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2008.05.21 (Queensbury ZBA Meeting 05/21/08) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 21, 2008 INDEX Area Variance No. 5-2008 K-Twin Holdings/Daniel W. Krueger 1. Tax Map No. 296.20-1-9 and 10 Area Variance No. 9-2008 Gregg Brown 2. Tax Map No. 239.7-1-7; 239.7-1-6 Notice of Appeal No. 11-2007 Robert & Victoria Glandon 3. Tax Map No. 239.7-1-14 Area Variance No. 21-2008 Kara and Martin Seaton 24. Tax Map No. 300.00-1-27 Area Variance No. 22-2008 Michael & Nicole McGrath 27. Tax Map No. 296.20-1-25.1 Area Variance No. 26-2008 Dan and Karianne Ryan 30. Tax Map No. 301.5-1-69 Area Variance No. 27-2008 Natalie and Tom Barber 36. Tax Map No. 252.00-1-2 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 05/21/08) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 21, 2008 7:00 P.M. MEMBERS PRESENT JAMES UNDERWOOD, CHAIRMAN ROY URRICO, SECRETARY JOYCE HUNT RICHARD GARRAND JOAN JENKIN BRIAN CLEMENTS GEORGE DRELLOS ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-KEITH OBORNE STENOGRAPHER-MARIA GAGLIARDI MR. UNDERWOOD-All right. We’ll get underway with tonight’s meeting, and I’ll read the st introduction in. I’ll call the 21 of May meeting of the Queensbury Zoning Board of Appeals meeting to order, and starting out I want to quickly go through our procedures, once again, for anybody that perhaps is new. As we handle each application, I’ll call the application by name and number. The Secretary will read the pertinent parts of the application, Staff Notes, and Warren County Planning Board decision if applicable into the record. Then we’ll ask the applicant to present any information that they wish to present to the Board. The Board will ask questions of the applicant, then we’ll open the public hearing. The public hearing’s intended to help us gather information and understand it about the issue at hand. It functions to help the Board members make a wise decision. It does not make the decision for the Board members. There will be a five minute limit on those speakers. We will allow speakers to speak again after everybody’s had a chance to speak, but not for more than three minutes, and only if, after listening to other speakers, a speaker believes that they have new information to present and, Board members, I’d suggest because we have the five minute limit that we not interrupt the speaker with questions while they’re speaking. Rather, we should wait until the speaker has finished his five minute period and then ask the questions. Following all the speakers, we’ll read in any correspondence into the record, and then the applicant will have an opportunity react and respond to the public comment, and Board members will then discuss the variance request with the applicant. Following that, the Board members will have a chance to explain their positions on the application, and then the public hearing will be closed or left open, depending on the situation, and finally, if appropriate, a motion to approve or disapprove will follow. Okay. We have a couple of changes here tonight, and just in case anybody has shown up here, I’ll go through these. AREA VARIANCE NO. 5-2008 SEQRA TYPE: II K-TWIN HOLDINGS/DANIEL W. KRUEGER AGENT(S): RICHARD E. JONES ASSOCIATES OWNER(S): K-TWIN HOLDINGS/DANIEL W. KRUEGER ZONING: HC-INT. LOCATION: WEST SIDE MEADOWBROOK RD., NORTH OF QUAKER RD. INTERSECTION APPLICANT PROPOSES CONSTRUCTION OF A 4,329 SQ. FT. OFFICE BUILDING WITH ASSOCIATED SITE DEVELOPMENT. RELIEF REQUESTED FROM FRONT YARD AND SHORELINE SETBACK REQUIREMENTS. RELIEF REQUESTED FROM WETLANDS CLEARING REGULATIONS AND RETAINING WALL HEIGHT. APPLICATION TABLED 2/27/08 TO ALLOW PLANNING BOARD TO CONDUCT SEQR; TO DATE NO SEQR DETERMINATION HAS BEEN ISSUED BY THE PLANNING BOARD. CROSS REF. FRESHWATER WETLANDS PERMIT 4-2008 SPR 7-2008 WARREN COUNTY PLANNING: FEBRUARY 13, 2008 LOT SIZE: 0.22 AC.; 0.43 ACRES TAX MAP NO. 296.20-1-9 AND 10 SECTION: 179-4-030 TABLE 4; 179- 6-060B1a; 179-6-060D2e3 MR. UNDERWOOD-The first item on the agenda is Area Variance No. 5-2008, which was K-Twin Holdings/Daniel Krueger. They have previously appeared before us, and the Planning Board was asked for a SEQRA review of this project, and they met last evening. At that time, the Planning Board was not able to make any kind of a SEQRA Findings Statement. So, in response to that, I think what we’re going to do is we will simply table them until some later date. Do we want to do it for next month? MR. BROWN-No, I would suggest the second meeting in July. 1 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Okay. So that’ll be the second meeting in July. MOTION TO TABLE AREA VARIANCE NO. 5-2008 K-TWIN HOLDINGS/DANIEL W. KRUEGER, Introduced by James Underwood who moved for its adoption, seconded by Richard Garrand: West side Meadowbrook Road, north of Quaker Road intersection. Tabled until the second meeting in July. st Duly adopted this 21 day of May, 2008, by the following vote: AYES: Mr. Garrand, Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Clements, Mr. Drellos, Mr. Underwood NOES: NONE MR. UNDERWOOD-I’m going to jump the order here a little bit up to, under Old Business, and under Old Business we were supposed to have heard this evening Notice of Appeal No. 11-2007, which was Robert and Victoria Glandon. The owner of the property that’s in question here is owned by Richard Salomon. The agent for the Glandons is Tom West of the West Firm. It’s a .45 acre lot located in a Waterfront Residential One Acre zone. We did receive some correspondence this evening. It was handed to us, and it’s a letter from Mr. West. “Dear Members: Due to another commitment. MR. BROWN-Excuse me, Mr. Chairman, actually the Gregg Brown application, the Planning Board was supposed to issue a recommendation to the Zoning Board. They haven’t done that yet. So you probably can just go ahead and table that. I don’t know if anybody’s here for that one tonight. MR. UNDERWOOD-Yes. I was going to do that. Do you want me to do that first? MR. BROWN-Well, I didn’t know, if you’re not going to do it, I don’t know if somebody doesn’t want to wait for it. MR. UNDERWOOD-I didn’t know if they were going to present anything new to us or not. MR. BROWN-Well, you don’t have the recommendation from the Planning Board yet. MR. UNDERWOOD-Okay. Well, we’ll go back and do that if you want to do it that way. MR. BROWN-I just didn’t want anybody to wait all night. MR. UNDERWOOD-Okay. Under Administrative Items, also, that would be Gregg Brown, which is Area Variance No. 9-2008. AREA VARIANCE NO. 9-2008 SEQRA TYPE: II GREGG BROWN AGENT(S): STEFANIE BITTER, ESQ. BPSR OWNER(S): GREGG BROWN ZONING: WR-1A LOCATION: 31 KNOX ROAD & 29 KNOX ROAD APPLICANT PROPOSES A BOUNDARY LINE ADJUSTMENT. APPLICANT PROPOSES TO TRANSFER 180.88 SQ. FT. OF PROPERTY TO NEIGHBORING PROPERTY. RELIEF REQUESTED FROM MINIMUM LOT SIZE REQUIREMENTS. TABLED FOR RECOMMENDATION FROM PLANNING BOARD. TO DATE NO RECOMMENDATION HAS BEEN RENDERED BY THE PLANNING BOARD . CROSS REF.: SUBD. NO. 11-1991 SUNSET HILL FARM/MODIFICATION WARREN COUNTY PLANNING: MARCH 12, 2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.63 AC.; 0.62 ACRES TAX MAP NO. 239.7-1-7; 239.7-1-6 SECTION: 179-4-030 JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Okay. The Planning Board was requested by this Board to provide a recommendation on the proposed lot line change, and at the time, I did attend the Planning Board meeting that evening. The Planning Board has tabled the Brown application and requested additional information. For some reason they were not provided with the possible alternatives or any kind of plot line showing where that new driveway was going to go in relation to the property to the north side there, I guess that’s the Collins property. So, in lieu of that fact, I think what we’re going to do is table that, but I would like you to come up here, because I had, myself, in my own mind, run 2 (Queensbury ZBA Meeting 05/21/08) through in my own mind a possible solution as to what you might consider on that project, and while you’re still out there, you know, trying to figure out some kind of a solution to a problem that’s been created there with the request. I would ask you the following. If you look at the property line as it now currently exists, I know that you were looking to return that, lopped off that one corner up there to the neighbor to the brother there. MR. LAPPER-Yes, that’s right. MR. UNDERWOOD-And my question would be, in essence, what I would ask you to do is this. I thought about it and I said to myself, the driveway, the creation of that second driveway, has caused some kind of friction with the neighbors to the north, and there was some question on our part as to whether the redundancy of having those two drives so close to each other, in essence having three drives kind of in a row on that corner there. My suggestion was going to be that you might consider a drive that straddled the property line with half the drive on the north Brown brother’s property, half on the south side, that came in to a “Y” type intersection, you know, that would feed to both properties there. I think that would be more centrally located on both those properties. It probably would not entail having to move that power line and that guide wire that you had there, that issue that you were dealing with in respect to that, too. In essence, too, I think it would relieve having to do all that cutting of the greenery, even though it’s minor greenery in some respects, there. I think it still would allow for that greenery to remain as it is, and I don’t think there would be any hardship on either brother to think about that plan. MR. LAPPER-Yes. I will call Gregg in the morning and discuss that with him. MR. UNDERWOOD-Sure. MR. LAPPER-That sounds like, compromise is always the right way to go. MR. UNDERWOOD-Yes, and I just thought it might make things easier for you. I know you have lots of other issues on site there, you know, with the new buildings, etc. MR. LAPPER-We settled most of them with the Planning Board last time. So things are falling into place. So, okay, I will immediately speak to them and see if that’s feasible. MR. UNDERWOOD-So, do you have a specific date you want to get back to us? MR. LAPPER-We’re going to be on in June at the Planning Board. So I would say if you put it on for the second meeting in June, hopefully that will work. MR. UNDERWOOD-Okay. Then what I’m going to do is make a recommendation that we table this until the second meeting in June. MOTION TO TABLE AREA VARIANCE NO. 9-2008 GREGG BROWN, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 31 Knox Road & 29 Knox Road. Tabled until the second meeting in June. st Duly adopted this 21 day of May, 2008, by the following vote: MR. UNDERWOOD-And we’ll hope for that information and for the Planning Board to work that out. MR. LAPPER-Okay. Thanks. MR. UNDERWOOD-Thank you. AYES: Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Drellos, Mr. Underwood NOES: NONE MR. UNDERWOOD-All right. Back to Old Business here again. OLD BUSINESS: NOTICE OF APPEAL NO. 11-2007 SEQRA TYPE: N/A ROBERT & VICTORIA GLANDON AGENT(S): THOMAS S. WEST, ESQ. THE WEST FIRM OWNER(S): 3 (Queensbury ZBA Meeting 05/21/08) 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 ALT.; 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 GLANDON & DR. STUART ROSENBURG, PRESENT STAFF INPUT Notes from Staff, Notice of Appeal No. 11-2007, Robert & Victoria Glandon, Meeting Date: May 21, 2008 “Information Requested: 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. Staff comments: 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 ? 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. With no determination on these matters there does not appear to be any standing to appeal these items to this Board. The most recently revised building plans were submitted to this office on May 1, 2008. Although not a component of this appeal, the Floor Area Ratio shown with these plans appears compliant and several major modifications to the building are proposed. Specifically, all windows and dormers are to be removed from the area above the garage and the second floor connector hallway to the area above the garage is to be removed 4 (Queensbury ZBA Meeting 05/21/08) as well. Further, modification to the basement floor plan limits the living space to meet the requirement.” thst MR. UNDERWOOD-We did receive, at the 11 hour here, a request dated May 21, from Mr. West, and what I think I’ll do is read this into the record, because it kind of explains their position at this time. It’s addressed to the Queensbury Zoning Board of Appeals, RE: 67 Knox Road “Dear Members: Due to another commitment, I will not be able to attend the hearing this evening. Please accept this letter as a summary of our positions on behalf of the Rosenbergs and the Glandons, the neighbors to the north and south of the subject property. As with prior meetings, Mr. Glandon will speak to some of the issues directly. Also, Dr. and Mrs. Rosenberg reserve the right to speak in my absence. As an initial matter, we would like to address the pending litigation and the representations made by Mr. Salomon and his colleagues to the Building Department that they have prevailed in court and are negotiating a settlement with the Rosenbergs. First, regarding the litigation, Supreme Court has merely denied the Rosenbergs motion for summary judgment, and this is not a ruling on the merits. A copy of the decision is enclosed. All this means is that the court was of the opinion that it could not dispose of the issues by motion based the court's belief that there were questions of fact that require a trial. We are in the process of taking an appeal from that determination, which will be heard by the Appellate Division, Third Department early next fall (perhaps as early as September) and decided six to eight weeks thereafter. We remain confident that either before the Appellate Division or at trial the Rosenberg's driveway will be restored to its original configuration. Second, there are no meaningful settlement negotiations ongoing and the Rosenbergs will not entertain settlement proposals from Mr. Salomon and his colleagues unless the proposal restores the driveway close to its original configuration and does not involve any extensive use of the Rosenberg property for the benefit of 67 Knox Road, as was the case with their prior proposals. We have no idea what the basis is for the representations by the Salomon group that they are settling with the Rosenbergs. However, we note that, like clockwork, prior to each of these hearings, one of Mr. Salomon's colleagues will reach out to the Rosenbergs or the Glandons, but this outreach should not be interpreted as meaningful settlement negotiations. Revised Plans Based upon the Staff Notes and our review of documents on file with the Building Department, we understand that Mr. Salomon has submitted revised plans in an attempt to bring the structure into conformity with the floor area ratio requirements of the Queensbury Zoning Code. Although Staff takes the position that that issue is not properly before this Board, we remind this Board that we filed letters with the Zoning Administrator and the Director of Building and Codes, dated January 18, 2008, copies of which were previously provided to this Board, in which we raised a series of questions, including the question of whether the building, as constructed, meets the floor area ratio allowed under the Queensbury Zoning Code. To date, we have not had any response to that determination. Once again, the Zoning Administrator continues to thwart the ability of this Board to hear issues concerning this illegal structure by refusing to render determinations in response to correspondence from us requesting a specific determination concerning that and other issues. Once again, we remind this Board that it was agreed at the January 2008 meeting that we would file letters requesting formal determinations concerning all of the issues that came up in the January meeting in order that the appeals could be taken to bring all issues before this Board. The refusal of the Zoning Administrator and the Director of Building Codes to render timely determinations should not be a basis for denying this Board the opportunity to rule on all of these issues. That being said, Mr. Glandon will address the reasons why we believe that the modifications proposed by Mr. Salomon do not bring the project into conformity with the floor area ratio requirements of the Queensbury Zoning Code. In addition, we would note that the very fact that Mr. Salomon and his colleagues had to file modified plans demonstrates that they intentionally built a structure that violates both the plans that were originally filed and the Queensbury Zoning Code. Although the Zoning Administrator has not responded to our questions concerning the misleading nature of the original plans, we believe that your review of those plans will reveal that they are misleading in terms of the grade of the lot and other issues. It has now been conceded that the house was built well beyond the floor area ratio allowed under the Queensbury Zoning Code. Under these circumstances, this flagrant violation of the law should be referred to the Town Attorney or the District Attorney for criminal prosecution. In addition, we would like to point out that Mr. Salomon and his colleagues are still representing the very same space that they propose to eliminate as living space in connection with their marketing of this property for sale. Attached is a copy of a printout from the listing of this property, dated today, demonstrating that the developers are still 5 (Queensbury ZBA Meeting 05/21/08) representing this property to include a "bonus room over garage with plumbed bath" and other living space that they now claim is not living space. All of this demonstrates the need for this Board to require deed restrictions for all modifications that are made to the building to make sure that any modifications that are made to putatively bring the structure into compliance with the code are not subsequently restored after the certificate of occupancy is issued. Those deed restrictions should run to the benefit of the neighboring properties to the north, east and south such that the neighbors will not have to depend upon the Building Department for future enforcement. Lastly, to the extent that the Town is inclined to approve any revised building plans to eliminate the intentional violation of law by Mr. Salomon and his colleagues, we request that the modified plans include removal of the dormers on both sides of the garage structure, since the entire rear of second floor of the garage is a dormer that makes that area suitable as future living space. Since this will require a major modification to the structure, we also request that you rule upon the height issue and other related issues such that plans can be filed to conform to all aspects of the Queensbury Zoning Code. Height Issue Although the proper procedure at this point in time is for this Board to suspend all review of this project, continue the stop work order and refer this matter for prosecution, we respectfully request that this Board issue a ruling concerning the height issue and the related issue associated with the wing walls so that any further building plan modifications can take into account your ruling concerning this critically important issue. The height issue has been debated extensively before this Board and no passage of time or modification of building plans will eliminate the need for this Board to rule upon this issue. For convenience purposes, we are repeating our position in this letter. Specifically, we call your attention to the fact that the definition of "building height" in the Zoning Ordinance requires building height to be based upon the natural grade unless there is a cut area, in which case the finished grade may be utilized. Apparently, the Zoning Administrator believes that the language in the diagram that immediately follows that definition, which makes reference to finished grade, overrides the clear and unequivocal language of the code. As stated in previous meetings, we consider the position of the Zoning Administrator to be an illegal interpretation of the Town of Queensbury Zoning Ordinance. First, in accordance with well-settled rules of statutory construction, the specific language of the definition will control over the example provided. See Auerbach v. Bd of Education of the City School Dist. of the City of NY.. 86 N.Y.2d 198,204 (1995) (statutes must be read to "give effect to the plain meaning of the words used"); see also People v. Santi. 3 N.Y.3d 234. 243 (2004) (legislative intent is the great and controlling principles in statutory interpretation); accord People v. Parrott. 302 A.D.2d 823, 824 (3d Dep't 2003) (also stating that the starting point for discerning legislative intent is the plain language of the statute itself). Second, since the Town of Queensbury Zoning Ordinance allows the use of the finished grade in cut areas, the diagram should be interpreted to make reference to a grade that is based upon a cut area, not a fill area. That would allow you to interpret both the language of the definition and the example in a manner that harmonizes the text of the Zoning Ordinance and the example given, which is also consistent with the rules of statutory construction. See, e.g., Notre Dame Leasing, LLC v. Rosario, 2 N.Y.3d 459, 464 (2004) (statutes must be read in context, as a harmonious whole, so that effect may be given to all the words chosen by the Legislature). This case is a prime example of why the Zoning Administrator's interpretation of the code should be reversed by this Board. As you have seen from photographs and any visits that you have made to this site, the building is totally out of proportion to the lot, both in terms of the area of a lot covered by the building and the height of the structure. Also, the intentional violations by Mr. Salomon and his colleagues have contributed to this building height violation. By making the foundation larger than was represented in original plans, the height of the roofline was increased. As a result, as we made complaints to the Building Department during the course of construction, Mr. Salomon was forced to "chase" the increasing building height by building wing walls and artificially raising the grade on multiple occasions in an attempt to make the building conform to the code. The grotesque nature of the site development that has resulted at 67 Knox Rd is a prime reason why this Board must rule that building height is based upon natural grade unless there is a cut area in which case the finished grade controls; i.e. an interpretation that limits the height of buildings and does not allow builders to artificially inflate the grade of a lot as was done here. Finally, since many other issues remain unresolved concerning this property, we respectfully urge you to require the Zoning Administrator and the Building Department to continue a stop work order until all issues concerning this illegal site development have been resolved. We have heard in all meetings to date that the septic issues are not before this Board, but that they will be 6 (Queensbury ZBA Meeting 05/21/08) addressed by the Planning Board and the Building Department. discussed, we remain highly skeptical that a compliant septic system can be designed and built on the "cliff' it remains between the rear of the structure and Knox Road. Of course, we are still waiting for determinations from the Building Department concerning issues that we have addressed to them concerning the dubious septic system in our correspondence dated January 18, 2008, as was agreed during the January meeting of this Board. Had we received a timely response to our questions, we would have filed appeals before this Board. Under these circumstances, the stop work order should be kept in effect until the Zoning and Building Administrators have responded to all of our questions, the Planning Board has made a final determination concerning all issues before it and appeals to this Board have been resolved. As always, thank you for your time and attention to this issue. Very truly yours, Thomas S. West” And it’s also included with a copy of that latest court case there. So I don’t know what the pleasure of the Board, what you guys want to do tonight. Do you want to entertain anything else? I know that Craig had mentioned to us before the meeting that we had, I guess a set of plans had been proposed by the Salomon group of changes to the site, and then you had more recently received even a second set of those plans, a newer revised edition? MR. BROWN-That’s correct. MR. UNDERWOOD-Okay. So, those of us that have not had any, we have not seen those plans or any of the possible solutions to resolve this, but it does not appear, at this time, that we’re going to continue with this tonight, since. JON LAPPER MR. LAPPER-Mr. Chairman, we’re here, the real party in interest is the Salomons, and I’d like to at least address the procedural issues. MR. UNDERWOOD-Yes, you’re welcome to come up. Sure. MR. LAPPER-Okay. Thank you. MR. BROWN-I think, mean, the appellant’s also here. We probably want to hear from them. They’re the ones who started the. MR. LAPPER-Since we’re talking about the procedural issue about whether this should be heard, I need to speak on that. MR. UNDERWOOD-Well, my only question is this. I mean, I don’t, you know, I don’t think that there’s any doubt that this is going to continue on. It’s far from resolution at this point in time. I know that you’re attempting to work out solutions, but the parties that are involved, the people that have filed the appeal of the Zoning Administrator’s decision I think are, you know, have standing, you know, until their concerns are addressed, and I think very early on in the hearing here, at previous meetings, we had requested that all these concerns be addressed continuously from the start, and it appears from this letter that there’s still outstanding issues that have not come to the forefront here. MR. LAPPER-Well, let me address the issues, just so everyone keeps this in perspective. My clients, Richard Salomon, Jim Quinn and Ken Rotundo, are Provident Development. They’ve done a number of projects in Town. They bought this property for about a million and a half dollars, two years ago, to do a lake house. So they have a lot invested in this site. Their goal has always been to build a conforming house, and they’ve been working with the Town. So the fact that plans have changed, I mean, the plans that have changed don’t address, there are only two issues that are pending before the Board right now, how you measure height in Queensbury, and whether these wing walls count for the side setback, and that’s the only thing that’s pending before the Board the Board, which Craig’s made a determination, we support Craig’s determination. The letter that you just read was, in my opinion, a lot of spin. I mean, we won the motion. They said they’re going to go to the Judge and this is, everyone’s going to see it their way, and they lost the motion. So things are not the way that they’re saying it, but in general, what’s going on here is just a very simple determination about these two issues, and the owners of the property have been held up. It’s really important that we get a determination because the wood is just sitting there exposed to the elements, and they need to finish the project. All of these side issues are not issues that are before the this Board. We talked about last time, for example, the septic system they keep talking about. What they’re talking about is whether there’s a 20 foot setback to the garage, and garage is not living space, and there’s not a 20 foot setback. So we have a permit for the septic system from Dave Hatin, and that wouldn’t be an issue for the Zoning Board. That 7 (Queensbury ZBA Meeting 05/21/08) would be an issue for the Town Board acting as the Board of Health, if we needed a variance, and Dave has said we don’t. So that’s that. They’ve asked Craig a series of questions. He can respond or not respond, but unless he’s made a determination that they want to appeal, what happened here was that he issued a building permit and they didn’t appeal the building permit within 60 days of the building permit being issued and the project has been under construction for a while. So there are procedural issues in terms of when they take appeal, when they ask Craig questions, but what’s important to my clients is that there are two straightforward issues about how you measure height and how you measure side setback. We need to get that determined so that we can go forward and finish building the house. There is also a stormwater plan that has to be completed with the Planning Board, but that’s completely separate from what’s before you. So it’s really important to us to just get the day in court because they’re the real party in interest. They’re the ones that own the land, and it’s the neighbors on either side that aren’t happy that somebody’s building a house, but we need to get a determination so everyone knows what the rules are in Queensbury. In terms of the issue with the driveway, this is one of those nasty adverse possession cases where the neighbors had used a driveway over my client’s predecessors, and they went to court to say they have adverse possession and they should be able to keep it. All they did, my clients maintained the driveway for them. They just changed the grade a little bit so it worked better for everybody, and where the Judge is going with this is that it’s an easement by permission, which is the kind of easement that allows somebody to relocate it. So we expect that at the end of the day in court the Judge is going to say it was fine that they re-located it. They’re letting the neighbors continue to use it. They’re just trying to use this as kind of like a chess game as a way to stop the construction, to stop the project, but at the end of the day it’s a house on a hill, and it has a driveway with a slope, and that’s all it is. MR. UNDERWOOD-Okay. I think what we’re going to do is, at this point, would your group like to come up to the table. I think through this process here our Board has been very understanding of the problem here, and that is that, you know, we were looking for information from the beginning here, and it is an appeal of the Zoning Administrator’s determination, and that’s what we’re supposed to be deciding here, and these issues of the driveway and stuff are important, you know, for the neighbors because they’re directly affected by the work that has been done on site up there, but the same thing, the appeal of the Zoning Administrator’s determination, I mean, I think we initially had an appeal that was concerning specific issues of the height. Specific issues of Floor Area Ratio I think came to light later on. MR. BROWN-There’s no appeal or determination, no appeal of the Floor Area Ratio determination that’s been issued yet. MR. UNDERWOOD-Would you expect at any point in time that you’re going to make a determination? MR. BROWN-Absolutely. One of the previous sets of plans that the applicant submitted or the Salomons, Provident Group submitted, I issued a determination on. This was right after the March meeting. If you remember, I’d said that they’d handed me a set of plans that night, and I made a determination that those plans that were submitted did not comply with the Floor Area Ratio requirements. They needed an Area Variance for that. They’ve since revised the plans again, and this is the second set of revisions, and I scanned through them today, they were delivered to me Monday. I scanned through them today before the meeting, and it appears as though they’ve made revisions in the house that bring the Floor Area Ratio below the maximum allotment. So I will issue a determination on this and the appellants may certainly appeal that if they want to, and that’s a decision that’s appealable once it’s issued, but it hasn’t been done yet, and it’ll probably be this week when that goes out. MR. UNDERWOOD-Do you anticipate that we would, I mean, we had requested that, you know, we deal with all the issues that are on the table, put everything there so we deal with it all at once instead of doing it in a piecemeal, segmented fashion. MR. BROWN-We can certainly do that, but there, and I’m not sure that I would call it spin. It’s certainly important to the applicants, or the appellants, but there are issues that aren’t before this Board, and they can’t properly be brought before this Board, the septic issues, the grading issues, the driveway issues. Those aren’t zoning enforcement issues that can be appealed before this Board. Those are either Town Board of Health issues that need to be brought to the Town Board, or they’re Planning Board issues that are dealt with during the site plan. So I don’t have a problem dealing with all the issues at 8 (Queensbury ZBA Meeting 05/21/08) one time, as long as we can focus on only the issues that are properly before this Board, and I don’t have a problem with that. MR. UNDERWOOD-Okay. MR. GARRAND-Craig, for the purpose of expedience, could we get, like next time this is around for the Staff Notes, just with respect to the Floor Area Ratio and the height, only the issues that we’ll be addressing here. MR. BROWN-Absolutely. MR. GARRAND-For the purpose of simplicity, I just, you know, there’s a lot of extraneous information. MR. BROWN- In what? MR. GARRAND-As far as the court’s decision with regard to a neighbor’s property that really doesn’t have a lot to do with the hearings tonight. MR. BROWN-Well, I can’t put a filter on what kind of information you get in the public hearing, or what type of information. MR. GARRAND-It can be included. It’s just that I’d like it to focus on the issues relevant to us here. MR. BROWN-Yes. Absolutely. If you read through my Staff Note, I focus on only the issues that are appealable to this Board. I don’t focus on the other issues, but if they’re brought up as discussion item, I can’t control that. MR. URRICO-Jim, are we hearing the Appeal based on the October 23, 2007 date? That seems to be the date that this file is relative to. So things that have taken place beyond that, now, are falling into a whole different realm than were considered when this first got filed. MR. UNDERWOOD-Right. Yes, I think that what we were up against the last time we came in was that these other issues that had come to the forefront were issues that could be appealable to the Zoning Administrator, and once you issue a determination on those, but I would think it would be of importance to us that you make those determinations, you know, if you’ve been asked to make those determinations, make them, you know, and then if they want to appeal them, that can be done accessory to what we’re doing here, but I think in essence we’re more concerned with the building height. That was our primary concern, and the wing wall issue, whether that was actually part of the building or, you know, whether natural grade or finished grade, as you had interpreted it, is correct or not. MR. BROWN-And that’s an issue that is before this Board tonight, if that’s something you wanted to discuss and decide on. MRS. JENKIN-Jim, what is the disadvantage of going ahead and actually making a decision on these two tonight? MR. UNDERWOOD-Well, I think what you’re going to get into is an endless go around because, you know, there may be a gap between when you make your determination, if we make our determination tonight as to the appeal. MR. BROWN-Well, I can tell you right now that the determination based on these plans, what I received on Monday, will be issued either tomorrow or Friday, and again, my initial review appears as though the plans have been revised so that it does not need a variance from the Floor Area Ratio requirements. The plans are certainly available. If they want to review them and appeal that decision, that’s acceptable. MR. UNDERWOOD-Would they be made available to the applicants who are appealing your decision, then? MR. BROWN-Could they be? Sure. Anything that’s filed with the Town is FOILable, yes. MR. UNDERWOOD-All right. Why don’t we do this. I want to hear from you people to see, you know, where you’re coming from at this point, but having read Mr. West’s letter in, I do not believe, personally myself, I’m not speaking for the rest of the Board, that we 9 (Queensbury ZBA Meeting 05/21/08) ought to be making a decision on this yet. I mean, if you want a decision tonight, I mean, if the Board feels comfortable doing that, last time we met, I requested a copy of those original plans and I think they were provided to every Board member here. You’ve had a chance to go through them. If you’ve got a ruler in your hand, you can measure all those heights and things like that, and you can look at the plan. If you look at the specific set is the elevations, you know, which are the ones that are going to clue you in as to the building heights and wing walls and whether they were shown on the plans and stuff like that. We had issues about that last time. I thought that would clarify everybody, in everybody’s mind, what was originally proposed and give you an idea of what was built out there. Now Joan called me and said, well, we were provided with as builts showing what’s there at the present time. So it’s kind of difficult, unless you’re familiar with buildings and how they’re constructed. MRS. JENKIN-Well, the original plans didn’t show the wing walls, the elevations at all, and also the level was not correct, because it didn’t go down to the basement level, the level of the terrain, or the land or whatever you want to call it. MR. UNDERWOOD-Why don’t we, before we get into that discussion, let’s let the people who are appealing the Zoning Administrator’s determination speak. Go ahead, you guys. BOB GLANDON st MR. GLANDON-Thank you. I’m Bob Glandon. Specifically, just to the October 31 , the appeal that we filed at that time, was the wing walls, side wall encroachment, the building height, and we appealed that the building, as it sat, was a 30% lot coverage Floor Area Ratio, rather than the 22% that was required. Now the Catch 22 that we found in the January meeting was Mr. Brown said, well, I don’t go out to the sites, so I can’t measure it to know if it’s right. The plans sitting in the Building Department, or in the Zoning Department, showed all the dimensions. So it was simple to calculate, but at 30% Floor Area Ratio, you know, we were well over what we should have been, and the Catch 22 we had in that January meeting was, well, Mr. Glandon, you can’t appeal because, you know, we haven’t issued our ruling yet. We’ve got something built that’s overbuilt, but I won’t say it’s overbuilt, and until I say it’s overbuilt, you can’t appeal it, and my whole point was, please, we know it’s overbuilt, just make the finding that it’s overbuilt and tell them to change it, and at that January meeting, the decision was to put it all together in a joint appeal and push it forward, and so at that point, Floor Area Ratio, I certainly felt, was to be discussed. So I can understand, I mean, I continue to see the Staff Notes ignore the Floor Area Ratio, but I would ask you, Craig, as it sits today, has it exceeded the Floor Area Ratio? MR. BROWN-The building that’s constructed today? Yes. MR. GLANDON-Okay. So what do you do at that point? What is, what’s the next step for the Town to do? MR. UNDERWOOD-It would seem logical to issue a determination, based upon what was built, that it exceeded the Floor Area Ratio, and I think at that point in time, then we could work towards, you know, these modifications as a possible solution to bringing it into compliance. MR. BROWN-Well, one of the, and not to get too much into the philosophy of zoning enforcement, but the main goal that we seek, and that I seek as a Town Zoning Administrator, and the Code Enforcement Officer seeks, is compliance. If we can have a violator bring a project into compliance, in a reasonably equitable manner, that’s what we’re going to shoot for first. We’re not going to pull the trigger and go to court. We’re not going to, you know, tell them they need to come to the Zoning Board to correct this, if they can chop off two feet of their deck and come into compliance. If they want to make a modification to their project to be compliant, that’s what we shoot for first, save everybody some time. That’s what we’ve done here. We’ve accepted the applicant’s, or the Provident Development’s offers to modify the building, to bring the building into compliance. Is it in compliance today? No, there’s no question. I don’t think anybody will argue that. Can it be brought into compliance with these revised plans? That’s the plan, and that’s what they’re offering right now, and it’s likely that my decision on the proposed modifications to the already built building is going to be that if you follow these plans, the building will be in compliance. MR. GLANDON-I would point out that, when you do the minutes tonight, you can just copy the text from the last meeting, because at the last meeting, Mr. Brown told us I have 10 (Queensbury ZBA Meeting 05/21/08) a set of plans that just came in today, or the day before, and I’ve done a quick review, and it looks like we’re okay, and that was when you said let’s see the plans. Let’s see the original plans, and now we understand there’s another set of plans. Because that set of plans he had his hand on that night, I’ve looked at, and it didn’t cover it. So what they proposed at that point, when he said you’re over Floor Area Ratio, they came in and proposed something that still wasn’t under Floor Area Ratio. So they continue to push it to you to do their design, which seems odd at best. Now, what I saw at that point, and I have no idea what’s in there, but I will look at it, but what was going on at that point was half of the, there’s a full walkout basement, big double glass doors in the middle and big windows on either side. One side they decided to take the window out or block it in, and they’re going to put a wall up, and they’re going to declare that about 40% or more of the basement and the piece that goes back from it, which is, by the way the stairs, the back stairs, out of there, their plan was to declare that storage. Therefore it’s not living space. Well, it is living space. The definition of living space is based on the construction via the fire codes, in terms of the quality of construction, the thickness of walls and the like. So it can be living space tomorrow. The next owner can use it. So that, if that’s in those plans, then it’s obfuscation of the rules. Floor Area is measured, by your Code, based on the outside walls. It doesn’t say you can subtract stuff. I believe some of the other moves were to subtract closets and maybe hallways upstairs to try to get some areas down to say only the bedroom is the living area, but it’s not that. It’s outside walls. That’s the way your Code’s defined. So I think there’s been obfuscation, and it just goes on. I think you’re right. You could make a determination on the Floor Area Ratio tonight, and Mr. West suggests, if that’s the case, that you should be sending it to the Town Attorney. I don’t know how all that works, but it’s something to be thought about. The other item that you could rule on tonight is the building height, and the Zoning Administrator’s job is to enforce the Code, not to interpret or partially read the Code, and I think the important, Mr. West laid it out, the difference between natural grade and the final grade, fill grade of a cut, but natural grade, it’s written that way, and the only place where it talks about the finished grade, the sentence uses the phrase, finished grade of the cut, finished grade of the cut, and you can’t stop your sentence. You can’t put a sentence at the end of the words finished grade, which is what you continue to do when you talk about it. Finish the sentence. It’s finished grade of the cut, and that is the defining term of that finished grade, and without the words, of a cut, the words finished grade aren’t in there. If you want to take Mr. Brown’s position of finished grade, then there’s no reason to ever mention natural grade, because you can do whatever you want, and you can do what these people did, which was build a pimple on the lot and build on top of it, and there’s absolutely no reason that they couldn’t build up even higher, go up another 20 feet, and put the house on top of that, as long as you keep adding that, there’s no stopping what could happen in this Town, and what could happen on Assembly Point and on Lake George, and then to the wing walls, which is another area I think you can make a determination on, the walls are allowed for grading, and the only reason this grading is there is to produce this artificial pimple. So if you handle the building height right, the wing walls go away, because they’ve got to go off roof seven to eight feet, and they’ll be back down to a two story house on Lake George, like every other house on Lake George, rather than the only three story house that this Town is about to allow, and so those wing walls don’t need to be there. The fact that the wing walls are radiating out into the side yards to within six feet of both of our lots, if that’s allowable, then there’s nothing that stops them from moving the wall, they could build a wall right along the lot line and fill dirt on their side, so that the property owners on either side would be looking at a 10 foot concrete wall. So, you know, it doesn’t make sense that a wall is allowed to be put in to get an artificial grade, and then where walls are allowed to be put in, that they’re allowed to be put in the side yards. So that’s where I think it has to be treated properly and could be ruled on, and I guess one final comment, just to the spin, I guess everybody wanted to talk about. I don’t think there’s a spin here in that a summary judgment is just to try to avoid court, and you can rule, and a Judge rules we’re going to let it go to trial and rule on the merits at trial. So it’s (lost word) summary judgment does not mean that this driveway doesn’t still go in, and the reason the driveway was brought up is that with any kind of a driveway that looks like what was there before, there’s even less room for the septic field, and the septic field, the fact that a permit has now been issued, I suppose, I think we probably would appeal, because as of September, the perc tests on that property were not good enough for the septic field that would have to be 200 feet back from the lake, which would stick it in the road, and magically in February, the perc tests got better, so the septic field could be there. So somehow something magical happened to that property between September and February to get different perc tests, of enough to make that difference. So I think you’ve got an issue with septic. So what you have, I believe, is an entire set of issues, some in front of this Board, some that need to be in front of other Boards, but I think what I see is a pattern of dishonesty by these builders that I plead to the Town of Queensbury to stop 11 (Queensbury ZBA Meeting 05/21/08) this, you know, don’t destroy what we have there. Lake houses are built, and they can be built nice, but what’s been built there is well over Code. MR. UNDERWOOD-Does anybody have any questions? MRS. JENKIN-For going ahead or waiting or? MR. UNDERWOOD-Well, I mean, we’ll discuss whether we’re going to go ahead, but I wondered if you had any questions for the people appealing this. DR. STUART ROSENBURG DR. ROSENBURG-If not, no questions, I would just like to say something that will take about 90 seconds. MR. UNDERWOOD-Sure. DR. ROSENBURG-My name is Dr. Stuart Rosenburg. I’m the neighbor to the north. First of all, I’d like to thank you all for being here tonight. Your presence is a testimony to your commitment to civic involvement in our community. I want to thank you very much. You’ve heard arguments tonight describing grades, heights, side yard setbacks, and Floor Area Ratios. I’d like to take another approach. I’d like to speak to the human issues in this conflict. So I’m a physician. I deal with human issues every day. I’m sure that many of you, if not all of you, own homes in our Town. I’d like you to close your eyes for a minute and imagine a house located on a forested slope, tumbling into the lake, not just any lake, but Lake George, Lake George. It’s the jewel of the Adirondacks, a lake once described as the most beautiful and pristine in our country, a lake that in the last 30 years has been under intense pressure, secondary to uncontrolled development, around its perimeter, and its up in the mountains. With your eyes still closed, it came to pass a neighbor recently sold his house, and a lot, to a group of developers, developers, not future neighbors, but a business concern intent on turning profit on this beautiful parcel of land. They have no interest or intention to invest in the land or their neighbors. Their only motivation is to buy, develop and sell. The first sign of their intent was to clear cut the property. Two dozen trees, many of them over 100 years old, many of them 36 inches in girth, were torn down. The result of this was a barren lot, with a flood of mud and runoff into our and our neighbor’s property that eventually ended up in the lake. The next step was to construct a building that far exceeded height limitations, total floor space, and infringed on the side wall setback with a reinforced concrete wall. This house was so oversized that a reasonable and safe septic system could not be constructed, threatening the neighbors and the lake with raw sewage for years to come. Do you have this image? Now open your eyes, meet your new neighbors. Ladies and gentlemen of the Board, your predecessors carefully and skillfully constructed laws and codes related to the development. Their objective was to allow for controlled and sensible growth of our community. The monitoring and the enforcement of these codes is the duty of our staff. If there’s any ambiguity or conflict, it’s your responsibility as a Board, ultimately, the decision is yours, and I thank you. MR. UNDERWOOD-Well, I think at this point in time I would like to poll the Board to see whether you would like to issue some determinations this evening in regards to the height of the building. Prior to doing that, though, I want to have a little bit of discussion as to the plans, because when I requested these plans, my reason for doing that was for us to each have an opportunity to look at the plans as they were proposed and accepted by the Community Building and Codes Department, and then to look at the significant deviation that did occur, that was supposedly occurring as a result of construction here. If everybody will pull those plans up in front of them right now, please, open them up. What I want you to do is go to the one with the elevations on them, that’s AO-5. One of the things to remember about plans that are approved by the Town is that when the Town accepts plans and stamps plans for approved building construction in the Town of Queensbury, that’s to be done in conformity with the plans as presented to the Building Department and, you know, for your review, too. I would think that would be a reasonable recourse, and in the course of most building construction in Town, most people pretty much stick to the plan. That’s the purpose of a plan, and on these drawings, if you’ll look over on the left side elevation there, you can see the connector between the house and the garage. For those of you that have been out to the site there, does somebody want to tell me what they saw when they got out there to the site, as far as what was done on the connector? Joan, do you want to tell me? MRS. JENKIN-Well, it’s not a connector. It’s higher than that now. I mean, there’s a second floor on it. 12 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Okay. So that roofline extends from the garage all the way across to the peak of the roof on the main part of the house there? MRS. JENKIN-Right. MR. UNDERWOOD-And I think that was part of what was brought up in the Floor Area argument that was being made was somehow there was a major deviation from the single story roof connector over to the main part of the house there. Now, Craig, you had informed me at the time that the initial set of plans that came back with changes to you, what was it that they were proposing at that time? MR. BROWN-The initial set? MR. UNDERWOOD-Yes, the initial set that came back. MR. BROWN-I don’t remember the specific changes. It was probably some interior alterations. MR. UNDERWOOD-I specifically remember they were going to close off a doorway, take out a doorway, make it so you had no living space up there. MR. BROWN-Yes. I’m sorry. The original set of plans was slightly modified with some interior alterations, back when the permit was issued. So there was an original set, and then a revised set and we’ve probably had half a dozen iterations since then. The most recent proposal was to, and if you’re talking about removing the connector between the area above the garage and the house? MR. UNDERWOOD-Yes. MR. BROWN-That’s what was proposed at one point, along with some reconfiguration in the basement. Again, that’s not the current plan. That’s this plan which is different from all that. MR. GLANDON-The plans you have in your hand there are a 60 foot wide house. The original plans were a 53 foot wide house. It didn’t go all the way over to the garage. The main house stopped at seven feet. So it’s almost, if you think about it, half the garage stuck out past the house. So those plans are not the original. MR. UNDERWOOD-What’s the difference in the most recent set that you see as far as the connector portion of the house? MR. BROWN-Well, we can certainly discuss it. I was just trying to understand what all this has to do with determining whether I determined whether the height was measured correctly or not. MR. UNDERWOOD-Well, we’re going there eventually, but I’m just, just happened to start here on this. MR. BROWN-Okay. Yes, I mean, these revised plans I can give you a brief overview, but I’m sure the designers over here can give you all the specific details, but it appears as though all of the area in the basement, the entire basement. MR. UNDERWOOD-How about the connector? Why don’t you just focus on that. MR. BROWN-Is now considered not living space because the plan is to infill all the openings on the lake side of the house. The doorway’s gone. The grade’s been brought up four feet. What used to be two windows are now shrunk up to about two feet from the top with just glass blocks, immovable windows. MR. UNDERWOOD-So there’s no walk out anymore on that basement? MR. BROWN-There’s no walk out in the basement anymore. MR. UNDERWOOD-Is that going to be like raising the grade on the margins of the property, then, to the neighbors north and south also? MR. BROWN-I can’t tell, from the grading plan, if it goes all the way to the edge of the property, but it would definitely raise the grade between the house and the lake with the 13 (Queensbury ZBA Meeting 05/21/08) construction of a shorter retaining wall 30 feet away from the house. Something like that. I don’t have the specifics. MR. GLANDON-That’s above natural grade. Natural grade is what’s sitting there right now. MR. UNDERWOOD-Sure. I don’t think you should be interjecting here because we’re discussing. Thank you. MR. GLANDON-Sorry. MR. UNDERWOOD-In the past, we’ve dealt with these issues before on these houses that were proposed over height, and we had, I remember specifically Mrs. Hopper’s house up on Hanneford Road there, we had proposed berms on that one to lower the height of the house down, and that was unacceptable to you at that time. Why now is this being proposed as acceptable? MR. BROWN-Well, I think, you know, I don’t remember all the specifics of that. What I seem to remember, they wanted to build a wall one foot away from the house and have the wall be five or six feet tall and call that the grade next to the house. That’s what I seem to remember. MR. UNDERWOOD-Well, most recently we had that one over on Glen Lake there on Chestnut, I think it was. That was the one where they had proposed, it’s that house that’s currently in progress over there, kind of that castle look to it, but that one there, too, because of the garage on the back of it, that was going to create the height variance difficulties, because it dropped down lower into the back of the house. MR. BROWN-I’m sorry, I’m not remembering that. On Chestnut? MR. UNDERWOOD-Well, it’s over on the north side of the lake there. We had proposed. MR. BROWN-The old Brown property? MR. UNDERWOOD-Yes, the old Brown property. MR. BROWN-Okay. Yes, I think that’s just a single story home. MR. UNDERWOOD-Yes, now it’s a single story home, but originally as proposed to us, they came in for a variance on that one and we proposed a berm on that one, you know, setting it down in the ground more, and that was deemed unacceptable at that time, too. All right. Let’s go to the height variance, because I think the height issue and the appeal of the Zoning Administrator’s determination on height. Those of you who have had an opportunity to look at the plans, I scaled out the side of the house there down to the grade as presented on the original plot plan, and it worked out to be about 32 feet high, you know. I don’t know how that could have been overlooked at the time that these plans were submitted. It’s been my understanding, Rich, what was it you had heard about as far as filling in the grade and that was, you had the lower windows on the side of the house there, and I think those window wells is what was going to create that over height situation. Is that why those windows were filled in? MR. BROWN-On the north side of the house there was a window originally on the plan that they filled in, blocked in, and their proposal is to raise the grade there. MR. UNDERWOOD-And that was to bring it into compliance on height? That was the reason for that. MR. BROWN-I believe that was the proposal, yes. MR. UNDERWOOD-Because if you measure the height of the building as it’s shown on the plots here, the ones that were provided to us anyway, I came up with, down to grade there, 32 feet, and it’s interesting on these side slope grades as shown on the plots, because, you know, it appears like it, it looks like natural grade going all the way down to the lake, which is not the case there. It doesn’t show that great big nine foot drop down, you know, when you get to the walls that were built on, and conveniently it appears that those wing walls were left off, there’s no reference to them anywhere on the plans. So I don’t understand how they could have been left out. MR. LAPPER-Jim, you’ve got to let us be heard on the situation. 14 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-That’s fine, Jon. You’re going to get your chance. MR. LAPPER-Thank you. MRS. JENKIN-The concern I have, too, about this, when you look at the level of the, if they say it’s natural grade, it does not come, the back of the house was an outside, it was an exposed basement right to the bottom, and so the natural grade does not come down to where the house is. So what does that mean? Did they dig it out or what happened here? MR. UNDERWOOD-Well, in essence I think if you’re going to look at the regulation, it talks about, you build your house at natural grade, it sits like the adjacent properties, where the houses are built, on the normal, everyday surface it’s apparent, along the slope of Lake George there, as you look at it in the aspect from the lake. MRS. JENKIN-But my question is, was this black line actual grade, natural grade? MR. UNDERWOOD-It does not appear to be because, if you go up to the project, there was an initial huge cut that was made to accommodate the size of the house into the hill there, and then after the cut was made, you know, if you’re going to strictly look at the rule, I mean, look at what the definition says. It says to the cut. It doesn’t say an accretion of fill added on to the cut afterwards, because otherwise that would give you the opportunity to pile it up as high you wanted to. You could make a skyscraper there and pile up dirt next to it and say it was compliant. MRS. JENKIN-It’s just a line, putting it in. Right, but what I’m saying is natural grade, if they put this house according to natural grade and the exposed basement is on natural grade at the back, which was what was measured as the 28 feet, then that couldn’t, that line could not have been the natural grade. It had to be lower than that, and that’s why I’m saying, so it was very hard to measure, but the height of the building at that point, to that natural grade, I measured to scale, and it is 31. If you go to what it probably is, it would be at least 33 or 34 feet, the height, but, Craig, you said you didn’t take that measurement. You took the measurement from the back side of the house to the dormer. MR. BROWN-Yes. I don’t think there’s any question that, as the building sits, if you were to measure from natural grade, that it’s taller than 28 feet. The appeal that’s before you tonight is that my determination was that you could measure from final grade, and their position is that you can’t do that. You have to measure from natural grade. My argument to all that is the Code offers a couple of different methods, and we’ve, in the Zoning Department, have historically required or allowed the measurement to be from final grade, and that’s the precedent that’s there. MR. UNDERWOOD-Could you read us the, because, I mean, part of their case that they’re making is that it includes that sentence to the cut, all right. Could you read it out of the book for us? MR. BROWN-Sure. MR. UNDERWOOD-So we know what it says. Thank you. MRS. JENKIN-Well, he’s reading it from this, and it doesn’t say, it says finished grade. It doesn’t say to cut. MR. BROWN-Building Height’s defined as the vertical distance measured from the lowest portion of natural grade of the building site coverage by the building or finished grade of a 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. These features shall not exceed an aggregate coverage of 25% of the roof area on which they rest. The measurement of building height is illustrated by Figure 1, and if you want a complete the verbiage on Figure 1, Building Structure Height – the distance measured along a vertical plane from the highest point of a building or structure to finished grade at any point adjacent to the building or structure and as measured at any point adjacent to the structure along the same contour. Those are all the words. MRS. JENKIN-Another point of the definition, too, Craig, is that, the angle they have written there on the diagram, and the 28 foot height, that is taken from final grade 15 (Queensbury ZBA Meeting 05/21/08) probably. The bottom line is the final grade, if you’re looking at the diagram. The top one is parallel to that line. That’s impossible to do with this one. This drawing as it is here, you can’t take the angle here, because the angle at the top is different. You would be cutting off the top of the house if you use the angle that’s given here. Do you understand what I’m saying? MR. BROWN-The angle that’s in the definition’s diagram? MRS. JENKIN-The angle of this. MR. BROWN-Okay. MRS. JENKIN-You said you took the height from here to here. MR. BROWN-Yes. MRS. JENKIN-If you took this grade that they have put as grade, it would not work because you would be cutting, and this is a parallel line here, in the definition. This is not a parallel line here. Because if it is a parallel line from here to there, 28 feet, it would be less than, it would cut off the top of the house. MR. BROWN-If you could hold that up, the difference is, on the right hand side of that drawing, which is the lake side of the house, the elevation is actually taken from there. That’s the walk out at the basement. MRS. JENKIN-Right. MR. BROWN-The measurement that you take at the gable end of the house, which is a little further, so the grade raises up four or five feet, or five or six feet, I guess, with that retaining wall that’s there. MRS. JENKIN-And this is 31 feet here. This is 28 feet here because you took it from the gable. MR. BROWN-Well, it’s from the eaves on that side of the house, by the walk out. That’s correct. MRS. JENKIN-Yes, which is not really the top of, highest part of the house. It’s a gable. MR. BROWN-But this says at a point adjacent to the structure. MRS. JENKIN-Right. MR. BROWN-So that’s why you measure right straight down from the eave. MRS. JENKIN-Exactly, but the point I’m making, if you were going to literally take the drawing, it’s a parallel line from finished grade. MR. BROWN-Yes. MRS. JENKIN-And it’s impossible to do that from here. MR. BROWN-Yes. You have to have your 28 foot line follow grade. So in that case it would go over, hit the wall, and then it would go up and follow the contours. MRS. JENKIN-But that’s not what it says in the definition. The definition, there’s a parallel line joining all roof lines. MR. BROWN-Does it say anyplace parallel? I’m just trying to find where you see that it has to be parallel. MRS. JENKIN-It’s showing a 28 foot height throughout the whole structure. MR. BROWN-Right. So as long as you follow final grade, if final grade, you know, on the site is relatively flat, and then it gets steep. MRS. JENKIN-Right, but you can’t do it here. 16 (Queensbury ZBA Meeting 05/21/08) MR. BROWN-If final grade is relatively flat and then it gets steeper, then your 28 foot line has to be flat and then get steeper. It’s not going to be a straight line unless your site is flat. It’ll never be a straight line. MR. UNDERWOOD-Okay. I’m going to read, again, the building height definition for everybody. It’s the vertical distance measured from the lowest portion of the natural grade of the building site coverage by the building or finished grade of a cut required to accommodate the building to the highest point of the structure. Okay. So it has nothing to do with that fill that was added on. That fill that was added on there is the improper place to measure from, if you’re going to strictly read what the definition says, and you can make the argument that you can accrete and dump piles of dirt or anything else on. The mere fact that they had to build nine foot walls there, you know, basically should point you in the direction of this is not natural. Go up on Lake George and look at any property along that whole road there. Show me anyplace else that they’ve done that. MR. LAPPER-Jim, can I be heard on this, at this point? MR. UNDERWOOD-You will be heard, yes, when we’re done discussing it. MRS. JENKIN-There’s one other point I wanted to make, too, from the, do you have the notes? I’ve got one page and I don’t have the other page, the Staff Notes. Right. Okay, and this has to do with the wing walls. In Craig’s determination, the wing walls are considered landscaping elements, and as such, like a sidewalk or a stone wall, are not subject to setback requirements. Well, I understand that then if it’s a landscaping element, and strictly a landscape element, you could take it away and the house would be, would remain the same and everything would be an integral part of what this is. So the dirt would stay where it was, and everything would be the same, but the thing is the wing walls are holding back the height measurement. Am I being clear? If they weren’t there, the soil would be much lower. So the wing walls are dependent, the height of the building, the proper height of the building, is dependent on the wing walls being there, and as such are an integral part of the building. They have to be, because if they’re not, if they’re only a landscape item, you could take it away and everything would remain the same. MR. BROWN-No, I understand that, and I guess my position is that if you take the wing walls, the way the building’s going to stay there, the building is going to stay the same. They’re not an integral part that holds up the building, they hold up some dirt next to the building. So if you take the wall away maybe some dirt moves around, but the wing walls don’t hold up any part of the structural component of the building. MRS. JENKIN-True. MR. BROWN-So that’s why it’s not required to meet setback. MRS. JENKIN-But it would be out of compliance as far as height, then. MR. BROWN-It doesn’t have anything to do with setbacks of does the wall need to meet the setbacks to the property line. Two entirely different issues. MRS. JENKIN-But it does have an affect on the height of the building. That’s why I’m saying, one works with the other. You can’t look at them separately, because if the wing walls are only a landscaped item, you can take them away and that would be fine, but then the height of the building would be out of compliance. MR. BROWN-All right. Well, I mean, we may disagree on, and I think you have to look at them separately. They’re two totally different things. MRS. JENKIN-No, they’re not. One is dependent on the other. MR. BROWN-Okay. I guess we’re just going to agree to disagree. MRS. JENKIN-Right. Okay. MR. UNDERWOOD-All right. Do we want to give Mr. Lapper an attempt to come up here and defend what was done here on the site? I guess we’ll give you five minutes. MR. GLANDON-Thank you all very much. I appreciate the time. 17 (Queensbury ZBA Meeting 05/21/08) MR. LAPPER-Thank you. First I want to make the point that I’ve made before that under case law my client is the real party at interest because they’re the ones that have the permit that’s being challenged here. So we can’t be limited to five minutes. It should have party status under due process that we have the right to defend the permit, to speak as long as the neighbors. We’re not just an interested party, as a neighbor would be at a public hearing. It’s our permit that’s being challenged. So I’d ask that the Board recognize that the five minutes doesn’t apply to our position here. Some of my clients might want to speak as well. I think the issue, you know, the emotional story that you heard from the neighbors, they don’t like the development, I understand that, but the question at hand is a simple one about how you measure height in Queensbury under the Code, and Craig is measuring it on this project, as he has on every other project, from finished grade. If the rule was natural grade in Queensbury, and we’ll get to the language, and the diagram, but there are certainly two measures in the Code, and one is natural grade and one is finished grade, and historically, as Craig has said on the record, it’s always been finished grade on all projects. If it was natural grade, then when everybody, anyone that came in for a building permit for everything that’s ever been built in Town, regardless of what zone you’re in, you would have to come in with a plan that says this is the lowest point of natural grade along the building, and this is what I’m planning to build, and this is what it’s going to be. So they wouldn’t be able to process a building permit application unless you knew what the natural grade was, and that certainly isn’t the case with any building that’s ever been built in Queensbury, whether it’s Aviation Mall or Angio Dynamics or any house in any subdivision. It’s just not done that way. So the first thing I’m arguing is that selective enforcement, that everybody should be treated the same, and when the owners of the property went to the Town with a building plan, they went to show that it was 28 feet. There have been a lot of dirt thrown around about the plans changed, but at the end of the day, in order to get to that 22%, they had some, I think, 400 square feet they were allowed to have as living space in the basement because they had extra space, and the question is, okay, you can’t trust, if someone’s going to do 400 square feet to get the thing built, and then after it’s built they’re going to change it and they’re going to make it all living space, so what they’ve done, in this last set of changes, in terms of credibility, in terms of making sure that there’s no issue, because obviously they’re being challenged by both of their neighbors, not only did they say we’re going to make sure that this is storage area in the basement, they made it so that the basement doesn’t meet the definition of living space. They completely took out the walk out basement. Walk out basement’s a nice thing to have when you live on the lake. So now they’ve completely eliminated that issue. The door is gone. The windows that open are gone. It’s just some glass block windows, and they’re going to fill it and grade it, and that’s how it’s always been done in Queensbury, that you’re allowed to fill it and you measure from natural grade, and that’s the way anybody builds any building. The reason why Craig used that definition is because when you look at the chart, and I think that Joan shouldn’t be considering the issue of side setback and height because they’re two different challenges and two different questions, but I’ve submitted case law previously for this project that said that when you have an ambiguity in the Code, zoning is in derogation of the common law, and you have to treat it so that it’s in favor of the property owner, not in terms of the Code, and when it says natural grade or finished grade, in this case, finished grade is the more lenient, and that’s what the law requires. Case law, I cited in the record last time, and I’ll just read it to you, and I’m turning to the definition which says, which is what Craig just read, that there’s a separate definition on the chart. So we’re saying that this is ambiguous because there’s the definition that the applicants want you to read, and there’s the definition that I want you to read, but if you look at it and say there are two definitions, this just says, Building Structure Height - the distance measured along a vertical plane from the highest point of a building structure to finished grade at any point adjacent to the building or structure and as measured at any point adjacent to the structure along the same contour. So to finished grade. So this says finished grade, and what the case law says, and I am, it is Rd Supreme Court Appellate Division 3 Dept., which is the court that governs us. Orenstein vs. the Zoning Appeals of the Town of the Town of Caanan, and the language says since zoning laws are in derogation of the common law, they must be strictly construed against the party seeking to enforce them, and ambiguity in the language employed must be resolved in favor of the property owner. So that’s the law that governs Zoning Board interpretations when you have ambiguity, and I think you clearly have ambiguity here. On top of that, on the Town website, there’s information brochure number 11, waterfront development, that I just downloaded from the Town website, and this says the Town of Queensbury Informational Brochure series has been developed to provide the public with general information on land use regulations commonly affecting activities undertaken by the public and administered by this office. It is not intended to be a complete statement of all applicable regulations and individuals are encouraged to contact the office for complete permitting requirements, and the subjects are, what are some of the special requirements of the waterfront zone, sliding setback scale, how is 18 (Queensbury ZBA Meeting 05/21/08) the shoreline setback determined, how close to the water can I build, and then this one says how tall can a home be. So this directly addresses the issue that I just discussed, and what this section says, how tall can a home be, I’m quoting, The maximum allowable height in the WR zone for a principal building is 28 feet. This measurement is taken from the highest point of the structure, vertically, to finish grade at any point adjacent to the building. So this mirrors what the chart says, that you measure to finished grade. This is what Craig has always done and his predecessors have always done in Queensbury. So when my clients want to know how high you build a building, and the building that they’ve obviously constructed, it’s to finished grade, and that’s how it’s always been. So if somebody wants to change the Code with the next amendment, that’s one thing, but in terms of how you interpret the current Code, you’ve got to interpret it in favor of the property owner, that would be to finished grade. They’re not trying to get away with anything in terms of the height. They’re trying to make sure that when they grade the property it’s 28 feet. You heard the downside of somebody built a pimple and it was a skyscraper, you know, yes, if somebody takes this to extreme, it could be unsightly, but here they’ve got a steep grade on a site, on a lake site, and they’re doing what everybody else on the lake, or anyone else has done, you grade it so that it’s not more than 28 feet. MR. UNDERWOOD-Okay. I’ll give you one more minute. MR. LAPPER-Okay. So, that’s on that issue. The second issue is, well, I just have to quickly say that in the last set of plans that were submitted today, that Craig’s just looking at, the downstairs doesn’t, there’s no Floor Area Ratio issue, and they’re allowed to modify the plans. Everyone has a basement. Their basement is not going to be finished living space. It’s going to be basement space because it doesn’t have any doors or windows, and that just makes the issue go away. So, that’s that. They’re not trying to get away with anything. MR. URRICO-You said earlier that those plans would have no bearing on our decision tonight. So now they are having a bearing. MR. LAPPER-Well, the issue is not before you, in terms of Floor Area Ratio. MR. URRICO-But it’s relevant that those windows are covered. MR. LAPPER-The windows are visible. The door is covered with dirt. What’s going to be the door is covered. The windows, there’s still some windows that don’t open, but it’s relevant in terms of credibility, in terms of what they’ve done. It’s not a bad thing that they’ve changed the plans. They’ve made the issue go away. So there’s no ambiguity about whether that’s living space, but that’s not before you. What’s before you, the other issue is the side setback, and in terms of what Joan was saying about these wing walls, that the definition for the building line, how you measure to the building line, talks about whether it has a roof over it, and this is landscaped item. It doesn’t have a roof over it. I just have to get you that section or that definition, and I’ll be done. First there’s building line, which is on the same page as that chart. A line formed by the intersection of a horizontal plane of average grade level and a vertical plane that coincides with the exterior surface of the building on any side, and then you go to building, and it’s any structure which is permanently affixed to the land, is covered by a roof supported by columns or by walls and is intended for shelter, housing or enclosure. So to be part of a building, it has to be part of the roof, and then landscaping is the one that Craig quoted that talks about retaining walls, and that is definition of landscaping. The act of changing or enhancing the natural features of a plot, buffer zone, public open space or other area or portion of a lot so as to make the area more attractive, to add visual screening and/or to provide safety features and to assist in protecting life and property. This may be accomplished by adding lawns, trees, shrubs, etc., or through the sculpting of the terrain, i.e. earth berms, ponds, walkways, retaining walls, rock outcrops, etc. So retaining walls are certainly mentioned as a landscape item. MRS. JENKIN-They’re to add to the beauty of the. MR. LAPPER-Well, it holds back the dirt. MRS. JENKIN-So then it’s necessary to be there. You have to have that retaining wall in order to do what the owner wants to do. MR. LAPPER-That’s not unusual. A lot of times retaining walls are used for grade. Otherwise you’d have to grade things over a great distance. If you have a retaining wall, you can structurally hold it back. That doesn’t, I mean, you’re adding another 19 (Queensbury ZBA Meeting 05/21/08) requirement that’s not in the Code. The Code just says that if it’s there as a landscape element, it’s not part of the structure. MRS. JENKIN-And it could be taken away. MR. LAPPER-Craig said it could be taken away. It just would create a steep slope. So you’d have erosion. So it could be taken away. It’s not a structural issue. It doesn’t hold up the house. MRS. JENKIN-It doesn’t hold up the house. I agree with that, but it is an integral part of the whole, making the height of the house acceptable. MR. UNDERWOOD-All right. We’re going to cut this off then, and I’m going to go through the Board, but before we do that, I’m going to read you a few definitions out of the subdivision of land regulations. These are on shorelines. On shorelines the objective is to maintain or enhance the existing physical, biological and aesthetic characteristics of the shoreline of all lakes, ponds, rivers and streams. Under the general guideline, you are supposed to comply, at a minimum, with applicable governmental shoreline restrictions; minimize construction or development of any kind near or on the shorelines; avoid physical modifications of the shorelines themselves; minimize the removal of vegetation along shorelines; located buildings so as to be partially screened from the shorelines by natural vegetation; and maximize the preservation of stretches of shoreline in a natural, unchanged and undeveloped state. I think it should be clear to everybody in the room that if you’re on Waterfront Residential property they’re not specifically talking about right, the shoreline where the interface between the land and the water is. They’re talking about the shoreline, the bank leading down, etc. All right. So keep that in mind. MR. LAPPER-Jim, this is a picture of the shoreline. So there are trees. MR. UNDERWOOD-Yes. The other one I want to read to you is this one here. It says maintain the open space character of the project site, the adjacent land and the surrounding areas, and that is preserve the vegetative screening and existing topography of the undeveloped areas as large as possible in view of the project objectives, and it says under the surrounding land uses in general, the objective is to minimize the incapability of new development with the character of the adjoining and nearby land uses. Take in account the existing and potential land uses in the vicinity in determining what new land use activities are suitable for the project site; avoid the intensive development of open space areas; avoid substantially altering existing residential and other land use patterns. All right. The ruling that I think that we’re going to use here then, and I think if the Board is comfortable, do you want to go through and does somebody want to make a resolution here tonight about whether or not we’re going to uphold the Zoning Administrator’s determination or turn it down? But I’m going to read Building Height again, and this is the one we’re going to use. The vertical distance measured from the lowest portion of the natural grade of the building site coverage by the building or finished grade of the cut required to accommodate the building to the highest point of the structure. All right. So that’s the one that we’re going to use as far as the height goes. We’re not going to look at diagrams or make interpretations of diagrams because those are subject to anybody’s own eyesight, but you’re going to use that language in the book. That’s the bible. Why don’t we do this? I’m going to poll the Board, and I think what we’re going to do is break this down here, because I’ll go through it again what we’re doing here tonight. The 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. We’re not going to look at stuff that’s outside of the purview of what we’re doing here tonight, and the appellant’s letter of October 23, 2007 addressed five items. Number One was building height. Number Two was the side yard setbacks, and that would, I think, be referring specifically to those wing walls that were built. There was a Stop Work Order issued, stormwater and erosion control. The current Appeal addresses four items. That is side yard setbacks to those walls, those wing walls, building height, lot coverage and the septic system, and I’ll just read in one more time what Craig’s notes are. As noted in the October 23, 2007Zoning Administrator’s decision, the “wing walls”, in Craig’s mind, 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, “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 next section talks about the septic system which we’re not going to get into, because that’s not our purview. 20 (Queensbury ZBA Meeting 05/21/08) MR. GARRAND-Mr. Chairman, do you want to go down, item by item, poll the Board individually on each individual item? MR. UNDERWOOD-Yes. I think what we’re going to do is, first of all, we’re going to do building height, okay. So let’s just go through building height and I’m going to go through each Board member, and you give me your interpretation as to what you think is correct. Brian, do you want to go first? MR. CLEMENTS-Sure. I know that it’s been said that some of the other projects in Queensbury that finished grade is typically used for measuring. I think that maybe in a lot of the cases where they’re building homes, maybe the finished grade is used and it’s typical, but generally I would say that that would be on all four sides of the structure. I think we’re looking at something a little bit different here. I believe that Mr. West and Mr. Glandon have made a persuasive argument about this. I think that it has been, that grade has been changed to enable the height of the house to come into compliance. So I believe that I would go along with Mr. West and Mr. Glandon. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-Yes. I feel that, being on the Zoning Board, I am responsible to uphold the Code as it is stated in the Queensbury Town Code, Zoning Ordinances, and because the building height, and we have said it, I won’t repeat the definition again, it does say by natural grade or finished grade of the cut, and so I would not be in favor of upholding the Zoning Administrator’s decision at this time. MR. CLEMENTS-Mr. Chairman, could I add one more thing? MR. UNDERWOOD-Certainly. MR. CLEMENTS-One of the other things that we might look at is this Board denied a proposal on Glen Lake that wasn’t a finished project, and I think that you had mentioned that before, and basically it was very similar to this height issue, and we denied that proposal at that time. This Board did. I’m not saying that I did, but this Board did. MR. UNDERWOOD-George? MR. DRELLOS-Jim, I would have to say I would go by the finished grade. I would go along with Craig. I think that there’s no way you can clear land and keep it at the same height. I mean, too low or too high. Things have to be cut or filled. So I would have to say that. MR. UNDERWOOD-Would you make the distinction between cut and addition of fill, though, at any point, or do you think that’s anything important? MR. DRELLOS-Well, as far as addition, as far as filling in a hole, a dip, or, I mean, what are you saying? MR. UNDERWOOD-I mean, I’m thinking in a sense of bringing it back to the grade, you know, obviously you’ve got to backfill, right? I mean, you do it all the time. You can’t leave a hole in the ground when you’re digging a pipeline. MR. DRELLOS-But you were talking adding on top of the natural. MR. UNDERWOOD-In a pipeline situation, would you berm it up above? MR. DRELLOS-I have done that, yes. I have. MR. UNDERWOOD-Okay. All right. Rich? MR. GARRAND-I believe modification of the finished grade for the purpose of regulating height contradicts the legislative intent of the Code. I therefore would not affirm the Zoning Administrator’s decision. I would agree with the appellant. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. Thank you. Yes. I think in this case things have been taken to the extreme, and if we take, historically, building height measured from final grade, then 21 (Queensbury ZBA Meeting 05/21/08) there’s no limit to the amount of fill that people could bring in to artificially allow heights above 28 feet. So I would agree with the appellants. MR. UNDERWOOD-Roy? MR. URRICO-Very obviously there’s an ambiguity in the Code. Otherwise we wouldn’t be here tonight. I agree, I can see where the Zoning Administrator made the decision that’s, and very typically in the past we don’t always consider historical context. We try to take each application as it comes before us and, because it’s an individual application. No two applications are ever exactly alike. I can understand where he made that interpretation, but I think in this case the appellant has also made a very provocative argument, and I do agree with the appellant. I think natural grade should be the determining factor in determining the height, and so I would be in favor of the appellant and their argument. MR. UNDERWOOD-Okay. I’m going to read now what I wrote down here previously, and that is that I believe that the properties adjacent to the Lake George Critical Environmental Area should be held to the highest standard in regards to maintenance of natural characteristics found on site anywhere within the Lake George basin. Furthermore, it should be noted that the adjacent properties reflect a long, continuous build out which reflects accommodation of those structures being built within the parameters of the natural slope conditions that are present on site. The alteration of grade by the addition of fill or grading which creates a greater height than the slopes on the adjacent properties severely increases the potential for runoff into the adjacent owner’s property, especially during large precipitation events where the above mentioned engineered stormwater management plan might possibly be compromised. As a result of any compromise of natural slopes should not be allowed, as far as I’m concerned. Likely you’re going to increase sheet runoff in the vicinity of those, and even if those soils are vegetated, you’re creating a situation that’s not apparent anywhere else along that shoreline. The original approved plans for the project show little reflection of any intent to build what amounts to a full three story building in this case here, with a full walk out basement and roof system that’s above the third level of the living space. I think that, you know, there could be some modifications done to bring this project into conformity, but I think that the Glandon’s Appeal should be upheld in regard to the height variance. I think you could be taking off that roof. You could be lowering it down, bringing it into compliance so it appears to look like all the other buildings located along that shoreline there, and although it’s a hardship, it’s a hardship that’s been brought about by the fact that they propose this large building that was over height. Maintenance of natural grade is very important. It’s something that should be keyed on. It was brought to our attention by the Water Keeper, by numerous other people that live up there on the lake. It’s not something that we have seen. It’s not something that we wish to see in the future, and if it’s going to take some major re-do of this project, so be it. All right. So I guess what I’ll do is go back to the second issue, and that is the wing wall issue, and I’ll start again, we’ll start, this time, with Roy, on this end. MR. URRICO-Well, I sort of agree with Joan on this one. I think the wing wall issue is irrelevant, in terms of the side setback, because the reason it’s there is to make the finished grade in compliance. So I wouldn’t, it’s not a factor for me. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-I don’t quite understand your point. MR. URRICO-Well, I’m saying that the side setback, it is an architectural element, as it stands right now. MRS. HUNT-Instead of part of the. MR. URRICO-In my mind. MRS. HUNT-Okay. Well, I happen to feel that the wing walls, because they are artificially affecting the height, that they should be considered part of the building, and that they must meet the setbacks. I think that they’re almost trying to subvert the law by putting these wing walls up and raising the height. So I would agree with the appellants. MR. UNDERWOOD-Okay. Rich? MR. GARRAND-Providing the wing walls aren’t used for support of the structure, I have to concur with the Zoning Administrator on this one. 22 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-George? MR. DRELLOS-I would have to go along with Craig’s determination. I don’t think they’re part of the structure. I think they’re just for landscaping. That’s it. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-I think I made my point before. I think that the wing walls are, they’re not anything that is supporting the building or keeping it up, but it is an integral part, in that if they weren’t there, then the building would not be compliant, and so I think that if you look it as a landscaping detail, then they could easily be taken down, and then they could go on with their building as such, but they wouldn’t be able to because the wing walls, I’m going in circles, but the wing walls are what is making the whole thing hold up and stay up, the land stay where it should be. So I would not be in favor of upholding the Zoning Administrator’s decision. MR. UNDERWOOD-Brian? MR. CLEMENTS-I’d have to agree with Joan. I also feel that it couldn’t be removed without making the building out of compliance. So I would agree with the appellant. MR. UNDERWOOD-And I would agree with Brian and Joan. I think that those wing walls, the fact that in the initial shown diagrams and initial pour that was done on the project, they were not considered to be a part of the building, but at the same time, after the building was constructed, they were constructed and shown in the construction drawings as being three foot high walls above grade, which would have been acceptable, I think, to anybody including the neighbors, had the grade been raised to that minimal height, but the fact that you continue to add on to them, making them nine, almost ten feet in height, greatly causes an eyesore, as far as I’m concerned. I think its sole purpose is to lower the height of this building to try and bring it into compliance with that 28 foot height, and I think that if the building is going to be modified, that that third floor has to be either turned into a, that roof design’s going to have to be modified and at that point those wing walls can be gone. They don’t need to exist anymore. You can return it back to what it should have been to begin with. So I guess what I’m going to do is ask for a resolution. Make sure that in the resolution you address both the height and the wing walls. Does somebody want to do that? MRS. JENKIN-I could try, since I have been talking a lot. MR. UNDERWOOD-Do you want to do part of it and somebody do the other part, or do you want to do both parts? That’s fine. MRS. JENKIN-That’s fine. Whatever you’d like me to do. MR. UNDERWOOD-And I think maybe you should include that definition of building height that we based our decision upon. MRS. JENKIN-Right. MR. UNDERWOOD-I’ll give it to you. MRS. JENKIN-I have it. Okay. MOTION TO UPHOLD THE APPELLANT’S APPEAL REGARDING NOTICE OF APPEAL NO. 11-2007 ROBERT & VICTORIA GLANDON, Introduced by Joan Jenkin who moved for its adoption, seconded by Joyce Hunt: 67 Knox Road. The information requested, the appellant is appealing to the Zoning rd Board of Appeals relative to an October 23 decision regarding the necessity for an Area Variance for the project at 67 Knox Road. As to the issue of the building height, the Zoning Board has determined that the definition of building height is this, and I’m reading from the Code book, 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. These features shall not exceed an aggregate coverage of 25% of the roof area on which they rest. The important part of the definition for this case is the distance measured from 23 (Queensbury ZBA Meeting 05/21/08) the lowest portion of the natural grade of the building site coverage by the building or finished grade of cut, and because this is the definition and it is our responsibility to follow the Code as best we can and that I would then rule in favor of the appellant, and deny the Zoning Administrator’s determination. The building as it is built does not take into consideration the Critical Environmental Area of Lake George, and it does not take into consideration the neighbors on either side and the type of structure that they have. As far as the side yard setbacks, as noted by the Zoning Administrator, 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. Because the side walls were built first at three feet and then raised to ten feet in order to backfill to make the building and the structure compliant, I think the important words are that they are landscaping elements and they cannot be considered as landscaping elements. They are an integral part of making the building compliant, and so I would be in favor of the appellant and against the Zoning Administrator’s decision. st Duly adopted this 21 day of May, 2008, by the following vote: MR. UNDERWOOD-Do we want to add anything to that? All right. Maybe we should take into account the fact that it is adjacent to the Lake George Critical Environmental Area and not reflective of the adjoining parcels or any other parcels along that shoreline. MRS. JENKIN-Right. MR. UNDERWOOD-Is there any feeling on the part of the Board that buildings should be brought into any kind of compliance or anything? MRS. JENKIN-Because the height of the building is not. MR. BROWN-Excuse me, Mr. Chairman, you really can’t do that. You can’t put enforcement issues in an Appeal resolution. It’s either support the appellant, or. If you want to do this all in one motion, you’re probably going to get to the wall next. MR. UNDERWOOD-Yes. MR. BROWN-Okay. AYES: Mrs. Hunt, Mr. Garrand, Mr. Clements, Mrs. Jenkin, Mr. Urrico, Mr. Underwood NOES: Mr. Drellos MR. UNDERWOOD-Okay. We’re going to take a five minute break here, and then we’re going to resume where we left off. NEW BUSINESS: AREA VARIANCE NO. 21-2008 SEQRA TYPE: II KARA AND MARTIN SEATON OWNER(S): KARA AND MARTIN SEATON ZONING: LC-10A LOCATION: 339 CLENDON BROOK ROAD APPLICANTS PROPOSE CONSTRUCTION OF A 432 SQ. FT. SECOND STORY ADDITION TO THE EXISTING SINGLE-FAMILY RESIDENCE. RELIEF REQUESTED FROM FRONT YARD AND SIDE YARD SETBACK REQUIREMENTS. CROSS REF.: BP 2008-108 (ON HOLD PENDING VARIANCE REVIEW AND APPROVAL) WARREN COUNTY PLANNING: MAY 14, 2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 7.3 ACRES TAX MAP NO. 300.00- 1-27 SECTION: 179-4-030 KARA & MARTIN SEATON, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 21-2008, Kara and Martin Seaton, Meeting Date: May 21, 2008 “Project Location: 339 Clendon Brook Road Description of Proposed Project: Applicant proposes 432 sq. ft. second story addition to existing structure. Relief Required: Applicant requests 32.4 feet of front setback relief and 5.9 feet of side setback requirements per 179-4-030 for LC-10A. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 24 (Queensbury ZBA Meeting 05/21/08) 1. Benefit to the applicant: The addition would upgrade existing structure. 2. Feasible alternatives: Feasible alternatives appear to be limited as any addition to this home would require some relief due to the location of home in regards to setbacks. 3. Is this relief substantial relative to the ordinance?: The request of 32.4% front relief may be considered moderate under the circumstances. The request of 5.9% side relief may be considered minimal. 4. Effects on the neighborhood or community: Minor effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the existence of the home on the property as any addition would require some level of relief. Parcel History (construction/site plan/variance, etc.): BP 2008-108 508 sq. ft. addition (on hold pending variance review and approval) Staff comments: The proposed second story addition planned would have little impact on the surrounding properties. SEQR Status: Type II” “Warren County Planning Board Project Review and Referral Form May 14, 2008 Project Name: Seaton, Kara and Martin Owner(s): Kara and Martin Seaton ID Number: QBY-08-AV-21 County Project#: May08-34 Current Zoning: LC-10A Community: Queensbury Project Description: Applicant proposes construction of a 432 sq. ft. second story addition to the existing single-family residence. Relief requested from front yard and side setback requirements. Site Location: 339 Clendon Brook Road Tax Map Number(s): 300.00-1-27 Staff Notes: Area Variance: The applicant proposes nd to construct a 2 story addition. The location of the addition does not meet the required setback of 100 ft. where 94.1 ft. is proposed and the front setback of 100 ft. where proposed will be 67.6 ft. The applicant has indicated the project is part of the renovation of the structure that is in need of repair. The information submitted indicates the addition will improve the home. The plan shows the addition to the existing home. Staff recommends no county impact based on the information submitted according to the suggested review criteria of NYS General Municipal Law Section 239L applied to the proposed project. County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 5/19/08. MR. UNDERWOOD-Okay. All right, Mr. and Mrs. Seaton, do you want to tell us about your project and anything you want to add to it? MRS. SEATON-Just that we’d like to, as you can see the house is in desperate need of some TLC, and that we’d just like to put a second floor on that existing structure in the back, to raise it to the roofline of the house. MR. UNDERWOOD-Sure. MRS. SEATON-And create some closet space because in the 1850’s closets didn’t exist. We’d like to create some storage/closet space because that is very limited in the house, because the house was built without any closets or storage. MR. UNDERWOOD-Yes. You’ve got those real steep stairways in there, and all that, too. Yes. Anything else you want to add? 25 (Queensbury ZBA Meeting 05/21/08) MR. DRELLOS-Are you doing the work yourself? MRS. SEATON-We are doing the work ourselves, that we can do, and then we have a contractor to come in and obviously do the major building on it. MR. UNDERWOOD-Anybody else have questions? MRS. JENKIN-So you’re not going to demolish the first floor. You’re just going to build on top of it? MRS. SEATON-Yes. It has to be, I mean, obviously the builder will have to, I mean, as you can see, it needs repair, and he will rehabilitate the first floor and then put the second floor on top of it. MRS. JENKIN-And so then you will have access to that from the second floor? You’re going to open everything up and do it all that? MRS. SEATON-Yes. MRS. JENKIN-It’s a huge project. Good for you. MR. URRICO-And the second floor is going to just sit on the second floor. It’s not going to come any closer? MRS. SEATON-No. It’ll just be an extension of the first floor. MR. UNDERWOOD-Okay. I guess what I’ll do is open up the public hearing. Anybody in the public wishing to speak on their behalf, or against the project, whichever you feel? PUBLIC HEARING OPENED JOANNE HOLMES MS. HOLMES-My name is Joanne Holmes, and I own the property surrounding the Seaton’s new home, or will be new home, and I’d like to say that the building has been there longer than I’ve been on the mountain, and that’s a long time, and the whole neighborhood has been opened to keep the ruralness of that area, and I don’t see how they could do anything different to keep this house, or put this house into compliance with any kind of codes, because it’s so old and so worn down. I knew Mr. Ball who owned the property, probably 50 years I’ve known him, prior to their buying the property, and he had all he could do, and obviously it wasn’t enough, and obviously it wasn’t enough, to keep the property up and the building up, and because of the position of the road, I don’t see how they can do anything but have some kind of relief for that to make the house proper for any livable space. I’d also like to mention that I have hopes of having a new home built on the property adjacent to theirs, and I know this Board doesn’t have anything to do with septics. Is that correct? MR. UNDERWOOD-No, that’ll be Town Board, usually. MS. HOLMES-That’s a Town Board situation. Well, because of the brook line and the APA line, that would be my only concern. I wish them well in their new dwelling. MR. UNDERWOOD-Thank you. MS. HOLMES-Thank you. MR. UNDERWOOD-Anybody else wishing to speak? Any correspondence? MR. URRICO-Yes. There is one letter. It says, “Dear Mr. Urrico: This is to inform you, and all Zoning Board members, that we have no objection to variance requested by Kara and Martin Seaton at 339 Clendon Brook Road. Cross Reference: BP 2008-108 Sincerely, Kristen Ann Loffler Leland Loffler” Are they next door neighbors? MRS. SEATON-Yes, they are. MR. URRICO-Okay. That’s it. 26 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Okay. Anything you want to add? I guess everybody’s made their point. So we’re ready to go here. I guess what I’ll do is poll the Board. Anybody have any concerns, or do you guys want to, does somebody want to make a resolution on this one? MRS. HUNT-I’ll make a resolution. MR. UNDERWOOD-Sure. I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 21-2008 KARA & MARTIN SEATON, Introduced by Joyce Hunt who moved for its adoption, seconded by Richard Garrand: 339 Clendon Brook Road. The applicant proposes a 432 square foot second story addition to the existing structure. Applicant requests 32.4 feet of front setback relief and 5.9 feet of side setback relief requirements per Section 179-4-030 for the LC-10 Acre. Whether the benefit could be achieved by any other feasible means. I don’t think so. This is an existing structure, and it already has these setbacks. The feasible alternatives seem to be limited because of where the home is situated. There will be a desirable change, I would think, in the neighborhood character or to nearby properties, and the neighbors in the vicinity have no objections to it. It will not have any adverse physical or environmental effects, and it’s self-created only in the fact that the applicants wish to upgrade their home and improve it. st Duly adopted this 21 day of May, 2008, by the following vote: AYES: Mr. Garrand, Mr. Clements, Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Drellos, Mr. Underwood NOES: NONE MR. UNDERWOOD-Good luck with the project. MR. SEATON-Thanks very much. MR. UNDERWOOD-Thanks for preserving part of what used to be here. AREA VARIANCE NO. 22-2008 SEQRA TYPE: II MICHAEL & NICOLE MC GRATH OWNER(S): MICHAEL & NICOLE MC GRATH ZONING: SFR-1A LOCATION: 159 MEADOWBROOK ROAD APPLICANT PROPOSES TO REMODEL 3-SEASON SCREENED-IN PORCH AND CONSTRUCT 117 SQ. FT. OF NEW LIVING SPACE FOR SINGLE-FAMILY HOME. RELIEF REQUESTED FROM MINIMUM FRONT SETBACK REQUIREMENTS. CROSS REF.: WARREN COUNTY PLANNING: N/A LOT SIZE: 0.88 ACRES TAX MAP NO. 296.20-1-25.1 SECTION: 179-4-030 MICHAEL & NICOLE MC GRATH, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 22-2008, Michael & Nicole McGrath, Meeting Date: May 21, 2008 “Project Location: 159 Meadowbrook Road Description of Proposed Project: Rebuild 225 sq. ft. 3 season porch to include 117 sq. ft. of new living space and 108 sq. ft. screened in porch. Relief Required: The applicant requests 11.4 ft. relief from 30 foot minimum front setback requirement for SFR 1A per 179-4-020. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: The project would increase living space for the applicants expanding family. 2. Feasible alternatives: 27 (Queensbury ZBA Meeting 05/21/08) Possible expansion on south side of house. Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the ordinance?: The request for 11.4 feet of relief from the minimum 30-feet front setback could be considered moderate relative to the ordinance (38%). 4. Effects on the neighborhood or community: Minimal adverse effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2007-386 207sq. ft. deck Staff comments: Proposal is anticipated to have minimal adverse impacts on surrounding properties. SEQR Status: Type II” MR. UNDERWOOD-Okay. Do you want to tell us anything else or add anything? MR. MC GRATH-We’re basically just taking what’s existing and widening it to match the house and I’m going to make it, my wife’s here as evidence of our growing family, pregnant, and turn half of it into living space and the other half make a better screened in porch. It’s pretty simple, hopefully. We’re not doing the work. MR. UNDERWOOD-You can always use more room, right? MR. MC GRATH-Yes. MR. CLEMENTS-You’re painting it though, aren’t you? MR. MC GRATH-Yes. MR. CLEMENTS-Yourself, I mean. MRS. JENKIN-One question. Will you have stairs? They aren’t shown on the plan, from the enclosed porch? Will you have outside access at all? MR. MC GRATH-We didn’t actually think about it. We’ve talked about it, but at this point, no. It’s just going to be, because there is a door that goes to the screened porch from the inside. So it’ll be just, correct. MRS. JENKIN-I thought, that would be nice if you did that, because you have stairs now to the porch. MR. MC GRATH-Right. MRS. JENKIN-And that will be all closed off and everything. My suggestion was put in some stairs so you can go. MR. MC GRATH-We had thought about it. Can we do a revision after we get the permit or anything like that? MRS. JENKIN-I don’t know. MR. UNDERWOOD-Craig, would they need more relief for the stairs if they came off towards the driveway there? MR. MC GRATH-Well, we’d go the other way. 28 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-You’d go the other way. MR. MC GRATH-The living space would be where the stairs are now. MRS. JENKIN-Do you have room on the other side, before your lot line? MR. MC GRATH-Yes, we’d have plenty of room on that side. MRS. JENKIN-It would be nice to have outside access anyway. MR. BROWN-Does anybody want an answer? Yes. If you remember from the last application, as referenced in the notes, open steps that get you from the living space down to grade don’t count against the setback. So if it’s just a set of open steps, it’s not a big deal. MR. UNDERWOOD-All right. Anybody else have questions? MRS. JENKIN-And then the other question was the crawl space. You don’t have a water problem in that area, do you? MR. MC GRATH-We have a sump in the basement, but they’re saying, from what I understand from my contractor is he’s got to put a rat floor in or it’s going to be a block foundation. I guess he says when he digs he’s going to see what’s there. We do have a B-dry system there. MRS. JENKIN-You weren’t going to use it for storage or anything? MR. CLEMENTS-It’s just a crawl space underneath. MR. MC GRATH-No. There’s nothing there now, but that’s what he’s going to make. I guess we have to make it by Code, underneath the addition. MRS. JENKIN-Right. MR. MC GRATH-Right. MRS. JENKIN-Okay. MR. UNDERWOOD-Okay. If there’s no more questions, I guess we’ll open up the public hearing. Anybody from the public wishing to speak on this variance tonight? PUBLIC HEARING OPENED MR. UNDERWOOD-Any correspondence? MR. URRICO-Yes. There’s a letter. “This is to apprise the Board that we support the McGraths’ Variance Request. As owners of the Property at 153 Meadowbrook Road, we have come to know the McGraths to be concerned, responsible neighbors who consistently maintain their property in a most conscientious manner. We urge you to approve their request. Sincerely, John A. Enzien Laura R. Enzien” That’s it. MR. UNDERWOOD-Okay. All right. Do we need to poll the Board on this one, you guys? Everybody’s pretty comfortable with this one, I would imagine. It’s essentially just re-building that porch and increasing it slightly in size, and if it’s going to help you guys out, that seems fine to us. MR. MC GRATH-Thank you. MR. UNDERWOOD-I don’t think we have a problem with it. Does somebody want to make a resolution? MR. GARRAND-Close the public hearing. MR. UNDERWOOD-I’ll close the public hearing. Thank you. PUBLIC HEARING CLOSED 29 (Queensbury ZBA Meeting 05/21/08) MOTION TO APPROVE AREA VARIANCE NO. 22-2008 MICHAEL & NICOLE MC GRATH, Introduced by Richard Garrand who moved for its adoption, seconded by George Drellos: 159 Meadowbrook Road. They propose to rebuild a 225 square foot three season porch to include 117 square feet of new living space and 108 square foot screened in porch. The applicant is requesting 11.4 feet of relief from the 30 foot minimum front setback requirement for the Single Family Residential One Acre zone. Can the benefits be achieved by other means possible to the applicant? At this point, putting on an addition on to the other side of the house would involve demolition of porches, walkways, decking and all that. At this point it would seem to be not feasible. Will this produce an undesirable change in the character of the neighborhood? I do not believe it’ll change the character of the neighborhood. If anything, it may enhance the appearance of the home. The request might be deemed as minimal. Will this request have adverse physical or environmental impacts on the neighborhood? The property is just under an acre. I don’t believe it’s going to have any adverse physical or environmental impact on the neighborhood given the limited scope of this project, and since the applicant came to us with this request, I would deem this as self-created. So I’d move that we approve Area Variance No. 22-2008. st Duly adopted this 21 day of May, 2008, by the following vote: AYES: Mr. Drellos, Mrs. Jenkin, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Underwood NOES: NONE MR. UNDERWOOD-Okay. You’re all set. MRS. MC GRATH-Thank you. MR. MC GRATH-Thank you. MR. UNDERWOOD-Good luck with it. AREA VARIANCE NO. 26-2008 SEQRA TYPE: II DAN AND KARIANNE RYAN OWNER(S): DAN AND KARIANNE RYAN ZONING: SFR-1A LOCATION: 4 NOBLE WAY APPLICANT PROPOSES CONSTRUCTION OF A STOCKADE FENCE IN A NON-ARCHITECTURAL FRONT YARD. RELIEF REQUESTED FROM PLACEMENT OF FENCE IN THE FRONT YARD AND HEIGHT AND STYLE RESTRICTIONS DUE TO CORNER LOT CONFIGURATION. CROSS REF.: WARREN COUNTY PLANNING: MAY 14, 2008 LOT SIZE: 1.03 ACRES TAX MAP NO. 301.5-1-69 SECTION: 179-5- 060 DAN RYAN, PRESENT MR. UNDERWOOD-Again, this project is located on the corner of Potter Road and Noble Way. STAFF INPUT Notes from Staff, Area Variance No. 26-2008, Dan and Karianne Ryan, Meeting Date: May 21, 2008 “Project Location: 4 Noble Way Description of Proposed Project: Applicant wishes to erect a 5-6 ft stockade fence in non architectural front yard. Relief Required: The applicant requests relief from placement and height restrictions per 179-5-060: No stockade fence in architectural front yard and no fence over 5 feet in front yard. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to erect fence to upgrade privacy. 2. Feasible alternatives: 30 (Queensbury ZBA Meeting 05/21/08) Locate fence at rear of house and have 5 foot fence tie into house corners or install open style fence. 3. Is this relief substantial relative to the ordinance?: The relief is an increase of 16.7% or 1 foot in height and a style change. 4. Effects on the neighborhood or community: Minimal adverse impact may be anticipated in neighborhood. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2006-019 Building Permit for house. Staff comments: The proposed southern run of fence is located adjacent to the tree line. It should also be noted that the proposed fence’s southern run stops 45 feet short of the 35 ft. clear view requirement per 179-5-060(c). The overall impact may be interpreted as moderate on the southwest boundary (79.4 ft). SEQR Status: Type II” “Warren County Planning Board Project Review and Referral Form May 14, 2008 Project Name: Ryan, Dan and Karianne Owner(s): Dan and Karianne Ryan ID Number: QBY-08-AV-26 County Project#: May08-33 Current Zoning: SFR-1A Community: Queensbury Project Description: Applicant proposes construction of a stockade fence in a non-architectural front yard. Relief requested from placement of fence in the front yard and height and style restrictions due to corner lot configuration. Site Location: 4 Noble Way Tax Map Number(s): 301.5-1-69 Staff Notes: Area Variance: The applicant proposes the construction of a stockade fence where a portion of the fence is to be located in the front yard. The zoning requirements do not allow a stockade fence in the front yard and the fence height is limited to ft. of less where the applicant proposes a 6 ft. height. The plans show the location of the fence on the lot indicating the property is a corner lot with two fronts. The applicant has indicated the fence is located in the non-architectural front (their side yard) even though it fronts on a street. Staff recommends no county impact based on the information submitted according to the suggested review criteria of NYS General Municipal Law Section 239L applied to the proposed project. County Planning Board Recommendation: No County Impact” Signed Richard C. Merrill, Warren County Planning Board 5/19/08” MR. UNDERWOOD-Okay. Mr. Ryan, do you want to add anything? MR. RYAN-Sure. If I could have a moment just to give you a brief overview of what we’re doing and why. We’ve got a couple of reasons that we feel are important, obviously, for this proposal. I don’t know if any of you have actually been to the site, but we’re proposing to enclose our rear back yard. We do corner Potter Road and Noble Way. So one side of the house, and a large portion of the area where the kids play, obviously is directly adjacent to a heavily traveled arterial road in Queensbury. The four primary reasons that we are proposing this fence are related to what we feel are quality of life issues, and so that we may enjoy, obviously, this property to the maximum possible. Number One being safety. We have three young children, ages three, five and seven, all very active with great imaginations, and unfortunately that can sometimes lead to trouble. So providing a little bit taller fence and a little bit more difficult fence for them to possible break through or whatever they decide they want to do certainly adds a benefit in that respect. Other aspects of safety are the fact that obviously it’s a heavily traveled road. There’s other potential dangers with people if it wasn’t a solid fence, that’s kind of more related along the privacy lines, which we feel is another important aspect related to this project. Privacy, obviously, can be achieved in a lot of ways. In particular 31 (Queensbury ZBA Meeting 05/21/08) I think with the intent of the Planning Board when they approved this subdivision not too long ago, they provided a 20 foot no cut zone, which is shown on the map. Unfortunately, as I stated in my notes, that no cut zone is mature pine forest with very little understory, and provides only a little bit of screening for people either walking, jogging, or passing by in their vehicles. So, we feel this fence would obviously help mitigate those concerns. The other two things obviously I mentioned briefly, headlight glare. Watching t.v. at night with the kids on the back side of the house we get a lot of headlight glare shining on our walls all throughout the windows, and also there’s a couple of bedrooms on that side of the house, and it’s the same type of problem. Providing a screen close as possible to the road will obviously minimize what depth that that light travels into our yard. So that’s why we propose a little bit taller fence, and obviously the solid fence style as opposed to an open fence style would mitigate that and provide a shadow. The last concern is noise. I don’t know how much you know about noise, but obviously a heavily traveled road with lots of cars, in particular in the mornings and evenings when school is getting let out or in session, we get a lot of noise from cars. I’ve done a lot of research on noise, being an engineer in the past for projects, and experience and testing data and a lot of information that’s available indicates that the closer you are to the noise source the better mitigation you might provide. I did provide a diagram. I don’t know if you’ve got that up. You could probably go to Page Two. I didn’t include it in the application, but I did work up something here. Right here is just a quick diagram that I pulled from a project that I had done previously. You can see that sound is reflected similar to any other object that would be, similar to a ball you throw at a fence. It bounces off. So what could be realized with a fence, relatively close and as tall as possible along a roadway, is a five to ten decibel reduction in sound, which, because sound is a log scale, actually is more perceptive as equal to a half of a reduction in total sound perceived. So that’s a big concern of ours is that, you know, we do have times and barbecues in the back yard and the kids playing and it’s actually difficult to have a conversation. So we feel that this will provide some help. It may not totally satisfy us 100%, but it will help mitigate some of the noise, and you’re probably seen lots of freeways with lots of walls along them, and it’s the same principal, obviously. The last thing I just want to make a point of. I don’t think it’s all that important because I know you guys are really looking and focusing on our project in particular, but for my own curiosity, and being as thorough as I am, I reviewed the Comprehensive Land Use Plan. If you want to go to Page Three, you’re probably all well familiar, the yellow section there is a recommendation put forth in that which indicates that noise should be an important factor in zoning rules, and one of the first sentence, noise is an important quality of life issue that deserves the attention of the community. So I think that in respect to noise certainly this fence will help provide that quality of life that we’re trying to achieve there, and if anything, as already been realized by predecessors, in terms of making zoning changes in the future. The last thing I’d like to just make a quick point of is, again out of my own curiosity, I drove around Queensbury, just to research other corner lots. I haven’t included in your packet, but I’ll give a submission to Craig here for the file. In driving around in just a few hours throughout this Town and different subdivisions, I was able to photograph 82 corner lots with a fence scenario almost exactly to what I already have. So it seems to be a pretty common scenario, which I did note in my notes there, that I don’t think this is anything out of the ordinary. So that’s all. MR. UNDERWOOD-So our only standard that we really would be concerned about is that 35 foot setback from the intersection so the cars can see oncoming traffic. MR. RYAN-Correct. The clear vision zone I think is 30 or 35 feet. I’m actually like 70 feet. So I think what Craig was noting was that I’m way beyond the requirement. So that we’re well away from the clear vision zone that would be important, obviously, for safety. MR. UNDERWOOD-Okay. Anybody have any questions? MR. GARRAND-I’ve got a couple. MR. UNDERWOOD-Sure, Rich. MR. GARRAND-Are you going to be cutting down any trees to put this fence in? MR. RYAN-No. Actually, thanks to the Town Highway Department’s contract with their tree cutting people for their roadways, they came in last year and clear cut a whole bunch of limbs and anything within probably 10 or 15 feet of the edge of road. So actually if you go by there you’ll see the fence posts in now, and you’ll see that there’s not a single tree in the way. So it happened to work out that way. MRS. JENKIN-So you didn’t cut that down next to the road. The Town did. 32 (Queensbury ZBA Meeting 05/21/08) MR. RYAN-Correct. In fact, Bruce Frank’s been out to the site a couple of times to investigate that, and he has verified that as well. MR. UNDERWOOD-It would almost make sense on some of these subdivisions to come in after the fact and plant little red pines along that whole corridor down there. MR. RYAN-Yes. I mean, I would recommend a 100 foot buffer, take a lot out and give a 100 foot buffer. That’s really, if you want vegetation to be your buffer for noise and any other aspect, 100 feet is really what the minimum should be. MRS. JENKIN-Had you thought about planting a hedge, a cedar hedge or something? MR. RYAN-Well, I did, if you look at the map, you’ll see that I left three feet from my property line, and the hopes is that maybe we will provide some vegetation just to break up the length of the fence and provide a little screening for it. It obviously is a big expense for the fence alone, and we may do that in the future. MRS. JENKIN-You mean inside the fence? You wouldn’t do that outside the fence. MR. RYAN-Well, we have the alternative for both. I left enough space so we could do both sides, but the risk being if we plant something that the Town will come back and cut it down. MRS. JENKIN-Because it looked like the posts were right on your lot line. MR. RYAN-No, there’s actually three feet. MRS. JENKIN-Three feet. Okay. MR. UNDERWOOD-Are they cutting on to your property line there? MR. RYAN-Actually quite a few of the limbs they cut were from trees on our property, and that obviously opens up the upper story, and again, that’s where the headlights start shining up into the upper second floor. MR. DRELLOS-Will the fence you’re putting up match what’s already there? Right? MR. RYAN-Yes, it would be identical, yes. MR. DRELLOS-And it goes to the corner of the house, right, to the front corner? MR. RYAN-It goes to the front corner, but it’s only four foot in that aspect, and I do have a garden there. So that may or may not, we may actually open that one up a little bit, but it’ll be the same style, so that it’s uniform, and we do like everything level so it has a nice uniform look to it. MR. UNDERWOOD-Okay. Anybody else? All right. I’ll open up the public hearing. Anybody from the public wishing to speak on this matter? PUBLIC HEARING OPENED JOE MARCELLETTI MR. MARCELLETTI-Good evening. My name’s Joe Marcelletti. I live directly across from Dan Ryan at 7 Noble Way. I’m actually applying for the same type of variance next month to do the same thing. I think it’s very critical here with our young children. I have three young boys that play with the Ryans almost every day. It’s imperative that this goes through for the safety of our children. Dan has a little bit more of an issue with noise than we do, but the safety issue is something I don’t think you guys can ignore. Being on the corner of Potter Road and where West Mountain connects, there’s so much traffic there in this day and age, the safety of the children is our biggest concern. What Mr. Ryan has done so far, aesthetically, is more than pleasing. We couldn’t ask for a nicer looking fence going up there. I mean, it’s meticulous. So on our end here, and I think you’ll find out from another neighbor, we really hope that this thing goes through. I mean, it’s going to give a good environment, especially for our children going back and forth playing. You wouldn’t believe, I think West Mountain Road is a 45 mile an hour speed limit. There’s motorcycles going up and down there, 80, 90 miles an hour, cars drag racing, I mean, even the Sheriff’s Department and the State Police, they’re flying 33 (Queensbury ZBA Meeting 05/21/08) back and forth through there. So if not for anything else, the safety concern is a huge dilemma on both of our ends. So if that could be taken into consideration, we’d really appreciate that. Okay. Thank you. MR. UNDERWOOD-Anybody else? GUY SAVIO MR. SAVIO-Hi. My name’s Guy Savio. I live directly across from Dan, and next to Joe. I am in a similar situation. I have grandchildren. I live on the corner of Potter and West Mountain. I can tell you that the traffic is nonstop 24/7 out there. So safety is really a paramount concern with our children and grandchildren, and secondly, the noise, when I built my home, this is the third one I’ve built in the Town of Queensbury in the last 10 years. I never realized what the impact of the noise of the vehicles was going to be. My wife and I have talked about it many times. We want to put up a fence, not only for safety but for a noise factor. It’s almost as bad as listening to airline traffic going back and forth all the time. I lived in Latham for 15 years on the direct line of airlines coming in to land at Albany Airport, and you couldn’t talk when the planes came in. We got used to it. I’ve been there almost two years now, and you can’t talk in our backyard in the afternoon with the buses lined up and all the cars. So please keep that in consideration when you make this decision. MR. UNDERWOOD-Thank you. Anybody else? Any correspondence? MR. URRICO-Yes. There was one item I didn’t mention earlier that the County Planning Board ruled No County Impact on this project. There was one letter, “To Whom It May Concern: In reference to the hearing scheduled this evening regarding fencing of property owned by Dan and Karianne Ryan at 4 Noble Way, Queensbury, we have no objection to them fencing their property as the boundaries are currently laid out. We feel that a barrier between their property and Potter Road will provide a noise barrier as well as provide a safe place for their three children to play. Respectfully, Donald Bernhoft Catherine Thompson 30 Noble Way” MR. UNDERWOOD-Okay. I guess I’ll poll the Board, then. Brian, do you want to go first? MR. CLEMENTS-Sure. I can sympathize with your noise problem. I live on Cronin Road and motorcycles go up and down there, too. I think this looks like a good project. So far with the posts up there, it looks like you’re going to do a nice job. I would be in favor of this application. MR. UNDERWOOD-Joan? MRS. JENKIN-Yes. It’s our responsibility, as I said before, to grant the least variance possible, but in this case, it really is justified. I know how busy Potter and West Mountain Road are, and six feet, I don’t even know whether that will make a big difference to the noise pollution. It definitely would help your safety, and it is a family neighborhood, and safety is prime there, but I would suggest that you also put in more trees and try to, because trees are great sound barrier, too, trees and shrubs and things like that, for anybody that lives in that area, but I would be in favor of this absolutely. MR. UNDERWOOD-Okay. George? MR. DRELLOS-I would be in favor of it, too, Jim. I think it’s necessary for the noise especially and the safety. I think it’s a good looking fence. I went and looked at it. Nothing undesirable. There are other stockade fences on the road. I think I saw at least four. So it’s not uncommon to see that there. So I would be in favor. MR. UNDERWOOD-Okay. Rich? MR. GARRAND-I think the request for relief is minimal, but also at the same time I have concerns that this neighborhood is going to start looking like a fort with a whole bunch of stockade fences going up. It’ll totally make the neighborhood look awful if everybody has a fence and the entire neighborhood’s fenced off, but based on what I see here, I can’t see any reason to deny this variance. MR. UNDERWOOD-Roy? 34 (Queensbury ZBA Meeting 05/21/08) MR. URRICO-Yes. My main concern is the stockade fence as well, and that, I’m going to be in favor of the project, but this project, not because other fences, other stockade fences appear in other locations around the Town. That wouldn’t be a deciding factor for me. The noise and the location of this property is. Normally I would not be in favor of a stockade fence because I do not want to, I think the reason the Town has tried to mitigate the use of it is because it presents a barrier and the look is something that the Town does not really want its properties to have, but in this case I will say yes. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. Well, because the Ryans property really has two front yards, and because of the safety and mitigating the noise and also I think it would improve the quality of life, I’d be in favor. MR. UNDERWOOD-I would echo her sentiments on this, also. With the two architectural front yards, I mean, being on that major thoroughfare is a burden on you as far as the noise, the headlights at nighttime, and it is an annoyance on a daily basis, and anything we can do to accommodate, you know, some kind of avoidance of that it’s going to be helpful to you and your family. I would echo the sentiments of everybody else as far as regarding the stockade fences, it’s not the way we want to go, but I would think that it would be imperative, like on future subdivisions, that we provide some kind of relief for these people. I mean, if we’re going to maintain these minimal boundaries, you know, of green space between there and major thoroughfares and arterial highways in the Town, then I think that we should assume that people are going to want some kind of noise abatement, and the only way to achieve that’s with a solid fence. You’re not going to do it with a chain link fence or something smaller than four feet or five feet even. It’s reasonable, the request, it’s reasonable that we’re probably going to get similar requests as your neighbor has mentioned, too, but I don’t think that it’s out of the blue off the wall or anything like that. I think it’s quite reasonable. So I’d be all in favor of it. Does somebody want to do a resolution? MR. CLEMENTS-Sure, I will. MS. GAGLIARDI-Did you close the public hearing? MR. UNDERWOOD-I’ll close the public hearing, too, sorry. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 26-2008 DAN AND KARIANNE RYAN, Introduced by Brian Clements who moved for its adoption, seconded by Joan Jenkin: 4 Noble Way. The applicant wishes to erect a five to six foot stockade fence in a non- architectural front yard. The relief requested is the applicant requests relief from placement and height restrictions per 179-5-060, no stockade fence in architectural front yard and no fence over five feet in front yard. The benefit to the applicant, he would be permitted to erect the fence to upgrade privacy. Is the relief substantial? The relief is an increase of 16.7 or one foot in height and a style change, but in this situation I would agree that it would be needed. The effects on the neighborhood or community, minimal adverse impact may be anticipated. The neighbors are in agreement for this, and I believe it would have a minimal environmental impact. So I would move to approve Area Variance No. 26-2008. st Duly adopted this 21 day of May, 2008, by the following vote: AYES: Mrs. Jenkin, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Drellos, Mr. Underwood NOES: NONE MR. UNDERWOOD-Craig, too, you know, maybe we could draft a letter to the Highway Department and ask them to minimize the cutting of those branches and cut back of the trees. I mean, they’ve got a responsibility to do a certain amount of the right of way along there, but. MR. RYAN-That was actually one of the times Bruce Frank was called out was when the Town had actually done the cutting. 35 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Yes, and I’m thinking, you know, it’s the kind of thing where it would be nice if there were some place in Town public where they could dig up trees and transplant them, you know. I don’t know what we’ve got over at the landfill, but it might be something we might consider for the future. MR. RYAN-The problem is they’d have to be shade tolerant because the pine trees are so dense there. MR. UNDERWOOD-But I’m just thinking on the edge where you do get sun in the forefront, you know, they’ll pop right up quick. MR. RYAN-You get some sunlight, yes, in particular late in the early season. Yes. Thank you very much. MR. UNDERWOOD-Sure thing. AREA VARIANCE NO. 27-2008 SEQRA TYPE: II NATALIE AND TOM BARBER OWNER(S): NATALIE AND TOM BARBER ZONING: RR-5A LOCATION: 8 LOCKHART MOUNTAIN ROAD APPLICANT PROPOSES CONSTRUCTION OF A 40 FT. BY 20 FT. INGROUND SWIMMING POOL IN THEIR FRONT YARD. RELIEF REQUESTED FROM REQUIREMENT FOR PLACEMENT OF A POOL IN THE BACK YARD. ADDITIONALLY, THE APPLICANT HAS CONSTRUCTED A STOCKADE FENCE IN THE FRONT YARD ALONG BAY ROAD. RELIEF FROM THE FENCE ORDINANCE IS ALSO REQUIRED. CROSS REF.: WARREN COUNTY PLANNING: MAY 14, 2008 ADIRONDACK PARK AGENCY: YES LOT SIZE: 5.68 ACRES TAX MAP NO. 252.00-1-2 SECTION: 179-5-020 JON LAPPER, REPRESENTING APPLICANTS, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 27-2008, Natalie and Tom Barber, Meeting Date: May 21, 2008 “Project Location: 8 Lockhart Mountain Road Description of Proposed Project: Applicant proposes to construct a 40x20ft. below ground pool in front yard. Relief Required: The applicant requests relief from ‘only in rear yard placement’ of pool per 179-5-020 and variance for 210 ft. long, 6ft. high existing privacy fence in front yard per 179-5-060. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct a 40x20 ft. pool in front yard. 2. Feasible alternatives: Feasible alternatives appear to be limited due to configuration of lot. 3. Is this relief substantial relative to the ordinance?: Considering the pool, 70ft. of relief from backyard requirement requested. Considering the fence, the relief is an increase 16.7% or 1 foot in height and a style change. 4. Effects on the neighborhood or community: Minor adverse effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be due to the location of the home relative to the lot and the lot configuration resulting in two front yards. Parcel History (construction/site plan/variance, etc.): BP 2007-496 509sq. ft. residential addition 36 (Queensbury ZBA Meeting 05/21/08) Staff comments: The proposed project may have little or no impact on the surrounding properties. SEQR Status: Type II” “Warren County Planning Board Project Review and Referral Form May 14, 2008 Project Name: Barber, Natalie and Tom Owner(s): Natalie and Tom Barber ID Number: QBY-08-AV-27 County Project#: May08-24 Current Zoning: RR-5A Community: Queensbury Project Description: Applicant proposes construction of a 40 ft. by 20 ft. inground pool in their front yard. Relief requested from requirement for placement of a pool in the back yard. Additionally, the applicant has constructed a stockade fence in the front yard along Bay Road. Relief from the Fence Ordinance is also required. Site Location: 8 Lockhart Mountain Road Tax Map Number(s): 252.00- 1-2 Staff Notes: Area Variance: The applicant proposes to install an in-ground swimming pool in a side yard. The Zoning requirements do not allow for a pool in the side yard they need to be located in the rear yard. The plans show the parcel to be a corner lot with two front yards facing Bay Road and Lockhart Mountain Road. The applicant has indicated the pool is to be located along the Bay Road side and will not be visible to the public in any direction. Staff recommends no county impact based on the information submitted according to the suggested review criteria of NYS General Municipal Law Section 239L applied to the proposed project. County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill, Warren County Planning Board 5/19/08. MR. UNDERWOOD-Okay. MR. LAPPER-Hi. For the record, Jon Lapper with Tom and Natalie. Hopefully the Board will see this as a fairly simple application. This is a very unique piece of property. They bought it a few years ago. The house was existing. They’ve done an addition, but the location of the pre-existing house near that northern property line precluded putting anything in the backyard, but what’s most important here isn’t the benefit to them, but that there won’t be a burden on the neighborhood because of the large size of the lot, and also the topography. One issue here is that the fence, the stockade fence that’s there now, was built without a variance. They never realized that that was a front yard that required a variance. It’s been there for three years. They don’t consider that a front yard, although clearly, obviously, under the Queensbury Code it is, and when you look at that lot, you see the survey that we submitted, but they’re nothing but front yard. It’s just kind of a funny lot because they’ve got all that frontage on Lockhart Mountain and on Bay Road. The reason that they put that fence in was purely for safety, because their young child sleigh riding down, I mean, it’s a 12 or more foot drop directly onto Bay Road. The benefit of that drop is that there’s nobody there. I mean, so that even though, I mean, the fence looks pretty attractive, quality fence. Tom had it structural member, there’s a steel beam in the bottom so that if somebody whacks into it they’re not going to knock it over and go into Bay Road. It’s a real safety issue, but more than that, when you’re driving on Bay, because it’s 12 feet up where it starts and it’s set back, it’s certainly not visual obstruction there, and that certainly answers the question about whether the pool is going to be a problem for any of the neighbors. They did go around to their neighbors, and we have a signed sheet saying that pretty much everybody in the neighborhood, which there aren’t that many people, support the variance, and we’ll submit that, but if you look at their property, the only place that would be compliant would be on that north side, and they’ve got their septic system in one location, and because of the distance, which is 47 feet to the rear yard, there’s nowhere that you could be off the property line and off the back yard, nor would that be a nice place to put it, but more than that, that would be actually closer to a neighbor, the neighbor to the north. So that wouldn’t be a good result for the neighbor, although it would technically comply with the Code. So I think because of the setback from Lockhart Mountain Road, the pool is not going to seem like it’s right in anybody’s front yard, and because of the grade issue, no one’s going to see it on Bay Road, and they’re certainly available to answer any questions. MR. LAPPER-The position of the pool, to me, seems logical. I mean, it’s on the south side, and you get the sun all day, and you can put it on the back side there, on the dark side. MR. LAPPER-It’s dark back there. MR. UNDERWOOD-Anybody have any questions? 37 (Queensbury ZBA Meeting 05/21/08) MR. GARRAND-The white fence on Ridge Road, it doesn’t fit into the character of Ridge Road at all. It just kind of sticks out. It’s, generally what a lot of people use those fences for is pool fences. What do you propose, what type of fence do you propose having around the pool itself? TOM BARBER MR. BARBER-We’re certainly open to any suggestions. We were just going to have it built here by a local pool company, Pools Plus, which does a great job, but we were thinking just a nice, metal, the painted aluminum, maybe black, which it’s not visible at all to anybody, any of our residents, any of our neighbors at all. MR. GARRAND-I think, as far as putting a pool anywhere else on your property, given all the trees and everything you have in the back, you’re pretty much stuck, like your counselor said. It’s just, that fence just does not seem to fit the character of the neighborhood, that white fence along Ridge Road. MR. UNDERWOOD-It’s Bay Road. MR. GARRAND-Bay Road, but I was just wondering why you didn’t go with a wooden stockade fence. It would have fit in. MR. BARBER-We actually bought that in Massachusetts because I couldn’t find a fence back, I think it was, I can’t recall, maybe three, three and a half years ago. I couldn’t find a fence anywhere around here that had a structural member at the bottom, and that particular fence, though, is extremely expensive, but the key reason was I have a six year old, very high energy. We love to slide down that hill, and my neighbor, Trooper Phil Mann, his niece Kylie went off into the road, and she’s about the same age. So I really wanted to be proactive and put that up. I had no idea, and actually I was trying to find like an earth tone color, which now they have. They didn’t have it back then, but the wood, I didn’t think the wood would last, the wood fence. The stockade fences I’ve seen weren’t very attractive, plus the bottom members break very easily if you hit it with any type of impact. MRS. JENKIN-Is that a plastic fence? MR. BARBER-That is a very, very heavy duty plastic fence, for wind loads. As a matter of fact, it’s all poured in concrete all the way down in, I think it’s at least four feet down. We’ve had some heavy winds up there, and that thing doesn’t move at all. MRS. JENKIN-It looks very high from the road, but when you’re next to your house, it doesn’t look high at all because you’re looking down on it. MR. BARBER-Right. MRS. JENKIN-But from the road it looks high. MR. BARBER-We’ve had a lot of compliments from all my neighbors here, and I actually had a, went around to see if anybody objected to what we were doing, and they signed this letter here which we will submit. MRS. JENKIN-My question is, the pool itself, because you’re starting to go up the slope, and will you put the pool at the level of the fence? Will it be at the same level that the bottom of the fence is? MR. BARBER-To answer that question, that isn’t possible because of the slope. It’s about a roughly 12% grade. MRS. JENKIN-Right. MR. BARBER-So what we had proposed doing is just bringing it up maybe like three feet on the lower portion, right there, just to make it nice. MRS. JENKIN-And then grade it down to the fence? MR. BARBER-Correct. MRS. JENKIN-Okay. So it will go up higher, because it would be. 38 (Queensbury ZBA Meeting 05/21/08) MR. BARBER-Three feet. It’s about 25 feet off, approximately 20, 25 feet, whatever is on the plans. It’ll be just a small wall. MRS. JENKIN-Okay. You’re going to build a wall. MR. BARBER-Just a small little, and then the rock is actually there on the left hand side. I have pictures of it. MR. UNDERWOOD-You’re on bedrock there, pretty much. MR. BARBER-Believe it or not, north of us, up above it is, but we actually, two years ago I brought a tractor in, not knowing I needed a permit for a pool, we dug a big hole to see if there was any ledge, and there’s no ledge in that spot. MR. UNDERWOOD-You lucked out. MR. BARBER-And we don’t have any water problems at all with our basement. MRS. JENKIN-And how are you going to get down to the pool? MR. BARBER-If you look very closely, where the white vehicle is, the Town vehicle, we’ll just build some little rock, little terrace, it’s just a gentle grade right there, we’ll build a nice little stairway going down. MRS. JENKIN-Stairway. Okay. MR. BARBER-Just out of nice, attractive rock. It’ll look nice. I have a landscape plan. I should have brought it, we did, but it’s more for the kids. MR. UNDERWOOD-Craig, because the fence was not there. Three years ago no one really noticed that it had gone up. I mean, I’ve driven out that road a million times and I always thought it was, had been there for quite a while. I didn’t really notice. MR. BROWN-Yes. It’s one of those things that I think, did you guys have maybe Mike O’Connor working with you before on this, at another time when you originally were going to do the pool? MR. BARBER-Yes. MR. BROWN-Yes. I think we talked about it at that time, and we made note that the fence was there at that time, and I guess you just didn’t go ahead with it at that point. So it’s low level on the radar. MR. UNDERWOOD-I mean, I think the only thing you could do is just plant some, you know, do some plantings in front of, between there and the road, maybe that would appease anybody who was teed off by it. MR. BARBER-It was all grown up. The Town actually came in and took all the trees. You couldn’t see the fence for the longest time. MR. UNDERWOOD-We’ll find you some daylilies. Anybody else have any questions? All right. I’ll open up the public hearing. If you’ve got a letter we can read in for you. I can read it in. It’s addressed to the members of the Zoning Board of Appeals, “We have reviewed and accept the proposed project for Area Variance No. 27-2008. This is in regards to the project that Tom & Natalie Barber are requesting relief for. Neighbors of Tom & Natalie Barber: Don Shaw, 1695 Bay Road, Lake George; Larry & Andrea Gray, 1692 Bay Rd.; Bill & Cathy Keenan, 34 Lockhart Mt. Road, Lake George; Jon Harvey, 1723 Bay Rd., Lake George; Cretia Harvey, 1723 Bay Road” All right. Anybody have any other concerns or anything? Why don’t we poll the Board to see what you guys want to do here. Roy, do you want to go first? MR. URRICO-As the senior member of the Board, in terms of time served, I guess it’s my job to give the after the fact variance speech. That’s, we don’t normally like to give variances after something has been built, and what we’ve tried to do in the past is look at this as if you came to us with clean hands, fresh project, and how I would look at it at that point, and perhaps if you had made that argument with me at this point about the fence I probably would be in favor of it. So let’s take that off the table, and I don’t have a problem with the pool either. So I’d be in favor of the whole project. 39 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. I agree with Mr. Urrico. I have no problem with this project. MR. UNDERWOOD-Brian? MR. CLEMENTS-I don’t have any problem with this application, either. I mean, you have two front yards and no back yard. So it’s not a big choice here, I don’t think. I’d be in favor. MR. UNDERWOOD-Joan? MRS. JENKIN-Yes. I’m in favor of it. I think the fence is absolutely necessary, and it would be good to plant something in front of the fence and then it wouldn’t be the big stark, white thing that’s sitting up there. The other thing, though, that I think you should consider, because of the slope, and not only, when I was talking before, I was mentioning from the fence to the pool, and you said there’ll be a three foot raise up, but on the hillside, too, I hope that you’re going to do some planting so that there’s no erosion there. MR. BARBER-There’s a tremendous amount of plantings, various little plants and stuff that are going in. MRS. JENKIN-You do, as well as the fence? So that you protect the area. MR. BARBER-Correct. MRS. JENKIN-Because there could essentially be a lot of run down there. Okay, but I would be in favor of it. MR. UNDERWOOD-George? MR. DRELLOS-I also would be in favor of the project. I think that’s about the best spot you could probably put this pool. So I wouldn’t have a problem. MR. UNDERWOOD-Okay. Rich? MR. GARRAND-As I previously stated, I don’t have a real big problem given the topography you have there, the placement of the pool, but God, I have to wonder what the Town was thinking, I was up there two years ago, and there was things in front of that fence, and it wasn’t as obvious as it is now. I’ve got to wonder what they were thinking when they cut that stuff down. MR. BARBER-It should grow back up. It was sumac, just sumac and berry bushes, and it grows up every year, and the Town, I actually asked them not to take it down. MR. GARRAND-I was up there two years ago, and, when the fence was up. I don’t know if you’d just put it up or what. MR. BARBER-About three and a half, four years ago it was. MR. GARRAND-Yes, and when I was up there, there was so much growth in front of that fence, it actually looked pretty decent. The way it looks now, it’s just a stark white blight on the environment. Irregardless, you know, I think it would be nice if there was something in front of it to break up. Irregardless, I’d be in favor of it. MR. BARBER-Thank you. MR. UNDERWOOD-I would go along with everybody else’s sentiments on the fence. I mean, the only thing you could do is, I don’t know if you could fasten something to get vines to grow on like clematis or something like that to have it creep up, or ivy or something, not poison ivy. You don’t want that with your kids, but it makes sense to me, from the viewpoint of safety, to keep the fence as it is, and no one really complained about it in three years. So why would we worry about it. As far as the pool goes, it’s a logical place to put it. I mean, where else would you put it besides there? So I’m in favor of it also. MR. BARBER-Thank you. 40 (Queensbury ZBA Meeting 05/21/08) MR. UNDERWOOD-Does somebody want to make the resolution? MRS. HUNT-I will. MS. GAGLIARDI-Did you close the public hearing. MR. UNDERWOOD-I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 27-2008 NATALIE AND TOM BARBER, Introduced by Joyce Hunt who moved for its adoption, seconded by Richard Garrand: 8 Lockhart Mountain Road. The applicant proposes to construct a 40 by 20 foot below ground pool in the front yard. The applicant requests relief from only in rear yard placement of pool per Section 179-5-020, and variance for a 210 foot long, 6 foot high existing privacy fence in front yard per Section 179-5-060. The criteria for approving this variance. Whether the benefit could be achieved by other means feasible. Again, this lot has two front yards, and that seems to be the best placement for the pool, and they also wanted this fence for safety reasons, and it had been screened, but the Town cut down the screening. Will there be an undesirable change in the neighborhood character or to nearby properties, I don’t think so. Whether the request is substantial, I think it’s a minimal request considering the lot’s placement. It will not have adverse physical or environmental effects, and it’s self-created only in the fact that the Barbers want a pool and want the safety of the fence. I would ask that we approve Area Variance No. 27- 2008. st Duly adopted this 21 day of May, 2008, by the following vote: AYES: Mr. Garrand, Mrs. Hunt, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Drellos, Mr. Underwood NOES: NONE MR. UNDERWOOD-Okay. Just one more item. I had a couple of things I was going to ask Craig to do, and that is. MR. BARBER-Thank you very much. MR. UNDERWOOD-I know that over the past two or three years we’ve had numerous appeals, variances and stuff that we’ve dealt with that have never been resolved, you know, that are just kind of out there up in the air. I wondered if maybe you could give us some updates on occasion. Like maybe at least once a month update us as to the status of those projects because I don’t want us to ever feel like we’re just like not, that we’re not looking, or we’re looking the other way, you know. I mean, I think we got Mrs. Hoffman, we never got Takundewide back. I’m trying to think, what was the one up on Rockhurst there? That was Seaboyer, was that the one? That we sent to the Town Board, and like we never, nothing ever came back, and I was wondering, we probably, at some point, on some of those, we’ve got to resolve those. I don’t know if we were finished with them as a Board, or if they were just Planning Board issues, but just so we don’t end up with some major, giant tidal wave of them. Like if somebody like cranks up the, you know, care about the Lake meter, or whatever it happens to be, and they come in and they say how come you guys haven’t done this? Just so, I don’t want you to get put on, you know, in hot water on it either. MR. BROWN-Yes. We can give you that list, and you mentioned Seaboyer, and I know that this Board extended that Area Variance request in January. They came in and asked you to extend it for a year, and you guys granted that. MR. UNDERWOOD-Yes, but we never. MR. BROWN-You granted it. MR. UNDERWOOD-Somebody had mentioned to me that the Town Board had, it was all done and they weren’t coming back to us, and I said, well, I don’t think that’s the case. MR. BROWN-They don’t need to come back to this Board. 41 (Queensbury ZBA Meeting 05/21/08) MR. GARRAND-Yes, they went back to the Town Board, didn’t they? MR. UNDERWOOD-They had to go to Town, that was something to do with the holding tank or. MR. BROWN-The septic system, yes. MR. UNDERWOOD-That was what it was, on that one. MR. BROWN-Yes, we’ll get you a list of open items. MR. UNDERWOOD-Not that I need to know every one of them, but, I mean, you know which ones are more than likely to. MR. BROWN-I mean, I think we probably all should know all of them, and I think we took care a lot of them, a couple of years ago that, if they were open, you denied with prejudice and let them come back in the future if they wanted to. The only one that I can think of that’s out there that’s open is Hoffman, and that’s at their request. They requested to be put on the backburner until they’re done with the lawsuit, but, yes, we’ll come back with a list. MR. UNDERWOOD-Joe Ritano, we’re done with that. That’s a civil suit, right, that one? MR. BROWN-You may see them come back for a variance request, based on the outcome of that appeal, whatever it ends up. It’ll be a new application. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, James Underwood, Chairman 42