parking lot, to Time Warner Cable's parking lot, and I will verify this, too, for the
record, that Time Warner does have tractor trailers pulling in and out of that yard,
because they have to deliver the optic cable that they run, and you can take a drive by
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and see the very large spools of cable sitting on their property, and those are dropped off
on tractor trailers. So, they do have trailers going through that property. That building's
going to really congest that back area, as if it's not congested enough currently as we
speak, and there is access that goes through very nicely. Customers come in off of
Everts Avenue and they go out off Everts Avenue, and they avoid Quaker Road. Now,
Quaker Road is a four lane highway, okay. Queensbury has grown tremendously. My
father bought that property in 1967 and built that building. It was a two lane road. As my
mother said today, and I don't know for sure exactly, I thought it was three, but the
second business on Quaker Road, there was Bob Clark Pontiac, and then my father. I
think Doyle's may have been there at the time, too. I'm not sure, but the reason I bring
that up is that I've seen, as a kid, I've grown up and I've seen this growth in this area,
and I can remember going home from work with my dad, and we wouldn't be able to turn
onto Quaker Road too quickly because it was two lanes and the traffic was too busy.
We'd go out back, Everts Ave., and come down. Point being it's now a four lane road,
and the traffic on that road is incredible, and I would offer to anyone here tonight, if they
would like, to pull out of my parking lot at about 5:30 on a Friday night, or 5:00, and try to
turn left going towards Bay Road. It's not going to happen. So, by further congesting
that back area, it's going to prohibit and turn people off from going out Everts and say, I'll
just go out this. So it's preventing a whole other unforeseen crop of problems, as far as
the driving goes, the driving issues are concerned.
MR. MC NUL TY-Mr. Minogue, so basically you're concerned about congestion and their
intrusion onto your property?
MR. MINOGUE-Absolutely.
MR. MC NULTY-I'm trying to hurry you up because we've got another case to get to, yet.
MR. MINOGUE-I'm sorry.
MR. MC NULTY-Are there any other different points that you have to make?
MR. MINOGUE-No, I believe I've pretty much touched on everything.
MR. MC NULTY-Okay.
MR. MINOGUE-I'm sorry to carryon like that. I just feel that, you know, that the, just a
couple of things here real quick. With those storage containers, I feel the removal of the
existing storage containers at the rear of that Tire Warehouse building would provide for
more open space which possibly may provide enough open space to accommodate the
Tire Warehouse's needs right now, which are not being met, which is employee and
customer parking and snow placement concerns. Again, the current conditions do not
provide for this. This proposed addition will create additional problems, making it much
more difficult for Minogue's, an adjoining property owner, to successfully operate their
respective business, and I will further note, too, that the snow that gets plowed on my
property, I have to bring in, I have, over the years, the amount of snowfall, on heavy
winters, front loaders to move the snow, and I've taken the snow and, being snow that
has been plowed from that Tire Warehouse onto my property, picked it up and loaded it
in the back of my property. Now, the cost of having a front loader there moving snow is
expensive, and I'm not really happy about moving my neighbor's snow, only because
he's got storage trailers in the back of his existing building that do not allow for him to
properly place his snow. So, that being said, I appreciate your time, and again, I'm sorry
I didn't cut it a little shorter, but, thank you.
MR. MC NULTY-Okay. Thank you. Anybody else have comments on this project?
Then would the applicants like to come back up and hopefully quickly address anything
they want to.
MR. UNDERWOOD-I've got one letter to read, too.
MR. MC NULTY-Okay. Have a seat, but before you comment, let's get the letter read in.
MR. UNDERWOOD-This letter was received on January 15th, from Tammy J. Sullivan.
She lives at 18 Homer Avenue, which is the street in the back there. "Dear Mr. Brown:
In connection with the above referenced matter, I oppose approval for any and all
construction on this property or any property in the immediate area. As you know, the
applicant and other parties which are defendants in a civil action which I commenced
relating to flooding/stormwater issues related to this property and surrounding area.
Specifically, the repeated flooding of my property has been caused by an inadequate
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culvert which passes underneath a portion of the applicant's property. I believe approval
of the application will increase flooding in the area as the existing culvert is inadequate to
handle the present flow of water. Unless the applicant is planning to address the culvert
/flooding issues currently being litigated, prior to the proposed construction, I request that
approval for any further construction of any kind in this area be denied. Very truly yours,
Tammy Sullivan" That's it.
MR. MC NULTY-Okay. Thanks. Okay, applicant.
MR. MUGRACE-Just a quick rebuttal on the storm management report, and erosion
control measures and those kind of issues. We have presently hired an engineer to look
into all of those, and it should be forthcoming and ready for our Planning Board meeting,
you know, the results of that study should be available shortly.
MR. MC CALL-I understand it's a major concern with the drainage issues there. It's a
major concern for our neighbors besides ourselves, and, you know, as AI mentioned, we
have an engineering firm preparing stormwater management reports for the Planning
Board meeting next week, and we should have them set for that. So everyone's working
together, on that project at least, to take care of the drainage issues. When we're done
with it, it'll be ten times more efficient than it is now when we're done with this project,
and this is all part of the major project that we're trying to get done on the property with
the addition and getting that drainage issue solved for Miss Sullivan who wrote the letter,
and, you know, Rob Minogue who expressed some concerns. With the snow removal, I
know we have room at the rear of our property where we push the snow, and this corner
of the property is ours. It may appear to be at Rob Minogue's property here, but we store
snow here and here, and we push it all to the front, and as you can see, the lot's not a
large size, we don't generate a lot of snow compared to our neighbors. I don't agree with
their findings saying that we push snow onto their property.
MRS. HUNT-Mr. Chairman, I have a question.
MR. MC NULTY-Okay. Go ahead.
MRS. HUNT-Do you know the width of this right of way?
MR. MC CALL-Twenty-three and a half feet, I believe.
MR. MUGRACE-It's more than that, because it extends (lost words) property here. So,
we're not quite sure.
MR. MC CALL-You mean the width of the roadway or?
MRS. HUNT-Yes, of the right of way.
MR. BROWN-What's in the deed, how's it described in the deed?
MR. MUGRACE-Yes, the easement. Well, that's something that the lawyer should be
answering.
MRS. HUNT-Is it wide enough for two cars to pass?
MR. MUGRACE-Yes, for cars, sure.
MR. MC CALL-Not a tractor trailer. Not two tractor trailers going by each other, but for
regular passenger car traffic, you know, all people can pass through without any issues,
and, you know, as far as the parking issue, I don't know how many of you are familiar
with the three properties right there. It was designed back in the 60's, and it's just kind
of, it's tight quarters, you know. We've been trying to get along as far as, you know, with
the neighbors and everything, but it's just tight quarters, and you've got three businesses
right there, right on top of each other. At times, you know, you don't have everyone
agreeing with one another, but.
MR. URRICO-It sounds more serious than that. It sounds like there are some problems
with the travel corridor there, and it looks like you're making it even tighter, the corner of
that addition, to where the right of way is going to be.
MR. MC CALL-I don't feel we will affect any access for Minogue's to get his trucks in
there. As AI mentioned earlier, we took that into consideration when we did the initial
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drawings, and we scaled it back about 12 feet or so, to be, you know, to accommodate
our neighbor at that respect.
MR. URRICO-But you said you don't know what the size of the right of way is, so how
can you calculate the travel corridor there?
MR. MC CALL-Because we're not making any narrow, it's just the angle of the way it
turns, but AI might be able to answer this question a little bit better.
MR. MUGRACE-This space here, where the building, you know, the 34 foot dimension
is, it's presently, it's actually presently being used for parking right. I mean, you've got
vehicles parked there and everything, and they don't seem to be encroaching upon
anything. So it's, we're taking up space that's basically being used right now as part of
the service operation. That's really what we're doing.
MR. UNDERWOOD-Are all your access bays on that west side, then? That's what
you're intending to have? What you're going to add, everything?
MR. MC CALL-Yes.
MR. MUGRACE-Most of the access.
MR. UNDERWOOD-Why don't have it so you can just drive through and out the other
side? Just to speed it up. I'm wondering if that would help just traffic flow, you know. I
mean, I'm not familiar with the interior.
MR. MUGRACE-Yes, the interior, it's a bi-Ievel.
MR. UNDERWOOD-So you've got all the storage in the back, then.
MR. MUGRACE-The storage is in the back where it's much higher, because of the
grade. Obviously, this was a bakery at one time.
MR. UNDERWOOD-Okay. Sure.
MR. MUGRACE-So the functions were different than what they're having now.
MR. BRYANT-How many employees do you have?
MR. MC CALL-There's approximate eight employees, including myself.
MR. BRYANT-Okay. So you have eight employees and twelve parking spaces. That
leaves four parking spaces for your customers.
MR. MC CALL-The bays, I believe, are considered parking spaces as well.
MR. BRYANT-Yes, I know, but generally, I mean, you're busier than that, okay. So my
question is, even if you had a car in every single bay, that leaves you four cars, and
there's generally a lot of parking right in front.
MR. MC CALL-Correct.
MR. BRYANT-Yes, okay. So that's not parking anymore.
MR. MUGRACE-We obviously took that into consideration and we did the analysis of the
parking, and it falls within the zoning rules. I don't know what to say about that. Craig
can verify that.
MR. BRYANT-No, but it's a good indicator.
MR. CLEMENTS-How many customers would you say you had there daily, average?
MR. MC CALL-Waiting at one time, or total car count?
MR. CLEMENTS-Total car count.
MR. MC CALL-Total car count for the day could be between fifteen and twenty, and the
average time that they're there may be half hour to an hour, whether it's an oil change or
four tires or something, about an hour.
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MR. MC NULTY-Any other questions? No? Okay. All set, then.
MR. MC CALL-Thank you for your time this evening.
MR. MC NULTY-Okay. Thank you. Okay. Let's move on.
MR. BRYANT-I'm ready to talk.
MR. MC NULTY-Okay. Let's poll the Board, then. Mr. Bryant, since you volunteered just
now.
MR. BRYANT-I volunteer, Mr. Chairman. To be fair to the applicant and to be fair to,
you know, the neighbors, and of course the correspondence you've gotten, I think that
Staff, this time, makes a very good point, and, you know, that is an area where there are
problems with stormwater, and the added building may exacerbate that. So, you know,
for the due process aspect, I think that probably we ought to probably go to the Planning
Board first, and let them recommend. I understand that these people are only basically
asking for setback, but they are asking for Floor Area Ratio, and that will affect the
stormwater management. So in my view, Staff called it right, and I think it should go to
the Planning Board first and let them come back with a recommendation.
MR. MC NULTY-Okay. Mr. Clements, have you got a thought?
MR. CLEMENTS-I think I agree with Mr. Bryant. I would like to see it go to the Planning
Board. I also, maybe if they come back, maybe would like to see, if they apply for, make
the addition smaller. I like the idea of the green space because it looks like there isn't
any there now at all. It looks like it's all blacktop back there. Couldn't see that because
of all the, some of the snow, but I'd agree with Mr. Bryant.
MR. MC NULTY-Okay. Joyce.
MRS. HUNT-Yes. I'd agree with the two previous speakers. I don't have any problem
with the 1.8 feet of setback relief, but I do have a concern about the 1656 square feet
over what is allowed, and I think that we should go to the Planning Board.
MR. MC NULTY-Okay. Roy?
MR. URRICO-Well, we're going to the Planning Board for the stormwater, right, not for
anything besides that.
MR. BRYANT-Stormwater.
MR. URRICO-So, in that case, I am opposed to the project right now for several reasons.
There's five criteria that we're charged with. One is whether the benefit can be achieved
by other means feasible to the applicant, and obviously a smaller addition would be
feasible. The second one is undesirable change in the neighborhood character or
nearby properties, and I think that's been clearly stated tonight, probably more so than
many cases we've heard recently, and that third that troubles me is whether the request
is substantial, and that, again, goes back to the Floor Area Ratio. So if I were to vote
tonight, I would definitely be against the project. One other thing, the environmental
effects, and that's whether the request would have adverse physical or environmental
effects, and that's, I think, where the Planning Board needs to help us with this, because
I think they're dealing with the stormwater issue more so than we would, and definitely
there's a question as to whether the difficulty was self-created, and you have created that
difficulty by expanding, but I think there are enough issues here where I can't approve it
as it is, but I'm willing to pass this along to the Planning Board for now to look at the
stormwater issue, but I think eventually we're going to come back to these same issues
that are, need to be addressed as well.
MR. MC NULTY-Okay. Jim?
MR. UNDERWOOD-I'm going to take a little bit of a different take on this. I would agree
with Mr. Brown's assertion. I think that the flooding issue, I think, you know, emanates
more from the City of Glens Falls, if you look at the drainage basin of Halfway Brook
there. It extends all the way back to Notre Dame Street in Glens Falls. So that's a huge
area that's draining out there, and I think part of the problem, I think, comes about in
those wet years that we have, and that's what caused that major flooding we had a
couple of years back there, but at the same time, when you're looking at a site with 90%
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impermeability, certainly the neighbors on either side, you know, are affected by runoff
that comes off your building. When it's already impermeable, it's not going to make that
much of a difference with the roofs there, but I think that the neighbors have pointed out
that there are significant problems with traffic flow and also incursions onto their
property, too. I think we need to worry a little bit about what the effect is going to be on
those by putting in more building and more service, because I think that's going to
generate more volume for you, that you're going to deal with. I can understand your
wanting to do that, and that the remuneration's probably there, otherwise you wouldn't be
proposing doing the building. I mean, obviously that's a bonus for you to get that, but at
the same time, I think we should probably send this to the Planning Board, and not only
ask for what they're planning with stormwater protection. I don't think it would be
possible to keep stormwater on site there, looking at what you've got there, but you've
got that big swale in the front. Whether it all empties into there and goes right into the
Brook, I don't know if there's anything that can be done as a neighborhood there for all
that impermeable there, but it's not just generated by your place. It's generated by all
those places.
MR. MC CALL-That's why we're all working together to have storm drains in the
property.
MR. UNDERWOOD-Right, but I think in general they're trying to make a workable
solution out for everybody involved there, but at the same time, I think that, you know,
there's other questions. If a fence is going to go up between the adjacent properties, if
that's going to happen, that's going to mess up the whole flow of everybody through
there, and I know everybody cuts through all the way to Cool Beans, you know, and
takes the short cut instead of going back out onto Quaker and stuff like that. So I think
there's too many other concerns here. I think we should send this to the Planning Board
first and let them make a decision as to whether they think it's reasonable or not and
then get back to us, and then we'll render a decision.
MR. MC NULTY-Okay. Joan?
MRS. JENKIN-With all the issues that have been brought up tonight, I really feel that
there's really no solution, because, even with a smaller addition, that might be okay, but
you still are going to have your parking problems and your driving problems, and
everything, and it sounds like the removal of the storage units, which you need now, but
that might solve a few of your problems, and then you wouldn't have such an impact on
your neighbors, but then you're not going to have the storage. It sounds like that your
company and your business is almost too small for the property it's on.
MR. MC CALL-What we're doing is with the addition, the rear part of the addition is going
to be storage space, and we are going to be getting rid of all the containers.
MRS. JENKIN-Yes, and you said that, and that's important. That's very, very important,
because right now they really are a mess back there, but I, myself, I would be opposed to
this. If the addition was smaller, I might consider it, just because you need to add more
parking in the back, too, for all the problems, and it's very, very close to this right of way,
and if the right of way is to scale, to this drawing, and the scale is one inch to twenty feet,
then it's only fifteen feet wide. It's not a big right of way in the first place. So probably it
would be difficult for tractor trailers anyway, if they were sticking right to the right of way.
So it's a general problem all over the place, but I will defer to the rest of the Board
members and say that it probably should go to Planning.
MR. MC NULTY-Okay. I guess that leaves me. I think the suggestion of our tabling it
and seeing what Planning Board does first is probably a wise choice. I kind of side with
those that have indicated an inclination deny, because there's obviously affects on
neighboring properties, as far as parking and travel. The permeability question, it's
basically an impermeable site, as you've indicated, but, nevertheless, that is a concern,
and adding to it is a concern. I guess two things I'm looking at, too. It could be that
whatever the solution is for handling stormwater is going to make the situation worse as
far as parking. I don't know. I don't know what's going to be proposed, but that's
something that I think we need to know, and my other thought it, letting it go to Planning
Board first, before it comes back to us for a final decision, gives you a little time to maybe
work out a few things with the neighbors, establish better relationships there, look for
solutions one way or another. So I think that's my inclination. Does anybody feel a
burning desire to make a motion, or shall I make a motion?
MR. BRYANT-Go ahead, Mr. Chairman.
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MR. MC NULTY-Okay.
MOTION TO TABLE AREA VARIANCE NO. 1-2008 BRIAN MC CALL, Introduced by
Charles McNulty who moved for its adoption, seconded by Allan Bryant:
274 Quaker Road. Table and refer Area Variance No. 1-2008 to the Planning Board.
Looking to see what their evaluation is of stormwater management and any other
comments they might want to pass back to us, regarding Site Plan type issues on this
property before we make a decision, and indicating to them that we also have a concern
about traffic flow and parking, and if they can look at that in terms of the Site Plan issue,
that would help us. Tabled until March 19th.
Duly adopted this 16th day of January, 2008, by the following vote:
MR. BRYANT-I think one thing I'd add to it, Mr. Chairman, because a lot of the
discussion tonight was about traffic flow and infringement on the neighboring properties,
maybe they should look at that whole thing.
MR. MC NULTY-Okay, and indicating that we also have a concern about traffic flow and
parking, and if they can look at that in terms of a Site Plan issue, that would help us.
MR. BROWN-Do you want pick a date? Do we want to pick a date that you're tabling
them to?
MR. UNDERWOOD-We've got to wait for the Planning Board to deal with it.
MR. BRYANT-We've got to wait on the Planning Board.
MR. UNDERWOOD-So the nearest meeting after the Planning Board.
MR. BROWN-I would pick, in this case, if the Planning Board hears, and obviously do
what you want to do here, but if the Planning Board hears this next week. I think that's
when it's on the schedule. The potential is to submit something from the Planning
Board, if the Planning Board requires them to make any changes, in February, they
could come back in March and hear this. They're going to have an answer before that, I
would think, but I think February may be too soon. March is probably realistic. If you
want to pick a March date, the 19th and the 26th were the dates you had before.
MR. MC NULTY-All right. Well, let's go for the 19th and see what happens.
MR. BROWN-Okay.
MR. MC NULTY-Okay. Then we'll make it tabled until March 19th.
AYES: Mr. Bryant, Mr. Urrico, Mr. Clements, Mr. Underwood, Mrs. Hunt, Mrs. Jenkin,
Mr. McNulty
NOES: NONE
MR. MC NULTY-Okay. Let's move onward. That's where we're at.
MR. MC CALL-Thank you.
MR. MC NULTY-We'll see you again.
MR. MUGRACE-Thank you.
SIGN VARIANCE NO. 2-2008 SEQRA TYPE: UNLISTED COMFORT SUITES
HOTEL/GEORGE STARK AGENT(S): JOHN H. RICHARDS, ESQ. OWNER(S):
ROYAL HOSPITALITY, LLC ZONING: HC-INT. LOCATION: 1533 STATE ROUTE 9
APPLICANT PROPOSES CONSTRUCTION OF AN 108 SQ. FT. WALL SIGN. RELIEF
REQUESTED FROM NUMBER OF ALLOWABLE SIGNS. CROSS REF.: BP 2007-686
WARREN COUNTY PLANNING: JANUARY 9, 2008 LOT SIZE: 5.54 ACRES TAX
MAP NO. 288.8-1-5.2 SECTION: 140-6B3C
JOHN RICHARDS, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
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(Queensbury ZBA Meeting 01/16/08)
Notes from Staff, Sign Variance No. 2-2008, Comfort Suites Hotel/George Stark, Meeting
Date: January 16, 2007 "Project Location: 1533 State Route 9 Description of Proposed
Project: Applicant proposes construction of an additional 108 sf wall sign on the west
side of the building.
I Relief Required: I
Applicant requests relief from S 140-6 for an additional wall sign where only one is
allowed per code.
I Criteria for considering a Sign Variance according to Chapter 267 of Town Law: I
1. Benefit to the applicant:
Applicant would be permitted to construct the sign in the preferred location and gain
additional advertising visibility.
2. Feasible alternatives:
As the site is currently at the allowable limit and in conformance with the Sign Ordinance,
any additional signage on the building will require a Sign Variance.
3. Is this relief substantial relative to the ordinance?:
The request for 1 additional sign where only one is allowed may be interpreted as
substantial, relative to the ordinance (100%).
4. Effects on the neighborhood or community:
No letters of support were submitted with the application materials. The proposed sign is
consistent with the existing signage on the building.
5. Is this difficulty self-created?
The difficulty may be interpreted as self created.
I Parcel History (construction/site plan/variance, etc.): I
SPR 49-2005 10/18/05 4 story hotel
SPR 49-2005 mod 5/22/05 18,000 sf addition
AV 62-2005 9/21/05 height relief
I Staff comments: I
The proposed 108 sf sign is planned at a minimum 278 ft setback from the right of way
line for the northbound land of the Adirondack Northway. The proposed sign is
consistent with the existing signage on the east side of the hotel.
I SEQR Status: I
Type: Unlisted"
MR. UNDERWOOD-"Warren County Planning Board Project Review and Referral Form
January 9, 2008 Project Name: Comfort Suites Hotel/George Stark Owner(s): Royal
Hospitality, LLC ID Number: QBY-08-SV-2 County Project#: Jan08-10 Current
Zoning: HC-Int. Community: Queensbury Project Description: Applicant proposes
construction of an 108 sq. wall sign. Relief requested from number of allowable signs.
Site Location: 1533 State Route 9 Tax Map Number(s): 288.8-1-5.2 Staff Notes: Sign
Variance: The applicant proposes construction of an 108 sq. wall sign. Relief requested
from number of allowable signs. The information submitted indicates the site currently
has 2 existing signs - one wall and one free standing that is all that is allowed. The sign
is to be located at the rear of the building facing the Northway. The plans show the type
of sign and location of the sign on the building. Staff would discourage this advertising
method as the Northway signs providing the traveler with directions to lodging, eating
and activities. The proposed sign may be considered a distraction for the traveler. Staff
recommends denial based on the advertising methods specific for the Northway traveler.
County Planning Board Recommendation: No County Impact The Warren County
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(Queensbury ZBA Meeting 01/16/08)
Planning Board recommends No County Impact." Signed by Richard C. Merrill, Warren
County Planning Board 1/10/08.
MR. MC NULTY-Okay. Thank you. Would the applicant come up, and tell us whatever
else you would like us to know about this project.
MR. RICHARDS-Good evening, Mr. Chairman. My name is John Richards, and with me
at the table is Mr. George Stark. One thing, briefly, there was a letter of support. I don't
know if it made it around. We got a copy, at least, from the neighbor to the north.
MR. UNDERWOOD-I'll check it. Yes, they are in there. I'll read this in in the public
hearing.
MR. RICHARDS-It's a very brief one, just confirming that they had no objection to it, and
again, very briefly, this is a sign they were trying to put on the rear of the building, so that
it can be identified to travelers in the northbound lane of the Northway, and really
primarily in the winter months. In the summer months, the trees leaf out and you can't
really see the building, but in the winter months, when it is visible, we'd like to make
people aware that there is a Comfort Suites Hotel facility here, and that the big building
they're seeing driving by is that Comfort Suites Hotel. It's a wonderful building. We'd
like them to be able to come in in the wintertime, and that's obviously when our visitation
and usage is lighter, so we can help there in the advertising end, and so it's very
important to have that on there. It is less, substantially less, than one half of the size that
we're permitted to have at that location, given the setbacks from the Interstate, and what
does make this property unique, and maybe I didn't make this clear in my earlier
discussion with Craig, is because we are bounded on both sides by two roads, normally
you'd have an automatic second sign you're allowed to put on the rear of a building. The
Ordinance recognizes that any business would want to have both sides of the building
marked to identify it. The only reason we don't fit into that category is because of the
definition within the Sign Ordinance which defines a street as, and it says it can be a
highway, it can be anything, as long as there's access to the abutting property from the
street. The Interstate is one of the few limited access highways we have in New York
State, and because of that doesn't, I agree with Craig, it doesn't fit into the definition of
street, but it doesn't make it any less important for us to be visible from this travel
throughway. So that's why we're asking for this. That's why we're here. If it fit within
that category of a street we wouldn't even have to have a variance, and that's really our
request is that you allow us to identify our business like anyone else would like to do.
MR. UNDERWOOD-Craig, what did we do with Great Escape when they put their Hotel
in? Did they have a sign on the Northway side?
MR. BROWN-They do. They had a litany of variances, yes.
MR. URRICO-Yes.
MR. RICHARDS-Yes. There are other signs. If anyone knows, as you drive up and
down, Curtis Lumber, other places that have signs on the, facing the Northway.
MR. UNDERWOOD-Well, I think of the Ramada, you know, is it still the Ramada down
there, on Exit 19? They've got a sign. They've got a big one up on a stick, right, that you
see from the Northway.
MR. RICHARDS-Tasteful, unobtrusive, attractive, that's what we're looking for here.
MR. MC NULTY-Okay. Any other questions? No questions of the applicant? Then I'll
open the public hearing, and ask if there's anybody in the audience that wants to make a
comment?
PUBLIC HEARING OPENED
MR. UNDERWOOD-I've got one letter.
MR. MC NULTY-I see no hands. So we'll go to the letter.
MR. UNDERWOOD-"Ladies and Gentlemen: We are writing this letter in support of the
variance request of the Comfort Suites Hotel to construct a 108 sq. ft. wall sign on the
recently constructed Motel, Tax ID No. 288.8-1-5.2. We are the property owners north of
the applicant. Respectfully, NCE Building Corp. David M. Klein, P.E. President" Okay.
That's it.
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MR. MC NULTY-Okay. Seeing as there's no other public here, I think I'll close the public
hearing now, while I'm remembering to do it.
PUBLIC HEARING CLOSED
MR. MC NULTY-I guess, let's do the SEQRA next, and then we'll poll the Board.
MR. UNDERWOOD-Okay. The project applicant is Stark Group Incorporated. The
project name is the Sign Variance. The location is Queensbury, the County of Warren.
Precise location is Comfort Suites Hotel, 1533 State Route 9, 500 plus or minus north of
the 9/149 intersection on the left. In describing the project briefly is to install a second
wall sign on the rear face of the Comfort Suites Hotel facing the Adirondack Northway 1-
87. As far as the amount of land affected, I don't think there's any in this case. Will the
proposed action comply with the existing zoning or other land use restrictions. They've
checked off yes, but I would say, no, right, because they're asking for more than they're
entitled to. Right?
MR. BROWN-I'm sorry, let me look at that.
MR. UNDERWOOD-It's Number Eight.
MR. BROWN-These are their answers?
MR. UNDERWOOD-Yes.
MR. MC NULTY-We might take exception to it, but I don't think we get to change their
answers. The Page One is their part of the form.
MR. UNDERWOOD-Yes. All right. What is the present land use in the vicinity of the
project? It's commercial. Does the action involve a permit approval or funding now or
ultimately from any other governmental agency, Federal, State or local? They've said
no. Does any aspect of the action have a currently valid permit or approval? No. As a
result of the proposed action, will the existing permit/approval require modification? No.
On to the second page. "Does the action exceed any Type I threshold in 6 NYCRR Part
617.4?" I would say, what are we going to say, yes or no? No. Does everybody agree
with that?
MR. MC NULTY-Correct. Yes.
MRS. UNDERWOOD-"Will the action receive coordinated review as provided for
Unlisted Actions in 6 NYCRR, Part 617.6?" I would say, no, there won't be any other
lead agencies or anything involved here.
MR. MC NULTY-No.
MR. UNDERWOOD-"Could the action result in any adverse effects associated with the
following: C1. Existing air quality, surface or ground water quality or quantity, noise
levels, existing traffic patterns, solid waste production or disposal, potential for erosion,
drainage or flooding problems?" I would say no.
MR. UNDERWOOD-"C2. Aesthetic, agricultural, historic, or other natural or cultural
resources; or community or neighborhood character?" I would say no.
MR. MC NULTY-Well, let's stop there for a second. There's a possibility somebody
might take exception to the sign visible from the Northway.
MR. UNDERWOOD-Sure.
MR. MC NULTY-And we don't have to do a negative on each of these to still find no
impact. So I'd be inclined to say possibly, at least, under C2.
MR. UNDERWOOD-All right. "C3. Vegetation, fauna, fish, shellfish or wildlife species,
significant habitats, or threatened or endangered species?" Definitely no on that.
MR. MC NULTY-No.
MR. UNDERWOOD-"C4. 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 think, other
56
(Queensbury ZBA Meeting 01/16/08)
than just the addition of an excess wall sign, that would be the only thing that it would
trigger.
MR. MC NULTY-Right.
MR. UNDERWOOD-"C5. Growth, subsequent development or related activities likely to
be induced by the proposed action?" I would say, at most, it would bring in more
business to them, probably, is a benefit. "C6. Long term, short term, cumulative or
other effects not identified above?" I would say none. "C7. Other impacts (including
changes in use of either quantity or energy)?" I would say no to that.
MR. MC NULTY-No.
MR. UNDERWOOD-"Will the project have an impact on the environmental
characteristics that caused the establishment of a Critical Environmental Area?" I would
say no.
MR. MC NULTY-No.
MR. UNDERWOOD- "Is there or is there likely to be controversy related to potential
adverse environmental impacts?" I would say no, other than a little more light out there.
All right. So I guess that's it.
MR. MC NULTY-That pretty well covers it, then.
MR. UNDERWOOD-Yes.
MR. MC NULTY-Okay. Everybody agree with those answers? Then I'll make a motion.
MOTION THAT THE ZONING BOARD OF APPEALS HAS MADE A FINDINGS, BASED
ON OUR REVIEW OF THE SHORT FORM ENVIRONMENTAL ASSESSMENT FORM,
THAT THIS ACTION WILL NOT HAVE ANY SIGNIFICANT ADVERSE
ENVIRONMENTAL IMPACTS OR EFFECTS, Introduced by Charles McNulty who
moved for its adoption, seconded by Roy Urrico:
Duly adopted this 16th day of January, 2008, by the following vote:
AYES: Mr. Urrico, Mrs. Hunt, Mrs. Jenkin, Mr. Bryant, Mr. Underwood, Mr. McNulty
NOES: Mr. Clements
MR. MC NULTY-Okay. Now we can move on. Let's get a quick rundown of the Board,
to see where we stand with this. Jim, can we start with you this time?
MR. UNDERWOOD-Yes. In looking at this, and due to the fact that we've, you know,
allowed them to have one at The Great Escape, I think Ramada has one. I think it's, you
know, pretty standard. You run down the Northway to Clifton Park, just about every
motel, hotel along the road there has got a sign up that you can see from the Northway.
Otherwise, nobody knows they're there. So I don't really, I mean, I can understand not
having an extra wall sign, but in a two street situation we would allow it automatically,
and I think in this instance here, I don't think it's going to be a detriment to the
Adirondack Park, even though you're right on the line there, pretty much, but I think it's
probably going to help you with your business and it's understandable why you would
want that sign out there is it's going to generate a little more money coming in. So I don't
think it's going to be a detriment. So I'd be in favor of it.
MR. MC NULTY-Okay. Thanks. Joan, how about you.
MRS. JENKIN-I feel the same way. I think it's a definite advantage to you of being able
to identify your building. I think it's an advantage to the people driving on the Northway
when there's this great big building and nobody knows what it is. I think that's an
advantage to have a sign on it. I don't think there's any negative impacts on the
neighborhood. So I would be agreeable to it.
MR. MC NULTY-Okay. Joyce?
MRS. HUNT-Thank you, and I have to agree. I think this sign is a modest size and
tasteful, and as we've said, if it were a street instead of Interstate 87, it would be
permitted. So I would have no problem. I'd be in favor.
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MR. MC NULTY-Okay. Brian?
MR. CLEMENTS-I think I'm going to have to dissent from the majority, here. I think that
probably this is going to go through, but I think I agree with the Warren County Planning
Board regarding signs, and I think that we should keep it, keep signs down off of the
Northway as much as we can, and they also have the availability of advertising signs on
the exit and entrance ramps also, or just before those. So, I'm going to vote no on this.
MR. MC NULTY-Okay. Thanks. Allan?
MR. BRYANT-Thank you, Mr. Chairman. Actually the sign is so small and so far away
from the Northway, I doubt that anybody's ever going to really see it. So, I mean, it's a
great distance from the Northway, and it matches the decor of the building. I really don't
have any problem at all. I agree with Mr. Underwood.
MR. MC NULTY-Okay. Thanks. Roy?
MR. URRICO-Yes. First of all, I'd like to I'd like to just compliment you on that building. I
think it's an outstanding addition to the community. It really looks terrific, and for that
reason alone, I'm sure that this sign's going to be tastefully placed, and understated,
compared to many of the signs that we see along the Northway, particularly the ones that
we approved earlier at Six Flags Great Escape Lodge, and I think, once we did that, we
basically opened up the door to other motels, other hotels along the Northway corridor,
and we have to permit these signs, I think, and I think it's going to be a nice addition as
well.
MR. MC NULTY-Okay, and that leaves me. I think I'm going to side with Brian, partly out
of principal. We're getting up into the blue line here, and I'm not sure we need more
signs on the Northway, and, as Brian has pointed out, there are some alternatives,
including the possibility of the signs at the exits, but, having said that, I think there's a
clear majority of the Board that is in favor of this project. So I'm looking for somebody to
make a motion.
MOTION TO APPROVE SIGN VARIANCE NO. 2-2008 COMFORT SUITES/GEORGE
STARK, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt:
1533 State Route 9. The applicant is proposing construction of an additional 108 square
foot wall sign on the west side of the building, that's the side facing the Northway. The
applicant, in making the application, has to survive the test. The test is whether the
benefit can be achieved by other means feasible to the applicant. There are feasible
means, including not having the sign, but it has been noted that the sign probably won't
be visible for most of the year, and the time that it is visible, it'll be a help to those that
are traveling. Whether there's an undesirable change in the neighborhood character or
to nearby properties, I don't think one little sign is going to really change the character of
the neighborhood or affect any properties nearby. Whether the request is substantial, it
is 100% approval for one additional sign that normally would maybe not be given. We
have determined there's no adverse physical or environmental effect, and I would agree
that this is a difficulty that's created by the applicant because they want a second sign. I
would move that we pass this motion.
Duly adopted this 16th day of January, 2008, by the following vote:
AYES: Mrs. Hunt, Mrs. Jenkin, Mr. Urrico, Mr. Bryant, Mr. Underwood
NOES: Mr. Clements, Mr. McNulty
MR. MC NULTY-Okay. There you go.
MR. RICHARDS-Thank you very much.
MR. MC NULTY-We've got one more item to cover.
AREA VARIANCE NO. 3-2008 SEQRA TYPE: II FREDERICK W. & ALICE D.
SCHMALKUCHE AGENT(S): STEFANIE DI LALLO BITTER, ESQ. BPSR
OWNER(S): FREDERICK W. & ALICE D. SCHMALKUCHE ZONING: WR-1A
LOCATION: 246 ASSEMBLY POINT ROAD APPLICANT PROPOSES TO REPLACE
NORTHERN BOAT SLIP WITH A 1,008 SQ. FT. BOATHOUSE AND SUN DECK.
WARREN COUNTY PLANNING: JANUARY 9, 2008 ADIRONDACK PARK AGENCY:
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(Queensbury ZBA Meeting 01/16/08)
YES LOT SIZE: 0.239 ACRES TAX MAP NO. 226.19-1-95 SECTION: 179-5-050(6);
179-3-010
MR. MC NULTY-Since there appears to be nobody else here, I'm going to suggest we
move right to the proposal to table Area Variance No. 3-2008.
MOTION TO TABLE AREA VARIANCE NO. 3-2008 FREDERICK W. & ALICE D.
SCHMALKUCHE, Introduced by Charles McNulty who moved for its adoption, seconded
by Roy Urrico:
246 Assembly Point Road. We received a letter from the attorney representing the
applicant, and that the attorney had an illness in the family that prevented her from being
present tonight. Tabled until January 23, 2008.
Duly adopted this 16th day of January, 2008, by the following vote:
MR. MC NULTY-Does anybody see a problem with doing this until, moving it just to next
week?
MR. BROWN-I think that's what they requested.
MR. MC NULTY-That's what they asked. If nobody has a problem with that, then we'll
move it to next Wednesday.
MR. UNDERWOOD-We may as well do that first, if we're going to do that.
MR. BRYANT-You know, you've got Schermerhorn.
MR. BROWN-It may be the only thing on. If Schermerhorn doesn't get through the
SEQRA, then you guys don't hear it next week.
MR. UNDERWOOD-Yes, we won't be worrying about it anyway.
MR. BROWN-Then that may be the only thing on.
MR. UNDERWOOD-Sure, that's fine.
MR. MC NULTY-All right. If it isn't, hopefully we can do this one more quickly. So we'll
probably do this one first.
MR. UNDERWOOD-Sure.
AYES: Mr. Urrico, Mrs. Hunt, Mrs. Jenkin, Mr. Bryant, Mr. Clements, Mr. Underwood,
Mr. McNulty
NOES: NONE
MR. MC NULTY-Okay. We had some other administrative stuff, and I'm going to try to
cut to the chase on that. I'm going to suggest we postpone the approval of minutes until
the beginning of next week's meeting, and I think we'll do that at the beginning, so that
we're sure that we get the minutes done. Did most everybody get my e-mail regarding
meeting dates? Any problems with that? I don't know if we need to do a formal motion
or not, but to keep the natives happy anyway, then I would make a motion.
MOTION THAT THE MEETING DATES FOR THE ZONING BOARD OF APPEALS FOR
2008 WILL BE THE THIRD AND FOURTH WEDNESDAYS OF THE MONTH FOR
EVERY MONTH, WITH THE UNDERSTANDING THAT THE SECOND MEETING IN
NOVEMBER WILL BE HELD ONLY IF IT'S ABSOLUTELY NECESSARY SINCE IT'S
THE NIGHT BEFORE THANKSGIVING, AND IN DECEMBER, IF MORE THAN ONE
MEETING IS REQUIRED, IT'LL BE ON THE 10TH, AND THEN THE 17TH FOR THE
SECOND MEETING, Introduced by Charles McNulty who moved for its adoption,
seconded by Allan Bryant:
Duly adopted this 16th day of January, 2008, by the following vote:
AYES: Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mrs. Jenkin, Mr. Clements, Mr. Underwood,
Mr. McNulty
NOES: NONE
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MR. MC NULTY-Okay. Probably a moot question at this point, but the Town Board's
changed counsel back to Miller, Mannix and so forth, and the original question that we
had was whether or not we wanted to move our representation for Irish Bay back to in-
house counsel.
MR. UNDERWOOD-Irish Bay is dead.
MR. MC NULTY-And Irish Bay is presumably dead. So it's probably a moot point.
Anybody got a problem, anyway, with that?
MR. URRICO-No.
MR. MC NULTY-Okay. Then I think we can let that one go. Does anybody see a need
for counsel next week?
MR. UNDERWOOD-No.
MR. MC NULTY-Okay. I wanted to make sure that I was seeing that the same way, and
then the final question is the question of public comment. We've had public comments
forwarded to us as they've come in. This does create some extra work for Staff. I've had
one suggestion, which I have yet to work on or approve or implement, but the possibility
of scanning public comment and posting it to the laser fiche file or something, at some
point, so that it's accessible for those that don't want printed copies.
MR. UNDERWOOD-Well, the other thing is, I mean, you're going to get them anyway on
the public record, the night of the meeting. So you wouldn't get any testimony from
anybody else prior. So I mean.
MR. MC NULTY-Right. That's one thing, is that you're getting all the public comment at
the same time if you hold it to the meeting. The disadvantage is, if you've got a lengthy
one, then you don't get it until the meeting. The option, if it we left it that we wait until the
meeting, is if you get a lengthy or detailed one at that point, we can always table it, than
move it forward.
MR. UNDERWOOD-The other thing is, you know, like Staff sometimes doesn't get them
until the eleventh hour. That's not your fault.
MR. BROWN-They trickle in throughout the course of when, you know, the application
comes in up until meeting day.
MR. MC NULTY-So there's always going to be one or two, for something, probably.
MR. UNDERWOOD-If it's three days prior to the meeting, just hang on to them. That's
too bad.
MR. BROWN-If I get a vote, which I know that I don't, I would vote that you don't get
anything until the night of the meeting. That way you don't, there's no cut off date, I'll
take them up to five days before or two days before or the day before, but if they come in
on the day, you hold them. Just don't take. I mean, my suggestion, do what you want.
Don't take any, just do them all at the public hearing.
MR. UNDERWOOD-Well, and it doesn't pre-flavor your hearing, either, like if you got
100 of them or something.
MR. BRYANT-I'd rather you really just e-mail them. I mean, what's the big deal? Send
them bye-mail and we'll print them if we think they're important.
MR. URRICO-Whatever you guys decide is fine with me.
MR. BRYANT-I mean, I'd like to see them ahead of time. Some of them, it's too bad we
didn't have this attorney Morris, Fitzgerald, that group, I mean, that document was pretty
extensive. It took me a while to read it, and I would have liked to have had it ahead of
time, just to read it.
MR. MC NULTY-Okay.
MR. UNDERWOOD-I think if they come in, do you think you're going to get, do you
usually get them by the 15th of the month previous? You don't usually get them.
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MR. MC NULTY-No, that's the problem, is public comment straggles in at any time, and
there's no set requirement to make X number of copies. So somebody that is really
thinking.
MR. UNDERWOOD-I mean, I can see giving them, like, up until the week before the
meeting, and then you could get them to us on that Friday, mail them out or something,
and then anything that trickles in after that, too bad, we'll read it the night of, do it that
way.
MR. BRYANT-What's the next item?
MR. BROWN-Is there a resolution with that? I mean, not a formal resolution, but is there
a consensus?
MR. UNDERWOOD-Let's do it that any that are submitted by the Friday preceding the
meetings will get mailed to us on Friday, so we would get them on Monday.
MR. BROWN-So if they come in before Staff Notes go out, you want it to go with the
Staff Notes?
MR. UNDERWOOD-Sure. Otherwise.
MR. BROWN-And if they come in after that?
MR. MC NULTY-Hold them until the meeting.
MR. BROWN-Is that not fair to the people that don't get it in on time?
MR. UNDERWOOD-Otherwise we'll just read them the night of, or hand them to us at
the meeting, you know, when you walk in, like you've been doing. That's fine.
MRS. JENKIN-Is there a problem to e-mail them?
MR. BROWN-Well, a lot of times we don't get them bye-mail. They come in hard
copies.
MRS. JENKIN-Right.
MR. BROWN-That's not a huge problem. It's just another thing that we have to do.
That's why I'll have one more plea here that you don't get any of them until the night of
the meeting, but whatever you want, we'll do it for you.
MRS. JENKIN-It's helpful, if they're long ones, to be able to read them before.
MR. MC NULTY-Like I say, the other choice, if they're long ones, is to delay the decision
for a week, which can be done.
MR. UNDERWOOD-How about if they're in by the time you're doing up Staff Notes, and
Staff Notes, I imagine you're printing those up Thursday before Friday they go out, right?
So if they're in by Thursday, just make a copy and send them with the Staff Notes.
Otherwise, forget it.
MR. MC NULTY-Okay. Let's go with that for now, then, Craig, and we'll see.
MR. UNDERWOOD-See if it works.
MR. MC NULTY-See how it works, and whether we can come up with something else.
I'd like to work on the laser fiche site at some point, because I'm finding that next to
useless.
MR. BRYANT-It is totally useless.
MR. MC NULTY-And it strikes me that if it could be re-sorted so they're filing it by
variance number rather than by date, it might be more useful, because now if you want to
look at a sequence of something that's gone on three or four meetings, it's a major
project. You've got to go into all four meetings and look to see what's what. Okay. Let's
adjourn. Thank you.
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On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Charles McNulty, Chairman
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