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1999-04-28 (Queensbury ZBA Meeting 4/28/99) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING APRIL 28, 1999 7:00 P.M. MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN LEWIS STONE PAUL HAYES ROBERT MC NALLY CHARLES MC NULTY DANIEL STEC MEMBERS ABSENT BONNIE LAPHAM CODE COMPLIANCE OFFICER-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI OLD BUSINESS: AREA VARIANCE NO. 19-1999 MR-5 JEFFREY D. HOWARD OWNER: JEFFREY D. HOWARD UNDER CONTRACT TO KAREN WITTE WEST SIDE OF BAY ROAD, ACROSS FROM MAIN ENTRANCE TO ADIRONDACK COMMUNITY COLLEGE APPLICANT PROPOSES CONSTRUCTION OF A 900 SQ. FT. OFFICE BUILDING AND SEEKS RELIEF FROM BOTH THE SHORELINE AND WETLAND REGULATIONS AND THE SETBACK REQUIREMENTS FROM THE TRAVEL CORRIDOR OVERLAY ZONE. CROSS REF. SPR 12-99 AV 95-1990 SPR 32-91 WARREN COUNTY PLANNING 4/14/99 TAX MAP NO. 60-7-4.3 LOT SIZE: 0.35 ACRES SECTION 179-18, 179-60, 179-28 TOM NACE, REPRESENTING APPLICANT, PRESENT MR. STONE-We asked you, last week, to give us a better handle on the actual setbacks in the Travel Corridor Overlay and the actual pavement in the right of way. Can you? MR. NACE-Okay. For the record, my name is Tom Nace, and Jeff Howard is with me. What I did, I talked to George Van Dusen, whose the County Surveyor, and he sent me a copy of the taking maps for when they re-constructed Bay Road, back in, I guess it was the early 70’s, late 60’s, and those are the present property lines. The total right-of-way width is 92 feet. The pavement, I went out and measured the pavement. There are two 12 foot travel lanes. We are within a taper there. We're north of the intersection, at the traffic light going into the southern entrance to the College. So there’s a taper there where it’s getting enough width to have that turn lane. That taper is eight feet wide, and the shoulders are six feet wide. So what that leaves us is on our side of the road, from the existing edge of pavement, to the property line, is 24 feet of additional space. I talked to the County. If they did anything here, what they would most likely do is simply add two more travel lanes, okay, so it would be a four lane. They’re unsure, at that point, of course they don’t have any specific plans. It’s not in the immediate future. It would be long range planning for anymore lanes there, but they would not anticipate a Quaker Road where you’d have four lanes plus a center median. They would anticipate just four lanes, and then maybe, maybe not, but maybe a turn out for the intersections, like you have now. So, at worst case, we’d be looking at adding 12 feet of pavement, and there’s an existing 24 feet already there to the property line. So there is more than sufficient right-of-way to do whatever’s needed. MR. STONE-The TCO is to where, the Travel Corridor Overlay, where does that come on the property? MR. NACE-The Travel Corridor Overlay is 75, by definition in your Code, 75 feet from the property line. Okay. We have situated the building so it’s 30 feet from the property line, okay. So even if the road were to be widened an extra lane, there would be 12 feet between the new edge of pavement and the property line, and another 40 feet, or 30 feet to the building. So there would still be 42 feet from the edge of new pavement, future pavement, to the building. MR. THOMAS-Are there any other questions for Mr. Nace? 1 (Queensbury ZBA Meeting 4/28/99) MR. NACE-I know. If I may interrupt, one other question that came up was the grade of the driveway, coming up into the property. I took a better look at that today. It looks like there’s a steep bank because there’s a good sized ditch line there. That ditch line where we have the driveway would be filled in with a culvert underneath it. So the actual, the rise in the road from the edge of the pavement up into the property would only be about a foot and a half to two feet, which ends up in a driveway grade around three or four percent, which is certainly within the realm of very conservative. MR. STONE-Did you look at the back? Because I thought it was very steep at the back, and the way I read contour lines. MR. NACE-It does look steeper than the contour lines show, and I have no explanation, okay. It does look steeper. I think the top of what we show on the topo looks like it’s rounded. There may have been some grading in there at some time. I just don’t remember. It could be that that was flattened off at some time during the course of previous approvals. I really don’t recall. MR. STONE-I mean, I had the feeling, a note that I wrote to myself when I looked at it, it was fill. You assured me last week that it was not fill. MR. NACE-It’s original ground, but it could have been re-graded to make it flatter at some point. MR. THOMAS-Anymore questions? The public hearing is still open. Would anyone like to speak in favor of this application, in favor of? Would anyone like to speak opposed? Opposed? PUBLIC HEARING OPEN NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Anymore questions for Mr. Nace? All right. Did you guys talk about it last week? You just went right into a vote? A motion was made and seconded? MR. STONE-Well, there was a difference of opinion. I mean, it was not a unanimous. In going through, one of the reasons we tabled it is we did have some questions, but we did express ourselves that we were actually split, three, two, at the time, three people were willing to grant the variance, two people were not willing to grant the variance. MR. STEC-And no motion had been made. MR. STONE-Right. No motion had been made. MR. MC NALLY-It was concern I think, Lew, you had expressed regarding the actual dimensions of the Travel Corridor. MR. STONE-Right. MR. MC NALLY-So that’s why they were asked to come back. MR. THOMAS-So everybody’s satisfied with that explanation that Mr. Nace gave? MR. MC NALLY-Yes. MR. THOMAS-Do you want to talk about it? MR. MC NALLY-I don’t think my feelings are really changed from the last time. I don’t like the idea that you build a building within the Travel Corridor, or that you build one so close to the Brook, but this application is really a minimal amount of relief, given the undersized nature of the lot. It’s just a unique lot, and I don’t see that much of an impact, certainly on Bay Road, and an effort’s been made to take care of any drainage problems with respect to the Brook. So I think it’s the best application you can get for this property. I’m in favor of it. MR. THOMAS-Okay. We’ll go down to Mr. Stec. What have you got to say? MR. STEC-Well, again, I haven’t changed my mind since last week. I do think that the project as proposed is a minimal impact. It’s probably an optimization for the use of that property without seriously impacting either the Travel Corridor or the Brook. So I’m also in favor of it. MR. THOMAS-All right. Chuck? 2 (Queensbury ZBA Meeting 4/28/99) MR. MC NULTY-I don’t know. I’m still bothered by the infringement onto both setbacks. The people that framed the Overlay Corridor didn’t make it 75 feet from the center of the highway. They made it 75 feet from the property line, for some reason, and I’m not comfortable with rationalizing their choice and saying, well, the highway’s nice and light there. So, acknowledging that it makes it very difficult for the property owner, I think I’m opposed. MR. THOMAS-Okay. Lew? MR. STONE-Well, I was also one of the ones who was opposed last week. I was opposed because I think, I was concerned by the amount of relief. Forty-five feet from 75 feet is a great deal, plus 40 feet on the other side, from the shoreline setback. I’m probably more concerned with the shoreline setback, because when you, you know, when you don’t realize a brook is there, and then you go find it and you see that there’s quite a stream in there, I get very concerned that we’re going to hurt that stream, and I guess that stream goes into Halfway Brook. I haven’t followed it, obviously, but I am concerned about that. The other thing, I think Chuck just mentioned it, I wrote down when I looked at this property, just because somebody owns land, doesn’t mean we have to give a variance. It’s a very small lot. It’s a very strange lot, when you come to the setbacks, particularly with the Travel Corridor Overlay, and the stream, and I would prefer that we not grant the variance. Basically that’s where I stand, like I did last week. MR. THOMAS-Okay. Jaime? MR. HAYES-Well, we’ve run into similar situations in other lots, and I do think we have to give a lot of deference to the Travel Corridor Overlay zones, because they have obvious importance in our community planning, but in this particular case, Bay Road is very generously apportioned, in my opinion, and the idea that Tom has already covered, that there are no immediate plans, even in the near future, to go into that excessively. I think it’s a pre-existing lot. I think this is a very low intensity use. I think, if I was going to envision this lot being used for something, and it must be used for something, I think that this is a great project. I think it’s well planned, and it’s very minimal. I mean, I agree with Bob along those lines. So, I think in this particular case, it’s the best alternative to nothing, and I’m in favor of it. MR. THOMAS-Okay. I think Jaime and Bob hit it right on the head. This is a nonconforming lot. This is a minimal use for this lot. The Travel Corridor Overlay Zone, I think if you read in the Zoning Ordinance, was to keep Bay Road a more rural appearance, keep everything back from the road, and that’s why that 75 foot is in there, because any other Travel Corridor Overlays in the Town are 50 feet, and Bay Road is the only one that’s 75 feet. I do believe that’s why they did it, but the case here is with the stream in the back and the big ditch in the front, I don’t see the County coming down through here and widening that road out for any reason. Maybe if they made ACC a four year College, it might, because it would have to expand, but I don’t think there’s any plans for that. The County has no plans to widen Bay Road. So this is a good use for this land. It’s low intensity. There’s a lot of parking on it, but I would send it to the Planning Board, to get their opinion on the drainage, how they’re going to drain it off that building and off that parking lot. MR. STONE There is something, Mr. Chairman, let me just read 179-28 C, Regulations, “All buildings hereafter erected or altered within the Travel Corridor Overlay shall be set back 75 feet from the edge of the road right-of-way.” Not 50, 75. “Along Bay Road only, this 75 foot setback shall be maintained as open space, as defined by this chapter.” I just want that on record. So it’s not 50 on the other places. It’s 75 everywhere. This one is special, that it’s open space, very specifically says open space. Now, you could define that as rural character, but I mean. MR. MC NALLY-See, but sandwiched between the road and a stream like this, there’s nothing you could put on that lot. There’s nothing that you could put on that lot that’s going to meet the setbacks. Whether it’s a single family residence, whatever it’s going to be, it’s going to need a variance. It’s a pre-existing, nonconforming. MR. STONE-I understand that, but then I’m saying that just because you can’t build on it doesn’t mean we have to let you build on it. I mean, I hear the arguments, and you make good arguments, but the idea is, here is a lot that is substandard, for two different reasons with a great deal of variance required, and I’m saying, and I guess I’m hardening my thought as I speak, variance, and we’ve said this before, I've said this before, is not a God given right, and here is a lot that maybe should stay that way, just because the stream does come, the thing is artificial from the front. Lets admit that, but the stream isn’t in the back. That was there. It’s always been there. The wetlands have always been defined. So, to me it makes it very difficult to build on, and I’m saying we shouldn’t build on it. MR. NACE-Mr. Chairman, can I make a couple of statements? MR. THOMAS-Go right ahead. 3 (Queensbury ZBA Meeting 4/28/99) MR. NACE-Okay. First of all, you had a question about drainage, relative to Planning Board review. The drainage on this is self-contained. During the previous approvals, back in ’91, ’92, whatever it was, they asked us to make the parking lot service pervious, make it crushed stone instead of pavement. We did that, but the actual drainage itself was designed as if it was asphalt pavement. It is self-contained. It’s drywells that will protect the stream. The other point I wanted to make is that as you go up and down Bay Road, there are quite a few existing residences, and structures that are even out into Bay Road, well into that 75 foot setback Corridor. In fact, the house that’s next door to this, just to the north of it, does not have anywhere near the required 75 foot setback. So as far as being out of character with the Corridor, we don’t think it’s going to be. I mean, the house setback is very close to what the setback of the proposed building will be. So from that aspect, I do realize the way the Code’s written, but I believe that, visually, this would not, you know, 900 square foot building will not have the impact that an apartment house or a larger structure would have. MR. THOMAS-Are there anymore questions for Mr. Nace? Are there anymore comments? Would somebody like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 19-1999 JEFFREY D. HOWARD, Introduced by Robert McNally who moved for its adoption, seconded by Paul Hayes: Bay Road. The applicant proposes the construction of a 900 square foot insurance office and seeks 45 feet setback relief from the 75 foot minimum setback requirement of the Travel Corridor Overlay Zone, Section 179-28, as well as 40 feet of relief from the 75 foot minimum shoreline setback requirement of the shoreline and wetland regulation, 179-60. The benefit to the applicant would be that they would be permitted to construct a building on an undersized, pre-existing, nonconforming lot. There are no feasible alternatives, in my opinion. This lot is, unfortunately, bisected by a brook and fronts on Bay Road. The combination of the Travel Corridor and the setback from the road results in, essentially, any building on this lot requiring a variance. This relief is not substantial. The proposed building is only 900 square feet. The structure itself is modest, to say the least. It does not do an injustice to the property or the location. The use to which it is put is relatively minimal, also. It’s an insurance building. It has very minimal parking, and it will house a small insurance office during the week, and essentially minimal activity otherwise. Even though the amount of relief is substantial to the Ordinance, given these circumstances and the fact that other properties adjacent to this lot have buildings well within the Travel Corridor Overlay, I don’t see any substantial effect on the neighborhood or community. The difficulty is not self created. Really it’s attributed to the pre- existing nature of the lot and the overlapping setbacks. For this reason, I move that we approve this Area Variance. This motion should be contingent upon going through the Planning Board process. Duly adopted this 28 day of April, 1999, by the following vote: th MR. MC NALLY-Are we doing Planning Board? MR. NACE-Yes. We were tabled at the Planning Board last night, pending resolution here. AYES: Mr. Hayes, Mr. Stec, Mr. McNally, Mr. Thomas NOES: Mr. Stone, Mr. McNulty ABSENT: Mrs. Lapham MR. THOMAS-It’s four to two. That does it. MR. NACE-Thank you. MR. THOMAS-You’re welcome. NEW BUSINESS: AREA VARIANCE NO. 23-1999 TYPE II CR-15 PIZZA HUT OWNER: EXIT 18, GATES ENTERPRISES 97 & 99 MAIN STREET APPLICANT PROPOSES CONSTRUCTION OF A 240 SQ. FT. STORAGE SHED AND SEEKS RELIEF FROM THE SETBACK REQUIREMENTS. WARREN COUNTY PLANNING: 4/14/99 TAX MAP NO. 129-1-21 LOT SIZE: 0.77 ACRES SECTION 179-24 WILLIAM MAHER & TERRY RYFA, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 23-1999, Pizza Hut, Meeting Date: April 28, 1999 “Location: 97 & 99 Main Street Description of Proposed Project: Applicant proposes construction of a 240 4 (Queensbury ZBA Meeting 4/28/99) sf storage shed and seeks setback relief. Relief Required: Applicant requests 12.5 feet of relief from the 20 foot minimum side setback requirement and 7.5 feet of relief from the rear setback requirement of the CR-15 zone, § 179-24. 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 storage building and utilize the same. 2. Feasible alternatives: Feasible alternatives may include relocation of the proposed structure to a compliant location. 3. Is this relief substantial relative to the Ordinance?: 12.5 feet of relief from the 20 foot requirement and 7.5 feet of relief from the 25 foot requirement may be interpreted as moderate. 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): None applicable Staff comments: Minimal impacts may be anticipated as a result of this action. Relocation of the storage building may come at the expense of parking spaces, which may not be advantageous to the applicant. However, the proposed storage building may be more beneficial to the applicant if it were located immediately behind the building. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form Project Name: Pizza Hut Owner: Gates Enterprises ID No.: QBYAV23-1999 County Project No.: April 99-27 Project Description: Applicant proposes construction of a storage shed and seeks relief from both setback… Site Location: 97 & 99 Main Street, northeast corner of the property Staff Notes: The applicant is proposing to tear down an existing structure and replace it with one of similar size and location. The Staff believes that the applicant is proposing maintenance operation, and therefore does not identify any issues which are significant to County resources. County Planning Board Recommendation: No County Impact” Terry Ross, Warren County Planning Board. MR. THOMAS-Okay. Do you want to say anything, add anything, tell us about anything? MR. MAHER-The one comment that was made about moving it to a different spot, we’re just trying to keep from eliminating any parking spots, and also if you move it into the center of the parking area, it causes trouble with buses, tractor trailers, that type of thing, trying to turn around. MR. THOMAS-Could you state your name for the record. MR. MAHER-I’m sorry. It’s William Maher. I am a resident of the Town of Queensbury. MR. THOMAS-Are you the applicant, or have anything to do with the application? MR. BROWN-Yes, he’s the agent. MR. MAHER-I’m the agent, I believe it’s called, yes. MR. THOMAS-Okay. Well, we didn’t care if you were a resident of the Town of Queensbury, as long as you were part of the application. Okay. So you don’t want to move it behind the building, just because it’ll take up parking spaces? MR. MAHER-It’ll take up parking spaces, and also it just makes it harder for people to get in and out. Putting it back in the right hand corner where the other building is is just the best place to put it. MR. THOMAS-What’s going to be in this building? The application said something like paperwork? MR. MAHER-Paperwork. IRS requires that we keep a certain amount of receipts. Actually, it’s six years worth of receipts, also, small pieces of equipment. MR. THOMAS-Would you consider that safe back there like that? I know the residents behind you wouldn’t care, but. MR. MAHER-Yes, I believe it would be safe back there. I mean, we’re planning on locking it up. It’s not going to have any windows in it, and we’re only looking to use it during the day. So we’re not looking at having to light it or anything else at night. It’s got a parking lot light right above it, or just over a little bit. MR. THOMAS-Okay. MR. STONE-Is what’s there coming down? It’ll be a totally new, or are you going to use that wall that’s there? MR. MAHER-We would just use the base. We would take down the three existing walls and just, where we’re looking at putting a, just a storage shed, you know, Amish type building. 5 (Queensbury ZBA Meeting 4/28/99) MR. STONE-What have you been using it for now, just? MR. MAHER-Nothing. MR. STONE-Nothing. You didn’t put a dumpster in there or anything? MR. MAHER-It was originally built as a dumpster enclosure, but when they built it it was too small to fit any dumpster made. So it’s never been used as any, it collects leaves and we just clean it out every now and then. MR. RYFA-Can I inject something, too? I’m the General Manager. My name is Terry Ryfa. The other thing, I think, to consider is there is a fence along Fedul Monsour’s property. It’s on the east side, and there is quite a bit of I guess protection, site protection, actually looking at that new building from his property, and then in the back there’s trees that buffer the cemetery pretty well also. MR. THOMAS-Are there any other questions for the applicant? MR. MC NALLY-This is a building 12 by 20? MR. MAHER-That’s correct. MR. MC NALLY-And the current building is how much bigger is it? Half again as big, I think? MR. MAHER-The current one isn’t even a regular building. It’s just a three wall, no roof. MR. MC NALLY-Right, but it’s got the enclosure. I was just curious how big it was. MR. MAHER-It was too small to be a storage. We thought about possibly putting a roof on it, but it’s just too small to put a walkway down through it or anything. MR. MC NALLY-And on your application you’ve got these Garden Time type things. MR. MAHER-That’s basically what we were looking at bringing in, just bringing one over that’s on skids and just setting it on the cement. MR. MC NALLY-Pre-manufactured kind of thing? MR. MAHER-Right. MR. THOMAS-Anymore questions for the applicant? I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? Is there any correspondence? MR. BROWN-No. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Anymore questions for the applicant? If not, we’ll talk about it. We’ll start with Dan. MR. STEC-Well, looking at the site, it’s clear that, as was pointed out earlier, there probably wouldn’t be a whole lot of neighbor concerns from a few of the sides. I don’t think that the relief sought it substantial. I think that, while I question maybe the size that they’re asking for, a 20 by 12 foot storage area, building seems like it might be more than they need, in which case a smaller building might be a feasible alternative, but given the nature of the business, the nature of it’s location, I don’t have a hard spot really granting the relief that’s sought. I think, again, that there might be a feasible alternative to maybe make the building a little smaller and improve those, but I think anything that we do is going to require some level of relief, and, again, given it’s location and the nature of the relief sought, I’m in favor of it as it stands, but I think there’s some room for improvement. MR. THOMAS-All right. Chuck? 6 (Queensbury ZBA Meeting 4/28/99) MR. MC NULTY-I don’t have any problem with it. It strikes me that it’s going to be an improvement, as far as appearance goes, replacing the existing structure that’s there with something that’s more neater, and it’s been mentioned, I don’t think it’s going to bother any of the adjacent property lines. So I have no problem with it. MR. THOMAS-Okay. Lew? MR. STONE-Well, basically I think it’s not a, I’m more inclined to grant it, but philosophically, it bothers me that such a simple building on such a simple lot requires a variance from our simple zoning. It just seems to me that, build it where it fits in. In going with something I said earlier, just because we have this process doesn’t mean we have to grant variances. I agree that where it is, tucked back in the corner of the lot, considering that the cemetery is on the rear of the property, and I don’t know what’s over the fence, but obviously it’s a very long yard, I guess, from the front. As I say, practically, it’s not a problem for me. Philosophically, it is, but I would probably go along and grant the variance. MR. THOMAS-Okay. Jaime? MR. HAYES-I patronize this Pizza Hut myself, my business is in the neighborhood, so I guess what I’m alluding to is that I can attribute to the fact, or agree with the fact that that is a very tight parking lot back there, and even gets blocked at some times to do a turn around. So I agree with Lew that we have to fight relief, you know, and try and expect the most minimal relief that can be obtained, but in this particular case, I agree with the applicant. I think giving up parking spots, versus the impact on the neighborhood, would fall in favor of the applicant, and for that reason I don’t have a problem with it. I think it is screened, and it’s a very commercial area. I mean, good or bad, it’s a commercial area, and we need to cooperate with the merchants where we can. So I’m in favor of it. MR. THOMAS-All right. Bob? MR. MC NALLY-I agree with my fellow Board members. I’m in favor of it. I would just point out, too, if they expand Broad Street/Main Street there, there would be even less parking. Maybe by maximizing what you already have, it’s to their benefit. It would certainly never hurt the community. MR. THOMAS-All right. I agree with the other Board members. I don’t see where this out building will be of any big deal. Looking down through the criteria for an Area Variance, the difficulty may be considered self-created because the applicant wants to put it back there, but he really has no other place. Adverse physical or environmental effects, no, not really. It’s just a 240 square foot shed. Is the request substantial? I wouldn’t say it’s substantial. I’d say it’s moderate. An undesirable change in the neighborhood? I think it’ll be an improvement to the neighborhood from what’s there now, and whether benefit could be achieved by any other means feasible to the applicant? There is, but really anything else he does in there would take up parking, and as Jaime pointed out, parking is a premium, especially right in there, and as Bob said, the widening of Main Street at some point in time may be taking more spaces away from Pizza Hut. So, they should retain all the parking places they can. I do believe that parking lot, at times, does fill out, and taking away one parking spaces would have a detriment to the applicant. So I have no problem voting yes. Would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 23-1999 PIZZA HUT, Introduced by Daniel Stec who moved for its adoption, seconded by Lewis Stone: 97 & 99 Main Street. The applicant proposes construction of a 240 sq. ft. storage shed, and seeks setback relief. Specifically, I move that we grant 12.5 feet of relief from the 20 foot minimum side setback requirement, 7.5 feet of relief from the rear setback requirement of the CR-15 zone, Section 179-24. The benefit to the applicant is that the applicant would be permitted to build a storage building and utilize it without hindering the number of parking spaces currently available, and while feasible alternatives may include a smaller shed, locating the shed more central to the property is not really feasible, given the nature of the business that the applicant is conducting on the lot. Twelve and a half feet and seven and a half feet of relief are moderate. However, the effect on the neighborhood and community is minimal, in that there’s really only one neighbor of concern to the east of the applicant, and this project will actually improve the aesthetics of the lot, and is the difficulty self-created? I suppose so, but again, the number of alternatives are limited. So I move that we grant this variance request. Duly adopted this 28 day of April, 1999, by the following vote: th AYES: Mr. McNulty, Mr. Stec, Mr. McNally, Mr. Hayes, Mr. Stone, Mr. Thomas NOES: NONE 7 (Queensbury ZBA Meeting 4/28/99) ABSENT: Mrs. Lapham MR. THOMAS-There you go. MR. RYFA-Thank you very much. MR. THOMAS-You’re welcome. MR. MC NALLY-Best of luck. MR. STEC-Good luck. AREA VARIANCE NO. 26-1999 TYPE II SR-20 DENNIS DALY OWNER: SAME AS ABOVE 4 MOCKINGBIRD LANE INSPIRATION PARK SUBDIVISION APPLICANT PROPOSES PLACEMENT OF A SWIMMING POOL IN THE FRONT YARD AND REQUESTS ACCESSORY STRUCTURE SETBACK RELIEF. TAX MAP NO. 148-2-22 LOT SIZE: 0.29 ACRES SECTION 179-67, 179-19 DENNIS DALY, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 26-1999, Dennis Daly, Meeting Date: April 28, 1999 “Project Location: 4 Mockingbird Lane Description of Proposed Project: Applicant proposes construction of a 24 foot diameter pool and seeks accessory structure setback relief. Relief Required: Applicant requests 9 feet of relief from the 20 foot minimum rear setback requirement of both the Accessory Structures and Uses requirements, § 179-67 and the 20 foot rear setback requirement of the SR-20 zone, § 179-19. Also, the applicant is requesting relief to allow a pool in a yard other than the rear yard, as required by the above referenced section. Additionally, the applicant is requesting 10 feet of relief from the 30 foot minimum front setback requirement of the SR-20 zone § 179-19. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct and utilize the pool for additional recreation. 2. Feasible alternatives: Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the ordinance?: 9 feet of relief from the 20 foot minimum rear setback requirement may be interpreted as moderate. However, the placement of a pool in any yard other than the rear may be interpreted as substantial. This application is requesting a pool in the front yard, at a setback less than the minimum required. 4. Effects on the neighborhood or community: Moderate to substantial 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. However, the creation of lots of this size limit the areas for future development. Parcel History (construction, site plan, variance, etc.): None applicable Staff comments: Moderate to substantial impacts may be anticipated as a result of this action. Placement of a pool within 20 feet of a right of way may present a significant visual impact to the neighborhood and community. Further, placement of a pool in this area may lead to additional requests for similar relief. How does the Inspiration Park Homeowners Association address this proposal? SEQR Status: Type II” MR. THOMAS-All right. It didn’t go to Warren County. Mr. Daly, do you want to tell us, do you want to give us anymore information, tell us about anything? MR. DALY-If I had a yard bigger than 19 feet 6 inches behind my house, I’d rather have the pool back there, but when that’s all the back yard you’ve got, you can’t do it. I bought a fence, through Curtis Lumber, a six foot privacy fence to go all the way through the back, and I’ll go with the four foot picket fence in front of the pool, with shrubs and flowers in front of that, and we’ll make it look the best we can, but to me, it’s just a good way to keep control of your kids. You can spend time with your kids instead of having to have a babysitter take them to the beach. It’s just safer me and my kids to have the pool there. MR. THOMAS-All right. Future garage, how big is that? MR. DALY-The future garage would be 22 by 24. MR. THOMAS-Twenty-four deep, twenty-two across the front? MR. DALY-Yes. MR. THOMAS-On this sketch you gave us, it looks like that pool is, is that 14 feet from the back property line? MR. DALY-From the back property line? 8 (Queensbury ZBA Meeting 4/28/99) MR. THOMAS-Yes. MR. DALY-I believe the application says. MR. THOMAS-Yes. I think the application says it’s 11. MR. BROWN-Mr. Chairman, I took the liberty of preparing another sketch, with a more accurate representation of the size of the pool, to nail down the actual relief required. After a conversation with Mr. Daly, he requested that he wanted to keep it 20 feet from the road and 10 feet from their garage. So, there should be, in your packet, a sketch prepared by myself, that shows 11 feet from the back and 20 from the back. MR. THOMAS-Okay. Got it. MR. DALY-Also, between my house and the houses behind me, there’s 25 foot of green space. There’s no houses within 25 feet behind my house. So, I can make it closer to the back of the property line, where it’s not going to interfere with the neighbors behind me, because they both have six foot privacy fences in their whole back yard. I’ll do that, too. MR. THOMAS-That’s what I was looking at, moving that thing back to that property line, because there is that 25 foot buffer in there. MR. STONE-Do you have a copy of that, Craig? I don’t have a copy. MR. DALY-Because if you move it back to the property line, like you want to do, I’m still back into the back yard behind the house, but it’s on the side of the house. MR. THOMAS-Does the house behind you have a pool? MR. DALY-Yes, they do. MR. THOMAS-I thought we gave a variance for that last year? MR. DALY-Yes, you did. MR. STONE-We did give a variance, yes. MR. THOMAS-Okay. Any other questions for the applicant? MR. STONE-How long have you owned this lot? MR. DALY-I bought the lot in ’92, sir. MR. STONE-’92? MR. DALY-Yes, when they built the development. MR. STONE-So you knew in ’92 you had a pool problem, if you wanted one there. MR. DALY-No, I didn’t. I didn’t find out until I went to build the house, but the only reason they set the house back so far is because I’m right on the turn where you turn to go up toward Corinth Road, and they said, if the house was any further up, cars wouldn’t be able to see another car coming around the turn, because there’s a bend going up to the corner on that street. So they made it safe by moving the house further back, and putting the septic system in the front yard instead of the back yard. MR. THOMAS-So your septic system, is it out in the front yard, in front of the house? MR. DALY-Yes, sir. MR. THOMAS-Well, when the sewers come through, you won’t be digging up the whole lawn to get there, you’ll just have to dig right out to it. MR. DALY-It keeps the grass greener. MR. THOMAS-I guess. MR. STONE-It’s interesting that they told you there’s a sight line problem, because there’s a house 9 (Queensbury ZBA Meeting 4/28/99) on Lot 21 that would seem to be more of an obstruction than yours ever would have been, wherever you put it within that lot. MR. DALY-That’s just what I was told. MR. STONE-I hear you. MR. THOMAS-Are there any other questions? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED MR. THOMAS-Is there any correspondence? MR. BROWN-Yes. This is from Charles Adams, 1 Mockingbird Lane, Queensbury, NY, to Bonnie Lapham, Secretary, Zoning Board of Appeals, RE: Notice of Public Hearing regarding the variance requested Dennis Daly, 4 Mockingbird Lane, Queensbury “Dear Mrs. Lapham: Charles F. and Mary R. Adams, through their firm Adams & Rich, Inc., are the owners of 1 Mockingbird Lane, which neighbors Mr. Daly’s property, as referenced above. Also, our firm, Adams & Rich, Inc., was the developer and marketing agent for Inspiration Park, the subdivision in which Mr. Daly’s property is located. We shall not be able to attend the Public Hearing on April 28. Accordingly, it would be a kindness if you would convey the following comments to the members of the Zoning Board of Appeals. Inspiration Park, was created through re-zoning and appropriate variances by the Town of Queensbury to make possible the construction of housing for moderate-income families. Thus, we have no problem, either in principle or in practice, with the granting of variances which serve the public good or which adjust for marginal non-compliance of a worthwhile feature. As to Mr. Daly’s request, we object for two reasons: 1. We believe Mr. Daly’s problem to be self-created. Because of the unusual shape of Mr. Daly’s property, which required the septic system to be placed in the front yard, this property was not laid out to accommodate a swimming pool. During the marketing period (around the date of 1 Jul 92) but substantially prior to the closing on this property (23 Dec 92), Mr. Daly expressed an interest in building a pool at some future time. As required by the “full disclosure” process in real estate, we advised Mr. Daly in our discussions that the property was not designed to accommodate a pool. (In fact, our original notes on a working draft of the Purchase Agreement included a margin reminder to advise Mr. Daly that Town codes only “provide for pool in back” yards with stipulated setbacks. We can provide a copy of this notation with Mr. Daly’s consent). The fact is that (a) Mr. Daly purchased this property with the full knowledge that the property was not laid out to accommodate a pool and that, (b) even if it were possible to put a pool on the property, Town code required that it be placed in the back yard. Thus, Mr. Daly’s problem is a problem he, himself, has created and is attempting to solve through relief by variance. 2. We believe that Mr. Daly will not maintain conformance with either the spirit or letter of any variance granted. I personally believe the evidence is incontrovertible that Mr. Daly (1) has repeatedly deforested and otherwise violated the terms and conditions on the “forever green” buffer zone behind his property that was so carefully created by the Town of Queensbury, (2) has repeatedly violated the Town’s animal control laws and menaced the neighborhood with his dog, (3) routinely thumbs his nose at the Inspiration Park Homeowners Association in its efforts to obtain compliance with Town ordinances, in general, and as they apply to the subdivision, in particular, and otherwise (4) attempts to “beat the system” when he thinks he can benefit by doing so. Having arrived at these conclusions, I do not personally believe that the Town can write a variance that, over time, Mr. Daly will conform to consistently. And I think it would be an awesome burden upon Mr. Daly’s neighbors to have to file complaints with the Town in order to obtain his compliance. For these reasons, we oppose Mr. Daly’s request for relief by variance and ask that the Zoning Board of Appeals not grant the variances requested. Yours truly, Charles F. Adams” From the Inspiration Park Homeowners Association, 19 Goldfinch Road, To the Zoning Board of Appeals, Town of Queensbury, regarding variance request 26-1999, Dennis Daly, 4 Mockingbird Lane “We, the Board of Directors of the Inspiration Park Homeowners’ Association have resolved that we cannot support this Variance request. We currently do not have any rules and regulations regarding such requests. We respectfully request the Board of Zoning Appeals deny the Variance Request of Dennis Daly. Sincerely, John Robbins – President Chris Hall – Vice President Craig Taylor – Treasurer Phil Aubin – Vice President William Craig – Secretary” This is a petition signed by several members, to the Zoning Board of Appeals, Town of Queensbury, from the property owners in the immediate vicinity of 4 Mockingbird Lane, Inspiration Park, date: April 28, 1999, regarding Dennis Daly’s variance request for placing a swimming pool in the front yard and accessory structure setback relief, Area Variance No. 26-1999 “We, the undersigned, opposed this Variance Request and petition the Board of Zoning Appeals to deny this request: Kimberly Taylor, 18 Mockingbird; Marcia Hall, 21 Mockingbird; Joseph Bannon, 11 Mockingbird; Sharon Wiley-Cook, 17 Mockingbird Ln.; Steve Bolduc, 25 Mockingbird; Tracy Boren, 12 Goldfinch; Pat Gram, 9 Goldfinch; 5 Goldfinch; D. Johnson, 4 Goldfinch; G. Bennen, 2 Mockingbird; Chris Hall, 8 Mockingbird Lane; Michael, 3 Goldfinch” This is a letter from Craig and Leann Taylor, 6 Mockingbird Lane, to the Zoning Board of Appeals, Town of Queensbury, regarding variance request 26-1999, Dennis Daly “We are the 10 (Queensbury ZBA Meeting 4/28/99) owners of 6 Mockingbird Lane, adjacent to the property in question. We have lived here since December 1992, the same as Dennis Daly. We strongly oppose this variance request. The addition of a pool, so close to the road that has a posted speed limit of 30 MPH, may be a significant danger to the children that would be attracted to the pool. There are approximately 60 children of varied ages currently living in this subdivision. Dennis Daly has only one single, solid door on the side of his house facing the proposed pool area, which does not provide adequate supervision of the proposed pool location. Not to mention, the proposed “Future Garage” will further block the view of the pool from the home. We have spent a lot of money and effort to improve our home and yard. We believe that the proposed pool being so close to the road, in the front yard, could decrease the value of our home. Not to mention, diminish the aesthetic appearance of the neighborhood as a whole. We respectfully request the Board of Zoning Appeals deny this request. Sincerely, Craig I. Taylor Leann Taylor” This is from Steve & Pasqua Bederian, 708 Corinth Road, to Bonnie Lapham, Secretary, Zoning Board of Appeals, regarding Area Variance No. 26-1999 “To Whom It May Concern: We have received a notice of a proposed variance for 4 Mockingbird Lane, Tax Map No. 148-2-22 for placement of a swimming pool in the front yard. The creation of the Inspiration Park subdivision several years ago required a variance to be given for reduced lot size. We found no fault with this original variance and have welcomed our neighbors in this development. We appreciate that the reduced lot size may not allow for placement of a swimming pool at the back of the house. We also feel, however, that placement of a swimming pool and security fence in the front yard is inappropriate for our neighborhood. As homeowners in the immediate neighborhood we object to the approval of this variance. Sincerely, Steven Bederian & Pasqua Bederian” This is from Phyllis A. Hess & Henry Hess, to Zoning Board of Appeals, re: Variance request Dennis Daly, 4 Mockingbird “We are the owners of #2 Mockingbird Lane, the property in closest proximity to the location of the applicant’s proposed swimming pool. This letter is to explain our opposition to this variance request. We do not oppose properly situated aboveground swimming pools. However, Town regulations serve to promote safety, minimize community annoyances, and help preserve the tranquil and aesthetic qualities of residential neighborhoods. Zoning restrictions recognize that not all lots can reasonably accommodate a swimming pool. Although variances are sometimes justified where conditions are marginal, the Town’s appeal process is not intended to assure the right of a pool in every yard. The relief sought by this applicant is excessive and unreasonable, and will violate the basic premise of governing Town regulations. The requirement to locate swimming pools in back yards imposes not only a control-zone for responsible supervision, but also provides an annoyance-buffer for neighbors. Placing this swimming pool only 20’ from the roadway will effectively be ‘displaying’ it in the front yard, create a seasonal roadside recreation area, and attract unimpeded approach by uninvited, unsupervised children. The applicant does not presently landscape nor maintain this parcel attractively; in fact, the lot is used for purposes that do not comply with the rules of the homeowners association. But installing a pool would further depreciate the immediate neighborhood and all of Inspiration Park substantially and chronically. We respectfully request that the Board of Zoning Appeals deny this request. It is unfortunate that the applicant’s lot is not suited to a swimming pool, a misfortune endured by many property owners in Inspiration Park and elsewhere. Sincerely, Henry Hess Phyllis A. Hess 30 Meadow Drive” MR. THOMAS-Would you like to respond to any of those? MR. DALY-Yes. Most of the people that he named on that petition, I was told that only people within 500 feet of my house would have a say so. None of them, except Craig and Mr. Hess, are within that 500 feet. Those are the only two. Everybody else is out of that 500 feet. The Hess’ don’t even live in that development. The only people that own a house in that development, that does not reside in that development. They might be there once or twice every two or three months. If the Homeowners Association wants to be like that, and have a click where everyone’s got to try to do whatever they’ve got to do to make the Adams’ happy, let them be that way. I’m not going to be in the click. I want to be able to take care of my kids, myself, and enjoy life, and if they want to have a click, and I’m not going to be part of it, and they want to go against me for everything I try to do, they can be like that, but if you’re going to own a house and you’re want to have your kids where you can raise them right, instead of letting them go around and be hoodlums, you want to have quality and control of them, having a pool at my house would be better than letting a babysitter take them to Haviland’s Cove, where she might not watch them while I’m working. At least at my house I know she’ll take care of them at the house. As far as the door on the kitchen, the only way to look at it, it’s not, because I also ordered lumber from Curtis Lumber to put an eight by ten deck on the back of the house, that’ll be right along the side of the pool, and I've got sliding glass doors off of there. So I’ll be able to see the kids, because the kids will not be in the pool without being supervised to begin with. MR. THOMAS-Any questions for Mr. Daly? MR. STONE-The statement made by Mr. and Mrs. Adams, or Mr. Adams in this letter about the fact that you were notified in ’92 that a pool would be extremely difficult to build on that property, is that true? 11 (Queensbury ZBA Meeting 4/28/99) MR. DALY-I do not recall that statement at all. No. He might have said it back in ’92, and I don’t remember, but I don’t believe it happened, otherwise I would have gotten a different lot in the development. MR. THOMAS-Any other questions for Mr. Daly? If not, I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-One more time, guys, anymore questions? Okay. Lets talk about it. Chuck, I’ll start with you this time. MR. MC NULTY-Well, I can understand the desire for having a pool, but I think this is one of those situations where this lot simply is not configured for a pool, and I don’t think it’s appropriate where it’s proposed. I think it will affect the nature of the neighborhood where it is, and I’m inclined to oppose it. MR. THOMAS-All right. Lew? MR. STONE-Mr. Daly, I congratulate you on your concern for your children. In this day and age, with what’s going on, I think you are to be applauded for your concern. However, the notes that I wrote down when I viewed your property this afternoon certainly bear on some of the comments that I heard in these letters. I said, should have known no pool when bought, and one of the letters confirms at least he states, that you were so informed at the time. I’m also inclined that this is too much relief, and going back to something I've been saying all night, apparently, sometimes we can’t do what we want. That’s why we have zoning in the Town of Queensbury, and you have an unusual lot. It’s obviously a lot which you can’t put a legal pool on, and therefore, you need relief, and I think the amount of relief that you want is just too much, and particularly when, in looking at the balancing test that we must go through for an Area Variance, obviously, the benefit to you is that you can put a pool, and you can keep your kids close by the house, and that’s great. However, the detriment to the community, the undesirable change in the neighborhood’s character appears to be large, as far as your neighbors are concerned, and they carry a great deal of weight on this Board, whoever they are. They’re neighbors. They live there. They have the same kind of investment in their property that you do. Also, we have to consider whether the request is substantial, and it appears to be substantial. You’re asking relief from about three different directions, plus the fact that it’s in the side yard and not in the back yard. I believe this request will have an adverse effect on the character of the neighborhood, and it’s obviously a self-created difficulty, since I would be inclined to believe that you were told that this lot does not, would not support a pool when you bought it. So I shall vote no. MR. THOMAS-Okay. Jaime? MR. HAYES-Well, I agree with Lew really entirely. Mr. Daly, we’re charged with a very specific test in regard to Area Variances. The benefit to you is obvious, and I have children as well, and they love to swim, and I mean, I have no doubt of that, but the relief is substantial, in terms of appearance in the neighborhood and I believe the precedent that we would be setting in the future, as far as smaller lots. Because there are other ones in that immediate area, which means, to me, that the impact would have to be very minimal, or non-existent, to have the test balance in your favor, and I don’t believe that’s the case in this circumstance. I believe that there will be an impact on the neighborhood, both visually and maybe even from a property value standpoint, and the overwhelming comments from the neighbors confirm that, in my mind. So I think, in this case, that the test has not been met, and I would be opposed to this variance. MR. THOMAS-Okay. Bob? MR. MC NALLY-I sympathize with Mr. Daly. It’s unfortunate that the house was built as far back as it was, and I don’t know who made the decision to do that, because I don’t think it was necessary, even if it’s on a curve, as this lot is, but that’s the way the house was built, and effectively, there’s not enough room in the back, and the request to place it what is essentially the side or front yard, within the building line setback, is substantial. So while the benefit to the applicant would be that he would be allowed to have his kids play in their own pool, the effect on the surrounding community is going to be too great, in my opinion. Nine feet of relief from the twenty foot minimum setback, the placement of the yard, other than in the rear of the building, is substantial. So I’d have to be against the application. MR. THOMAS-All right. Dan? MR. STEC-I agree with my fellow Board members. I think it is too bad that the house was located, originally, where it presently is, and if we’re talking about these kinds of setback relief sought for something like a future garage, if that was encroaching, that’s one thing, but I think any time you’re 12 (Queensbury ZBA Meeting 4/28/99) talking about a pool in a yard other than the rear yard, you’re setting a dangerous precedent to do that, both from a safety standpoint and from an aesthetic standpoint, and certainly, again, the balancing act that we’re tasked with considering the impact on the community versus the benefit to the applicant, while I sympathize, again, with the desire to keep the kids entertained in the yard, I think that the drawbacks to the community are greater. So I’m going to vote no. MR. THOMAS-Looking at this map that was provided us, and knowing that the Inspiration Park subdivision was a Town of Queensbury Planning Board approved subdivision, it seems to me that the owners of this subdivision seem to build this thing with too many lots into it. These are awful small lots, and that can go back about three years for four or five other variances we’ve given in this subdivision for porch setbacks, garage setbacks, pool setbacks and like that, and this 25 foot buffer behind the house, and due to the fact that this house is set back 43 feet 6 inches, rather than the required 30, if that house had been put on the building line, he’d have 33 feet in the back yard, and if he had half that buffer zone, like most other subdivisions do, they come back to back. They don’t have that buffer zone in there, that would give him more than enough room to put that pool in the back yard, but it’s my opinion that the owners of this subdivision, when it was built, were trying to maximize their investment by getting very small lots in here. I mean, the guy is entitled to have a pool in his house, and it’s an unusual shaped lot. That’s what the Ordinance is for is to take care of problems like this, because of unusual shaped lots, and like that. A problem I see, though, is where Mr. Daly has indicated on his sketch here, putting the bushes. Well, if he puts bushes in there, that’s going to do the same thing as if he moved the house out there. It would interfere with the sight line, as told to him. So, I’m still up in the air about this one. I don’t know, but I just wanted you to know that I think whoever put this subdivision in tried to maximize by squeezing every lot they could out of it, instead of making it bigger. MR. STONE-But I did hear Mr. Daly say, if he had known this, he would have bought a different lot in there. He was early enough in the game. MR. THOMAS-That’s right, but I don’t think, when you’re closing on a house in the middle of December that you’re thinking about a swimming pool, either. MR. DALY-Would it be possible to go on the back property line and not get any variance from the front, and just go on the property line where they’ve got the 25 feet of buffer space behind the houses? I’ll do that. That way I don’t have to have a variance in the front, just in the back. MR. THOMAS-Well, if you moved it back the 11 feet to that property line, and there again, too, if that buffer zone wasn’t in there, and he had another 12 and a half feet, that’s only, what, 10 feet off the back that he needs. Isn’t it? Off the back line it’s 10 feet? MR. BROWN-Twenty feet. MR. THOMAS-Well, he’d be more conforming. Why they put that 25 foot buffer in there, I've never seen that in any other subdivision in this Town. MR. HAYES-Is that a Town, or is that a deeded one? MR. THOMAS-That’s a homeowners association. Something I guess the Planning Board dreamt up. MR. BROWN-It’s a sort of common area. MR. THOMAS-Yes, because nobody uses it. MR. HAYES-Is that a private agreement, then, a deeded agreement, or a public? MR. BROWN-It’s homeowners land, homeowners association land. It’s not Town of Queensbury. MR. THOMAS-Yes, but I think it was negotiated by the Planning Board, because these lots are so small, which keeps the privacy between them. So, I don’t know. Does somebody want to make a motion? MOTION TO DENY AREA VARIANCE NO. 26-1999 DENNIS DALY, Introduced by Lewis Stone, who moved for its adoption, seconded by Paul Hayes: 4 Mockingbird Lane. The applicant proposes construction of a 20 foot diameter above ground pool and seeks accessory structure setback relief. Namely, the applicant requests nine feet of relief from the twenty foot minimum rear setback requirement of both the accessory structure and uses requirements, 179-67, and the twenty foot rear setback requirement of the SR-20 zone, 179-19. Also, the applicant is requesting relief to allow a pool in a yard other than a rear yard, as required by the above referenced Section. Additionally, the applicant is requesting 10 feet of relief from the 30 foot 13 (Queensbury ZBA Meeting 4/28/99) minimum front setback requirement of the SR-20 zone, 179-19. In deciding to deny this variance, we have considered that the benefit to the applicant would result in he being permitted to construct and utilize an above ground pool for additional recreation. We also recognize that feasible alternatives appear to be limited, due to the lot size, and the fact that the house is situated to the rear of the lot, rather than up on the roadside building line. We believe that the relief required by, asked for by this variance is very substantial, that is nine foot of relief from the twenty foot minimum rear setback, and the placement of the pool in a yard other than the rear. In denying this variance, we consider the effects on the neighborhood or the community, as evidenced by the overwhelming objection to neighbors in all parts of the subdivision. No positives were heard, only five letters opposed plus a petition by 12 or more people. It’s also noted that this difficulty is self created, that according to information received in the public hearing, that the applicant was notified when he purchased the lot that a swimming pool could not legally be built on the property, owing to its size and configuration. Duly adopted this 28 day of April, 1999, by the following vote: th AYES: Mr. McNally, Mr. Hayes, Mr. Stone, Mr. McNulty, Mr. Stec NOES: Mr. Thomas ABSENT: Mrs. Lapham MR. THOMAS-I’m sorry, it’s denied. MR. DALY-All right. Can I get a copy of that petition with all those signatures on it? MR. BROWN-Yes. If you want to come in tomorrow and get a copy, that’s fine. MR. DALY-All right. Mr. Stone, do me a favor, approve one of these. You downed all of them so far today. So approve one of them that you’ve got coming up. AREA VARIANCE NO. 24-1999 TYPE II WR-1A CEA FRANCIS KOENIG OWNER: SAME AS ABOVE HANNEFORD ROAD APPLICANT PROPOSES REMOVAL OF A SUMMER CAMP AND CONSTRUCTION OF A SINGLE FAMILY HOME. APPLICANT PROPOSES TO CONSTRUCT A RESIDENCE 32 FT. IN HEIGHT AND SEEKS RELIEF FROM THE HEIGHT REQUIREMENTS, AS WELL AS SETBACK RELIEF. CROSS REF. SEPTIC VARIANCE TOWN BOARD ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/14/99 TAX MAP NO. 19-1-13 LOT SIZE: 0.36 ACRES SECTION 179-16 FRANCIS KOENIG, PRESENT MR. THOMAS-Before you start on this one, the Town Board, acting as the Board of Health, has to approve a system in here? MR. BROWN-Yes. MR. STONE-And they haven’t. MR. THOMAS-And they haven’t yet. MR. BROWN-That’s correct. MR. THOMAS-Is there any way, can we go through this whole thing, right through a motion and a vote? MR. BROWN-No. MR. THOMAS-Before they do that? MR. BROWN-I don’t think so. MR. THOMAS-So we can bring it right up to the public hearing., and then have to hold it there until they give their okay. Okay. I wasn’t sure. MR. KOENIG-That’s why I brought it up to you in the beginning. MR THOMAS-We will hear this application, all the way up and through the public hearing. 14 (Queensbury ZBA Meeting 4/28/99) MR. KOENIG-Okay. I might add that in ’97, the Town Board did approve the installation of a holding tank on this site. I got sick, and I wasn’t able to get it installed, and then I guess they changed the Ordinance or the law or whatever it’s governed by here. So I, today with Dave Hatin, filled out a new application for the septic variance. MR. THOMAS-Okay. Like I say, we’ll hear it right up through the public hearing. We just can’t vote on it. MR. KOENIG-Yes, okay, but I wanted to answer any questions that you might have while I was up here. MR. STONE-We’ll have some. MR. THOMAS-You betcha. MR. KOENIG-Okay. STAFF INPUT Notes from Staff, Area Variance No. 24-1999, Francis R. Koenig, Meeting Date: April 28, 1999 “Project Location: Hanneford Road Description of Proposed Project: Applicant proposes demolition of an existing camp and reconstruction of a year round single family dwelling and seeks setback relief and height relief. Relief Required: Applicant requests 4 feet of relief from the 28 foot maximum height requirement and 10 feet of relief from the 20 minimum side setback requirement of the WR-1A zone, § 179-16. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct and inhabit a modern single family residence. 2. Feasible alternatives: Feasible alternatives appear to be limited but may include relocation of the proposed dwelling to a more compliant location and downsizing the height to 28 feet, both of which would be geared toward minimal relief. 3. Is this relief substantial relative to the Ordinance?: 4 feet of relief from the 28 foot height requirement along with 10 feet of relief from the 20 side setback requirement may be interpreted as moderate. 4. Effects on the neighborhood or community: Moderate 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.): Get previous septic var. ref. and new sep. var. # Staff comments: Moderate impacts may be anticipated as a result of this action. While the proposed construction may not pose a significant visual impact to the adjoining residences on Hanneford Road, an oversized structure, atop a substantial ledge area above Pilot Knob Road, may present a moderate visual impact when viewed from the lake. Significant site issues relating to the drainage course dissecting the property and stormwater control may be considered by way of referral to the Planning Board. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form Project Name: Koenig, Francis R. ID #: QBY AV241999 County Project No.: April 99-19 Project Description: Applicant proposes to remove a summer camp and construct a single family dwelling, which would be 32 feet in height, requiring relief from height requirements. Site Location: First summer camp on left side of Hanneford Road after blacktop roadway ends Staff Notes: A copy of the pertinent section of the site drawing is included with the summaries. Staff has concerns about this project, due to the fact that they were required to have a 100 foot setback and 100 foot rear setback. They are proposing 30 feet in the front and 20 feet rear yard setback. The drawing also indicates that there is a holding tank for the sewage system. Staff has concerns that if this is converted to a year round house, which the variances will enable, then there are issues with having a holding tank pumped consistently. Staff, therefore, is recommending discussion. County Planning Board Recommendation: No County Impact” Terry Ross, Warren County Planning Board. MR. THOMAS-Okay. MR. KOENIG-I don’t know where Craig is getting the 30 foot front and 20 foot. If you look at what the engineers, whatever they laid out there, I’m more than 50 in the front and back and everything else. MR. BROWN-I have a feeling they’re confusing a septic variance application and this Area Variance application with the 100 foot setbacks. That’s where their notes were prepared from. MR. KOENIG-They might be, because when I went to the County two weeks ago, they were asking me questions. I went for a well, and they were asking me questions about the septic system, and I said, well, I’m not here for a septic system. I’m here. MR. BROWN-I think they got the two applications. 15 (Queensbury ZBA Meeting 4/28/99) MR. KOENIG-I don’t know. MR. STONE-That’s messed up. Obviously, you only need 50 feet setback from the lake, and you’re more than that from the road. MR. KOENIG-I’m more than that, and the only thing that I want to do, actually, the camp, if you looked at the overhang, is almost on the property line of the north side. I’m going to move it 10 feet from the property line. That’s what I’m proposing. MR. STONE-You’re going to move it? MR. KOENIG-Well, I say move it, I want to build a new place, but it would be 10 foot from the property line, rather than. MR. STONE-Okay. This thing will go down, and you will? MR. KOENIG-Yes. The basic problem I have is the drainage ditch in the back, you know, the plan shows there’s a drainage ditch in the front, and what I want to do is tear the present camp down, move this, the ditch that’s in the back that’s underneath the camp now, and by moving it forward, I can bring that right around the back and hook it into the one in the front. MR. STONE-So there won’t be a stream underneath the house? MR. KOENIG-There’s no stream. It’s a drainage ditch. MR. MC NALLY-That’s not year round? MR. KOENIG-No. It dries up in the summer. Even the one in the front does, too, and it will not be there under the camp, under the home. MR. MC NALLY-So you’re just going to move it to the side, is what you’re saying, the drainage? MR. KOENIG-Yes. Actually, it comes down, goes underneath the camp like this, and I’m just going to bring it like this, so it’s away from the camp. MR. MC NALLY-Away from the foundation that you’re proposing? MR. KOENIG-Yes. Right. MR. MC NALLY-And the one in front, the stream that goes in the front of the property, that’s not going to really have anything to do with your new building. MR. KOENIG-No. Because this will be sitting in back of that. My wife likes that one. MR. STONE-And this can’t be engineered without blasting? MR. KOENIG-No, it cannot be. I’m going to have to, and the reason I want to stay 10 feet, rather than go 20 feet from the north side is because I don’t want to blast too close to my neighbor’s well. I think it’s Number Three on the plan there. MR. STONE-Yes, right. MR. KOENIG-So I’m going to stay about 25 or 30 feet away from him. MR. STONE-That’s on the south side? MR. KOENIG-On the south side, yes. Otherwise I've got a lot of rock to blast out of there, and I want to stay away from where he is. MR. MC NALLY-The height requirement, sitting up on the top of that ledge as it is. Why is 32 feet necessary? Why can’t you do it in 28? MR. KOENIG-Well, I met with Dave Hatin, and I was supposed to see Craig but he was out, and there was a Chris somebody there today. I met with him, and after he looked at the stuff, he said you probably won’t need 32 feet. So I could knock that down to 30, because I went from the bottom all the way up, and I’m going to be filling in the front. So I guess you have, you look at your regulations, and those designs are confusing. So I could really amend that to 30 feet, rather than 32 feet. 16 (Queensbury ZBA Meeting 4/28/99) MR. STONE-How high is your neighbor to the south? Do you know? MR. KOENIG-My roof on my present place is probably 10 feet lower than his, or about 10 feet lower than his, right now. Now across the street, where Smith put up the new house, I won’t even be anywhere near as high as he is, on Hanneford Road, the new place. MR. STONE-Are those three garages legal? Is there a building permit for that? MR. BROWN-Harold Smith, granted a variance for him a couple of years ago. MR. THOMAS-I don’t remember, do you? MR. STONE-I wasn’t here. I don’t remember. The only one I remember is there was a woman who wanted to subdivide. That’s the only one I remember, on Hanneford. MR. KOENIG-Next to the three garages is an A-Frame, Jim (lost word) and I’m going to be as high as him, if I’m going to be that high, because I sit, actually the topo shows the tiers, you know. My basement would be about where the present camp is, without the roof on it. The next level, which would be the main section, would be even with my parking lot then, where I park the cars, and then the third level would be the master bedroom, would be up on Hanneford Road area. MR. STONE-And you propose to live there full time? MR. KOENIG-If I could, I’d sell my house in Kingston and move. My brother just moved up here. I would, but my wife doesn’t want to leave the grandchildren yet. MR. STONE-Okay. Do we have adequate dimensions on this thing, Craig, because there really are, unless I don’t have, maybe somebody else does, I don’t have any real dimensions on where the setbacks are at all. MR. MC NALLY-This is a kit or a package, the Sagamore or something? MR. KOENIG-Yes. That’s basically what it’s going to look like right there, the height of it, and that, with the foundation underneath. MR. MC NALLY-This is tentative. Do you have any pictures of that? MR. KOENIG-Well, no, I can’t, if I don’t get permission to do it, I’m not going to buy plans and, you know. MR. MC NALLY-All right, but this is what you’re going to do if you get permission? MR. KOENIG-Yes. MR. MC NALLY-There’s no dimensions on there. MR. KOENIG-I think it’s 28 by 36 or something. MR. STONE-No, but there’s no dimensions on. MR. KOENIG-Well, it’s on, isn’t it on, doesn’t the plan show the old camp and the new camp? MR. BROWN-On the second page of the application, they go through an existing and proposed. MR. STONE-Okay. So I have to lay them out myself. MR. BROWN-They just didn’t make it on to the plan. MR. MC NALLY-But the setbacks are set, 10 feet on the side and 2 feet on the top, is what you’re asking for relief? MR. KOENIG-Yes, and actually the side, I’m on the line right now. So what I’m doing is moving it 10 feet away from the line, basically. MR. MC NALLY-And is your neighbor at Number Three on this diagram actually over his line, onto your property? MR. KOENIG-Yes, part of his roof is over on mine, yes. 17 (Queensbury ZBA Meeting 4/28/99) MR. THOMAS-Yes, the overhang. MR. KOENIG-The overhang is. So when they built those, they must have put them right on the north line, I guess. MR. STONE-Are you aware that you’re asking for a big variance as far as your holding tank is concerned, from the Town Board, the Board of Health? It’s not in our control. MR. KOENIG-Yes. I was aware of that in ’97, and that’s why I applied for it because, either that or we tear everything down. There’s no other alternative. MR. STONE-Well, he’s applying for a holding tank variance for a year round home, which, as I understand, is in serious question. MR. KOENIG-I understand that, yes, but my problem with the holding tank is I need it now. I mean. MR. MC NALLY-What have you got now? MR. KOENIG-You don’t want to know what I've got now. MR. MC NALLY-Just a septic? MR. KOENIG-I don’t mean to be argumentative on that, but. MR. MC NALLY-I thought the stream was awful nice looking the way it was. MR. THOMAS-All right. Anymore questions for the applicant? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED JOHN SALVADOR, JR. MR. SALVADOR-My name is John Salvador, and my wife and I own a couple of building lots off of Hanneford Road in a subdivision in that area. As I recall, 10 or 12 years ago, the purchase of these two lots that we have was held up, pending litigation, wherein the Town of Queensbury was prohibiting this subdivision to access Hanneford Lane, and this litigation continued through Supreme Court and to the Appellate Division, where the subdivision sponsor was upheld and allowed to access Hanneford Lane. The arguments from the Town and from the neighbors were that Hanneford Land, in its present condition, could not support all of this residential traffic. The arguments from the project sponsor were that the Town has an obligation, after 10 years, to open Hanneford Lane to a width of three rods. That’s in the Highway Law, and that’s where it was left, that the sponsor was allowed to access Hanneford Lane, and it was up to the Town to get the road up to standards to support the residential development that was going on. I don’t think the Town has done anything since then. How far do we go in permitting residential development before we do something about the public utility, namely the road? I don’t know what this gentleman’s setbacks are from what we call Hanneford Road or the property line. Hanneford Road is a Town road by use, but if the Town is going to improve it some day, and map it, as they should, because it has been a public road for 10 years, then they’re obligated to open it to three rods. Then are we going to have aggravating conditions where the Town has to take land right up to this man’s door step, if that’s necessary? I don’t know the configuration of it, but I think it’s time to address this issue with regard to residential development on Hanneford Lane. The other point I’d like to make is the blasting of bedrock is the disturbance of a natural resource, and I don’t know what SEQRA Regulations require in that regard. Thank you. MR. THOMAS-Okay. Would anyone else like to speak opposed? Is there any correspondence? MR. BROWN-Yes. It’s from Rose Anne Weissel and Carol Keyes Adenaike, Town of Queensbury, 742 Bay Road, Queensbury, NY, RE: Zoning Board Public Hearing, Wednesday April 28, Francis th R. Koenig, Hanneford Road, 19-13 “We, the undersigned owners of property on Hanneford Road, DO OBJECT to the granting of a height variance to Francis R. Koenig for the construction of a year-round residence adjacent to an area of small summer camps. The zoning height restriction exists for the purpose of making sure that “overbuilding”, crowding, destruction of natural beauty and subsequent loss of property values do not occur. We feel that a height variance should NOT be granted. Setback relief may be necessary due to the unique terrain characteristics of the property. Thank you for considering our opinions. Sincerely, Rose Ann Weissel Carolyn Keyes Adenaike” 18 (Queensbury ZBA Meeting 4/28/99) This is from David Pratt, April 19, 1999, Zoning Board of Appeals “Dear Sirs: I received a notice of a zoning variance hearing (Area Variance No. 24-1999) on April 28 for an appeal by Francis Koenig to construct a 32 foot high residence on Hanneford Road in the Town of Queensbury. I am the owner of an undeveloped lot nearly directly across Hanneford Road from Mr. Koenig’s summer camp. With such short notice, I am not able to be present for this meeting but I would like to register my strong objection to his proposal with this letter. My objections to this proposal are several. The first reason for objecting is I feel it will adversely affect the value of my property. If I were to construct a residence facing Hanneford Road looking toward Lake George it would see little but the back of a 32 foot high building towering over anything yet built in the area. Such a building by Mr. Koenig would make me less likely to want to develop my property and I feel that any prospective buyer would feel the same way. I am not a real estate agent, but it seems obvious my property would be worth less and much more difficult to sell. Had I known that land owners between my property and the lake would be able to get zoning variances to construct residences high enough to block any view of the lake, I would never have purchased the property. My second objection to Mr. Koenig’s proposal is on aesthetic grounds. A 32 foot high building would be completely out of character with all construction in the area. This building would be much higher than any residence I can remember in the area. A third objection to Mr. Koenig’s proposal is on the grounds of fairness. He seeks to change the zoning rules to his benefit and my detriment. His property would presumably be worth more with a larger building and more of a view of the lake and my property would be worth less with a view of the back of his very high house. I would urge the Zoning Board to reject Mr. Koenig’s proposal for a zoning variance. If the Board does not object to his proposal, I would ask for sufficient time to consult with legal and real estate experts to help determine what my rights are and assess what damages I might suffer if Mr. Koenig is granted his variance. As I live in western Pennsylvania I would need time to rearrange my schedule to travel to New York and consult with a local attorney. Thank you. Sincerely, David Pratt” That’s it. MR. THOMAS-That does it? All right. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for Mr. Koenig? MR. STONE-Well, that’s one of the reasons I asked you how high the house is to your south, because it appears to be fairly high. I don’t think the house is necessarily 32, but it certainly stands up in the air. MR. KOENIG-Like is said, I’m willing to bring it down to 30 feet. I mean, I wasn’t aware there was a problem with the height, because there’s nothing over there, and the Smith one is going to be higher than I am, and I’m not going to be higher, on Hanneford Road, than the A-Frame next to Mr. Pratt’s parcel, and the other people, I don’t know who they are. I don’t know where they live. MR. MC NALLY-That’s a homeowners association? MR. KOENIG-No. MR. BROWN-It doesn’t say the address of their property. MR. MC NALLY-It seems the design that you’re building, it’s got a pretty steep roof. I mean, is there anything to prevent you from building at 28 feet or (lost word) design at 28 feet? MR. KOENIG-I don’t know. MR. MC NALLY-That way we don’t have to worry about the height bit. MR. KOENIG-If it’s going to be that much of a problem, I’ll withdraw the height one and just, you know, the heck with it, and make the pitch whatever they call it. I don’t know. MR. MC NALLY-Well, I don’t know what your options are. SPEAKER-I think a lot of it is the way the ground is, and we’re not really sure, (lost words) as to where do you go from, to get a height of 28 feet. MR. HAYES-You go from the ground level. MR. STONE-You go from the ground. SPEAKER-On three sides, the ground’s going to be this high, so you’re going to be under 28 feet. On one side, where you’re going to have an entranceway going into the basement, like a double door or something, it’s going to be cut out, so you’re going to have an extra eight feet there. 19 (Queensbury ZBA Meeting 4/28/99) MR. STONE-That is true. SPEAKER-Now does that determine the height? If not, then we don’t need the 30. MR. STONE-I’ll read what it says in the book. “Building/Structure Height The distance measured along a vertical plane, from the highest point of the building or structure to finished grade, at any point adjacent to the building or structure”. SPEAKER-So, at any point, that means if I want to put the door to the basement, I've got to start at that, even though the other ones, the one side is going to be ground level? MR. STONE-Any point or finished grade is to the top of the house. So you’ve got, if the land goes like this, you can go like that. If the land goes like that, you can go like that. MR. HAYES-(Lost words) having one in the middle, essentially, though, really? SPEAKER-Yes, on the side. MR. KOENIG-On the north side. SPEAKER-It’s just going to be a regular steel. MR. STONE-Yes, I understand that. SPEAKER-It’s going to be a regular, like a side door on a house. MR. MC NALLY-But what you’re saying is that on three sides, the grade is going to be less than 28 feet from the peak? MR. KOENIG-Yes. One side is going to be just ground level. I mean, it’s not even going to be anywhere near 28 feet. MR. HAYES-Is that the lake side the door is going to be on, or is it going to be on the? MR. KOENIG-The north side. MR. STONE-The north side. MR. KOENIG-Right. Actually, it’s going to be underneath the porch. MR. HAYES-So the view from the lake is going to be less than 28 feet, then, as far as height? MR. KOENIG-Yes, the view from the lake will be less than 28 feet. Well, it will be 28 feet or less. MR. STONE-That’s the question. When I hear a letter like that, I always ask the question, does he realize that you can be at 28? Or is he looking for total relief? We're talking a difference of four feet, at the moment, per your request. MR. MC NALLY-This applicant can build his building, no problem. He doesn’t need a variance for the height, then, if he can go 28. MR. BROWN-Other than the setback relief. MR. KOENIG-Other than the setback on the side. MR. STONE-Yes, okay. MR. THOMAS-Does that take care of that one? Everybody’s happy with that? MR. BROWN-Provided the septic. MR. KOENIG-Provided we can get the septic. MR. MC NALLY-Yes. MR. THOMAS-Like I say, I’m not going to go for a vote on this tonight. I can’t. We have to table it because of a septic variance, until that’s taken care of by the Town Board, acting as the Board of Health. 20 (Queensbury ZBA Meeting 4/28/99) MR. STONE-Well, Craig, I would ask Staff to, Mr. Salvador brings up an interesting point. One that he has mentioned many times on many occasions, and I applaud him for it, but is this road ever going to be, I don’t think, looking at the dimensions, that it would impact on the setback of this house, as I viewed it. I didn’t measure it, and I don’t have the dimensions. MR. KOENIG-Mr. Stone, first of all, I am not on the deeded portion of Hanneford Road. MR. HAYES-I don’t even think your parking lot is, actually, it’s down there off that. MR. KOENIG-If you look at the portion where our house is, it’s not on Hanneford Road. There’s a strip that’s not even deeded to the Town yet. MR. STONE-It’s not? Okay. MR. KOENIG-It’s not. So it is not affected by the Town, as far as doing anything with the road, the portion behind me. MR. MC NALLY-The other thing, your new home is going to be further away from that entry road, Hanneford, or whatever the extension, than the current property. MR. KOENIG-The next piece is mine. MR. STONE-Which piece, to the north is yours? MR. KOENIG-No, from where Hanneford Road. MR. STONE-Where the road ends. MR. KOENIG-Where the black top ends, I’m the next. MR. STONE-I understand that. I have to admit that I was impressed, for the record, with the name of the street that goes into that subdivision, Construction Street. I thought that was. MR. SALVADOR-Constitution Street. MR. THOMAS-It’s Constitution. MR. STONE-Did it say Constitution? Then I didn’t read it very well. Okay Forget it. Are those properties in Fort Ann, or are they in Queensbury, just out of curiosity? MR. SALVADOR-They’re Town of Fort Ann, the access is in the Town of Queensbury. MR. STONE-That’s what I thought. Okay. MR. KOENIG-Mr. Chairman, I thank you for allowing me, driving up from Kingston, to be here. MR. THOMAS-Are there anymore questions before Mr. Koenig leaves? Because I don’t know if he’ll be back for the final on this. MR. MC NALLY-Are we going to take a vote on it? MR. THOMAS-We can’t vote on it tonight. We can’t even make a motion. MR. STONE-Just to confirm. You’re reducing your variance request to only the side setback? MR. KOENIG-The side setback then, yes. Which actually is a positive thing, based on what I've got now. MR. STONE-Agreed. MR. MC NALLY-You’re moving it further from the line than currently exists. MR. KOENIG-Further from the line, right. MR. THOMAS-I’ll open up the public hearing, for the matter of the record. PUBLIC HEARING RE-OPENED 21 (Queensbury ZBA Meeting 4/28/99) MR. THOMAS-Anymore questions? All right. MOTION TO TABLE AREA VARIANCE NO. 24-1999 FRANCIS R. KOENIG, Introduced by Chris Thomas who moved for its adoption, seconded by Lewis Stone: Until no later than the June 26 meeting of the Zoning Board of Appeals. This means that any new th information requested by the Board must be submitted by the filing deadline for that month. The applicant may appear on the on the agenda in the previous month if the filing deadline for that month can be met. The reason for tabling this application is that the applicant needs a variance from the Board of Health for the proposed septic system. Duly adopted this 28 day of April, 1999, by the following vote: th AYES: Mr. Stone, Mr. McNulty, Mr. Stec, Mr. McNally, Mr. Hayes, Mr. Thomas NOES: NONE ABSENT: Mrs. Lapham MR. THOMAS-All right. So no later than June. Hopefully the Town Board can move faster than that. MR. BROWN-Could we pick the June 23 meeting, that’s the second meeting, just so we have a rd date. MR. THOMAS-Is that more than 62 days? MR. BROWN-It’s less than 62 days. MR. THOMAS-It’s less than 62 days. Yes, no later than the 26 of June. th MR. KOENIG-Thank you. MR. THOMAS-Thanks. MR. MC NALLY-Have a good night. AREA VARIANCE NO. 27-1999 WR-1A JOHN W. WEBER OWNER: JON BOUCHER RUSSELL HARRIS ROAD, CLEVERDALE APPLICANT PROPOSES CONSTRUCTION OF A SINGLE FAMILY DWELLING AND SEEKS SETBACK RELIEF. ALSO, APPLICANT REQUESTS RELIEF FROM THE MINIMUM LOT FRONTAGE REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/14/99 TAX MAP NO. 11-1-19.1 LOT SIZE: 0.24 ACRES SECTION 179-16, 179-70 JOHN WEBER, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 27-1999, John W. Weber, Meeting Date: April 28, 1999 “Project Location: Russell Harris Road Description of Proposed Project: Applicant proposes construction of a single family dwelling and seeks setback relief. Relief Required: Applicant requests side setback relief at three points on the proposed structure in the amounts of 7, 7, and 5 feet from the 15 foot minimum side setback requirement of the WR-1A zone, § 179-16. Also the applicant is requesting relief to develop a lot with less than the required 40 feet of road frontage. The applicants’ lot fronts on a private right of way and has no frontage on a public street. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives appear to be limited to a downsized home. 3. Is this relief substantial relative to the Ordinance?: The cumulative request for relief may be interpreted as moderate to substantial, given relief is being requested on both sides of the home. 4. Effects on the neighborhood or community: Moderate 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.): AV 27-1999 res. 4/28/99 construction of dock pending Staff comments: Moderate impacts may be anticipated as a result of this action. The applicants’ proposal does not take advantage of the 50 shoreline setback which is available to this lot. An additional 22 feet of removal from the shore may help to mitigate the sideline setback request. However, based on the applicants’ map, the total separation 22 (Queensbury ZBA Meeting 4/28/99) between the existing neighboring structure and his own proposal may only be approx. 12 feet if constructed in the proposed location. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form 8 April 1999 Project Name: Weber, John W ID #: QBY AV 271999 County Project No.: April 99-32 Project Description: Applicant proposes to construct a single family dwelling and seeks setback relief. Relief is also sought from the minimum lot frontage requirement. Staff Notes: A copy of the site drawing is included with the summary. Staff has concerns on the size of the dwelling as it relates to a .24 acre parcel. Staff feels that the intrusion on both side yard setbacks is excessive and would recommend discussion. County Planning Board Recommendation: Denied, based on excessive relief.” Terry Ross, Warren County Planning Board” MR. THOMAS-All right. Warren County Planning Board has denied it. So we need a super majority, which is five votes in a positive direction to approve it. Mr. Weber, is there anything you want to tell us about, talk about, add? MR. WEBER-After Warren County looked at it, we went back to the original specs on the house, because we wanted to keep it one level, and we wanted to keep it around, we figured this is about 1500 square feet, and possibly we could live in it all year long. I went back to the draftsman and said, is there any way to move this in, you know, to the point where it’s just not going to fit? And he figured it could come in three foot. Otherwise, my only other option is to go with a different type floor plan, which might be, you know, like an A-Frame, which would bring it in. I wouldn’t need the variance. Then I would have two floors, which I possibly wanted to stay away from, but my only alternative, on the plan that you have in front of you, is I can make it three foot, bring it in three foot. Otherwise, structurally, whatever, he figured I can’t, it won’t work. MR. STONE-How about the septic system? I see the system use was not approved? MR. WEBER-Well, no, I haven’t really, actually, Queensbury was up there. We did do a perc test, and the perc test came out very well. Joel did it, but we haven’t applied for anything. MR. STONE-Okay. So he’s just saying, I looked at it? MR. WEBER-Yes, it fits fine. It fits the 10 foot setbacks. I won’t need a variance for the septic system. It fits within the parameters of, actually, a three bedroom house, and it fits on the lot with no problem. The perc test was done, and it’s well within the range, but my process here is to be able to go through what we’re doing before I buy the lot, because I really don’t want to, and, you know, we don’t have any house plans drawn up, other than a sketch, because they cost quite a bit, and if it didn’t go through, we’d throw that money away. We're in the process, at this point, of going through, we know the septic will work. The dock comes up next. That’s another issue, and then try to put a structure on this lot, which never had a dock or a structure on it. MR. THOMAS-What are we calling the width of this lot, the average? MR. BROWN-Average 60, I think we came up with. MR. THOMAS-Yes. I come up 63, real quick. MR. WEBER-When I was reading what we had in here, I know I bugged Craig enough on this stuff, but it said it’s requesting a frontage requirement? I’m back 72 feet. MR. BROWN-Frontage on a Town road. MR. WEBER-I’m sorry, okay. All right. Now I get it. MR. STONE-I was trying to figure out what he is on. Russell Harris is a Town road? MR. HAYES-That was labeled wrong anyway. MR. BROWN-Yes, I believe it is. MR. STONE-What’s wrong? MR. HAYES-It’s a deeded right-of-way? MR. BROWN-Yes. It’s a deeded right of way to wherever. 23 (Queensbury ZBA Meeting 4/28/99) MR. WEBER-To Russell Harris Road. On the map, you can see it right there. There’s a 32 foot deeded right of way that runs all the way across al those lots, as they run right down to the Lake George Boat Company. MR. STONE-A question for Staff. In one other application I think that we have here, this 179-60 comes into play, about cutting trees and, does this come into play here? I mean, obviously you haven’t taken, you’re not going to develop the land yet until you get our permission, but I wondered if that’s going to require a variance at some point. MR. BROWN-Based on this proposal, no, I wouldn’t think so. MR. WEBER-There are no trees in the area of the house. MR. STONE-No, no, I meant on the waterfront. Within 35 feet of the lake, there’s a significant number of trees. MR. WEBER-Yes, and they’re hanging in the water, yes. MR. STONE-And there is a requirement that you can only clear 10% or 20%. MR. BROWN-Yes. This application is for the construction of the residence, and based on the plan that’s submitted, it’s 72 feet from the lake. So I don’t think there’d be an issue with the 35 foot no cutting zone, on this application. I think on the next one with the dock, there may be an issue. MR. STONE-Okay. MR. THOMAS-Any other questions? MR. STONE-Yes. What is the old yellow camp to the south? I thought it was a garage, until I walked down to the front of your lot, and then it looked like it was an old camp, yellow building. MR. WEBER-On the south side of it? MR. STONE-Yes. MR. WEBER-I guess it is. Is it green? MR. HAYES-It’s green. MR. WEBER-It’s green. Okay. You threw me off. I talked to, the owner of that lot called me because he was concerned with the dock. He didn’t know where that was going, because he didn’t get a map on it from the Lake George Park Commission because his name wasn’t on the deed at the time that they had first required that, and I guess he’s going to do that house or camp or whatever. I’m not really sure what he’s going to do with it. MR. STONE-Okay. MR. WEBER-I guess it is a camp, I guess. MR. STONE-From the front, from the lake side it did look like a camp. From the back, I thought it was a shed. MR. THOMAS-Any other questions? I want to ask you guys, do you think 43 feet is a little excessive for the width of a house? MR. WEBER-It’s more like a one level Florida home, I guess you’d say. It’s excessive based on it’s only one floor, probably. I mean, square foot wise, you could cut the width in half and go up. MR. STONE-I cannot comment, because my house is 50 foot wide on the lake side. So I cannot comment. MR. THOMAS-It just struck me funny, that 43 feet across. That’s awful wide, to me, for a house. MR. STONE-But on the lake, you want to take advantage of as much lake front as you, I mean, I can understand. You want to be able to see as much as you can. Is it excessive on a lot this size? I think it’s a very good question and something that we have to consider. MR. BROWN-You said three feet, is it three feet on both sides you’re going to come in or a total of only three feet? 24 (Queensbury ZBA Meeting 4/28/99) MR. WEBER-I can only come in a total of three feet, about a foot and a half on each side, or move it three feet one way or the other. MR. THOMAS-So you’re looking for nine and a half feet on each side. MR. MC NALLY-Why do you need a single floor? I mean, it is a fairly substantial building on a small lot. MR. HAYES-For a health reason or a style reason? Is it a health reason? MR. WEBER-Well, it could be. Lets not use that as an excuse as much, but we really didn’t want to go two stories, because of the stair situation, because when you have a two story house, the master bedroom in an A-Frame is upstairs, or you wouldn’t use it. I mean, that is an alternative, but I don’t need a variance if we go into that alternative, obviously, because I've got to have, what, 15 foot setback? So I could go to a two story and put in like a 28 foot or something, but it would be a two story. Yes, it would definitely be a different floor plan. MR. THOMAS-Any other questions? I’ll open the public hearing. Does anyone want to speak in favor of this application, in favor of? Does anyone want to speak opposed? PUBLIC HEARING OPENED JOE MC MANN MR. MC MANN-My name is Joe McMann. I live at 180 Pitcher Road, Saratoga Springs. I own the property on Russell Harris Road adjacent to this application. MR. STONE-To the south? MR. MC MANN-To the south, yes, and I haven’t seen the plans for this house, but I've seen the stakes where you’ve got in the ground up there, and it looks to me like we’re talking about an extremely large house for the size of this lot. I heard mention of the size of the camp next door. Well, this would be gigunda compared to that. So it would be really inconsistent with what’s already there. I’m not opposed to building on that lot, but I think to give that much relief would be excessive for that area and for that lot size. On another point that Mr. Weber mentioned about the dock, there are a lot of trees in the front that will require some removal, but I spoke to the Lake George Park Commission. I bought my property in December, and it was recorded in the County Clerk’s Office here December 15, and a Miss Gallagher at the Park Commission told me that the th application, the original application submitted by Mr. Weber, listed the owner of the property next door as a Rayfield, and this application was dated some time in February I think she said, January or February, and so therefore, she said, I didn’t get any notification. So she said, we can revoke that permit, because you didn’t have access to comment on this matter, and I noted that to her that I would like to comment on that matter, to the Board. So that’s on your next issue, but it’s still consistent with what I’m saying here, and the other thing is, you know, the lot size and the house size seem to be inconsistent. I’d like to see a plan of what it’s going to look like before I really say yes or no, but if the stakes lay as what you said, seven feet relief on each side, and where was the five feet? MR. BROWN-The back southeast corner. MR. MC MANN-The back southeast. So that would be the corner next to. MR. BROWN-Closest to the road, farthest from the lake. MR. MC MANN-So I have concerns about that. The other concern I have is if it’s a single family house, what’s going to stop the applicant, if it were approved, and I don’t think it should be, but if it were approved, what would stop the applicant from going again, next year, and doubling it to a multiple story house? And that’s concern to me, also. MR. THOMAS-There’s a built-in safety valve on that. It’s called a Floor Area Ratio formula. MR. MC MANN-How close to that are we with this plan? MR. THOMAS-I don’t know. He didn’t give us a number of square feet. He didn’t do a Floor Area Ratio. MR. STONE-It’s right here. It’s under. It’s 11,220 square foot lot, and the house would be 2,468, the floor area you could have. Now that includes both floors, all living areas, with the exception of 25 (Queensbury ZBA Meeting 4/28/99) the garage and a deck. So he’s under the 22%, as I calculated it, because he wants, the building area was 1,950? MR. WEBER-That includes the garage. MR. STONE-That included the garage. Okay. MR. WEBER-It’s less than 1500 without the garage. MR. MC MANN-So the dimensions, then, of this house would be how big? MR. MC NALLY-Forty-three by forty-three by forty-three by fifty-nine, for some reason. MR. WEBER-It’s 43, 43, and then the garage sets off the back end there. MR. STONE-So it’s 59 from the front to the back. MR. MC MANN-This lot is only 40 feet wide on the front, and 80 feet wide on the back, and the center of the lot is 62 feet, I believe, or 61 feet. That seems pretty excessive, to me. MR. WEBER-The lot size in the front is 46, 93 on the back side. MR. MC MANN-It’s pretty excessive. So I guess those are my comments on it. Thank you. MR. THOMAS-All right. Would anyone else like to speak opposed? WILL RANDALLS MR. RANDALLS-Will Randalls. I’m the property owner to the north of this property. Looking at the one tax map, I believe the condition that the property won’t sell could be self-created, in that this parcel used to be one lot, but Joan Boucher owned both parcels, and it was apparently subdivided. So she subdivided it into an existing small lot, or to create a small lot. So her claims that she couldn’t sell it, I believe, are self created, and just because a property has been on the market for two years, and nobody’s interested in it wouldn’t necessarily mean that it’s worthless property and it can’t be sold under any condition. I think, like Mr. McMann said, the size of this house and the setbacks are excessive. It would encroach, there would be only five feet from our property line and within 12 feet of the camp that’s next to the. MR. STONE-Your camp is right next to the line, correct? MR. RANDALLS-Right. MR. MC NALLY-Do you know when this was subdivided? MR. RANDALLS-I’m not sure, no. This is off the application for the dock, and it has Allen and Joan Boucher Rayfield, and Joan Boucher is the property owner of the property you wish to buy. MR. WEBER-The property was subdivided because of a death in the family, and it was an estate subdivided between the brother and the sister. The sister owned the property to the south, if I’m correct, to the south, and I think Jon owned the property to the north. It was subdivided for no other reason other than that’s what it was, and when the father died, he wanted the land subdivided into two lots. That’s why they’re pretty equal in acreage, or from what I’m told by the real estate agent, that they subdivided it because of the estate, and then at that point, he owned one and she owned the other. MR. MC NALLY-When was that? MR. WEBER-I’m not sure. I had a tax map, or not a tax map, a survey done back in ’95. Well, the survey stakes are still there. So it might be. MR. STONE-Well, 19.1 doesn’t even show on this, your GIS. I mean, it’s colored in, but it’s not identified as 19, is that 19.1, this lot? MR. WEBER-This is 19.1. MR. STONE-You’re 19.1. MR. BROWN-Yes, the colored lot is the applicant’s lot. 26 (Queensbury ZBA Meeting 4/28/99) MR. STONE-Yes, and that’s 19.1, even though it doesn’t say anything? MR. BROWN-Yes. MR. STONE-Yes, I assumed that. MR. MC NALLY-But that was a legitimate subdivision. This is not something that occurred after the fact, is it? MR. BROWN-I don’t really have any information on the subdivision. I don’t know. I wasn’t aware. MR. STONE-I mean, do you have any idea when it was subdivided? MR. MC MANN-I do. It was previous to it being an estate. It was divided and owned separately by a sister and brother, before it was an estate, before there was a division of all the other properties. MR. STONE-Do you have any idea when? MR. MC MANN-It was on a search that I did of the property. My recollection was it was about five year ago. MR. MC NALLY-This is WR-1A. MR. STONE-It’s WR-1A, but that’s relatively, we have a lot of pre-existing one acre lots, but. MR. MC NALLY-Was it pre-existing? MR. THOMAS-Yes, if it was done five years ago, it’s not. MR. STONE-It’s not pre-existing, no. MR. THOMAS-It couldn’t have been subdivided five years ago, with those two sized lots. MR. MC NALLY-Sir, do you own this land? MR. WEBER-Yes. MR. MC NALLY-This is a contract you have, and if this flies, you’re going to go through with the purchase, presumably? MR. WEBER-Right. I had some letters from a real estate person addressing the issue of, that they tried to sell the lot over the last few years and been unsuccessful, due to the fact that it didn’t have a dock on it. The dock, I think, was more important than the structure of the house, and I even know that the gentleman that just talked, prior to that, had made a comment that, inquired about buying the land, and the Lake George Park Commission said that it wasn’t able to have a dock on there, but when I talked to them, they said, well, not without a variance. So, I went through that process and got that through with no problem from the Park Commission, because it met all the structural things that needed to be done, and it wasn’t interfering with any of their docks. MR. STONE-But as they told you, they have a dock variance and we have a dock variance. They’re separate. MR. WEBER-Yes, that’s why I’m here for the next one, because, I didn’t know that until, I knew the woman that was there is in the Town of Queensbury told me that at that point I had to go to Queensbury. MR. STONE-Okay. MR. WEBER-And that’s what’s next. MR. THOMAS-Is there any correspondence? MR. BROWN-Yes. A letter from Rita H. Arnstein, dated April 20, 1999, to the Town of Queensbury, Att: Bonnie Lapham, Secretary, Zoning Board of Appeals “I seem to be receiving these requests for variances more and more often. I hope it is not because of the leniency of the Zoning Board. Each time I have responded by saying that a Zoning Board does not exist to make endless exceptions but to make certain already existing regulations are adhered to. If there is a minimum lot frontage requirement I assume there is a good reason for it in terms of what is best for the Lake. Therefore, if I were able to attend the public hearing on April 28, I would certainly voice th 27 (Queensbury ZBA Meeting 4/28/99) my objections to giving relief to this or any other applicant who wants to bend the existing regulations. Rita H. Arnstein, Cleverdale, NY Property Owner” That’s it. MR. THOMAS-That does it. All right. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for Mr. Weber? If not, lets talk about it then. I’ll start with you, Lew. MR. STONE-I hate to be like I've been all night, because I’m not usually this way, but the lake is of particular importance to me, and we do have one acre zoning in that area. We do recognize that, while this recognizes our small existing lots, I’m concerned, and maybe we need to find out, how this lot got to be an independent lot, given its extremely small size, well after this was zoned one acre. I just think we’re pushing the envelope here. I think this project, and I certainly understand your desire to live on the lake. I happen to live on the lake and it’s a wonderful place to be, but having said that, this is a very small lot, and as I noted here, this project maybe should have been built 50 years ago, but it’s not 50 years ago, it’s now, and we have one acre zoning, and we have setback requirements, and I’m happy that you’re not asking for a variance to get to the lake, in terms of the setback, but in terms of side setback, granted, there is an existing camp on the north side, which is nonconforming, but it’s there. He’s right on the line. He’s even closer than you would be, but now we’re going to put two houses extremely close to one another, and I just don’t think it’s good for Cleverdale. I don’t think it’s good for Lake George. I don’t think it’s good for Queensbury. So, unless I hear some compelling reason, I would be, unfortunately, forced to say no. MR. THOMAS-All right. Jaime? MR. HAYES-Well, I mean, Lew pointed out that the setback, the 72 foot setback from the lake is certainly generous, and it’s more than acceptable, and the fact that you have an approvable septic system that is significantly away from the lake is also a good thing. Looking at the test that’s involved with an Area Variance, however, your desire to live on the lake, as he pointed out, is totally understandable. This lot, if it is a pre-existing lot, which I’m sure we’ll find out, then obviously something has to happen there, but I guess, when I look at the cumulative relief that’s called for in this particular plan, this particular thing that you’ve presented, to me, it raises the level of feasible alternatives to the defeating point of the test. I think that there, I really believe that there is a feasible alternative out there that does not put the weight or balance, in my mind, toward disapproving the application. I guess I don’t have a problem with putting a camp there, and I will even say that, in my mind, there is the possibility of improving the neighborhood with a good plan. I mean, it could actually facilitate improving that neighborhood. So, at this particular point, I think the test fails, based on feasible alternatives, and the cumulative nature of the relief, and therefore, I would oppose, at this particular plan. MR. THOMAS-All right Bob? MR. MC NALLY-The relief requested is substantial. To have a large, single floor house such as this, situated as close to the side lot lines, as the applicant proposes, is an imposition, ultimately on the community and the Town. I think that it’s a small lot, and this is an oversized house on a small lot. There are feasible alternatives, and I have not heard a substantial reason, or good enough reason, why a single floor home is necessary, and why we should do away with the side lot restrictions that we currently have. As it is now, I’m against the proposal. MR. THOMAS-All right. Dan? MR. STEC-While it’s refreshing to see a proposal that doesn’t want to build right on top of the lake, and for me, that is a mitigating factor, but again, I’m more bothered by the 43 foot width, and that raises the question that’s been raised before, that I do think that there are feasible alternative floor plans, more rectangular than square, which would have a building or a home better fitted on the lot. So I’m inclined against. MR. THOMAS-Chuck? MR. MC NULTY-All I can do is agree with the other Board members. I think there are some alternatives that could be investigated, as Dan said, maybe making the shape a little more rectangular, going a little closer to the lake, and still staying within the setback. So I’m inclined to oppose. MR. THOMAS-I’ll go along with the other Board members about this. I think that this is an excessively large house on a very small lot. I’m not opposed to putting a house on this lot, but I think a more downsized house could be put on there, and still have the two bedrooms that they want, and I think in the previous application, that the gentleman wanted up there on Hanneford, I 28 (Queensbury ZBA Meeting 4/28/99) think that was like a 14 or a 1500 square foot house, and it had three bedrooms, but it was two story, and it had a loft on it. I think a two bedroom home could be put on this lot, with no problem whatsoever, and come pretty close to meeting the setbacks required. So, as this application stands, I can’t say yes to it. MR. STONE-Should we address, none of us addressed the 40 foot right of way. MR. HAYES-We spoke to cumulative relief. MR. THOMAS-Yes. MR. STONE-That’s a good point. MR. BROWN-I wonder if maybe the applicant would like to request to have it tabled, to maybe come up with another. MR. THOMAS-I was just going to ask him, we can table it, and if you can come up with a different plot plan, something like that. MR. WEBER-Yes. MR. BROWN-It would also give us time to iron out what the lot creation, and how it was. MR. THOMAS-Yes, so we can find out how that lot was created. Nobody seems to know exactly, or when. MR. WEBER-I have one question, on the setback from the road. What is that situation? I’m not asking for an answer. What do I need to do for that? Is there something that I need to? MR. THOMAS-Well, you don’t have any frontage on a Town, County or State highway. So you need relief from that. MR. WEBER-Is that a variance request? MR. STONE-It’s part of what you asked for. MR. WEBER-Okay, so by just changing the house size, then I could come back with what we originally did here? MR. THOMAS-Yes, because you don’t have the 40 feet on a public right of way. MR. WEBER-Now, if the house is, say, 25 by 40, which fits into all the setback requirements that’s required for a variance, I come back for the road? MR. THOMAS-Yes, just for not being on the road. MR. WEBER-If I’m not asking for relief on the 15 foot, that’s all I’m doing is coming back and asking for relief on the road? MR. THOMAS-Yes, just for that. MR. WEBER-Because it’s not on. MR. THOMAS-Yes, if you get a house that conforms to that lot, all you need is just not being on a right of way, a public right of way. MR. WEBER-Just to get relief just to get over to the property? MR. THOMAS-Yes. MR. WEBER-Okay. MR. MC NALLY-We're not going to be, I don’t think, as hard on that. MR. THOMAS-No, we aren’t that hard on those things. MR. STEC-I think that’s not as big a deal as what we’ve discussed already. 29 (Queensbury ZBA Meeting 4/28/99) MR. STONE-That’s a very technical thing, and you already have neighbors, like the gentleman to your south, who’s on that same. It’s consistent with the neighborhood. It’s just how you get there. MR. THOMAS-All right. So we’re going to table 27-1999. What about 28, the dock one? That doesn’t have anything to do with this. MR. BROWN-Do you want to table this one first, or? I think the applicant’s kind of demonstrated that there’s an adequate area for a septic system. I think everybody agrees that there’s probably an area on the property where he could get a home. So I think you could probably hear the next application, and either yes or no, condition it upon issuance of a building permit for a house, prior to construction of the dock, because you can’t have an accessory without a principal. MR. THOMAS-So we’ll table 27 and we’ll hear 28. MOTION TO TABLE AREA VARIANCE NO. 27-1999 JOHN W. WEBER, Introduced by Chris Thomas who moved for its adoption, seconded by Robert McNally: Until no later than the June meeting of the Zoning Board of Appeals. This means that any new information requested by this Board must be submitted by the filing deadline for that month. The applicant may appear on the agenda in the previous month if the filing deadline for that month can be met. The reason for tabling this application is for the applicant to re-configure a home more closely suited for this lot. Duly adopted this 28 day of April, 1999, by the following vote: th AYES: Mr. Stec, Mr. McNally, Mr. Hayes, Mr. Stone, Mr. McNulty, Mr. Thomas NOES: NONE ABSENT: Mrs. Lapham MR. THOMAS-All right . So that one’s tabled. AREA VARIANCE NO. 28-1999 TYPE II WR-1A JOHN W. WEBER OWNER: JON BOUCHER RUSSELL HARRIS ROAD, CLEVERDALE APPLICANT PROPOSES CONSTRUCTION OF A 175 SQ. FT. DOCK AND REQUESTS SETBACK RELIEF. APPLICANT HAS PERMIT FROM THE LAKE GEORGE PARK COMMISSION. CROSS REF. LK. GEO. PARK COM. FILE NUMBER: 5234-1-99 ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/14/99 TAX MAP NO. 11-1-19.1 LOT SIZE: 0.24 ACRES SECTION 179-60 JOHN WEBER, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 28-1999, John W. Weber, Meeting Date: April 28, 1999 “Project Location: Russell Harris Road Description of Proposed Project: Applicant proposes construction of a 175 sf stake dock and seeks setback relief. Relief Required: Applicant requests 20 feet of side setback relief from the 20 foot minimum side setback requirement of the Shoreline and Wetlands Regulations, § 179-60. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives appear to be limited, as any significant size dock would require relief. 3. Is this relief substantial relative to the Ordinance?: 20 feet of relief from the 20 foot minimum side setback requirement may be interpreted as substantial, however, this dock proposal is for a minimal size dock which is attempting to “split the difference” between the two neighboring docks. 4. Effect on the neighborhood or community: Minimal to moderate 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.): AV27-1999 res. 4/28/99 single family dwelling pending Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. With a lot width of 46 feet at the shore, 20 foot setbacks on either side allow for a minimal dock at shore. However, the extension of the property lines cross approximately 10 feet off shore. This proposal appears to be the “best case” requesting minimal relief. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form 8 April 1999 Project Name: Weber, John Owner: Jon F. Boucher ID # QBYAV281999 County Project No.: April 9931 Project Description: Applicant proposes construction of a five foot by thirty-five foot dock and requests setback relief. The applicant’s lot size is .24 acres. A Lake George Park 30 (Queensbury ZBA Meeting 4/28/99) Commission permit exists. Staff Notes: A copy of the applicant’s drawing is included with the summary. Staff is of the opinion that the applicant probably could construct a dock which conformed with the setback issues. However, the surrounding docks would be severely impacted. The applicant’s dilemma stems from narrowing of the lot and extension of the property line. Staff is of the opinion that the proposal, as submitted, is the least intrusive on impacts to the surrounding properties. County Planning Board Recommendation: No County Impact” Terry Ross, Warren County Planning Board. MR. THOMAS-All right. Is there anything else you want to tell us about, Mr. Weber, on this one? MR. WEBER-It was mentioned a little earlier when I went to the Lake George Park Commission, we had to put the owners names, properties on each side of the lot, and as mentioned, the permit was given in February, and that his, I suppose the deed was registered at that point. My application, in this process, started in December, and on the books that are in the hallway in the Town Hall here, he was not yet listed. I certainly would have, as a matter of fact, I asked to see who was there, and I didn’t know the name, so I thought maybe that’s what it was, but in December when I started the application, because I had two hearings in February. So all the paperwork was submitted in January, obviously, for a February meeting. So in December when I was at the Town Hall, I registered the owner of that property at the time that was in the Town book. So I don’t know when exactly he was put on there, but the information that I had was correct, according to what the deed was written down here in the property line. So, I don’t know, and I mentioned to him when he called me on the phone that his name wasn’t registered as the owner of that property, and that’s why it certainly was, he didn’t get a letter, but the impact on the setbacks is not on his side of the property. The setback side is on the north side of the property line, and I did discuss it with those. A woman had called, I called, and she called me back, and I told her that, you know, that, because their concerns were legitimate, that we wanted to make the best use of the square footage between the two docks, and the drawing that we have in here is actually drawn from the Lake George Park Commission, to center it with the 27 feet south side, 30 feet without going over that line there. So they drew that in there and said that’s where the dock should go, and issued the permit under that. MR. THOMAS-Any questions for Mr. Weber? MR. STONE-There’s a couple of conflicting numbers here. On one drawing, in the application, it says it’s 73 feet between the northernmost edge of the dock to the south, and to the southerly most dock to the north, 73 feet. However, you also show at the ends of the dock, 27 and 30, with a 5 foot dock, which comes out to be 62. Is that 73 the shoreline? MR. WEBER-Yes, it’s actually the shoreline, because we were measuring it in December, and I had no way of getting the distance between there. MR. STONE-I understand. MR. WEBER-But the Park Commission did the maps that you see with the 27 and the 30 feet. MR. STONE-Right. MR. WEBER-That’s theirs. MR. STONE-And you’re proposing a dock which uses 35 of the 40 feet you’re allowed, because 35 takes you out to the extension of the property line. Is that correct? You’ve got a 35 foot long dock. Which takes you to the extension of the property line in the lake. MR. WEBER-Yes. MR. STONE-That’s why you want? MR. WEBER-I tried to keep it in line with the other dock, so it wasn’t like really short or really long. It’s really shallow up near the shore. So in order to get a boat on there, anything with 20 foot, you’ve really got to have that length, or you’d be stepping off into the water. MR. STONE-And you’re talking a stake dock, just like your neighbor’s, just, if you had a couple of drinks you might not make it to the end? MR. WEBER-Yes, walk right off the end of it. MR. STONE-I meant to the side. 31 (Queensbury ZBA Meeting 4/28/99) MR. THOMAS-Anymore questions for Mr. Weber? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED JOE MC MANN MR. MC MANN-Joe McMann, 180 Fitch Road, Saratoga Springs, NY. I own the property adjacent to the applicant’s property. I have only two comments. Number One, the Lake George Park Commission admitted to me that they were in error in sending out the things. They checked their database. Our name was in the database. It was a mistake. They have two databases. They sent us the one for our wharf registration. We got that in fine, but in their other database, they didn’t have our name, but it was registered in December. Anyway, be that as it may, she said that I did have a legitimate complaint on that factor. I’m not opposed to this dock, but I am opposed to the impact, I think, read by your planning member said here that it would have minimal impact on the lake and on the neighborhood, and I would dispute that. Anyone who knows that area knows that you’ve got the Lake George Boat Company at one end, with probably 30 sailboats moored right out in front. That property is the first break there is from some very small properties, very, very small, and the docks are very close, and to put in another dock there is just going to give the appearance of a marina going all the way around from end to end. I think variances are fine in some cases, but I think that they were designed for a reason, and I don’t see putting more docks on Lake George is a valid reason to give a variance. I think that it’s going to make the neighborhood look more congested. If Mr. Weber has a boat that’s 10 feet wide, and I have a boat that’s 10 feet wide, again, I haven’t seen this application, but from what I’m hearing here, is that we’re talking about, is it 30 feet, sir, on my side? So that would be 20 feet. MR. THOMAS-Twenty-seven feet. MR. MC MANN-So 27 feet, so that would leave seven feet between two expensive boats. Well, if one boat gets loose and swings the other way, it could damage the other boat. I don’t see that as a good situation. I applaud the way it’s written. I think if there’s going to be a dock there, I think that’s the way it should be, and I don’t have any problem with that, but I do have a problem with the idea of putting more docks into a very small area, and I think it’ll have a diminishing effect on the property values in the area, because it’ll make the lakefront look more and more congested, and when I bought that property, I talked to the Park Commission, and they said they thought that it was highly unlikely that they would grant a variance there, and then when they did grant one, apparently, I didn’t have the benefit of commenting. So that’s the basis of it. I wouldn’t have bought that property if I thought there was any chance there could be a dock next door. MR. STONE-You have a U-Shaped dock. Do you use anything but the middle? MR. MC MANN-Yes. We just bought it, just closed on it in December. MR. STONE-How many boats do you have? MR. MC MANN-I have three. I have a sailboat, a cruiser, and a rowboat. MR. STONE-Okay, and you recognize that the property line from this lot goes through your dock, the extension goes through your dock? MR. MC MANN-I certainly do. The dock is pre-existing, though. I don’t know that. I didn’t put the dock in there. The dock has been in there for 10 years. That’s one of my concerns is the riparian rights of, I’m afraid that it’s just going to cause more problems down the road, the more congested it gets, and I’m just trying to avert a problem before it happens. MR. STONE-Mr. Chairman, may I ask a question of a technical expert in the room? MR. THOMAS-Go ahead. MR. STONE-Mr. Howard, a stake dock of 35 feet long, what would be the width of a boat that would be safely moored at that dock probably? ROGER HOWARD MR. HOWARD-It depends on how rough an area on the lake you’re at, but I would say probably a 25 footer. MR. STONE-Twenty-five footer, but how wide would that boat be? 32 (Queensbury ZBA Meeting 4/28/99) MR. HOWARD-Most current boats that are being built in that size range are eight and a half to nine feet. MR. STONE-Okay, not 10. Thank you, Roger. That was Roger Howard from Dunham’s Bay Marina. MR. THOMAS-Could the applicant put in a conforming dock by swinging it out in the middle? MR. BROWN-No. MR. THOMAS-He couldn’t do it? MR. BROWN-If you see this drawing, you know this drawing in front of you? There’s a light line, just to the left of the proposed stake dock. That’s an extension of the 20 foot setback for the southerly property line. So if he was to swing it over, he may be four feet before he’s violating the other setback, on the other side, toward Mr. McMann’s property, which would only make that more congested. I think the only conforming dock you could put on this property would be about 10 feet long in the shape of a triangle. MR. STONE-I mean, property lines, supposedly rights, a property line extended, is that correct? I know we have an expert in the room, another expert who will probably tell me I’m full of it. MR. SALVADOR-Lew, there are State regulations that cover that, that address all possibilities, concave, convex, everything. We don’t pay any attention to them. MR. STONE-Okay. MR. THOMAS-Okay. Would anyone else like to speak opposed? Is there any correspondence? MR. BROWN-Yes. The same Rita Arnstein letter. I’ll read it again. Rita Arnstein, Cleverdale, NY, dated April 20, 1999, to the Town of Queensbury, ATT: Bonnie Lapham, Zoning Board of Appeals “I seem to be receiving these requests for variances more and more often. I hope it is not because of the leniency of the Zoning Board. Each time I have responded by saying that a Zoning Board does not exist to make endless exceptions but to make certain already existing regulations are adhered to. If there is a minimum lot frontage requirement I assume there is a good reason for it in terms of what is best for the Lake. Therefore, if I were able to attend the public hearing on April 28, I would th certainly voice my objections to giving relief to this or any other applicant who wants to bend the existing regulations. Rita H. Arnstein, Cleverdale, NY Property Owner” MR. THOMAS-Is that it? MR. BROWN-That’s it. MR. THOMAS-All right. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Anymore questions for the applicant? MR. WEBER-Can I make a comment? MR. THOMAS-Yes, go ahead. MR. WEBER-I just wanted to say that the boat that I presently have is a 26 foot boat with an eight and a half foot beam, and it wouldn’t get any bigger than that, due to the fact that we have a camp. So the reason that the dock is 35 is that six foot out it’s only two foot deep. So it kind of, anything back farther would be walking off the back of the dock, and I did buy a Sea Ray, by the way. I don’t know what that has to do with anything, but. MR. THOMAS-All right. Jaime, what do you think? MR. HAYES-Well, pre-supposing that this was a legal subdivision, I stated earlier in my opinion on the first variance that we entertained, that I don’t have a problem with putting a house on this piece of property, if the plans were better, and along with that, owning a piece of property on the lake, while that doesn’t entitle you to a dock, wanting to have one is more than understandable, and if you presented that plan to the Lake George Park Commission, and they designed it, and they thought this was the best place for it, I would back down to their greater judgement and understanding of the situation there on the lake from a variety of perspectives, and as I look at that map, I don’t agree at 33 (Queensbury ZBA Meeting 4/28/99) all with Mr. McMann’s arguments about the dock. I mean, he should have a dock with three boats and you shouldn’t have one? I don’t agree with that at all. He has a large dock, and from the drawing, you’re proposing a very moderate dock, in my opinion, and I think it’s well placed, actually. So, I have no problem with this. I think the relief is minimal, and I think part of the difficulty here is the lot itself, a pre-existing lot, and the nature of the land. So I think you’ve gone, you’ve done what you could to minimize the impact on the neighborhood, in this particular circumstance. So I think that the weight of balance in this test would be in favor of this variance. MR. THOMAS-Okay. Bob? MR. MC NALLY-It’s always a pleasure seeing neighbors meet each other for the first time. I don’t know if I would personally agree with the placement of the dock where it is, but this applicant doesn’t have a problem with it, and given the unique nature of this property, and the relatively small size of the dock, I don’t have a problem with it. I agree that it is the best placement at the terminus of the dock, that really could be, given the proximity of the adjacent docks on either side, which are pre-existing, at least in one case, apparently nonconforming use. The effect on the community is not going to be that significant, in my opinion. Though yet there will be another dock on the lake, but overall, I don’t see that as being terribly damaging to the community to the lake or to that property. So I’d be in favor of it. MR. THOMAS-Okay. Dan? MR. STEC-I agree with Bob and Jaime. I think that certainly common sense would say that somebody that’s buying lakefront property is going to want to a dock, but again, that does not entitle them to a dock, but, you know, balancing between the benefit to the applicant and the impact on the neighborhood, bearing in mind that it’s not always a wise argument to say, well, it’s just another dock, it’s one of thousands, because there is a cumulative impact, but in this particular circumstance, I think that the dock proposed is modest, and it’s location is the optimal one, given the layout of the other docks on this stretch of shore. So bearing all that in mind, I’m comfortable with granting this relief. MR. THOMAS-All right. Chuck? MR. MC NULTY-Well, I’m also in agreement. I agree that we’ve got it probably in the best spot it can be placed, given the situation. I have no problem with it. MR. THOMAS-Okay. Lew? MR. STONE-Nor do I. I think the placement, it is a lakefront lot. You certainly should have a dock on a lakefront lot. I think it is placed, as my fellow board members have said, as best it can be. It appears to be parallel to the big dock, where there is likely to be more boat action, and it’s slightly directed toward the smaller dock, where there would be less boat action. So I think it’s a reasonable proposal. MR. THOMAS-I don’t have any problem with this one either. I think this is the best configuration for a dock, given this lot. I believe the applicant is entitled to a dock if he has lakeshore property, and it seems to be the best layout. So I don’t have any problem. Would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 28-1999 JOHN W. WEBER, Introduced by Robert McNally who moved for its adoption, seconded by Daniel Stec: Russell Harris Road. The applicant in this case proposes the construction of a 175 sq. ft .stake dock and seeks setback relief. Specifically, 20 feet of side setback relief from the 20 foot minimum side setback requirement of the shoreline and wetlands regulations, Section 179-60. The benefit to the applicant would be, as noted, the applicant would be permitted, as a lakeshore owner, to construct a dock at the desired location, and in a preferred location. The feasible alternatives are limited. Any other dock would require significant relief or similar relief, in the placement of the dock, as indicated on the application, it is in the opinion of myself and most Board members that this is the best place to put it. While the relief is substantial, the effects on the neighborhood or community would be minimal, and therefore, I move the approval of this application, subject, of course, to the granting of a building permit for Area Variance No. 27-1999, in view of the fact that there can be no accessory use structure on a parcel that doesn’t have a primary use structure, and also contingent upon the lot to which the dock is to be attached being in fact a properly subdivided parcel under the Town and APA Regulations. Duly adopted this 28 day of April, 1999, by the following vote: th 34 (Queensbury ZBA Meeting 4/28/99) MR. STONE-Should we also include this dock to be built in conformity to wharf construction permit for the Park Commission? MR. THOMAS-That’s the Park Commission’s enforcement, isn’t it? MR. STONE-It is, but it’s also to make sure that it’s placed where it is. MR. MC NALLY-As I understood it, the application drawing shows where the APA wants it, is that right? MR. THOMAS-Yes. MR. MC NALLY-My motion is contingent upon construction in accordance with that in plan. MR. STONE-That’s the same thing, close enough. AYES: Mr. McNally, Mr. Hayes, Mr. Stone, Mr. McNulty, Mr. Stec, Mr. Thomas NOES: NONE ABSENT: Mrs. Lapham MR. THOMAS-Well, one out of two isn’t bad. AREA VARIANCE NO. 29-1999 TYPE II WR-3A DONALD & MARGARET JONES OWNER: DR. MOSES SOMMER ROCKY SHORE DRIVE, BETWEEN LOCKHART ROAD AND BAY ROAD APPLICANT PROPOSES CONSTRUCTION OF A SINGLE FAMILY DWELLING AND REQUESTS RELIEF FROM BOTH THE WR-3A ZONE REQUIREMENTS AND THE SHORELINE AND WETLAND REGULATIONS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING: 4/14/99 TAX MAP NO. 3-1-5 LOT SIZE: 1 ACRE SECTION 179-16, 179-60 MARGARET JONES, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 29-1999, Donald & Margaret Jones, Meeting Date: April 28, 1999 “Project Location: Rocky Shore Drive Description of Proposed Project: Applicant proposes construction of a single family dwelling and seeks setback relief. Relief Required: Applicant simultaneously requests 40 feet of relief from the 75 foot minimum setback requirement of both the WR-3A zone, § 179-16 and the Shoreline and Wetlands Regulations, § 179-60. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives may include relocation of the proposed home to a compliant location. 3. Is this relief substantial relative to the ordinance?: 40 feet of relief from the 75 foot requirement may be interpreted as substantial (53%). 4. Effects on the neighborhood or community: Moderate to substantial 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.): None applicable Staff comments: Moderate to substantial impacts may be anticipated as a result of this action. While there may be an existing, preferred “building area” on the property, this new construction could be placed in a compliant location. If approved, referral to the Planning Board for review of the hard surfacing (driveway) within 50 feet of the lake and to address potential stormwater issues may be considered. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form 8 April 1999 Project Name: Donald & Margaret Jones Owner: Dr. Moses Sommer ID # QBY AV291999 County Project No.: April 99-18 Project Description: Applicant proposes to build a single family dwelling of 2500 square feet on a vacant lot. Proposed setback from Lake George is 35 feet, requiring relief from the setback Ordinance of 75 feet. Staff Notes: A copy of materials from applicant’s file are included with the summaries. The applicant has a .99 acre parcel in a three acre zone. However, the parcel is pre-existing. So no variance is necessary for lot size. As indicated on the forms, the applicant proposes not to meet the 75 foot setback issue requirement from the lake. Information inferred from the drawing is that there is a rock outcrop which affects where the house can be placed on the lot. There are also materials provided in the applications in the applicant’s file indicating the existing structures are at 25, 15, 38 and 0 foot setbacks from the lake. Staff is of the opinion that the topography of the site precludes the applicant from the cost effective utilization of his property, if he was to be required to build further back from the lake. The applicant’s proposed structure is also consistent with adjacent properties. Staff recommendation is, therefore, that the 35 (Queensbury ZBA Meeting 4/28/99) proposal does not impact County resources. County Planning Board Recommendation: No County Impact” Terry Ross, Warren County Planning Board. MR. THOMAS-All right. Is there anything else you want to tell us, talk about, point out? MRS. JONES-Only that the property was used as a single family dwelling prior to 1972, when the building burned down. So it has been used for this purpose before us wanting to build there. We also, although the foundation of the house, cannot find it, there is a stone porch that I’m sure you must have seen when you went to visit it, and we feel must have been attached to the house somewhere, and we would like to incorporate that into our layout of our house and the land around it. We also feel that if we can put the house at our proposed area, we’re doing less impact on the whole area. We could use some of the existing driveway that’s already there. So we’ll reduce the amount of trees that we’ll have to take down to get a driveway in, and as you know, it’s a difficult piece of property. So we’re trying to reduce the amount of damage we do. Also, the house will be setback further from the lake than either of our adjacent neighbors. Our one neighbor is 10 feet from the water, and our other neighbor is about 25 feet from the water, and we’re asking for 35 feet. So we are not, although it is substantial from what you require, 75 foot is well within the limits of what our neighbors, and the neighbors on either side of them, as you look at the maps that we have here. MR. STONE-Are you going to build a garage on this property? MRS. JONES-At this moment, no, we’re not. We haven’t figured out how to do that. MR. STONE-So are you planning to have a roadway down to the house? MRS. JONES-Yes. MR. STONE-You’re going to drive it in what kind of vehicle? MRS. JONES-What we’re planning on doing, if you look at the site plan we have, there is an existing driveway, and there is, at the 75 foot level, there looks as if there’s a driveway there, which if we build the house at 35 feet, it would be approximately 30 feet deep, and then we could drive to the back of the house, not the front of the house, and so we would have access to the house by car or automobile. MR. STONE-The 35 foot line, there are steps. There’s a retaining wall on the one side. MRS. JONES-Yes. MR. STONE-Then there’s a flight of steps going down. Do you know where those steps are, relative to the lake? In terms of feet? MRS. JONES-The edge, the front of the stone retaining wall is approximately 20 feet from the lake. So the house would sit another 15 feet behind that. MR. STONE-Okay. Near the retaining wall or behind it, or more centered on the lot? MRS. JONES-Behind, from the lake, back. MR. STONE-Yes, but more centered on the lot? MRS. JONES-The retaining wall is almost, the stone retaining wall, not the brick one. There’s two retaining walls, right? MR. STONE-Well, the one that you can see, the one that looks like concrete, to me. MRS. JONES-Yes, there’s that one. There’s the cement block one, which is right near the property line. There’s a set of stairs, and then there’s a stone retaining wall. MR. STONE-Right, yes. MRS. JONES-That one is almost in the middle of the property. The property is 150 feet wide. We're proposing to put our house right in the middle, so that you’d have 50 feet on either side, and that stone retaining wall is in that position. MR. STONE-And that retaining wall is 20 feet, you’re saying? MRS. JONES-Approximately 20 feet from the lake. Yes. I think it’s on my site plan map. 36 (Queensbury ZBA Meeting 4/28/99) MR. STONE-Do we have site plan? MRS. JONES-I didn’t put the dimension on there. MR. THOMAS-How high is this house going to be? What’s the height of it? MRS. JONES-Well, that kind of depended on where I had to put it, but we are proposing, we know that there’s a 28 foot, the height variance, and we’re hoping that we’ll be able to meet that 28 feet. The house to the south of us is much higher than that. The house to the north of us is smaller, but the man that bought it is proposing to add to it. MR. THOMAS-Are there anymore questions for the applicant? No? Okay. I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED MR. THOMAS-Is there any correspondence? MR. BROWN-Yes. I have a letter to the Zoning Board of Appeals. Did you get copies of the letter from Dave? MR. STONE-Yes. MR. BROWN-Do you want me to read it into the record? MR. THOMAS-Yes, put it in the record. MR. BROWN-Okay. From Dave Hatin, dated April 23, 1999, regarding Area Variance No. 29- 1999, Donald & Margaret Jones “This letter will confirm that I have met with Mrs. Jones on the site located off Wild Turkey Lane for the purposes of installing a septic system. We have conducted test hole analysis and perc tests and found that Mrs. Jones can place either a conventional system that will meet all the standards of the sewage disposal ordinance or she may be able to place a fill system in the same location and still meet all the sewage disposal requirements. I trust this will answer all your concerns. If not please do not hesitate to contact me.” A letter dated April 24, 1999, from Charles C. Mackey, to the Town of Queensbury Zoning Board of Appeals, Regarding Rocky Shore Drive, between Lockhart Road and Bay Road, Tax Map No. 3-1-5, “Dear Mrs. Lapham: I am in receipt of your correspondence of April 19, 1999 relevant to the request of Donald and Margaret Jones for relief from both the WR-3A zone requirements and the shoreline and wetland regulations. As the owner of the adjacent property, tax map Id. # 3-1-7, I have had the opportunity to review the conceptual plot plan proposed by Mr. and Mrs. Jones and find nothing that would be offensive nor compromising to the environment or nature of the surrounding area. Furthermore, as I am sure you are aware, the rugged terrain in this area provides difficulty challenges to those who look to develop it without compromising the integrity of the site, the lake or the surrounding property owners. At this juncture in the planning process, I believe the Jones’ have done a nice job of developing a site plan that considers all these factors. In closing, please accept this letter of support for the project as proposed by Donald and Margaret Jones. From my recent discussions with them, I believe their plan will not only protect the integrity of our lake and environment but also visually improve the shoreline in our area. Sincerely, Charles C. Mackey” A letter from David R. & Mary Carol White, dated 4/23/99, Attention: Zoning Board of Appeals “We, the adjoining neighbors to the Moses Sommer property object to any and all requests for relief from the WR-3A zone requirements and shoreline and wetland regulations. Location Tax Map No. 3-1-5 David R. White Mary Carol White” MR. THOMAS-That last one, was there a tax number on that? MR. BROWN-The White’s property? MR. THOMAS-Yes. MR. BROWN-No, but I’m assuming that they’re going to be to the. MRS. JONES-They’re to the south of us. MR. BROWN-Yes. Mr. Mackey’s going to be to the north. MRS. JONES-They’re 3-1-4. MR. STONE-They’re 3-1-4, okay, and they have, that was an objection? 37 (Queensbury ZBA Meeting 4/28/99) MR. BROWN-Yes. MR. STONE-Okay. That’s what I thought. MRS. JONES-I tried to get a hold of them to talk to them, but I was unsuccessful. There could be a good reason. They might not have wanted to talk to me. MR. THOMAS-Is that it? MR. BROWN-Yes. MR. THOMAS-I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for the applicant? How about the grade, Craig? Isn’t there something in the Ordinance about you can only have a certain grade, like a nine percent or ten percent, something like that? MR. BROWN-I think that relates to the design of subdivision lots. MR. SALVADOR-I believe Appendix 75A of the Public Health Code does not allow a mound system if you can put in a conventional septic system. MRS. JONES-Well, we weren’t proposing a mound system. We were proposing a fill system. MR. SALVADOR-Well, that’s a mound system. MRS. JONES-No, it’s not quite the same. You, because of the dirt there, had a perc test of 13. They thought you could improve it by adding another foot of dirt to it so that the perc test would be improved. MR. THOMAS-Gotcha, John. MR. SALVADOR-No, it doesn’t. MR. JONES-And the septic system is going to be more than 200 feet from the lake. MR. SALVADOR-My only point is that if Dave Hatin said you could do either one, I’m saying the Public Health Code does not allow a fill or mound system. If you can put in a conventional system, you must put in a conventional system. MRS. JONES-Okay. MR. THOMAS-Okay. Any other questions for the applicant? Bob? MR. MC NALLY-I always look with a jaundiced eye at applications to put a house closer to the lake than the current Ordinance requires of 50 feet. MR. STONE-Seventy-five. MR. MC NALLY-Seventy-five feet, excuse me, and I can understand why you would want to put a house where the old one used to be. This certainly is much closer, but I’m not satisfied that you can’t back it up a little bit more, so that the amount of relief that you need is not as much as you’re asking for. I was there, and it struck me how coming down that old driveway is a terribly, terribly difficult thing, but that when you approach the area where the old house used to be, there was not, there was a fair amount of relatively level land, or land which, with some extra cost, could be made more level and usable for construction. So, overall, I didn’t really see that you can’t do it. MRS. JONES-But the area where the house used to be isn’t 75 feet from the lake. MR. MC NALLY-No, no, no. You’re talking 35 feet from the lake. MRS. JONES-Yes. MR. MC NALLY-That’s where the old house, (lost word) the old house used to be and what you’re planning. 38 (Queensbury ZBA Meeting 4/28/99) MRS. JONES-The 75 feet from the lake, and perhaps I should have marked that before you gentlemen came to visit, is at, as you come down the driveway, there’s an old driveway that runs parallel to the lake, that’s 75 feet from the lake, okay. So you’d have to build it there. That little driveway is 16 feet wide, and then you hit the hill, and the hill, you can see the rocks sticking out there. MR. MC NALLY-Yes. MRS. JONES-So in order to build a house at 75 feet, I’ll have to cut into those rocks. My house is only going to be 16 feet wide, and I’m only proposing a 2500, if that, square foot house, 50 by 30, okay. So I’m going to have to cut 15 feet out of that hill, just to get a foundation in. Also, at the front of that house, where that driveway comes off, it drops, so I won’t have any front, my front door, if I put one at the front of the house or access to the lake from the front of the house, I won’t be able to because I won’t be able to, I can’t put a deck there because it can’t be closer than 75 feet, right? MR. MC NALLY-Right. MRS. JONES-I won’t be able to go out the front of the house, I’ll have to get out the side, right? MR. MC NALLY-You’re losing me. MRS. JONES-The 75 foot includes all the decking, too, not just the front of the house. At 75 feet, there’s a drop of about six feet. There’s a stone wall that runs along there that must have helped to hold up that piece of driveway. So if I put my house at 75 feet, which I’d like to put close the lake, because the reason that I’m on the lake is so I can swim in it, I won’t be able to walk out the front of my house. I will have to walk out the side. MR. MC NALLY-Or build some kind of accommodation to walk down. MRS. JONES-Well, then my house has to be further back. MR. MC NALLY-Or an alternate plan that we would pass as a variance. I mean, if you’re talking about stairs down or something like that, closer to the lake, I don’t think we’d have any objection to that. The distance you’re saying is six feet, you’d bring it back to 75 feet, six feet in elevation? WARREN SMITH MR. SMITH-I’m Peggy’s father, and I've climbed all over that lot in the winter time, making measurements and what not, trying to help her decide where you could put a house, and what Peggy is talking about, this is a picture, at 75 foot. That shear rock face is just about 75 foot back from the lake. If you put a house there, you drop eight feet or ten feet, depending on where you are. So if you want to put your house there, you’ve got to put it back even further than that, to get any front at all, and then it runs back into the slope. MR. MC NALLY-My point was not to do it at 75 feet, but that you could do it further back than what you’re currently proposing, and still have a fine home. MRS. JONES-Well, we still have that wall or that drop to contend with, okay. That drop is at 75 feet, and if I build a 30 foot house, you’re at, okay, 45 feet, you know, so now I’m going to butt the house back against that wall that sits there. MR. MC NALLY-Right. MR. THOMAS-Could you state your name, sir, for the record. MR. SMITH-I’m Warren Smith, resident of Queensbury here. MRS. JONES-And he drew up the site plan. He’s a professional engineer. MR. THOMAS-It was drawn by WJS. MRS. JONES-There you go. MR. SMITH-That’s me. MR. THOMAS-Retired professor of English or Engineering? MR. STONE-Retired professional engineer. 39 (Queensbury ZBA Meeting 4/28/99) MR. SMITH-Professional Engineer. MR. STONE-This is the 75 foot mark from the lake, this wall? MRS. JONES-Yes. It’s where that driveway comes parallel to the lake. I’m sure you walked on it. MR. STONE-I came straight down the hill. I’m not sure I even saw that. I have to admit. So that’s a separate driveway, parallel to the road up on top? MRS. JONES-Well, it’s in your site plan. MR. STONE- I didn’t see that when I walked. MRS. JONES-Okay. MR. STONE-I was trying to avoid slipping. MR. SMITH-It’s a great spot on the lake, but it’s vertically challenged. MR. MC NALLY-I’m surprised you did it in the winter time. I could imagine it would be very icy. MRS. JONES-Yes, well, the deep snow helps, if you can plow through it. MR. MC NALLY-I think that something could be done to improve this application and to make it more palatable to me in terms of setback. That’s what I’m saying. MR. THOMAS-Okay. Dan? MR. STEC-Well, I certainly understand exactly where the applicant is coming from, and I think that the topography of this lot is challenging, but I also share Bob’s, and I believe you’re going to find out the rest of the Board’s, concerns for respecting the 75 foot setback from the lake, and again, that’s not to argue that it absolutely has to be 75 feet. That’s what we’re in the business of talking about and sometimes granting variances, but there might be some room for improvement, in my opinion, as well. I recognize that it is further back than the two immediately adjacent homes on the lake. So that’s comforting, but again, further is always better, from the lake, and wherever possible, that’s where I’d like to see an application go, and as it stands right now, I’ll have to listen to the rest of the Board and see what they think. I could really go either way, because, again, I think the big mitigating factor in my opinion is the topography of the lot. It bothers me that it’s, if the topography wasn’t the issue, that you could easily put a home that would be compliant with all the setbacks. So, I understand, for me, the topography mitigates it, but I’m not 100% comfortable with 35 feet, either. MR. THOMAS-All right. Chuck? MR. MC NULTY-Well, I’ll have to agree that I hate to see the 75 foot setback violated, and the fact that adjacent places are cutting into that I don’t think, necessarily, is justification. On the other hand, I think that the first question is whether or not the applicant should be able to build a camp with a home on this piece of property. If you say yes, then I think for me, at least, the next question is, where can that be done with the least total impact in terms of both the lake and the land, and I think, as the applicant has tried to point out, the further back of the place, the more destruction there is going to be to the rock and the land in that place, and with it being steep, there could be concern for erosion, the more you disturb it. So I’m inclined to, I think, approve for what the applicant proposes to build, on the basis that, while it may impact the lake a little more, being closer, it is going to cause a lot less disruption to the proposed use of land. MR. THOMAS-All right. Lew? MR. STONE-We seldom get to see WR-3A properties. Most of the time when we’re talking about lake properties it’s one acre zoning. Interestingly enough, the shoreline setbacks for one acre zoning do take into consideration properties on either side, but they still say it must be at least 50 feet from the lake. Waterfront Three Acre is 75 feet. I agree with Mr. McNally that I think an effort has to be made to come somewhere closer to 75 feet. I, personally, might very well be happy with 50. I don’t necessarily understand the reason for 75 on a three acre lot, since most of the three acre lots on the waterfront are usually fairly steep lots, along 9L in there. So I would like to see some modification of the application to somewhat more approximating the 50 feet rather than the, I mean, I can see granting relief from 75, but I think you have to make an effort to get closer to at least a 50, in my mind. 40 (Queensbury ZBA Meeting 4/28/99) MR. MC NALLY-And I don’t have a problem with the 75 feet, granting some variance from it, but I think the pencil has to be sharpened a bit more. MR. THOMAS-Jaime? MR. HAYES-Well, I guess my colleagues have covered the fact that there are mitigating circumstances and the topography, extensively, but I feel that, you know, why there isn’t a grandfathered, legal aspect to this, the fact that you are going to be further back from the camps that surround you, and that you’re not going to be damaging their views or, you know, the values of their property by being where you are. I would say that I, as far as the Board is concerned, would not need to see a lot of change. I feel that the balance would be in your favor. I’m very close already, and I would think that grabbing a small amount of feet from the lake would easily put me over the top, and I also think that there are some economics involved with your plan. It seems to me that this is very well thought out, including your septic plan. You are making arrangements to preserve the nature of that camp and the environment and everything else, and I applaud you for that . I’m not sure what the economics are of going back a few feet, or so many feet, but I certainly would take that into account, myself, if there was substantial economic impact, that that would be something we would have to (lost word) because I realize not everybody has all the money in the world to do such things. So, I guess as it sits right now, I could go either way, as it is now, and certainly if you’ve got a small number of feet, I would be satisfied. MR. THOMAS-All right. I think Chuck hit it right on the head, with his disturbing the slope, seeing as how it’s as steep as it is. Another point, too, is if you look at all those lots on the tax map, you’ll see that they’re all right around an acre. Why this is zoned WR-3 Acre, I’ll never know, because all the lots are less than three acres, or less than two acres. So, you know, to me, it was mis-zoned, whenever they did this. Disturbing the slope, like Chuck said, that could do a lot of erosion. Another thing, too, is pushing it up higher on the hill, it’s more visible from the lake, especially if there's a lot of glass in front, you get the reflection, and they may sit above the rocks there, too, depending upon the height of the house. So, the septic system, that’s State of the Art right there, and I don’t know about that driveway going down there, though. It doesn’t really matter where you put it, it’s going to be a steep driveway. I’d go along with it just like this. Because I see disturbing any of that bank in there, you’re going to cause problems, especially if you start blasting. Having said that, I would ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 29-1999 DONALD & MARGARET JONES, Introduced by Paul Hayes who moved for its adoption, seconded by Charles McNulty: Rocky Shore Drive. The applicant proposes construction of a single family dwelling and seeks setback relief. Specifically, the applicant requests 40 feet of relief from the 75 foot minimum setback requirement of the WR-3A zone, Section 179-16, and the shoreline and wetland regulations, Section 179-60. The benefit to the applicant would be to allow the applicant to construct the desired structure in the preferred location, as depicted in the drawings by her father. The feasible alternatives. I believe the feasible alternatives are limited, based on the topography of the land, specifically certain rock ledging that makes construction on certain sites either impossible or extremely costly. Is the relief substantial relative to the Ordinance? I believe the relief is moderate, based on the fact that the neighboring camps are in fact closer to the lake than the applicant is proposing. Effects on the neighborhood or community? I believe the effects on the neighborhood are moderate. The applicant has put forth plans that appear to me to be very reasonable, to respect the neighborhood and, in fact, develop this property in a way that is consistent with the other properties in the neighborhood. In regard to the relief, I also agree with the Chairman’s consideration that all these lots are somewhere around an acre, and that to a large degree, the level of relief that is required has to do with the fact that it’s WR-3A, which makes for a 75 foot requirement versus a 50 foot requirement for a WR-1A zone. If this was zoned 1A, which in a way it could be, the relief would only be 15 feet, and everybody would feel differently if so noted. So on balance, I believe that the test falls in favor of the applicant, as so proposed. Duly adopted this 28 day of April, 1999, by the following vote: th MR. THOMAS-All right. Lew’s got a question. MR. STONE-Do you own the land at this present time? MRS. JONES-No. MR. STONE-Under contract? MRS. JONES-Yes. MR. STONE-Contingent upon a variance? 41 (Queensbury ZBA Meeting 4/28/99) MRS. JONES-Yes. MR. STONE-Okay. I should have asked it earlier. I noticed that the owner is listed, it’s right in front of our face, but none of us asked. MRS. JONES-And Adirondack Park Agency, and their approval, and such and such, you know, that we were able to put a septic system on the house, on the property. MR. STONE-Yes, but they still have to approve us, after? MRS. JONES-Yes. MR. STONE-They have the right of refusal of whatever we grant you, if we grant you something. MRS. JONES-I understand that. We’ve applied, though. AYES: Mr. Stec, Mr. McNulty, Mr. Hayes, Mr. Thomas NOES: Mr. McNally, Mr. Stone ABSENT: Mrs. Lapham MR. THOMAS-Four to two. It looks like it just squeaked by. MRS. JONES-Thank you very much, gentlemen. MR. THOMAS-You’re welcome. MR. STONE-In other words, neither one of us were objecting violently, except that we thought if we could get more, we’d like to get more. MRS. JONES-I understand that. MR. MC NALLY-We could squeeze another 10 or 15 feet out of you, if we really tried. These guys didn’t have the nerve, though. MR. SMITH-Well, that piece of rock would be tough to put a foundation on. MR. MC NALLY-You’d be surprised the kind of houses we’ve seen built on that. MRS. JONES-If I can move it back a little, I will, okay. Thank you very much. Excuse me. Do you send us a notice saying what happened here, or how does that work? MR. THOMAS-Yes. You’ll get one from the Planning Office. They’ll send you an approval it’s been through and what else you have to do to get your building permit. MRS. JONES-Okay. Thanks very much. MR. THOMAS-You’re welcome. AREA VARIANCE NO. 25-1999 TYPE II WR-1A CEA JOHN SALVADOR, JR. KATHLEEN A. SALVADOR OWNERS: SAME AS ABOVE 18 DUNHAM BAY ROAD APPLICANT PROPOSES CONSTRUCTION OF A 300 SQ. FT. SEASONAL HUNTING AND FISHING CABIN AND SEEKS SETBACK RELIEF. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 4/14/99 TAX MAP NO. 4-1-11 LOT SIZE: 3 ACRES SECTION 179-16 JOHN SALVADOR, JR. & KATHLEEN SALVADOR, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 25-1999, John Salvador, Jr. & Kathleen A. Salvador, Meeting Date: April 28, 1999 “Project Location: 18 Dunham Bay Road Description of Proposed Project: Applicant proposes construction of a 300 sf seasonal hunting and fishing cabin and seeks setback relief. Relief Required: Applicant requests 4 feet of relief from the 30 foot minimum front setback requirement of the WR-1A zone, § 179-16. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct and inhabit the desired cabin in the chosen location. 2. Feasible alternatives: Feasible 42 (Queensbury ZBA Meeting 4/28/99) alternatives may include downsizing the cabin to meet the setback requirement. 3. Is this relief substantial relative to the Ordinance?: 4 feet of relief from the 30 foot front setback requirement may be interpreted as minimal to moderate (13%). 4. Effects on the neighborhood or community: Moderate to substantial 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.): Septic Variance 3-1999 res. 1/25/99 approved AV 1-1998 res. 1/21/98 12,320 sf single family dwelling – denied Notice of Appeal 2- 1997 res. 6/25/97 – Appeal of ZA setback decision denied AV 89-1996 res. 10/23/96 – subdivision regulations – tabled AV 74-1996 res. 8/28/96 – subdivision regulations – withdrawn Site Plan Review 18-1989 res. 3/28/99 – 12x18 deck – approved Staff comments: Moderate to substantial impacts may be anticipated as a result of this action. An accurate representation of Dunham Bay Road, located and prepared by a qualified party may be considered in order to be concise in granting relief. The 1993 Van Dusen and Steves map depicting the area of land claimed for road by use appears to be an accurate representation of all those lands necessary for reasonable maintenance of the road by use known as Dunham Bay Road. Any relief granted for this proposal should be consistent with this map. SEQR Status: Type II” MR. BROWN-“Warren County Planning Board Project Review and Referral Form 8 April 1999 Project Name: John Salvador, Jr. ID #: QBYAV 251999 County Project No.: April 99-29 Project Description: The applicant proposes to construct a 300 square foot seasonal hunting and fishing cabin and seeks setback relief. Staff Notes: A copy of the pertinent section of the site drawing is included with the summaries. The applicant is required to have a 30 foot front yard setback, and is proposing a 26 foot front yard setback. The applicant will be 50 feet from the shoreline. Staff is of the opinion that the issues presented are of local nature only County Planning Board Recommendation: No County Impact” Terry Ross, Warren County Planning Board. MR. THOMAS-All right. Mr. Salvador, you’re up. MR. SALVADOR-I think the application and the variance are pretty straightforward. We’ve positioned the hunting and fishing cabin such that we meet the so called shoreline setback, and last week we sort of established that that, in fact, is the seawall, and we’ve noted that here on the drawing. By 50 feet we do meet that setback, and we also meet, we have an 80 foot setback from our property line to the north, and we’ve positioned it such that the best we can do is a 26 foot setback from the Town road, which would require the four feet of relief. Staff mentioned this 1993 map. I’m wondering if Warren County was aware of this map? MR. BROWN-I don’t know that answer. Did we get it from Warren County? No. MR. SALVADOR-No, no. Did you advise them that the determination should be based on this map? MR. BROWN-I’m assuming they got copies of our Staff Notes, whatever we send them, yes. MR. SALVADOR-So they did get this Staff note? MR. BROWN-I don’t know what we send them. I don’t prepare that information that’s sent to the County. MR. SALVADOR-Well, we’ve gotten a determination from the County of No County Impact, all right, but if they didn’t have all of the relevant information before them, I’m wondering about the validity of their determination, but lets continue. I think at issue is this 1993 map. Have you folks seen it? MR. MC NALLY-No. MR. BROWN-There’s photocopies there. MR. STONE-That’s this. Yes, we have it. MR. SALVADOR-There’s a bit of history to this map, and I’m wondering, Mr. Brown, how you came to know about the existence of this map. MR. BROWN-I believe during conversation with the Zoning Administrator it was uncovered that there was some sort of design work being performed in the area by Tom Nace, for some drainage. So I contacted his office and he referred me to Matt Steves. He knew that there’d been some surveying done in the area. So I contacted Mr. Steves, and he confirmed that there was some surveying done in the area to determine the area of clearing for road by use. MR. SALVADOR-Surveying, this is a map. This is not a, this is a map. It doesn’t say a survey. 43 (Queensbury ZBA Meeting 4/28/99) MR. BROWN-Yes. MR. SALVADOR-I would question the acceptability and the use of this map for purposes of our variance, and I’ll tell you why. This map doesn’t even say it’s Dunhams Bay Road. If you look at the area that has been plotted, it doesn’t say it’s Dunhams Bay Road. The property boundaries, I think you will find the neighbors questioning those. I think it’s been pretty well accepted that Mr. Schriner, the successor of Mr. Shortsleeves, does, in fact, own some land on the lake, and this shows he owns absolutely nothing. Since 1993, since this map was made, this road has been designated a one way road. This is now a one way road, and this map does not show that. This drawing does not have a certification on it. This drawing, when I learned about the existence of this map, because we were involved in a legal action with the Town over this road, and this map did not appear on the record. This map is not a part of the record of that legal action, and so I FOILed it. I FOILed it. Better yet, I went to the Town Clerk and asked for the map. Because as we all know, the roads that have been mapped in the Town are the property of the Town, and all property of the Town should be on file with the Town Clerk. The Town Clerk did not have this map. The Town Clerk, today, does not have this map on file. It hasn’t been filed at the County. The Highway Department didn’t have this map when I asked for it. The Attorney’s Office didn’t have this map when I asked for it, and I did ask Mr. Steves for the map. He advised me that it was not public property. I can’t imagine a road that’s been mapped and claimed by the Town, the map is not public property. In any case, I had to file a FOIL request with the Record’s Access Officer, and I was given permission to get a copy of this map from Mr. Steves, at that time. Hardly in the public domain. There has been no public hearing on the taking and acceptance of this map, and I’m talking about the fee, now, in the road, not the prescriptive use. The fee. When towns map roads, they’re taking the fee. That’s what it’s all about. There’s been no public hearing on this, and there’s been no Town Board resolution taking this claim. So I submit that this map, for purposes of our application and our (lost word) has absolutely no validity. I think the best thing to do now is to answer any questions you might have. MR. THOMAS-I've got one. I've got your map right here, but I don’t see any seal or signature on that. MR. SALVADOR-It’s not required. MR. THOMAS-It’s not? MR. SALVADOR-It’s not required. MR. MC NALLY-Who did it? Will they certify it? Will they put their seal on it for us? MR. SALVADOR-Lets say I did it. MR. MC NALLY-Well, I’m not asking if you did it. I’m saying, who did it and will they put their seal or approval on it? MR. SALVADOR-Absolutely. I gave, Craig Brown asked me for the underlying survey, certified survey for that map. Do you have it? MR. BROWN-Yes some place. MR. SALVADOR-And you accept the validity of what’s on that drawing? The dimensions, the positioning? MR. BROWN-Yes. It’s reasonably accurate. It was taken, it was traced from the drawing. MR. SALVADOR-Reasonably accurate or accurate? MR. BROWN-I don’t think it’s exactly the same as the survey map. MR. SALVADOR-In what regard, because it’s supposed to be. That’s what I paid for. MR. BROWN-I’m sure it is, but I mean, any time you make copies, the copies that we have, obviously, were made from. MR. SALVADOR-Well, that’s just as copy machine error. MR. BROWN-Okay. MR. SALVADOR-Okay. I can accept that, but other than that. 44 (Queensbury ZBA Meeting 4/28/99) MR. BROWN-Yes. It’s a representation of the survey map. MR. SALVADOR-Okay. MR. MC NALLY-Are you showing the same boundaries for Dunham Bay Road on your drawing, which is not signed, certified, sealed, or indicates who it’s made by, are the same boundaries as the copy that we’ve been shown that you objected to? So your drawing does differ from this one? MR. SALVADOR-Absolutely. I’m objecting now to this drawing, absolutely. MR. MC NALLY-Your drawing is not the same? MR. SALVADOR-No. Our drawing is based on the fact that the Highway Superintendent has filed, in his annual report with the Public Works Officer at the County, and that report goes on to the State. He filed in his report, and I have a copy of the 1998 report, showing Dunham Bay Road as a 17 foot road, and that’s what’s on that map. MR. MC NALLY-You show on your drawing, sir, a line of abandoned right of way? MR. SALVADOR-Yes, sir. MR. MC NALLY-I take it that New York State Route 9L had a different direction at one point? MR. SALVADOR-Absolutely. MR. MC NALLY-And that that line shows where it once ran? MR. SALVADOR-That’s a taking line, okay, a taking line in 1930. MR. MC NALLY-Right. I understood Dunham Bay Road to be the old Route 9, at least in part, before the new road was constructed. Is that right? MR. SALVADOR-Route 9L, today, is a realignment of the old road. MR. MC NALLY-And the paved surface of Dunham Bay Road used to be where 9L used to run? MR. SALVADOR-No. MR. MC NALLY-That’s not correct? MR. SALVADOR-That’s not correct, not all of it, not in its entirety. MR. MC NALLY-248 82 84 87, you’ve got another case showing 234 82 741. ndnd MR. SALVADOR-Yes. MR. MC NALLY-I take it you’ve been involved in litigation concerning the boundaries and ownership of this road? MR. SALVADOR-Yes. That litigation, yes, we’ve been involved in litigation involving the boundaries of the road, yes. MR. MC NALLY-Did you bring those cases with you? MR. SALVADOR-One. I have them here, yes. MR. MC NALLY-Can I see them? MR. BROWN-For the Board’s information, after discussion with Mr. Salvador, throughout the process of the application, the question came up as to the validity of the map and any certifications, and I subsequently contacted Mr. Steves, who has since provided the Town with a copy of a map certified that this map was actually prepared from an actual field survey. So that may just answer any certification. MR. THOMAS-Is that this one here? MR. BROWN-The same map. I have a copy with the sealed certification on it. MR. STONE-This has been blown up from that? 45 (Queensbury ZBA Meeting 4/28/99) MR. BROWN-Yes. That’s been blown up to the same scale as the applicant’s map, to overlay and show. MRS. SALVADOR-Do you have the survey notes? MR. BROWN-Survey notes from the survey? No. MRS. SALVADOR-No? I don’t. I’m sure Mr. Steves does. MRS. SALVADOR-That would be interesting. MR. SALVADOR-Why can’t we get from Mr. Steves a certified copy? Yours is certified? What’s the date of the certification? MR. BROWN-There is no date, but he provided it to me today. MR. SALVADOR-Which were those? I’ll give you the Appellate Division. MR. MC NALLY-Thank you, and I understood that at one time or another, there was a dispute between yourself and the Town, regarding the ownership, the dimensions of Dunham Bay Road. MR. SALVADOR-Not the dimensions of Dunham Bay Road, whether or not it in fact was a Town road. MR. MC NALLY-Okay, and was there any litigation resolving that issue? MR. SALVADOR-Yes. MR. MC NALLY-One of these cases that you just handed me? MR. SALVADOR-Yes. It’s been determined to be a Town road. MR. MC NALLY-Now, has there ever been any litigation, though, as to how wide that road is or what its dimensions are? MR. SALVADOR-No. MR. MC NALLY-So no court has ever ruled on that issue? MR. SALVADOR-No. MR. MC NALLY-It’s your position that the map that’s shown by Mr. Steves is wrong, I take it? MR. SALVADOR-For what is not there, it may be very accurate, but let me show you what Mr. Naylor says. MR. MC NALLY-Well, we have to make a decision as to whether or not it meets the setback from the road. So where the road is is going to be important. MR. SALVADOR-And where the road is is what Mr. Naylor is saying in his annual report. MR. MC NALLY-Okay. MR. SALVADOR-Do you have a copy of that? MR. MC NALLY-I've got what you provided us, and I don’t remember seeing Mr. Naylor’s report. MR. SALVADOR-This is a page. This is the 1998 inventory of roads that Mr. Naylor makes to the County, and it shows the Dunham Bay Road 17 feet wide. MR. MC NALLY-Okay. MR. STONE-Wide from where? MR. SALVADOR-I can show you. I use the road every day. It’s a user road. I can show you. MR. STONE-I understand. 46 (Queensbury ZBA Meeting 4/28/99) MR. MC NALLY-But what you’ve shown me is a State of New York Department of Transportation, apparently a print out. MR. SALVADOR-A form. MR. MC NALLY-Showing certain roads. MR. SALVADOR-In the Town. MR. MC NALLY-Where they’re located in Warren County, mile point and what not. MR. SALVADOR-In the Town. MR. MC NALLY-Correct. Well, I know at least one is. I don’t know about the other roads, necessarily. It’s your point that the designation of 17, under a Column PWVIMDNTTH, indicates that the road is 17 feet wide? MR. SALVADOR-Pavement width. MR. MC NALLY-Okay. Is that what you’re saying? MR. SALVADOR-Yes. MR. MC NALLY-Okay. MR. SALVADOR-That’s what Mr. Naylor said. Excuse me. This is his report. MR. MC NALLY-Is this something that you feel is binding on the Town, insofaras what is the dimension of that road? MR. SALVADOR-The Town gets annual payments from the New York State Department of Transportation for the maintenance of these roads, based on this report. MR. MC NALLY-So this is the sum evidence, in your opinion, of how wide it is? MR. SALVADOR-Yes. MR. MC NALLY-Okay. MR. SALVADOR-And it’s zero shoulders. Shoulder width, zero/zero. That report is required annually on the first of the year, by every Highway Superintendent in the State. This is what the Comptroller uses to pay this Town its CHIP’s money, okay. Serious business. MR. MC NALLY-But if the Town made a mistake in designating how wide the road is, it wouldn’t be paid as much as it would if it designated it wider, would it? The only real difference is how much is being paid? MR. SALVADOR-No. They are paid on a lineal measurement of roads. MR. MC NALLY-Not on the width. MR. SALVADOR-Not on the width because it’s presumed they’re all three rods, Highway law. MR. MC NALLY-Okay. MR. STONE-And you’re saying that this depiction of the right-of-way is accurate? MR. SALVADOR-Yes. MR. STONE-So that this line is where it is? MR. SALVADOR-Yes, that’s what the public uses. It’s a user road. MR. STONE-I see no marks on here that identify whatever we call them, pins or anything that show where the road is. MR. SALVADOR-That’s Mr. Naylor’s job. I wish he would show us. MR. STONE-But in your judgment, this is where the 17 is? 47 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-Yes, and I did that by, I know where Mr. Naylor has done work in this area, okay, and you can see this pavement. If you look down here, you’ll see a distinctive width of pavement, okay. Starting from here, we mapped this in. MR. STONE-Okay, but this is your map? MR. SALVADOR-Yes. MR. STONE-And hand sketched? MR. SALVADOR-It’s drawn. It’s dimensions here. It’s 17 feet wide. MR. HAYES-It’s to scale, then, in other words? MR. SALVADOR-Yes. Exactly. MR. STONE-Okay. MR. MC NALLY-But when you say that the land was abandoned, some time in the 1930’s I think you said? MR. SALVADOR-No. It was abandoned in accordance with this court decision. The court determined, in this case, one of these. MR. MC NALLY-248 82 847, is what you’re pointing to on the map, and to whom was that land nd abandoned? MR. SALVADOR-The underlying property owners. MR. MC NALLY-Why was it not abandoned and reverted back to the Town, as part of a Town road system? MR. SALVADOR-Because it was a user road, and when a user road is abandoned by the Town, it reverts back to the underlying property owner. MR. MC NALLY-And it’s your assertion that these cases say that? MR. SALVADOR-Absolutely. Now remember, we were on the other side of this argument. We lost in these cases. Remember. We lost. MR. STONE-The picture you have here, while he’s looking at that, this is the roofline, the overhang, this is the actual building in here? MR. SALVADOR-A deck. MR. STONE-Or a deck, that’s a deck around it. MR. SALVADOR-A deck, yes. MR. STONE-Okay, and it’s the deck that is encroaching? MR. SALVADOR-Encroaching, yes. MR. STONE-The building itself does not encroach? What’s the width of the deck? MR. SALVADOR-The deck is four feet. MR. STONE-So, in a sense, the deck is not. MR. SALVADOR-Well, we’re required to measure from the deck. MR. STONE-No, I understand that. I’m not arguing that point. What we’re really trying to determine, I gather what Mr. McNally is trying to determine, what relief, what actual relief you’re seeking. It seems to be in some debate, in terms of what the relief is, where the right-of-way is. MR. SALVADOR-Four feet is. MR. STONE-You’re asking for four feet from where you say the right-of-way is. 48 (Queensbury ZBA Meeting 4/28/99) MR. HAYES-Wouldn’t that become an enforcement issue anyway, based on what the Town actually arrived at as the, where the road ended? I mean, as far as him getting approval and a CO, ultimately? MR. MC NALLY-Doesn’t the applicant have to prove, though, where the boundaries are, I mean, I think that you’ve got a dispute with the Town, and there’s a method of resolving that, bringing an action to quiet title, bringing an action to make a claim to that property. MR. SALVADOR-There’s no question of title, absolutely no question of title. It’s the prescriptive use of a 17 foot wide, one way road. MR. MC NALLY-Well, I don’t see any court determination saying that, though, and I see that there are two surveys showing two different boundaries. MR. SALVADOR-This survey was not a part of the record in either one of these cases. MR. MC NALLY-That could very well be, but it’s part of the record tonight, and that’s my problem. MR. SALVADOR-And I maintain that there is no basis, except this is not a Town. MR. STONE-But if this were correct, the relief would be considerably more than the four feet. Is that how I would read this? This would be, since I have the same trouble from the troubles you do, but what, this is the end of your cabin, you propose it. Where is the right-of-way on this particular? MR. SALVADOR-Well, that would have to be mapped on there. That’s not my. MR. STONE-Okay. MR. HAYES-So that’s not this heavy marked line then, according to that map. MR. STONE-Well, this says, two feet to deck, there’s something in here. MR. THOMAS-That dark one is the property line. MR. STONE-Yes. MR. THOMAS-According to the Town’s map. MR. HAYES-What are the setbacks? MR. MC NALLY-See, I wouldn’t have a problem granting four feet of relief. MR. SALVADOR-That’s all we’re asking for. MR. MC NALLY-But I’d have significant problem granting relief where you’re right on the line, if the other map is correct, and I don’t know if it’s appropriate for us to make that determination of a boundary dispute. MR. SALVADOR-Well, you can see with the naked eye that this is wider than 17 feet, can’t you? MR. THOMAS-Well, you’ve got to remember, this is blown up, too. There’s no scale on that because it was blown up. MR. SALVADOR-A user road is what the public is using. MR. HAYES-Only. MR. SALVADOR-Only, and Mr. Naylor is saying here 17 feet. MR. HAYES-By definition or you’re saying? MR. SALVADOR-That’s by definition. MR. HAYES-Okay. MR. SALVADOR-Am I not correct? MR. BROWN-I think it also takes into account the amount of land necessary for reasonable repair, shoulders, banks, toes of slopes. 49 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-This said zero (lost word). MR. BROWN-No, we’re not talking about that. We're talking about a road by use. MR. SALVADOR-This is a road by use. MR. BROWN-Also, a road by use, by definition, includes the area traveled and also those areas necessary for reasonable repair. MR. SALVADOR-Right, and Mr. Naylor has pre-determined, in this case, that zero is the requirement. MR. BROWN-Well, I’m going to go on the record here, but this may be a case where Mr. Naylor is incorrect. MR. STONE-Well, again, you’re asking us to believe that SWHILDDTTRH refers to shoulder width. It may very well. “SW” certainly sounds like shoulder. I’d certainly like to see a glossary of terms, before I even think about accepting this thing. MR. STEC-I have a suggestion. Maybe we could have Staff, you know, table this and have Staff come back with an accurate map describing exactly where this road is. MR. BROWN-Well, I think you’ve got an accurate map in front of you, depicting where the claimed road by use is. I think at one point the Town Highway Superintendent, Supervisor, Town Surveyor, all put their heads together and said, this is the map that depicts the area that the Town wants to claim as road by use, and that’s this map. MR. HAYES-That’s the one you provided. MR. STONE-And you’re saying it’s two feet from the deck? MR. BROWN-Approximately, from what I overlaid this map onto the applicant’s map. I think the biggest problem here is the ambiguity of where the road is. We’d have to determine where it is before anything. I think Bob was on the right track. It’s another action, through, go to the Town Board and say, lets either adopt this map or throw it out and adopt, you know, the actual 17 foot wide claim in the inventory, nail something down before you give relief from it. MR. MC NALLY-If you have an inventory of roads, and it says 17 feet, there’s a lot of different ways of demonstrating ownership of real property, and this is some evidence of what the Town has asserted as its ownership. MR. BROWN-Right. MR. MC NALLY-But it is not conclusive evidence. MR. BROWN-I don’t think it’s exhaustive. MR. MC NALLY-Not at all, not by any means. I mean, the Town could, theoretically, have filed a deed, years ago, which says that it’s 50 feet wide, and the fact that it goes on an inventory means nothing. The fact, the Town could have taken it by use, and it would have been 40 feet wide, and the fact that it says that it’s 17 means nothing. This is not conclusive proof, is my point, of ownership with dimensions or things like that. All this says is what the Town listed it as an inventory, on an apparently State of New York Department of Transportation form. MR. SALVADOR-Exactly. They’re required by law to do that. MR. STONE-Okay, but it’s also saying it’s 17 feet wide, from where? You’re telling us you think you know what it’s 17 wide from. MR. SALVADOR-I can go out on that road and I can show you where Mr. Naylor has worked. MR. STONE-But we are not on the road, John. We need to have something that everybody agrees where the road is, on the face of the earth, not on the face of a piece of paper. I agree with Mr. McNally. Four feet of relief, if in fact that’s where the road is, is not a real problem. I mean, 26 feet from the right of way, but until I know where that is, I can’t do anything. I see nods around here. We're all feeling the same thing. 50 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-To further support the argument of the 17 feet, and the lack of validity of this drawing, on May 2, 1994, the Town Board designated this road a one way road. It designated a one way road. They had a public hearing. My wife and I were the only ones who came to this public hearing, and expressed concern about designating this a one way road. I called Mr. Howard on the telephone to advise him of the eminent public hearing. He did not show. They passed Local Law No. 5, and by the way, the drawing is in error. It says 4 but it’s really 5, in 1994. MR. STONE-You’re saying there’s an error on your drawing? MR. SALVADOR-Yes. MR. STONE-There may be more, then. If there’s at least one, there may be more. Thank you. MR. SALVADOR-In any case, an argument for the necessity to have it one way was, it’s only a 17 foot wide road. I mean, that’s all the public is claiming. MR. STONE-But you’re still not telling me 17 feet from where. MR. SALVADOR-I’m telling you. I've told you. This is my third time. MR. STONE-No, (lost word) said you know where it is. MR. SALVADOR-Yes, I do. I do. I can show you where Mr. Naylor has done work here. That is indisputable. Right? MR. STONE-That is not in evidence at this point. I mean, we have to, I don’t think we’re in an adversarial situation here. We're trying to give you some relief. We have to know from where that relief is given. MR. SALVADOR-It’s shown on the drawing. MR. STONE-That’s your drawing, non certified, as Mr. McNally. MR. SALVADOR-Do you want a stamp on this? MR. STEC-Staff is going to have to give us. MR. STONE-Staff is going to have to give it to us. MR. STEC-Right. We can’t act on this tonight because we need more information. This is just like a subdivision case or, pre-existing, nonconforming, what was the date. This is where we get to throw it to Staff for an answer, before we can, because we’re here to grant relief, not to establish where this road is. MR. SALVADOR-Let me continue please. On July 7, 1997, the Town Board held a public hearing, in an effort to control the parking along this road. There was a public hearing held to control the parking on this road. The public is invited. These are the people who use the road, okay, now the draft resolution was to prohibit parking on the Dunham Bay Road. That’s what the public hearing was all about, and there was a public outcry. Everyone who came to the microphone, check the record, everyone who came to the microphone said, no, don’t do it. Because the Town didn’t have a right to this. Okay. Everyone who came to the microphone denied the Town the opportunity to exercise its control over the parking on that road, and they didn’t take any action. That was in 1997. Again, 17 feet is what the public use is. I mean, I can tell you from a user point of view, I've walked this road practically every day. We live within 100 feet of this road. Nobody else can make that claim. MR. STONE-You live on the right-of-way. MR. SALVADOR-Partially. MR. STONE-Partially. Right there. MR. SALVADOR-That’s right. MR. STONE-Even on your drawing you show that. MR. SALVADOR-Accuracy. 51 (Queensbury ZBA Meeting 4/28/99) MR. STONE-I don’t know. I’m hearing a lot of nods. It seems to me that, you’re the Chairman. I think we ought to table it until we get an accurate survey of where this right of way is, because even if we’re inclined to give you the relief, lets say we say, you can put this cabin 26 feet from the right-of- way. We're giving you relief, but we don’t know where that is, and that may end up being within 50 feet of the lake. Therefore, you’d need another variance, because now we’ve bounced you closer to the lake. We can’t do that. MR. SALVADOR-Do you know where it is on Hannaford Road? You just talked about Hannaford Road tonight. Do you know where that is? MR. STONE-It was not involved in the variance that he was asking for. If, in fact, we found that the right-of-way was in error, that is something that would have to come back to us, but we are only, we can only do as much as Staff tells us. They told us, in this case, that was not a variance that was required. So therefore we didn’t consider it. MR. MC NALLY-See, from my perspective, even if Mr. Salvador comes back with a certified map, you’ve got two maps from two engineers saying where the two boundaries are, and I don’t think that we’re in a position to decide that. It is, and there’s ample opportunity for a person to bring an action to quiet title or to determine a claim to title, as far as where this boundary is, and if a court were to decide where these things are, where the boundary is, then Mr. Salvador could come back and tell us that. MR. STONE-Right. MR. MC NALLY-And that’s a determination that everyone gets their say in, and it’s decided by a court with competent jurisdiction. MR. SALVADOR-Who is going to do that? MR. MC NALLY-Well, whoever wants to do that can do that, if they have an interest, or a claimed interest in the land, but it’s not our obligation to decide which of the two surveys are correct. I don’t think that we can. We have two competing interests. Obviously, you think you own it, and, apparently, someone thinks that you don’t. Whether that’s the Town or Mr. Steves. MR. SALVADOR-Well, you can read the court decisions as well as I can. What good is my certified survey going to do, in making your determination? MR. MC NALLY-Well, that’s my point. I don’t think it is going to do you any good, and if it’s going to do us no good, why should we table it? Why shouldn’t we make a decision that there’s not enough information, and allow the applicant to come back another day, once he has had this issue decided? MR. SALVADOR-Then I would ask you, what additional information do you need? MR. MC NALLY-A decision of the judge saying, this is the boundary, this other guy is wrong. He says that the boundary is right at the edge of the building you’re making. MR. SALVADOR-You are a quasi-judicial Board. You make that determination. MR. STONE-We grant relief from the Ordinance. The Ordinance says that this building can be, has to be 30 feet from the right-of-way. We don’t know the right-of-way. I mean, this is what our Staff has given us. If you want us to buy that then we. MR. SALVADOR-I’m telling you, I gave you 16 reasons why this has absolutely no standing here. First of all, it has not been adopted by the Town Board. It has not been. MR. STONE-Fine, but we have been given this by our Staff. MR. SALVADOR-I know. MR. STONE-We work, in a sense, for the, well, we don’t work for the Town of Queensbury. MR. SALVADOR-Lew, if this were a Town road, mapped Town road, the Town Clerk would have this inventoried on a list of assets of the Town. MR. STONE-But, John, this is just as suspect as that is. MR. SALVADOR-I’m not claiming that that’s an asset of the Town. This is. 52 (Queensbury ZBA Meeting 4/28/99) MR. STONE-What do you mean? MR. SALVADOR-A map, Lew, a map. MR. STONE-I understand, but this is your map. MR. SALVADOR-Yes. We're not making any claim that we own anything here. MR. STONE-Who decided where the right-of-way was? Who decided you were seeking four feet of relief? MR. SALVADOR-Well, I’m going from Mr. Naylor’s report, 17 feet, no shoulders. He’s the expert, not me. MR. STONE-Okay, but it seems to me that you have said by, you’re seeking four feet of relief from a line that you have determined. We can’t grant four feet of relief from a line you have determined because that’s then not in our purview to do. We have to grant it from the line that legally exists. MR. HAYES-But can’t we do that, then? I mean, if we do that then he’s got to determine where that line actually, I mean, it’s going to be the same result. MR. STONE-That’s a good point. MR. MC NALLY-You would say a decision that you are granting four feet of relief from the property line, wherever that may be? MR. HAYES-Period. MR. SALVADOR-In reality, the fee in that right-of-way is owned by Warren County. The fee in that user road is owned by Warren County. MR. HAYES-Because it’s a County road. MR. STONE-You’re using a term with which I’m not familiar, the fee. MR. MC NALLY-In the one decision, it said that the County did not have title to the land around it, the 17 foot. MR. SALVADOR-Because they made the determination that it was at one time a Town road, prior to 1930, and had been abandoned by the Town. MR. MC NALLY-I don’t see that there was ever a determination made that the land surrounding your 17 feet that you claim is not still owned by the Town. The case did not decide that. MR. SALVADOR-Yes. I have a land taking map, and it’s filed in Warren County. They used to do things right back in the 30’s. It was filed in Warren County, okay, and Warren County owns the fee in the old road. MR. MC NALLY-Okay, and what does the Town own? Where is that depicted on this map? MR. SALVADOR-The Town has no ownership. They have a prescriptive, the public has a prescriptive use of the right-of-way, okay, which the Town is thereby obligated to maintain. The Town doesn't own anything, and the Town has never made a claim of ownership. MR. HAYES-It’s like an easement, really. MR. SALVADOR-That’s all it is. It’s a public easement, exactly. MR. MC NALLY-You’re saying it’s an easement. Well, why don’t we table this and find out exactly what it is the Town’s position is, regarding the boundary of this road. Because I’m not prepared to make a decision until I hear from someone who at least represents what the Town says, other than Mr. Salvador. MR. SALVADOR-Well, I mean, if that’s the case, you should have had Mr. Naylor here tonight. MR. MC NALLY-Well, I wasn’t here to ask him to be here. I’m being presented with this tonight. What other public hearing comments do we have? I think I’m done with my questions. 53 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-I have one more thing, Mr. McNally, for your benefit. After we had oral arguments on the Appellate Division on the determination as to whether or not Dunham Bay Road was a Town road, your law firm represented the Town. After oral arguments at the Appellate Division, I wrote this letter, “Mr. Michael Novak, Clerk of the Court The undersigned are the pro say applicants in the matter referenced above and we hereby request the Board to accept this letter as a post argument submission. As you know, oral arguments were heard by the Appellate Court on September 30, 1996, at which time the 3 Department heard Mr. Scott Rockman, Esq., Counsel for rd the defendant respondent Highway Superintendent, Mr. Paul Naylor, make a new claim. In his summation statement, he said that the Dunham Bay Road is even plowed regularly after every snowstorm. He obviously made the statement to support the defendant respondent’s claim that the road is a Town road. The foundation for Mr. Rockman’s new claim was not established in the Court below, and is, therefore, not substantiated, to any degree, in the record. Such a statement as might be made to support the notion that Dunham Bay Road has been, at any time, maintained by the defendant respondent is an outright, bold faced prevarication of the facts. Had Mr. Rockman been even somewhat familiar with the facts of this case, he would have known that there’s not a scintilla of evidence, in the form of affidavits by the defendant Mr. Naylor or anyone else for that matter, that the Dunham Bay Road has ever been worked by the Town Highway Superintendent, least of all taken care that the snow and ice are removed after every snowstorm. In fact, the record shows quite the contrary. The best Mr. Naylor could recollect, in his affidavit in opposition, is recorded at R64 in the record on appeal, wherein he states, ‘as an employee of the Town of Queensbury, back in the late 1950’s, I remember doing work on this road, which was mostly a dirt roadway.’ Plantiff’s appellant’s responded at R9596 that the defendant Highway Superintendent could not have legally worked that roadway as an employee of the Town. The Town never acquired, by use or otherwise, the old County highway. There is no factual evidence that the Town Highway Superintendent ever worked the Dunham Bay Road, before or after 1963, let alone snowplowing at any time after every snowstorm. Plaintiff’s appellants plead that the court will accept this submission at this time, thus allowing us to formally refute Mr. Rockman’s false claims. Your earliest response regarding the court’s decision in this matter of a post argument submission will be greatly appreciated.” I got this answer. “The court has directed me to advise you that your post argument submission, dated October 7, will not be considered in connection with this case, which was argued on September th 30.” We fought hard that that was not a Town road, and we lost. Now lets live by the decision. th That’s all I’m saying. Mr. Naylor says 17 feet. Maybe he should go out and show us where it is. Could you, I can’t get him to do that. He won’t answer the phone when I call. Could you require that, demand that? MR. MC NALLY-He’s not subject to my supervision. MR. STONE-As Mr. Naylor often says, he is responsible to the voters, and nobody else. MR. SALVADOR-Not this voter. MR. MC NALLY-I mean, this obviously is something that you and he have been going at each other with for some time. Have you ever thought about bringing about claim to settle title, as to the questions of the road? MR. SALVADOR-There is no question of title. There’s no question. MR. MC NALLY-Sir, maybe I misspoke, and I did misspeak. Irrespective of title, apparently the courts have acknowledged some kind of right in the Town to use what you’ve designated as Dunham Bay Road. MR. SALVADOR-Yes. MR. MC NALLY-Even though you objected otherwise. Okay. MR. SALVADOR-Yes, exactly. MR. MC NALLY-But when I say an action, it’s an action to determine just what the dimensions of that right is. MR. SALVADOR-We have Mr. Naylor’s own statement, 17 feet. MR. MC NALLY-I suspect if Mr. Naylor were here today he would tell us something different than that, and if he does, then maybe that would resolve it. MR. SALVADOR-If you look, year after year after year, it has been 17 feet. MR. STONE-And I still ask from where? 54 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-I can show you from where. MR. STONE-You can’t show me. You can show me your drawing. I have a certified, or at least a portion of a certified thing that says it’s not where you say it is. MR. SALVADOR-This is not a valid document. This is not a valid Town document. MR. STONE-I submit that’s up to the courts to decide. MR. SALVADOR-The courts? The Town has Counsel. MR. STONE-Well, the Town Counsel. MR. THOMAS-Are there anymore questions for Mr. Salvador before I open the public hearing? If not, I’ll open the public hearing. Anyone wishing to speak in favor of this application? In favor of? Anyone wishing to speak opposed? Opposed? PUBLIC HEARING OPENED ROGER HOWARD MR. HOWARD-I’m not going to get involved in the technicalities of who owns the road or how wide the road is, but I just want to say that I’m opposed to any use of that property that would increase the congestion in an already heavily used corner of that Bay. The property already supports a boathouse, in which Mr. Salvador keeps his tour boat, plus a marina, with a capacity of 10 to 12 boats. He has created a new business, named Dunham’s Bay Boat and Beach Club, and I believe that has the same address on Dunham’s Bay Road as the property in question tonight. For the past two seasons, this property has been the location of a jet ski and boat rental business, a business operated out of a trailer, which was moved in for the summer, and I can’t help but wonder what the real purpose of this hunting and fishing cabin is. Is it going to be an office for a boat rental business or for the Beach Club? That’s all I've got to say. MR. SALVADOR-I can respond to that. As we were in the process of bringing forth this hunting and fishing cabin, the Town changed its Zoning Ordinance, okay, and in the Zoning Ordinance now, in Waterfront Residential, Waterfront Residential One Acre is our zone. We have principal uses, and by the way, we should point out here that this is an allowable use in a three acre zone, in a one acre zone, and we have three acres. This is an allowable use. A 300 square foot hunting and fishing cabin is an allowable, principal use in this zone. Okay. The Town took the liberty to amend its Zoning Ordinance, right in the middle of our application, whereby in the principal uses, occupancy by individuals of a building which facilitates hunting and fishing activities. No commercial use allowed. It is clear to us that in no way, shape or form, can we use this 300 square foot hunting and fishing cabin to support any kind of commercial use. We understand that. The Code does not allow it. However, the Town did allow those people who have residential property, a single family dwelling, to conduct commercial business. It’s not expressly prohibited. So the Town Board has taken care of your concern. There’s absolutely no way we can use this dwelling for commercial activity. MR. STONE-But you have commercial activity on that property, a number of activities. MR. SALVADOR-That’s nonconforming. MR. STONE-Well, a number of nonconforming uses. MR. SALVADOR-But they pre-existed the zoning. They become nonconforming. MR. STONE-I’m only setting it for the record that you already have a number of nonconforming commercial operations on this 4-1-11. MR. SALVADOR-Yes, 4-1-11. MR. STONE-Now you sell gas. You have a marina. MR. SALVADOR-All of those uses pre-existed zoning in this Town, and the present Zoning Ordinance, all of them, at their present level of operation, on that parcel. MR. STONE-I understand. I’m not finding fault. MR. SALVADOR-There was another, Mr. Howard brought up another point. 55 (Queensbury ZBA Meeting 4/28/99) MRS. SALVADOR-I’m Kathleen Salvador. Mr. Howard brought up the fact that we started a new business called Dunham’s Bay Boat and Beach Club. All we did was re-organize. We always had a marina down there. All we have done is make that a separate business, a second business under our corporation. It’s always been there. It was there before we bought the lodge. So we haven’t started anything new down there. There is one business down there and there has always been just one business. However, it is now called Dunham’s Bay Boat and Beach Club. MR. STONE-And who owns the permit for the marina? MRS. SALVADOR-Dunham’s Resort Corp. MR. STONE-And you license it? MRS. SALVADOR-Under Dunham’s Resort Corp., and we have boat dealer’s licenses under Dunham’s Resort Corp. MR. SALVADOR-There’s a good reason for having done this. We’ve been coming on to seven years in court with the Town on our assessment. For some reason, our lands, there’s only one deed to all of our land. Yet, there are three separate tax parcels. Now this, you would understand, Mr. McNally, this is very difficulty when it come to Article 7’s in court. You’ve got to begin to apportion, because you go to court on the basis of a tax parcel. Okay Well, what is the value of this tax parcel? What is the value? It gives services to this operation. It takes services. So what we had to do was divide, and what we have done is we have organized such that the operations north of Route 9L are the Dunham’s Bay Boat and Beach Club, and our permits and everything we do operate, function that way. This facilitates our sales tax collection and payment, facilitates our reporting our corporate taxes, everything we do. It makes it a lot easier and cleaner to report, and for people to understand, and the activities south of Route 9L are Dunham’s Bay Lodge. So we can, the corporation does business in two ways, as a boat and beach club and as a lodge. We didn’t have a need to do this before, but it was getting extremely difficult. Now the Town has taken the liberty, okay, we didn’t subdivide our land. We’ve got three different tax parcels. Where the hell does that come from? The Town did that to us. MR. STONE-And you have an agreement, the Bay has an agreement that people staying at the lodge can use their, they have an easement onto their property? MR. SALVADOR-That’s right. MR. STONE-Okay. MR. SALVADOR-The Lake George Park Commission has had an extreme amount of difficulty understanding this. As far as the Lake George Park Commission is concerned, all of our lands are a marina. We are a marina. Okay. The tennis court is part of a marina operation. MR. STONE-Only when it rains. MR. SALVADOR-But that’s where that comes from. It’s not an expansion, only in what we can do legally, but it’s a re-organization of what we’ve already been doing there, and we found it necessary to do that. MR. THOMAS-Would anyone else like to speak in opposition? Do you have any correspondence? MR. BROWN-No. MR. SALVADOR-I would just like clarification as to, if you’re going to table this, I want to know what I should do by when. MR. STONE-The tabling motion will have that. Won’t it? MR. THOMAS-We have to get a map. MR. STONE-We have to get a map, that both parties agree with. MR. SALVADOR-You’ll put it in the motion. MR. THOMAS-All right. MOTION TO TABLE AREA VARIANCE NO. 25-1999 JOHN SALVADOR, JR. KATHLEEN A. SALVADOR, Introduced by Chris Thomas who moved for its adoption, seconded by Paul Hayes: 56 (Queensbury ZBA Meeting 4/28/99) Until no later than the June meeting of the Zoning Board of Appeals. This means that any new information requested by the Board must be submitted by the filing deadline for that month. The applicant may appear on the agenda in the previous month if the filing deadline for that month can be met. The reason for tabling this application is to get an accurate map that both parties agree to, so that the Zoning Board of Appeals can determine the setback for the relief required. The parties involved are Kathleen A. & John Salvador, Jr., on Area Variance No. 25-1999 & the Town of Queensbury or its representatives. Duly adopted this 28 day of April, 1999, by the following vote: th MR. SALVADOR-Could you please define the parties. MR. THOMAS- The parties involved are Kathleen A. & John Salvador, Jr., on Area Variance No. 25-1999 & the Town of Queensbury or its representatives. MR. SALVADOR-The Town of Queensbury? MR. THOMAS-Yes, or the Town of Queensbury Community Development, or do you want the Highway? MR. SALVADOR-Yes, I think it’s the Highway. MR. HAYES-Maybe you ought to say Town. MR. THOMAS-Yes, by the Town of Queensbury covers everything. MR. STONE-By the appropriate parties in the Town of Queensbury. MR. SALVADOR-Can the Town of Queensbury force Mr. Naylor to go out and identify the 17 foot? Can they do that? If they can do that, fine. MR. THOMAS-Can they force him to go out there and do that? MR. SALVADOR-Yes. MR. THOMAS-I don’t believe they can. MR. SALVADOR-That’s what has to be done, and you must give me the tools with which to do that. MR. HAYES-I’m certain a court can order him to do that. MR. SALVADOR-Before the court can order him to do it, I've got to get the Town, then, to order him. Do you know what I mean? You’ve got to go through. MR. STONE-Well, but if we say the appropriate parties in the Town of Queensbury. MR. SALVADOR-It should be the Highway Superintendent. That’s his report. That’s where we’re getting the 17 feet from. MR. STONE-The only thing I would say about that is that we are an instrumentality of the Town of Queensbury, and that’s who we can suggest do something. I’m not sure we can suggest, I don’t know. MR. HAYES-If they don’t, you can bring an action, right? MR. MC NALLY-Yes, he can bring an action. MR. HAYES-Not that he likes to bring actions. MR. MC NALLY-To determine where that boundary is, but it seems to me that there is either an agreement as to where the boundary is, or there isn’t, and ultimately it’s the Town of Queensbury and its representatives that have to agree with the Salvadors. If they can, God bless them. If they can’t, then I do respectfully think that they have to bring an action to quiet title or to resolve the claim to title. That’s all it is. Even though it’s not a title issue, so much as a boundary issue, the same kind of action is brought. 57 (Queensbury ZBA Meeting 4/28/99) MR. SALVADOR-I would like to have you name the parties to this the Highway Superintendent. That map by Van Dusen and Steves was prepared in consultation with the Highway Superintendent. MR. STONE-It was prepared for the Town of Queensbury, according to the Legend. MR. SALVADOR-They have no authorization to prepare it for anyone but the Highway Superintendent. Is that not true? MR. MC NALLY-I don’t know. MR. HAYES-Wouldn’t he be a duly authorized agent of the Town of Queensbury? MR. MC NALLY-He’s a separately elected official, too. MRS. SALVADOR-Whenever we ask anything of the Town Board about the road, the Town or the highway, go see Mr. Naylor. We can’t do anything. MR. SALVADOR-And he doesn’t answer the phone, and the door is barred over there. You ring the bell first, and then they decide whether or not they want to talk to you. MR. MC NALLY-I don’t know but the Town Board might be able to make a decision on these matters, or Mr. Naylor might be able to make a decision on these matters, but what you’re being told is that you’re being stonewalled. I don’t know how you can come to an agreement with either the Town Board or Mr. Naylor unless you can talk to them. MR. SALVADOR-Well, if you put in your resolution, the Town Highway Superintendent, that gives me a calling card, otherwise I have no calling card. MR. STONE-What’s the downside, if we? MR. HAYES-You have recourse, because, I mean Bob can correct me, but ultimately if they don’t respond, then that’s denying you the potential to put that camp there. That’s a taking. I mean, that would give you grounds for. MR. MC NALLY-He still has the right to go bring a claim. MR. HAYES-I mean, it would be a taking of a property right for you, or property interest. MR. MC NALLY-A potential taking. MR. SALVADOR-Don’t drive me into an Article 78. It is a dead end street, believe me, it is a dead end street. MR. MC NALLY-It’s not an Article 78 proceeding I’m thinking about. You’ll have to get your own Counsel, sir, but the point is, I think that you have to come to terms with (lost word) claim to this property, which is the Town of Queensbury, and either the Town Board or its representatives, which may be the Highway Superintendent, that’s who you have to talk to, and that’s who the parties should be, the Town Board or its duly designated representative. I don’t know how else I can tell you. MR. STONE-Yes, I don’t think we can go. MR. HAYES-I’ll second the motion. MR. THOMAS-Does everybody understand the motion? MR. STONE-Yes. MR. THOMAS-Do you want me to make another one? MR. BROWN-You want it to be the Town of Queensbury and? MR. STONE-And or its representatives. MR. THOMAS-I just want to say the Town of Queensbury or its representatives. That’s all I want to say. That could be anybody in the Town. All right. Now I’ll ask for a second. MR. HAYES-Second. 58 (Queensbury ZBA Meeting 4/28/99) AYES: Mr. McNally, Mr. Hayes, Mr. Stone, Mr. McNulty, Mr. Stec, Mr. Thomas NOES: NONE ABSENT: Mrs. Lapham MR. THOMAS-I have just one more question of Mr. Salvador. You used a 50 cent word called “scintilla”. MR. SALVADOR-Yes. MR. THOMAS-What’s a “scintilla”? MR. SALVADOR-Very, very little. MR. HAYES-Almost nothing. MR. STONE-Almost nothing. Would you explain what you meant by “fee”, though? I didn’t understand. It’s not money we’re talking about. He can explain it. He’ll explain it. MR. MC NALLY-I’m a member of the Board. I’m not Counsel. MR. THOMAS-All right. We’ve got one more thing to do. Mr. Lapper has sent us a letter regarding David Dufresne, on Cleverdale. Do you want to read that letter in, Craig? MR. BROWN-Do you have a copy of it? MR. THOMAS-I've got it right here. We’ve got to discuss whether we want to bring this back to life or not. MR. BROWN-I have a letter from Jonathan Lapper, dated April 23, 1999, to Mr. Christian Thomas, Chairman, Town of Queensbury Zoning Board of Appeals, regarding Dave Dufresne, Cleverdale “Dear Mr. Thomas: By this letter, on behalf of Mr. Dufresne, I hereby request a reconsideration of a modified application for an area variance. As you will recall, the Zoning Board denied the prior request for the construction, an enclosed room on the existing deck, which violates the lake setback and the building coverage requirement. This proposal is to remove the walls of the addition so that it will only be a covered porch with columns supporting the roof located over a portion of the deck. It is the applicant’s position that this is a substantial modification from the prior application, as this will only be a covered porch on an existing deck and will not be an interior room as was previously requested. As justification for the grant of this requested area variance, Mr. Dufresne will construct a brand new septic system in accordance with the prior approval of the Town Board of Health. The new septic system will be in compliance with the 100 foot setback from the lake which is a significant change from the existing antiquated nonconforming system. As indicated in the enclosed letter from Dave Hatin, this new system will be a benefit to the neighborhood. I hope that the Zoning Board will consider this a substantial modification and grant Mr. Dufresne the opportunity to seek the modified variance. Very truly yours, Jonathan C. Lapper” Do you want the Dave Hatin letter, too? MR. THOMAS-No, because that just has to do with the sanitary sewage, and then the other one is just a tabling motion. So what’s he changing? He’s just taking the walls out? MR. BROWN-The same size, just taking the walls out, just an overhang. MR. THOMAS-Just an overhang? MR. HAYES-It doesn’t say anything about screens on there, right? MR. BROWN-It doesn’t say screens, but potentially there’s going to be a rail. MR. STONE-But the deck was there before? MR. THOMAS-The deck was always there. MR. STONE-That’s what I remember. MR. THOMAS-So he just wants to cover it. MR. BROWN-He just wants to cover a portion of the same area that he had enclosed. 59 (Queensbury ZBA Meeting 4/28/99) MR. THOMAS-Do we agree or disagree this is substantially different from his first application? Lew, yes or no? MR. STONE-I don’t really think so. I mean, putting a roof on it means that you have. MR. HAYES-Isn’t the roof already there? MR. STONE-Yes, he put it there. MR. THOMAS-Yes, it’s there now, but it wasn’t there. MR. HAYES-If we deny this, then we’re asking him to essentially take it down, then. MR. STONE-Well, we already did that. MR. HAYES-We're going to continue to. MR. MC NALLY-Now he wants to keep it up, still. MR. STONE-He just wants to take down the walls, but he wants to have the roof, which is part of the visual effect of the deck in the first place. MR. STEC-Yes, but I thought the concern was. MR. HAYES-Increase in living space. MR. STEC-Right, living space and a septic issue, which now it wouldn’t be, because it’s not year round. MR. STONE-No, no. That room would not be year round. The rest of the house is still year round. MR. HAYES-Right, but it already was year round. Right? MR. STONE-Yes. MR. STEC-He had a deck there. Now it’s all covered, but it’s not a new septic issue, and it’s not a new variance. MR. STONE-It’s not a septic issue at all. MR. STEC-It would have been when he had it covered, and that’s why I think it’s different. MR. HAYES-Increased square footage, it’s got to be a septic issue. MR. STONE-No, I thought it was because it was brought to the Town’s attention that it was a bad system. That’s what I remember. MR. STEC-I thought it was because it increased the Floor Area Ratio. MR. HAYES-It’s really two issues in one. MR. THOMAS-In an WR-1A zone, if you increase the living area, you have to bring the septic system into compliance, with today’s regulations. MR. STONE-Okay. You’ve got to bring it into compliance. MR. MC NALLY-And wasn’t the structure within the 50 foot setback? MR. STONE-Yes. MR. MC NALLY-That was what concerned me. MR. THOMAS-Well, the existing deck was there. It was already on there. MR. MC NALLY-He’s expanded that use, and he’s expanded toward the lake by putting, now, a roof on this structure. MR. THOMAS-Yes, putting a roof over it. 60 (Queensbury ZBA Meeting 4/28/99) MR. MC NALLY-If you look at it, he’s just going to take out the walls. It’s just going to be the same roof pitch and peak and everything else as it is now. MR. THOMAS-Yes. He’s just taking the walls out and putting supporting columns in. MR. MC NALLY-I don’t see that as substantially different. MR. HAYES-It’s not going to be a lot in the end, if you get into, do you know what I’m saying? That could end up being quite a bit, the rail. MR. THOMAS-Yes, well, if it’s more than 18 inches off the ground, it would have to be a rail. MR. STEC-Does this need to be a unanimous decision, or is this your call? MR. THOMAS-No, it’s our decision, majority rule. So, we’ll start again. Lew, is this significant from the previous variance? MR. STONE-No. MR. THOMAS-Okay. Jaime? MR. HAYES-I would say, no. MR. THOMAS-Bob? MR. MC NALLY-No. MR. THOMAS-Dan? MR. STEC-I could go either way. I’ll say, yes. MR. THOMAS-Chuck? MR. MC NULTY-No. MR. THOMAS-Okay. That’s enough, and I’ll say no, also. It’s a five to one. MR. STEC-I can agree to that. MR. STONE-Six to one, Dan is going to change. MR. HAYES-Six to zero. MR. STONE-Six to zero. MR. THOMAS-Six, zero. MR. BROWN-Six to zero, no? MR. THOMAS-No, we aren’t going to re-hear it. MR. STONE-Not on the basis of that proposal. MR. THOMAS-Yes. Not on the basis of this letter. It’s not a significant enough change from the previous application. MR. BROWN-Okay. MR. STONE-That we denied. MR. BROWN-We're going to consider this pretty informal? I mean, if he comes in with an application for a new variance? MR. STONE-I read this, I request re-consideration, for a modified application. MR. BROWN-Well, I don’t think he can really request re-consideration of a denied application. MR. THOMAS-No, he can’t. 61 (Queensbury ZBA Meeting 4/28/99) MR. STONE-Unless it’s substantially changed. We're saying it’s not, what he has proposed is not substantial. MR. THOMAS-And if he comes in with a new application with what he said he’s going to do here, that’s not a substantial enough change. MR. BROWN-What would be substantial enough, smaller? Further from the lake, narrower, shorter? MR. STONE-All of the above. I don’t know. Okay. The objection that we had here was the roof is still going to be in place. There’s going to have to be a railing there. So, in viewing it from the lake, you’re not going to be able to tell whether it’s enclosed or not. Is that legit? MR. MC NALLY-Regardless of what he wants to do, if it’s one room, built closer to the lake, if it has a roof, if it doesn’t have a roof, it has sides, doesn’t have sides, has screens, doesn’t has windows. It’s still pretty much the same thing, a single room in front of the existing structure. I don’t see how he can make a significant change to that. It’s always going to be one room. Do you see any difference, any possibility? MR. HAYES-I don’t. If we maintain the position, though, eventually he’s actually got to take that down, doesn’t he? MR. STONE-That is correct. MR. THOMAS-Does anyone else have anything for the good of the Board? MR. BROWN-There’s the Staalesen, on Glen Lake. They prepared another proposal, to move the house back. What they want to do now is have two principal dwellings on the property. They’ve separated the cottage from the main house. MR. STONE-So it’s a new application. MR. BROWN-So it’s a new application. I think we’re going to have to re-advertise for different relief. MR. THOMAS-Was it tabled or was it denied last week? MR. STONE-We tabled it to have him come back with an alternate plan, but this is so different. MR. BROWN-This is going to have to be a new application. It needs to be re-advertised. MR. THOMAS-Yes, you’d have to re-advertise, but I think you could use the same application, because you asked for a modified plan. MR. STONE-That’s correct. MR. THOMAS-You didn’t deny it. So really, it’s. MR. BROWN-The house was way up here and attached. He moved it back significantly. It’s, for the most part, beyond the setbacks. There’s still a portion of the living area inside the setback. MR. STONE-To be removed. MR. BROWN-He wants to maintain this as a principal and this as a principal. So it’s for two principals on one lot. Similar to Dr. Hughes. MR. THOMAS-Yes, across the lake there. Yes, but his across the lake didn’t have a kitchen in it. Re-advertise it as a modified plan. Okay. Does anyone else have anything for the good of the Board? I’ll make a motion we adjourn. MR. MC NALLY-Second. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Thomas, Chairman 62 (Queensbury ZBA Meeting 4/28/99) 63