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1999-10-27 (Queensbury ZBA Meeting 10/27/99) QUEENSBURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING OCTOBER 27, 1999 7:00 P.M. MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN DANIEL STEC, SECRETARY LEWIS STONE ROBERT MC NALLY CHARLES MC NULTY PAUL HAYES CODE COMPLIANCE OFFICER-CRAIG BROWN STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 92-1999 TYPE II LC-42 ROBERT D. GILCHRIST LOUISE A. GILCHRIST OWNER: SAME AS ABOVE 2483 RIDGE ROAD APPLICANT PROPOSES CONSTRUCTION OF 576 SF DETACHED GARAGE AND SEEKS SETBACK RELIEF. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 10/13/99 TAX MAP NO. 20-1-2 LOT SIZE: 0.65 ACRES SECTION: 179-13, 179-60 LISA SCHRYER, REPRESENTING APPLICANT, PRESENT MR. STEC-“Warren County Project Review and Referral Form Project Name: Gilchrist, Robert Owner: Same ID #: QBY AV92-1999 County Project #: October 99-25 Current Zoning: LC-42 Acres Community: Queensbury Description: Applicant proposes to construct a 24 by 24 foot detached two car garage and is seeking relief from front and side yard and shoreline setbacks. Site Location: Western side of New York State Route 9L Tax Map No. : 20-1-2 Staff Notes: A copy of the relevant portion of the applicant’s drawing is included with the summaries. The garage appears to be located as far away from the lake as practical, given other development on the parcel. Staff does not believe that there are any significant County issues presented by the construction of a two car garage in this location. County Planning Board Recommendation: No County Impact” Signed Terry Ross, Warren County Planning Board. STAFF INPUT Notes from Staff, Area Variance No. 92-1999, Robert D. Gilchrist, Louise A. Gilchrist, Meeting Date: October 27, 1999 “Project Location: 2483 Ridge Road Description of Proposed Project: Applicant proposes construction of a 576 sf detached garage and seeks setback relief and permeability relief. Relief Required: Applicant requests 90 feet of relief from the 100 foot minimum front setback and 3 feet of relief from the 100 foot minimum shoreline setback requirements of the LC-42A zone, § 179-13. Also, the proposed garage represents a 2% increase in the impermeable area of the site thereby bringing the total to 10%. 5% is the maximum allowable impermeable area per § 179-13. 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 garage in the preferred location. 2. Feasible alternatives: Feasible alternatives may include attaching the garage to the home, which may present a lesser visual impact on Route 9L while predominantly maintaining the shoreline setback. 3. Is this relief substantial relative to the Ordinance?: 90 feet of relief from the 100 foot front setback requirement may be interpreted as substantial, while 3 feet of relief from the 100 foot shoreline setback requirement may be interpreted as minimal. The permeability request may be interpreted as minimal. 4. Effects 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. However, given the current zoning requirements, calling for a 100 foot setback from all property lines and a 95% permeable area, virtually any type of development on this property would require some form of relief. Parcel History (construction/site plan/variance, etc.): BP 96-009 1/26/96 200 sf dock withdrawn Staff comments: Moderate impacts may be anticipated as a result of this action. The 1998 Comprehensive Land Use Plan includes this parcel in a recommendation for rezoning to Waterfront Residential 1 Acre. This recommendation should be considered when acting on this application. Please refer to Neighborhood 1 page 10 of the Plan. (enclosed). SEQR Status: Type II” MR. THOMAS-All right. Mr. and Mrs. Gilchrist, do you want to come up here. I believe Miss Schryer is going to represent you. 1 (Queensbury ZBA Meeting 10/27/99) MISS SCHRYER-Good evening. As you can see by the application, we are applying for a major setback variance in regard to the shoreline, and a 100 foot setback variance from the road. The proposed setback variance from the road would only be 10 foot. So we would need a 90 foot variance, as stated in the application. As you can see from the maps that were provided to you in your packet, there is a designated section on the map stating where they would like to place the garage on the property. When you look at the size of the lot, and you consider the zoning regulations, there is absolutely no way any kind of development could meet the zoning regulations as they are on this lot. The zoning regulations call for this lot to be at least 42 acres, and it’s just over half of an acre. So obviously it’s impossible to meet any kind of setback requirements that are listed. Basically, I’d entertain any questions that you may have on this. It’s pretty cut and dried and self- explanatory, as listed on the application. We think the section designated on the map, where we’d like to place the garage, is really the only good location for the garage, and it’s just going to be a very simple, standard, two car garage. It’s not going to have any kind of apartment or anything on the upper level. It’s probably just going to be an “A” peak with a little bit of story, maybe, if that. If you have any questions, we can, of course, answer any. MR. THOMAS-And the height of the garage is? The height above grade? MISS SCHRYER-Well, that’s something we were just trying to determine. I notice on the Staff comments, you listed that there was a proposal for the property to be re-zoned, back in ’98. MR. THOMAS-Yes. MISS SCHRYER-And that recommendation would have required that all detached accessory buildings be only 16 feet in height. If you look at the building plans and addition that we submitted to the map, it will be, the garage will be under that 16 foot requirement. MR. THOMAS-Because I was looking through them and I did not see. MISS SCHRYER-Yes. It took us a while to find them. We thought, there’s got to be some place in these building plans that state how high the building’s going to be, and if you could forgive me for just a second, I’ll try and find out exactly where it was where we found it, but I can point it. MR. STEC-It’s twelve on four, right? So it’s four feet of pitch, if it’s 12 feet to the center, eight plus four, it’s about 12 feet on. MR. STONE-Has this got a four ended roof? Is this roof going to be both this way and this way? MISS SCHRYER-No. MR. STONE-There’s an eight by twelve, here, and a four on twelve. MISS SCHRYER-Right. It’s just going to be your standard apron roof. MR. THOMAS-It shows two pictures, one with an eight on twelve pitch, and one with a four on twelve pitch. ROBERT GILCHRIST MR. GILCHRIST-Yes. They show a 24 by 24 and 24 by 26, but the one that’s going to be is just the straight. MR. THOMAS-From the floor to the bottom of the truss is eight foot eight and five eighths inches, and from the bottom of the truss to the peak is. MR. STONE-You have addressed the fact that Staff notes talk about the Waterfront One Acre zoning. Would you address the position of the garage in respect to that zoning? Assume that that’s the zoning we apply to this thing, as was suggested by Staff, which means you only need 30 feet from the road and 50 feet from the lake. I mean, consideration of that, would it be possible to place the garage at a different place? MISS SCHRYER-Well, that would still pose a difficulty. If you look on your map, the section where we do have the garage designated, if we tried to push it back anymore, there is a hill there, and there would have to be some kind of digging into the hill, and excavating. Really, that’s the only spot on the whole property where you could fit the garage without having to receive any kind of an additional variance. MR. STONE-Well, it could be next to the house. It could be attached to the house. 2 (Queensbury ZBA Meeting 10/27/99) MISS SCHRYER-It could be attached to the house. That’s not a desired avenue that we would like to pursue. MR. STONE-Okay. You’re not willing to consider that at this moment? MISS SCHRYER-At this moment, no. MR. STONE-No. MR. THOMAS-Okay. Are there anymore questions for the applicant? MISS SCHRYER-Can I make one additional comment? MR. THOMAS-Sure. MISS SCHRYER-I did drive by the property today, just to take a look at it and take a look at the exact proposed location of the garage. I don’t know if any of you have had the benefit to do that, or if any of you are familiar with the property itself. MR. THOMAS-Yes. MR. STONE-We all should be. MISS SCHRYER-Yes, I know. MR. STONE-It’s one of our jobs. MISS SCHRYER-I understand that. When you come around the corner, and you see the lot, if there was a garage there at the end of the house, as you just mentioned, it would seem like, right when you come around the corner, bam, there’s the garage and there’s the house. If it was set in the section where we’ve proposed it to be set, it’s kind of back a little bit, even though it seems very close to the road, it’s not right on top of the corner, and I noticed in the Staff notes, if the garage was placed at the end of the house, well, it was recommended in the Staff notes that it would seem to be less of a visual impact. Whereas, I strongly disagree with that. I think it would be more of a visual impact if it was at the end of the house, but then again, that’s just my opinion. MR. THOMAS-Well, I know, too, on your map, that the State highway right-of-way sits farther back than a normal right-of-way does, the property line. So that kind of sort of squeezes you in a little bit, too. Are there any other 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? Is there any correspondence? MR. STEC-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for the applicant? MR. MC NALLY-I’m not satisfied that I understand why the garage can’t be built between the place where you’ve designated it on the map and the house, or adjacent to the house. What was the reason? MISS SCHRYER-It could be placed at the end of the house. I’m not saying that it couldn’t. That’s not the place that the Gilchrists would like to place the garage, and I was just making the argument that, in my opinion, when I took a look at the property, just today, when you come around the corner, if the garage was placed at the end of the house, it would just be, as soon as you came around the corner, that would be the first thing you’d see is that garage. Whereas, if it’s off to the side, where we’ve designated it, it’s not as strong of a visual impact, in my opinion. MR. STONE-Where are the garage doors going to be? MISS SCHRYER-They would be facing the driveway. MR. STONE-So facing southeast. 3 (Queensbury ZBA Meeting 10/27/99) MR. GILCHRIST-Facing out to 9L, you know, it bends around. So you’d be facing out toward 9L. MR. STONE-Okay, but right on the driveway itself. Now, can you, in coming out of this driveway, can you make a turn without going on the State land? MR. GILCHRIST-Yes. MR. STONE-There would be enough room with your stub of the driveway that’s left there. Okay. I ask the question only because, I have no idea why. MR. GILCHRIST-We go out forwards. We back around and then. MR. STONE-You better go out forward. I tried to do a turn today and I almost didn’t make it. MR. MC NALLY-You’ve got a little turnaround there. MR. STONE-Yes, they do, yes. MR. THOMAS-All right. Anymore questions for the applicant? If not, lets talk about it. I’ll start with Lew. MR. STONE-I’m certainly looking at this thing as Waterfront One Acre, because obviously, as your counsel said, LC-42 doesn’t really come into play, and obviously the land use plan is going to, hopefully the new zoning will take care of that. Having said that, it seems to me, you need 20 foot of relief from the 30 foot that would be required, front setback. In other words, you need 2/3’s of the rd thing relief. Now we’re talking practical numbers. One hundred isn’t a practical number. We all realize that. I guess I would like to see it slide down so that it’s not quite close to the 10 feet. I really don’t think the impact on the lake, which is something I normally concern myself with, even if you moved it a few more feet, what you have to be is 50 feet from the lake. So we’re not encroaching on that at all if we were to move it a little bit to the west, and we would improve the 10 foot. It is a dangerous corner. I’m concerned, as I say, today my experience trying to come out of there, even facing forward, it’s a blind thing coming around the corner. Will the garage, sitting where you want to put it, create more of a problem? I don’t know. I guess my only thing is it’s a lot of relief. I think otherwise it’s a realistic project, but I would think that if we, I would be happier if we moved a little closer to the house, but having said that, I will listen to my fellow Board members. As I say, my prime concern, your property location is the lake. It’s not going to impact the lake any more than anything else is going to do, and the thing is, it’s close to the right-of-way, but one can argue it’s not that close to the road. I recognize that. You are going to take down some trees to put it in there, though, and that concerns me. There’s a boat in there right now. That’s where the garage is going to be, where the boat is? MR. GILCHRIST-No. It’ll be further, closer to the house than where the boat is. MR. STONE-It will be closer to the house? MR. GILCHRIST-Yes. Where the boat is, where the boat’s being stored right now, that’s still going to be there so I can make my turnaround and go out forward. That stays, and there’s two snowmobiles, a boat and stuff, but the garage. MR. STONE-And that’s going to still stay outside, or is that going to go inside? MR. GILCHRIST-The boat, it’s outside. MR. STONE-It’s going to stay outside. MR. GILCHRIST-Yes. MR. STONE-Well, as I say, I don’t have any strong feelings against this thing, but I would like to hear my fellow Board members. MR. THOMAS-All right. Jaime? MR. HAYES-Well, I certainly agree with Lew that it’s not easy to get past application of a more realistic zoning criteria for this, other than LC-42. It’s clearly not that. So I agree with Lew totally on that. I guess, going along the lines of what he talked about, I think my sense is that we’re charged with trying to get minimal relief and it’s almost like an underlying feeling that we’re not there, as far as minimal relief, that less relief is certainly possible in this circumstance, with a little work. So I guess I’d be willing to sit and listen, also, to any ideas that the applicant might be willing to put forth, 4 (Queensbury ZBA Meeting 10/27/99) just to relieve, 10 feet out of a 30 feet, 20 feet out of a 30 foot setback is still pretty substantial, and reducing that would completely satisfy me at that particular time. I think that there is a significant difference, in this case, of where the State right-of-way is, and Route 9L, and that is contributing to the problem. I mean, the survey demonstrates that clearly. So I’m not that concerned about the relief, and I certainly am okay with the idea for the need for a garage, particularly in the area that we live in. So I don’t really have any problem with that, but I’d like to hear what the applicant might have to say about possibly putting this in a minimal relief situation. MR. THOMAS-All right. Bob? MR. MC NALLY-I have no problem with Mr. Gilchrist having a garage at his home. There is enough land there, in my opinion, at the top of the hill, and certainly one is warranted, as Jaime says, but I was impressed, too, that there is a fair amount of flat space between where that garage is proposed and the house itself. So that by granting relief allowing the building 10 feet from the road, We would not necessarily be doing justice to the Ordinance. Alternatives could be suggested. There are other feasible alternatives, notwithstanding your opinion that it may be more observable if it is closer to the house. I would disagree. The relief is substantial, and I think the applicant should make an effort to try to re-think this process, and ask for less relief within the most that they want. Done. MR. THOMAS-Okay. Chuck? MR. MC NULTY-Well, I, too, am bothered by the 10 foot relief. I don’t know, looking at the map and the property, it strikes me that, as the applicant’s pointed out, if they move the garage very much from where it is now, they’re going to have something to do with the bank. So there’s going to be more disturbance of the ground. So I’m inclined to either look at approving it where it is, or hoping that they could move it back next to the house, and I think I opt for moving it back next to the house. The 10 foot strikes me as being just too close to the line. MR. THOMAS-All right. Dan? MR. STEC-I agree with the rest of the Board. I think 10 feet of relief from a State highway is asking for a lot, especially that general stretch of Route 9L, that corner up there, a lot of high speed traffic and I’m just bothered by the 10 feet. It just strikes me as not a good idea, and again, I think that there is a very feasible alternative to move it closer to the house. In any case, some relief would be required, but I feel a lot better granting that relief. I’m not bothered at all viewing this as a Waterfront Residential One Acre, either, in light of the recommendation from the Comprehensive Land Use Plan, but I just think 10 feet is too close to the road. I’m done. MR. THOMAS-All right. To me the State highway right-of-way sits farther back off the road. In fact, I know it sits back farther off the road. In a normal straight stretch of road, normally the highway limit is 25 feet from the centerline, but because of this curve that goes through there, and the intersection of Pilot Knob Road, the State highway property line sits back farther, and this causes the applicant to be closer to that property line than it would be if it was a normal 25 foot off center line, and along with the curve of the road, too, that also decreases the setback, along with the unique shape of the property. This property is more or less pie-shaped. It’s not a normal square lot because it’s bounded on one side by a State highway and on the other side by the Warner Bay back water I guess you would call it. Like Miss Schryer said, when you’re looking at that, when you come around the corner and you look at that house now, you see that house, but if that garage was set off to the right, as the applicant has depicted, I think it would be a better visual impact than having it looking right through the whole length of the house plus the garage there, and I think, you know, if you’re worried about seeing the garage or something like that, maybe some plantings along the garage to shade it or hide it a little bit, something like that, but to me, because of the shape of the property, where the top of that bank is, because of the highway limits and unique shape of the property, I think the applicant has put that garage about the best place they could on that property, for its size and for its location. So, having said that, I would ask for a motion. MR. MC NALLY-Would the applicant reconsider or perhaps come back if we table it with a different proposal? MISS SCHRYER-Reconsider it, what, as far as moving it to the end of the house or closer to the house? MR. STONE-Or closer to the house. MR. MC NALLY-It’s up to you folks. We can make a motion and deny the application, which is the way it looks like it’s going to go, as it’s presented. On the other hand we could table it, and you could come back with perhaps a concession of some sort, or at least you can think about it. 5 (Queensbury ZBA Meeting 10/27/99) MR. GILCHRIST-What I did, when I first planned it, I made the little box, and I started moving the box around, and as I moved the box closer to the houses, it was more, you know, as you moved the 24 by 24 over toward the house, it goes more over the ledge, down toward the lake, and then if you move it right to the end of the house, then you’re closer to the road. So no matter where I move that little box, I made this little, and I kept moving it around thinking, where would be the best spot to put it, and if you, you know, just cut that little box out and start moving it around and watch what happens as you move it, and if you put it right at, you know, I think probably architecturally right at the end of the house was my first plan, and I put it there and I thought, you know, how close would it be to the road. It comes even closer to the road, as I do that, and as I moved, you know, and I’m going to lose my view of the lake no matter where I put it. I mean, I have a view of the lake out that back window, and if I put it there, it’s probably the worst spot, but if you can just visualize moving that box around, and what happens as you move that, you’ve got all sorts of different problems. Either you’re closer to 9L on one side, you’re closer to the cliff on the other side. MR. MC NALLY-I filled the box in right here, between the house and the existing place. How come you can’t put it some place like this? MR. STONE-Another question. The deck is over the hillside, right? MR. GILCHRIST-Right. MR. STONE-So it’s already got footings going down. So the garage could, in a sense, be similar to that. MR. GILCHRIST-There’s a cliff here. There’s quite a cliff going, there’s a ledge. There’s a rock ledge. It’s extremely steep going right down. MR. STONE-But yet you have a deck over it. That’s the whole point. MR. GILCHRIST-No, here’s the deck. The deck is here, and you’re talking here. MR. STONE-But isn’t it over the line that you show top of bank? MISS SCHRYER-I think he’s talking about this portion of the deck here. MR. STONE-It looks like the top of the bank goes underneath the west facing deck. MISS SCHRYER-He’s saying that this part of the deck here goes over the ledge. MR. GILCHRIST-It does, yes, and there’s, I’d say eight to ten foot four by fours that are supporting it. MR. STONE-You could do the same with the garage a little bit, too. MR. THOMAS-Put four by fours under the garage? MISS SCHRYER-Would that be structurally sound? MR. STONE-I don’t know. Not strong enough? MR. THOMAS-No. A garage goes on a foundation. It has to go on a block foundation, yes. MR. STONE-Okay. That’s why I asked the question. MR. THOMAS-Another thing, too, if you look at this map as to where the applicant has put the garage, compared to the driving lane of Route 9L, where it is there, and putting the garage next to the building or at the end of the building, compared to where the driving lane is on 9L, you’ll see that he’s absolutely right. It is closer to the driving lane, to the actual driving surface of 9L, off the corner of the front, well, it would be the northeast corner of the house, if you match those two, than to where it is now. MR. STONE-How wide is the house at the end? It looks like it’s 24. I haven’t got my scale here, but it looks just about the same width as the garage. MISS SCHRYER-That would be a good estimate. We don’t have it scaled on the map. MR. STONE-The relief would be less than 20 feet if you extended out there, and you could even face the driveway, so that the doors, you drive straight in, and then you could turn around in the area 6 (Queensbury ZBA Meeting 10/27/99) that you’re presently contemplating the garage, and Mr. McNally has asked if you can consider everything, because, obviously, we appear to be five to one, or four to two against. MR. GILCHRIST-It looks like we’re going to have to reconsider it, I guess. Would that eliminate the handicap ramp? My wife has quite severe arthritis, and one of the reasons we bought the house was because of handicap access with the ramp and things like that. MISS SCHRYER-Yes, if they put the garage there, it would be right at the ramp. MR. STONE-I didn’t notice that was a ramp, but I see you say ramp, underneath where I punched it out to put it in my book. MR. THOMAS-Yes, that is for a handicap access, and that was there when you bought the house, right? MR. GILCHRIST-That was one of the reasons we bought the house, was it’s all handicapped access, and there’s handicapped bathrooms inside. MR. THOMAS-All right. So what did you decide, Bob? MR. MC NALLY-It’s not my decision, it’s the Board’s decision, and the applicants’. MR. BROWN-Mr. Chairman, I took the liberty of scaling a 24 by 24 box on here, at the required 10 feet from the house separation for an accessory structure, right at the top of the bank, and it yields a 21 foot setback from the front line of the right-of-way, and I’m going to just let the applicant take a look at it and see that’s something that they’d be acceptable to. MR. THOMAS-Okay. MR. STONE-It would be 21 feet, seeking 9 feet of relief, theoretically. MR. GILCHRIST-It keeps the ramp and puts the garage there. That would be fine. MR. MC NALLY-So that’s 79 feet of relief. MR. THOMAS-Does anybody have a problem with that one? MR. STONE-No. MR. STEC-No problem MR. STONE-Are you willing to accept that? MR. GILCHRIST-That looks good. MR. THOMAS-Is everybody happy? Okay. Would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 92-1999 ROBERT D. GILCHRIST LOUISE A. GILCHRIST, Introduced by Robert McNally who moved for its adoption, seconded by Paul Hayes: 2483 Ridge Road. The applicant proposes the construction of a 576 square foot attached garage and seeks setback and permeability relief. Specifically, the applicant seeks 79 feet of relief from the required 100 foot minimum front setback. The applicants also seek four feet of relief from the 100 foot minimum shoreline setback requirements of the LC-42A zone that is Section 179-13 of the Town of Queensbury Zoning Ordinance. Lastly, the proposed garage represents a two percent increase in the impermeable area of the site, thereby bringing the total to 10%. Five percent is the maximum allowable impermeable area under Section 179-13. So this application also is to increase the amount of permeability from five to ten percent. The benefit to the applicant is that they would be allowed to construct a garage in the preferred location, thereby allowing them to store their cars and other things indoors. The feasible alternatives would include attaching the garage to the home, locating the structure closer to Route 9, in the northerly direction, or as proposed on a drawing submitted herewith. Is the relief substantial relative to the Ordinance? 79 feet of relief from the 100 foot setback requirement may be interpreted as substantial, but given the fact that this property is zoned LC-42A, it is unreasonable, given the pre-existing minimal lot size of .65 acres to expect a 100 foot setback. Some relief would have to be offered. Four feet of relief from the one hundred foot shoreline setback requirement is minimal, and would have no effect whatsoever, and in my opinion, the permeability request is also minimal and will have no effect. Overall, the effects on the 7 (Queensbury ZBA Meeting 10/27/99) neighborhood or community are going to be positive. The difficulty is not self-created, and for these reasons, I move the approval of this variance. Duly adopted this 27 day of October, 1999, by the following vote: th AYES: Mr. Hayes, Mr. Stone, Mr. Stec, Mr. McNulty, Mr. McNally, Mr. Thomas NOES: NONE MR. THOMAS-There you go. MR. GILCHRIST-Thank you. MISS SCHRYER-Thank you. NOTICE OF APPEAL NO. 5-99 IRENE PATNODE LEO BRUCE LOCATION OF PROPERTY: CRONIN ROAD, TAX ID: 59-3-10 APPELLANT SEEKS A DETERMINATION AS TO THE APPLICABILITY OF SECTION 179-63(A) TO NONCOMMERCIAL USES AND AN INTERPRETATION OF SECTION 179-63(D) AS IT RELATES TO THE SUBJECT PARCEL. BRUCE CARR, REPRESENTING APPLICANT, PRESENT; LEO BRUCE, PRESENT MR. MC NALLY-Chris, I have to excuse myself. Bruce and I work together. MR. THOMAS-Okay. MR. STEC-I have a letter from the Town of Queensbury, dated August 11, 1999, “Dear Miss Patnode and Mr. Bruce: A recent inspection of the above-referenced property revealed apparent improvements to the property revealed apparent improvements to the property, evidently in the hopes of maintaining a number of horses on the property. After a brief discussion with a Mr. John Lord, it is my understanding that in fact is your intention. After reviewing the current zoning requirements for this property as well as the zoning ordinance, as it relates to farms, I would like to offer the following information: The property in question, Tax Map Number 59-3-10 is currently zoned SFR-1A, Single Family Residential 1 acre. This zone does not permit the establishment of a Class A farm, (please see enclosed definitions). It is my understanding that., prior to your April 1999 purchase, the property has not recently been used for the keeping of animals other than domestic pets. Should you wish to pursue this type of land use a variance and site plan review for the property will be necessary. Please contact this office no later than August 20, 1999 with your intentions in order that we may resolve this matter expeditiously. Should you have any questions or comments, please do not hesitate to contact this office. Sincerely, DEPT. OF COMMUNITY DEVELOPMENT Craig Brown Code Compliance Officer” MR. THOMAS-All right, and that memo, the new memo. MR. STEC-And, from the Town of Queensbury, to Members of the Zoning Board of Appeals, from Chris Round, Director of Community Development, Tax Parcel 59-3-10, allowed uses in SFR-1 acre zone, dated October 27, 1999 ‘This memorandum is to confirm it is my determination as Zoning Administrator of the Town of Queensbury that the above referenced parcel is zoned SFR-1A and Class A Farms are not allowed uses in this zone. This information was conveyed to Ms. Irene Patnode and Mr. Leo Bruce, Jr. in correspondence from Craig Brown dated 8/11/99. Additionally, the keeping of horses for hobby (or other personal use) or other agricultural uses are not allowed in the SFR-1A zone. The property in question has reportedly been used for agricultural purposes or the boarding of horses. However, our office has not received satisfactory (or any) evidence that the use has occurred on the property continuously within the last 18 months (179-80).” Initialed by Chris Round. MR. THOMAS-All right. Mr. Carr, is there anything you want to tell us about, talk about? MR. BROWN-Did you want to read the Staff Notes? MR. THOMAS-Yes, we might as well do that now. STAFF INPUT Notes from Staff, Notice of Appeal No. 5-99, Irene Patnode Leo Bruce, Meeting Date: October 27, 1999 “Project Location: Cronin Road Description: Applicant is appealing to the Zoning Board of Appeals for clarification of the applicability of the Agricultural Uses section of the ordinance to the subject parcel. Information requested: the appellant seeks a determination as to the applicability of 8 (Queensbury ZBA Meeting 10/27/99) § 179-63(A) to non-commercial uses and an interpretation of § 179-63(D) as it relates to the subject parcel. Staff comments: An August 11, 1999 letter from this office identified an apparent violation and the review that would be necessary. Per § 179-79, Definitions and word usage, an Agricultural use is “Any management of land for agriculture; the raising of cows, horses, pigs….” and a Farm is “Any parcel of land used for agricultural or silvicultural use…” While the subject property may not fit into a Farm class listed in § 179-63, it can be defined as a farm. Farms are not listed as allowable uses in the SFR-1A zone, § 179-20.” MR. THOMAS-All right. Now, Mr. Carr. MR. CARR-I’m Bruce Carr, Fitzgerald, Morse, the agent for the applicant. This is Leo Bruce, the applicant. I was glad to hear, on the last application, that you’re willing to apply, in practical situations, a different zoning ordinance, you know, for the Waterfront Residential. I’d like you to keep that in mind, because right across the street from where we are is the Suburban Residential, which would allow these three horses to be maintained, even under the interpretation given by the Staff, but I don’t think their interpretation is correct. I think if you look at the interpretation of agricultural use and the classes of the farms in your own Ordinance, they all deal with more commercial purposes. You’ve got the raising of livestock, which under Webster’s is defined as Farm, domesticated animals for use and profit. You’ve got the management of land, the producing of crops. You’re talking about selling your produce on your property. We don’t have a farm. I don’t think we have a farm under any of your definitions of farm. This is simply the recreational use of three horses on 22 acres of land that historically has been used for horses. I mean, the building on the property, as it was purchased, was a stable, okay, it was used to house, I believe if I’m correct, the Warren County Sheriff’s Department mounted patrol. We don’t fit within the 18 months. I’m not going to try to tell you we do. We don’t, but I still don’t think that’s applicable, because I don’t consider us to be a nonconforming use. Under your own Section 179-63, you have definitions under different classes of farms, all dealing with commercial purposes, okay, and none of them fit within the acreage we have, 22 acres, in those. Then you talk about animal husbandry. You talk about farm animals. Then you’ve got a whole section just on raising of horses and ponies. You aren’t talking about raising cattle, chickens, pigs. It’s horses and ponies, which are normally used for recreational use, and you set forth that, you know, a minimum of three acres is required for one horse and two or more horses, a minimum of two acres per horse. We have three horses on 22 acres. We’re surrounded by Regency Park Apartments. We’re surrounded by Britton Explosive. Across the street is Freihoffers, okay, and a hair salon. This is not your single family residential neighborhood, and we aren’t looking to develop every acre that’s available. We don’t want to put 22 houses on this. We want to keep it open. We want to keep some of the character of Queensbury, and not develop every single acre we have and I think the interpretation we’re asking this Board to find is a reasonable one, that when it comes to horses and ponies only, for recreational use, as long as you meet the required minimum acreage, then that would be an allowable use in just about any zone within the Town of Queensbury. I think a lot of people like to see the horse farms. I mean, this is not an obnoxious, abusive use of land. Quite the opposite. This is the protection of land within the Town. I had Mr. Bruce, you know, look around the immediate neighborhood, as to who’s near him. On Ridge Road, within nine tenths of a mile, we have a steer farm, cattle. On Meadowbrook road, within seven tenths of a mile, two horses on two acres. MR. BRUCE-And they’ve lived there less than a year. They purchased the house within a year ago. MR. CARR-On Meadowbrook Road, within seven-tenths of a mile, another cattle farm, a steer farm. On Cronin Road within 50 feet of his, on the other side of the road, chickens, okay. Bayberry Court, where the rear of the property is on Meadowbrook, nine-tenths of a mile, we have a commercial horse farm, boarding and lessons. I mean, horses within a mile vicinity of this area are not unheard of or uncommon. Livestock, the raising for commercial purposes, of domesticated animals, is not unheard of. What we’re asking this Board to determine is that when you come to a recreational use of a horse or a pony, that 179-63D applies, and it applies across the board. I think even if you go into all your definitions you’ll see. I mean, all those talk, and they have the flavor, of commercial operations, when you’re talking about agriculture. You’re talking about the raising of produce and cattle and livestock, you know, and that’s not what we have here. We have simply three horses on 22 acres, in a building that was on the property probably for the past 10, 15 years, if not longer. MR. BRUCE-I would like to add one thing. When I originally tried to purchase this property, in 1982, which if I had, we wouldn’t be here because there were horses on the property, from the same gentleman I purchased it from, for a quarter of a million dollars, which was insane and no bank would finance it. Now we’re here, many years later, on the same piece of property, which I purchased from the same man, you know, I mean, I didn’t anticipate these problems at the time that I did this and bought the property, and it was originally the home of Warren County Mounted Patrol. That’s why he built it, the gentleman I bought it from. MR. THOMAS-What was his name, or is his name? 9 (Queensbury ZBA Meeting 10/27/99) MR. BRUCE-I actually am not telling you the truth, either. I purchased it from his son. He’s deceased. If you give me a minute, his name will come to me. O’Brien. MR. CARR-That’s right, O’Brien. We aren’t asking for the whole Ordinance to be shaken up and say that you can have livestock and farms all over the Town. You have your sections that deal with farms. You have your sections that deal with produce, and you have a section that deals with horses and ponies, and all we want you to do is apply that section to our situation, which we think is appropriate. MR. STONE-A couple of questions. Obviously, the range, the fenced in range, is new, the fences are new. MR. BRUCE-They are. MR. STONE-Why are they in the front of the property? I mean, you’ve got 22 acres. Did you ever consider putting the horses back further? MR. BRUCE-I did that, and if you come to my property on any day around five o’clock in the afternoon, you’ll count 20 deer in the back of that property, which is another reason I truly like this property, and I didn’t want to disrupt that. That was the reason, and it hasn’t. My horses haven’t effected the deer whatsoever. MR. THOMAS-Anymore questions for the applicant? Is there anything you want to say, Craig, on behalf of the Town? MR. BROWN-No, I think Chris’ memorandum states the Zoning Administrator’s position. MR. THOMAS-Okay. If there’s no other questions from the Board, I’ll open the public hearing. Anyone wishing to speak in favor of this appeal? PUBLIC HEARING OPENED MR. CARR-At this point, would it be appropriate, we’ve got a letter from Mr. Banta who lives across the street, in favor. MR. THOMAS-Yes, well, I’ll do that with the correspondence. Is there anyone that would like to speak in favor of this appeal? Would anyone like to speak opposed? TOM DOLON MR. DOLON-I’m Tom Dolon. I live at 225 Cronin Road, within 1,000 feet of that property. I moved in Queensbury in 1952, and that was all farm lands up there then. Tom O’Brien bought the property, the father of the one he bought the property from, and he bought it to have a horse farm there, and he did keep his horses there, and he did build that barn for horses, and he was on the Warren County Mounted, and Warren County did keep their horses there, and I think it would be better to keep horses there then build houses there. So I’m in favor of having the horses. MR. THOMAS-All right. Thank you. Would anyone else like to speak in favor of this appeal? Against this appeal? Against? MARJ KENNELLY MRS. KENNELLY-Yes, I think. MR. STONE-Well, you’re in favor of the ruling as made, that’s what you’re saying, right? We always get confused when we get into these appeals. MRS. KENNELLY-I have a question. I got one of the letters. I’m Marj Kennelly. I live on Meadow Drive, which is right, I think behind. There’s only horses there. What is he asking for, more horses? MR. BRUCE-No, I’m asking them not to ask me to remove my horses. MRS. KENNELLY-All right. MR. STONE-That’s what he’s asking. 10 (Queensbury ZBA Meeting 10/27/99) MRS. KENNELLY-All right. Because when I first got, when we got the letter, I called the Town, and the party that I spoke to said that she thought that he was bringing in Clydesdale horses. Now, what will keep him from bringing in 20 horses, is our question. MR. STEC-His acreage. MRS. KENNELLY-All right. Say 10 more horses? MR. THOMAS-He can’t bring in 10. MRS. KENNELLY-Well, I don’t know if he can afford it. I’d rather come and say something now than two years from now and they say, well, why didn’t you say something then. MR. STEC-Right. MRS. KENNELLY-I mean, it’s right behind our house. I don’t know how close. I mean, it’s very, it goes, you know, like back. MR. BRUCE-Can I add something to her question, was that was another consideration. The horses are as close to Cronin Road as they can, which means they’re as far away as they possibly can be from the part of the property that boarders. MR. THOMAS-Do you know how deep your property is? Because all we have is a tax map that was run off with no scale. MR. STONE-It’s scaled. One inch is four hundred feet. MR. BROWN-It’s approximately 1200 feet. MR. THOMAS-Okay. MR. CARR-Isn’t the back of the property wooded? MR. BRUCE-Yes. MRS. KENNELLY-Yes, and as I understand it it’s like a bird sanctuary or something, and he was talking about the deer. Deer come into our yard all the time. MR. CARR-Yes, that’s what we’re trying to preserve. We’re not trying to load up on horses. I mean, that’s for sure, and it’ll never be a commercial operation. I mean, that’s not allowed, and we acknowledge that. MR. THOMAS-Yes. Okay. Do you have any other questions? MRS. KENNELLY-No, that was my question. MR. THOMAS-Is there anyone else that would like to speak either in favor of or against? Okay. Correspondence? MR. STEC-A letter dated October 25, 1999, from Mr. Ed Banta, 203 Cronin Road, to Town of Queensbury, Bay Road, Queensbury, NY, Subject: zoning of property, tax map no. 59-3-10 “Sirs: I will be out of State on the date for the hearing relating to Irene Patnode and Leo Bruce variance appeal application. I have no objection to the re-zoning or other action to allow the above parties to use their property as they wish. I give permission for my son, Gary Banta, to represent me in this matter, as he has a business at 201 Cronin Road. Thank you.” Signed Ed Banta. MR. THOMAS-All right. That’s it for the correspondence? MR. STEC-Yes. MR. THOMAS-All right. I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-Are there anymore questions for the applicant or for Mr. Carr? MR. STONE-I have questions for Staff. I’m having trouble reconciling A4, which is Class D Hobby, any parcel of land for agricultural use of less than five acres, and 173D, which says that you’ve got to have six acres if you have three horses. Nowhere do I see how many horses you can have, a hobby. 11 (Queensbury ZBA Meeting 10/27/99) I mean, it’s a little confusing. I also, I mean, does that mean it’s not a hobby if you own more than five acres and have three acres? MR. BROWN-I think if you don’t fit the five acre hobby classification, you don’t fit. I mean, if your acreage is more than that, and you’re using more than that for your agricultural use, yes, you’re not a Class D. MR. HAYES-I guess, how was Chris interpreting, to your understanding, that it falls under Agricultural Class, and under what Section of that 179-63? It doesn’t say exactly in the? MR. BROWN-Yes. I think if you used the line of reasoning that the keeping of horses is an agricultural use, and agricultural use is defined, a farm is defined as being an agricultural use, you end up with the keeping of horses being defined as a farm use, and farm uses aren’t permitted uses in SFR-1A. MR. HAYES-Right. I understand that part of it, but there’s a question of arriving at it as an agricultural use. MR. BROWN-Right, in the Definitions. MR. HAYES-Yes. It seems like on A4 that logically, that if it’s over five acres, that dismisses the possibility of four being activated as a criterion. MR. BROWN-Yes. I don’t think we’re trying to classify it as one of the classes of farms, trying to classify it as a farm. MR. STEC-He classifies it as Class A, which doesn’t make any sense to me, because this isn’t a commercial application. MR. BROWN-Yes. That was my fault. In my original correspondence, it may have been too specific with classifying it as a certain Class. I did that strictly on the acreage. MR. STONE-In excess of 10 acres used for domestic or commercial purposes. You’re stipulating there’s no commercial purposes. MR. HAYES-Are you boarding those horses for money? MR. BRUCE-They’re my personal animals. MR. HAYES-So there’s no revenue being generated at all. MR. CARR-And we aren’t asking to board horses because we know we can’t. It’s not a commercial operation, and it will never be a commercial operation. That’s why I say, that’s why I think D under 179-63 applies. It’s just for the use of the owner, as long as you’ve got the acreage required to have a horse, or a pony. MR. STEC-I agree that D is what we’re talking about. I don’t think that A is applicable, but the question that I have for Staff and applicant, I guess the Board is, in a previous appeal, we’ve talked about permitted and prohibited uses, and if the zoning code doesn’t specifically permit it, does it mean it’s prohibited? MR. BRUCE-But that isn’t permitted anywhere in the Town of Queensbury zoning, no place. MR. STEC-Right. Raising horses and ponies does not fall as an allowed use anywhere, but presumably. MR. HAYES-There’s got to be some zones that. MR. STEC-Where would the zone say, as an allowed use? I’d be surprised if they specifically call out. MR. CARR-It doesn’t. MR. BROWN-No. It’s my understanding that historically the way it’s been interpreted as how you apply Section D is you find a zone that allows farms, and then you use D to calculate the density of number of animals you could have if that zone allows farms. MR. THOMAS-What zone allows farms? 12 (Queensbury ZBA Meeting 10/27/99) MR. BROWN-Rural Residential, Suburban Residential, Land Conservation. MR. STONE-Across the street allows farms. MR. BROWN-Right. MR. CARR-But that’s what I’m saying. We aren’t a farm. I mean, any of your A, B, C or D, because of the various acreage to be under a different Class, we don’t fit into any Class of Farm, and also, I think when you, I mean, just looking under Definitions of Farms, going back to the agricultural use, I mean, you’re talking about commercial usage in many of your instances, and that’s just not what we’re interested in, or talking about. MR. STONE-The only one that could apply is Class A, and the applicant is stipulating no commercial purposes, because that’s the only thing that’s over 10 acres, if we read the four classifications of Farms. MR. BROWN-I guess the way that I came to this determination was in the beginning, in 179-7, the Definitions, if you look up Agricultural Use, it says if you use your land for any management for raising of, and it lists a whole bunch of animals, and then if you go to the Farm Definition, it says any parcel of land for agricultural use. So, if an agricultural use is the raising of animals. MR. HAYES-Where is the Agricultural Use Definition? MR. CARR-It’s 179-7, Page 17911, and I agree with the verbiage, Craig. I would say I disagree as to the interpretation, but I do point you to even the definition of agricultural use. The management of any land for agriculture, and again, if you go to Webster’s, agriculture is defined as more of a profit motive, the raising of horses, cows, pigs, poultry, truck gardens, orchards, for the sale of products. Everything within even that definition leans toward a commercial operation, and I’ll keep reiterating, that is not what we want and we don’t want anything to do with commercial operations. MR. BRUCE-And in the definition of the one that we use, those words don’t even exist in that language, do they? MR. CARR-Right. MR. STEC-And then I guess our alternative, if we agreed with the Zoning Administrator, tonight, then the applicant would be here asking for or talking about a Use Variance, and I’m not sure that a Use Variance is necessarily something that we want to tread down either, because then we would be opening the Pandora’s Box of allowing commercial agriculture. So I think that the point is well made that we’re somewhere in between a farm and a pet. MR. THOMAS-Yes. Well, the question I have is, and it’s in the definition for farm. What is Silviculture? MR. STONE-I was just going to ask that. We don’t define that word? MR. STEC-It’s the raising of trees. MR. STONE-But we don’t define it. We define agricultural use, but we don’t Silviculture. MR. BRUCE-There’s a tree farm directly behind Freihoffers. MR. HAYES-We’re just trying to get a definition of that one word, though. MR. STEC-Silviculture is raising of trees. When you’re raised by a Forest Ranger, you know what that word means. MR. THOMAS-That’s true. MR. CARR-I think the interpretation we’re asking for under Section D is not that far of a stretch, and it’s not going to open a Pandora’s Box, as to everybody wanting to have a horse. There’s very few places in Queensbury now, Single Family Residential zones, where you could have a horse. I mean, there’s not that much open space anymore, and what we’re trying to do is preserve the 22 acres that we have, for everybody’s view. As Mr. Bruce has said, he didn’t build the fence way back to the edge of Meadow Drive. We aren’t trying to impinge on the people there, in their neighborhood. We’re trying to preserve that as wooded land with natural resources, birds or deer or whatever, and even if we wanted to go back there and tear down all those trees which, believe me, is the farthest thing, will never happen while he owns this property, the most horses you’re going to have is 10, and we aren’t there. 13 (Queensbury ZBA Meeting 10/27/99) MR. BRUCE-Not will have, could have 10. MR. CARR-Yes, try to feed 10 horses, it would break the bank. MR. STONE-Craig, it seems to me that they have two ways to go. One, what they’re doing. They’re appealing the decision of the Zoning Administrator, and if we say the Zoning Administrator is right, then they still could come to us for a Use Variance. MR. BROWN-Or they could petition the Town for a Change of Zone. MR. CARR-A Use Variance is financial hardship. MR. STONE-I couldn’t be an Area Variance, because it’s not a permitted use. So it would have to be a Use Variance. MR. STEC-And the Use Variance is geared more toward, or the granting of a Use Variance would allow more than what they’re asking for right now. It would allow commercial. MR. CARR-Yes, because if you grant us a Use Variance, as a Class A Farm, it becomes commercial. It won’t under us, but the variance would run with that land. MR. THOMAS-And as far as the zone change, you know, that would be just one lot, and that wouldn’t fly, because that’s spot zoning. MR. BRUCE-I have the first lot in the zoning. MR. STONE-What is the lot next to you to the east, the big overgrown lot next to the? MR. CARR-Vacant land I think. MR. STONE-Who owns it? MR. DOLON-It’s Dr. Bannon. MR. BRUCE-Dr. Bannon who has the horse farm? MRS. KENNELLY-On Ridge Road. MR. BRUCE-The father, then. MR. DOLON-It’s the son that owns the property. MR. BRUCE-Who has a horse farm. MR. SEGAL-I’m just wondering, if they have only five acres, they would allowed as a hobby to have horses on five acres. Is that correct? MR. STONE-They could have two and a half horses. MR. SEGAL-All right. MR. THOMAS-No. They could have two. You’ve got to have three for the first one, and for two or more horses, yes, you’re right. You could have two and a half. MR. SEGAL-What if you just gave them relief from five acres to twenty-two acres, as hobby only, and not go for use? MR. THOMAS-We couldn’t do that. That’s a Use Variance. That’s something completely different. MR. STEC-Well, does D apply though? I’m comfortable with D, except I’m not sure D applies the way the zoning code is written. MR. THOMAS-I think D applies to any zone in the Town. MR. STEC-Not just zones that allow agriculture? MR. THOMAS-Not just the zones that allow agriculture, because it’s raising of horses and ponies, period. It’s like E, it says cultivation, period. 14 (Queensbury ZBA Meeting 10/27/99) MR. STEC-Right. MR. THOMAS-And C is farm animals, period. So I don’t think D has anything to do with A, B, and C, or one, two, three and four of A. MR. STEC-63 talks about Agricultural Uses. That’s the title. MR. THOMAS-Right. MR. STEC-So that’s, so I would think that in order to even be in 179-63, the zone would have to allow agricultural uses. That’s how I look at it. MR. THOMAS-Where was that place we had another one where we had a number of horses? I think it was over on, well, right across Bay Road here, down here on the right hand side. Back up in there, didn’t we have a thing with horses, a couple of years ago? MR. BROWN-Gosline’s property? MR. THOMAS-Yes. What zone’s that? MR. BROWN-I don’t know. MR. THOMAS-Right off the top of your head. MR. BROWN-I don’t know. MR. STONE-Just as an aside, put this down on the list of things to look at, though, when we do the zoning revision. MR. BROWN-Yes. MR. BRUCE-I mean, if you talk about farm, then the grandfather should apply, because the farm has never left. Does it make it less a farm because the horse wasn’t there? I mean, the fences were there. The building was there. Everything except the animal was there. Does that make it not a farm because the animal wasn’t there? MR. THOMAS-Well, let’s get this thing moving along. Does anyone else have any questions for either the applicant or for Mr. Carr? If not, we’ll talk about it. Jaime, we’ll start with you this time. MR. HAYES-I guess, in my mind, the appeal rotates around this is an agricultural use, and as I read 179-63, and look through farm classifications, to me, Class D Hobby, as we read it, any parcel of land less than five acres used for raising of agricultural products, which to me means that any piece of property that’s more than five acres permits a hobby usage in that particular circumstance. That’s how I would interpret that. So I think it would fall outside of the Class of Agricultural Use. I think the other definitions deal with commercial usages of farm animals, per se, and you’ve established that you don’t ever intend to use this as a commercial venture, which immediately puts you in non compliance. Where I have a problem is in, as Mr. Brown pointed out, when I look at the Definitions of Section 179-7, Agricultural Use, and in that Section it says, One, Management of land for agricultural use, the raising of cows, horses, and the construction or alteration or maintenance of fences, and that’s happening there. I mean, there’s no doubt in my mind that you’re maintaining fences and using them and modifying them. So my quandary in this particular case is that I think those two things are a contradiction, logically. MR. BRUCE-It’s a little difficult to keep horses on your property without a fence, and in fondness to my neighbors. MR. HAYES-If I was just reading the definition of Agricultural Use, like Mr. Brown pointed out, I think it clearly falls in that category. If I read it under 179-63, I think that the fact there’s 22 acres makes a hobby usage permissible. So, I guess at this particular time, without trying to dodge a tough decision, I would want to hear how everybody else, or how they’re interpreting those same Sections before I would make a decision, but to me, those are the two key paragraphs that I’m looking at, 179- 63 Part A4, and the Definitions in the front of our zone, that being 179-7. So I guess I’m listening. MR. THOMAS-All right. Let’s see, Bob bailed. Chuck. MR. MC NULTY-Well, I end up being really torn on this one, this being an appeal of the decision of the Zoning Administrator. I guess the way I look at it, Number One, we’ve got a very poorly written Zoning Ordinance at the moment which is giving us a real problem, but I think I’ve got to agree with 15 (Queensbury ZBA Meeting 10/27/99) the Zoning Administrator that when you look at it, if you just deal with farms, I think certainly you can say that a horse is a farm animal. It strikes me that the definition of the SFR-1A clearly indicates that it does not allow farms, in the fact that the previous description for the SR-1A specifically does list farms as a Type II use. The fact that it’s not there in the SFR-1A tells me that it was never intended to be there. So, on the pure basis of doing what I think we ought to be doing here, which is determining whether the Zoning Administrator has made a proper decision or not, I have to come down on the side that supports the Zoning Administrator in his decision. As far as what I would like to do, it’s exactly the opposite, because I think use of this land for horses is very appropriate, and it leaves me in a quandary. I would prefer that this were coming in under some sort of a variance, that we could deal with it as a variance rather than as an appeal, but just looking at it purely as, is the Zoning Administrator right or wrong, I believe he’s correct. MR. CARR-May I ask a question? MR. THOMAS-Go ahead. MR. CARR-What Class of farm would you place this. The Zoning Ordinance has four classes. MR. MC NULTY-I know it does. MR. CARR-Well, what Class are we? I mean, that’s what the whole thing is. MR. STONE-Wait until the rest of us speak, because I’m preparing an argument along those lines for the moment. MR. CARR-All right. MR. THOMAS-Are you done, Chuck? MR. MC NULTY-Yes. MR. THOMAS-Okay. Dan? MR. STEC-Well, I would agree with Chuck, but let me add, I think the Zoning Administrator is right, but for the wrong reason. I agree with what Chuck said about the uses that are allowed in the SFR-1A as opposed to an SR-1A, and clearly, there isn’t anything in the SFR-1A that states that this is a permitted use of any sort, and I do agree with Staff’s interpretation of the Definition of Agricultural, and I do, because of the definition of what an agricultural use is, that throws us into 179-63, Agricultural Uses, which aren’t allowed under the SFR-1A zone, but I would disagree in calling, this does not fall under any of the farm classifications, 179-63A, Section 1, 2, 3, or 4. It’s not any of those Classes. So I would say it’s not a farm, but I believe that this is where D falls in. This is where D is used, under the Agricultural Uses, but Agricultural Uses are not permitted in the SFR-1A zone. So I would disagree with the Zoning Administrator that this is a Class A Farm, but I would say that because we’re in Section D, Agricultural Uses, and Agricultural Uses aren’t permitted, that I would agree that this is not an allowed use. With that said, I would strongly encourage the applicant to think about considering applying for a Use Variance, in which case, I think that this Board probably could address a lot of these other issues, and stipulate that it’s not a commercial use, but that’s just how I feel, but with all that said, I’m inclined right now, I’ll listen to the rest of the Board, but although I’ve got absolutely no problem with keeping horses there, I think you’re points are well made, but how our law is written, I think that the Zoning Administrator is right, but, again, for the wrong reason. I’ll listen. MR. THOMAS-Okay. Lew? MR. STONE-Well, I’m going to be very technical as I read the Code. 179-20, Single Family Residential Zones, SFR-1A, obviously agricultural uses are not permitted. It’s not listed there. Okay. So it’s not permitted, but then what is an agricultural use? It’s defined as any management of any land for agriculture: the raising of horses, and so on and so forth. Okay. Agricultural Use. Now I go to 179-63, which is Agricultural Uses, under Farm Classifications, because I guess if you’re going to be an agricultural use, according to this definition, you’ve got to be a farm. We don’t define what you have here as a farm, under this particular code. Class D, hobby, is less than five acres. In excess of five acres is production of fruits and vegetables, no; animals for raising, either for commercial purposes, well, as I keep talking, that’s less than 10 acres, but no more, that’s Class B. You’re not Class B. You’re not Class A, because that’s commercial purposes. I think you fall between the cracks, quite frankly, as I look at this thing, and I would be inclined, not that I disagree with the Zoning Administrator here. I think it’s a matter of how one looks at it, and that’s what we sit here for. I would be inclined to disallow, or however we do it, the Zoning Administrator’s determination. I would say that it’s not a matter of that it’s permitted, but it’s also not not permitted, and there’s 16 (Queensbury ZBA Meeting 10/27/99) nothing in the Zoning Code that helps me agree with the Zoning Administrator. Having said that, it’s your turn. MR. THOMAS-My turn. A couple of members talked about a Use Variance for this property. If a Use Variance ever came up before us for this 22 acres, it would be shot down before you even got off the starting block, because of reasonable return, because a reasonable return could be had by splitting that 22 acres into one acre single family residential lots, and probably make a real good buck on it. As far as getting back into Section 179-63 of Agricultural Uses, Section A, 1, 2, 3, and 4, as other members have stated, really don’t apply to what Mr. Bruce has got here, and I don’t think it should be taken into consideration. I think the only thing that can be taken into consideration is Section D, raising of horses and ponies, period end. To me, too, what if it were llamas, or what if it were camels, or something else like that? That right there I think is what we have to look at , right there, raising of horses and ponies, right there, and it says that if he has three acres, he can have one horse. If he has more than two horses, he has to have two acres per horse, and I think that really could apply in any zone in this Town. That’s the way I read this right here. Just because it happens to be under the Agricultural Uses title, doesn’t mean it’s necessarily an agricultural use, because as other people on the Board have said, that the Zoning Ordinance is flawed here because of the way it’s written. So to me, you know, as much as I hate to say it, I’d have to disagree with Chris Round in his interpretation. I mean, flat out, just because of this 179-63D, raising of horses and ponies, period. MR. STONE-But having said that, and I made this argument, then I’m saying, well, that is listed under Agricultural Uses, the raising of horses and ponies. MR. THOMAS-Right. Where else would you put it? MR. STONE-Well, but then it becomes an agricultural use. MR. BROWN-Which isn’t a listed use, either. MR. STEC-Right, that’s my problem. I mean, I’ve got no problem with what they want to do. I think it’s a good use, but the way the law is written, I think we’re thrown into agricultural uses. MR. THOMAS-All right. Let’s go back to the hobby, the five acres or less. If this piece of land was less than five acres, five acres or less, there wouldn’t be any problem. MR. STONE-It would be agricultural use, by definition. MR. HAYES-Right. The fact that it’s more than five acres makes it non-agricultural use. MR. STEC-Right, and we’re still agricultural use. MR. THOMAS-Well, then you go back up to A, land in excess of 10 acres. MR. HAYES-Well, I guess what I’m saying is, they’re kicking this as an agricultural use, based on the definition in 179-7, I mean, why do we have a secondary section that actually defines it? I mean, usually if they have a secondary section that defines it, you go to that section, and then see if it falls within the further and more exacting definitions. I mean, if we read 179-7, the agricultural use thing as I read it, that says any, he has a 22 acre piece of land, and any management of land for agriculture. Does that mean if he had a one acre crop that he harvested every year, that he didn’t sell, that that would be an agricultural use? Because to me that would be, then we would need to go to the section that defines it more thoroughly, to decide whether it falls within that classification or not. MR. STEC-And that’s where I can say, I can agree with the Board members that would overturn Chris’ determination, is that a lot of us are in SFR-1 or 10 or 20 zones. We have vegetable gardens. That sounds like an agricultural use, by the definition. So looking at that logic, sometimes you’ve got to apply the common sense. The acreage in D is what makes it, where it says, hey, if you’ve got the acreage, you can have a really big vegetable garden, or you can have a horse or, you know, so looking at it that way, I could overturn Chris’ determination. MR. THOMAS-Yes, that’s what D is saying, really, that if you have four acres, you can have two horses. MR. STEC-I guess I’m just bothered, the way that it’s organized, that this D falls under agricultural uses. If the D was anywhere else. MR. HAYES-No question, and I can see where he arrived at that, I really can, there’s no doubt about it. 17 (Queensbury ZBA Meeting 10/27/99) MR. STEC-Right. I don’t think Staff was off base to interpret it that way. MR. STONE-Not at all. I mean, I certainly look favorably upon what you want to do. Forget the determination. The determination is also “logical”. By ourselves, all of us may have come to that particular conclusion. That really comes down to, okay, you’ve got three horses. You’re going to stipulate that you’re never going to have more than three horses on this particular land. They’re your horses. They’re not for boarding. You’re going to ride them yourself, probably on your own property or take them somewhere to ride. How do we let them do that, in this process? Because absolutely right, it can’t be a Use Variance, no question about it. Since we’ve got to meet all five conditions, as you say, number one goes out the window immediately, on reasonable return. I want you to have three horses on that land. I want that land to stay open and the way it is today, because this is one of the things we’re talking about now, not just because it’s election time. Because the people are saying, Queensbury has a character. They want to keep it in a certain character, and this certainly is in keeping with that particular thing. How do we do it? MR. THOMAS-I think we apply 179-63D, raising of horses and ponies, period, end. MR. STONE-Chris, I agree with you, except that the definition is under agricultural uses, and that’s. MR. THOMAS-Well, there’s no place else in the book to put it. If you look through the Zoning Ordinance, there’s no other heading you could put that under. MR. STONE-I’ll go along with that, Mr. Chairman, if that’s what you want to do. That’s no problem. MR. THOMAS-I’m only one of seven voices up here. MR. STONE-Five at the moment. MR. THOMAS-Well, five at the moment, but to me, that’s raising of horses and ponies. That’s the definition right there. That’s what you can do, even in an SFR-1 Acre zone, or if you had an SFR-1 Acre zone, like Mr. Bruce has, and if you had, to me, if you had six acres, you could have three horses in that zone, or on that piece of property, because it’s big enough. MR. STONE-He could have (lost words) on that property, actually, if you’re going to read it that way. MR. THOMAS-Absolutely. MR. CARR-May I just interject. Mr. Stec, I think it’s what you said on the gardens and everybody has a garden, but you’ve got to be practical at times, and now, you know, my garden in my little development is technically an agricultural use. Does that mean no one can have a garden? I think we’ve got to apply that here. Technically, okay, there could be a reason that you could find for not allowing the horses and ponies, but I think also from a practical standpoint, you’ve all stated, we aren’t going to qualify for a Use Variance, and why would the Town Board want to rezone one lot, just to bring the Suburban Residential across the street, and I think what we’re asking for, and Mr. Thomas, I think you’re interpretation is that, that this is a practical approach to allow what we’re doing there to remain, and it’s not commercial. It’s maintaining the integrity of the property, when it could be put to a much more intensive use, and as one of the Board members said, probably for a good buck, but we don’t want to do that. MR. HAYES-Yes. I’m not sure that’s the argument. I understand where you’re coming from, but I don’t think that’s the argument we’re making, because I think, the way you’re framing it up, that you’re actually asking for an encloaked Use Variance. I mean, in reality, because you’re saying, not permitted but we want to keep doing it. MR. CARR-No, I agree with Mr. Thomas, and I’ve always thought this, that in the years I’ve done zoning, I’ve always thought horses and ponies were allowed in any zone in the Town of Queensbury, as long as you met the acreage. MR. STEC-That’s what I always thought. MR. CARR-Yes. So that’s what I’m asking the Board to make a determination, is just what Mr. Thomas said. MR. STONE-All right. Assuming that we overturn the Zoning Administrator’s decision, would you be willing to stipulate all the things we’ve been talking about today, that this particular piece of property is with this owner, and it will be revisited if you ever sell the land? 18 (Queensbury ZBA Meeting 10/27/99) MR. BRUCE-I would only have to make one change on the stipulation. There’s a possibility that I have a horse that’s pregnant. If she is pregnant, I want the foal, which is four horses. I could spend an hour and tell you what I’ve been doing for a year and a half trying to have a baby with this animal. I’ve been paying for it. If she’s not, I will stipulate that I will have three horses for my own personal use. No commercial business whatsoever. MR. CARR-With one additional, if there’s an addition to the horse family. MR. MC NULTY-It strikes me that if we go that route, if we’re going to say, D applies, and it applies to any piece of land, that we ought to treat it according to the rules that are in D. MR. THOMAS-That’s right. MR. MC NULTY-Don’t limit him to three horses. Don’t limit him to four. Limit him to the number that D allows. MR. THOMAS-Well, D allows up, if he has 22 acres, he can have 11 horses, and that’s what’s written right there. MR. STONE-But, does that mean open land, or do we have to take the buildings out of that? I mean, that’s another question. MR. THOMAS-No. It just says acres. It doesn’t say how many buildings. MR. HAYES-We’ve got to stick to the determination anyway, either it’s agricultural or it’s not agricultural. If you don’t think it’s agricultural then, that’s the only issue that’s at question, right, not limiting the horses or? MR. STONE-True. MR. CARR-Say if the Board doesn’t want to make that as part of our stipulation. I mean, we would give you our word. MR. THOMAS-Well, we can’t make it a stipulation, because it’s not a variance request. The only thing we can stipulate are variance requests, and this isn’t a variance request. MR. STEC-No, I’d be comfortable with the applicant’s discretion on number of horses. MR. THOMAS-Well, to me, personally, it says here it’s an allowed. He can have 11 horses on 22 acres of land. That’s what the Ordinance says here, even though, how flawed it is. I think this is under the wrong section. It shouldn’t be under agricultural uses, but what other definition could you put it under? You can’t put it under Satellite Antennas or the Fence Ordinance, or signs or anything else like that. That’s probably the closest thing they have. So, we’re ready for a motion here. Would someone like to make it? Does anyone have any questions or comments before Dan makes the motion? MR. STEC-All right. MOTION IN REGARD TO APPEAL NO. 5-99 IRENE PATNODE LEO BRUCE THAT WE UPHOLD THE APPEAL OF THE APPLICANT IN THE CASE OF TAX MAP NO. 59-3-10, Introduced by Daniel Stec who moved for its adoption, seconded by Lewis Stone: Duly adopted this 27 day of October, 1999, by the following vote: th AYES: Mr. Hayes, Mr. Stone, Mr. Stec, Mr. McNulty, Mr. Thomas NOES: NONE ABSENT: Mr. McNally MR. THOMAS-Okay. There you go. MR. CARR-Thank you very much. We appreciate your time. MR. THOMAS-Okay. MR. STONE-Craig, circle that, will you, for the Steering Committee, because I think if D were under C, as a three, it would be different, but it’s not. 19 (Queensbury ZBA Meeting 10/27/99) MR. THOMAS-That’s right. That’s what we have to go by. MR. STONE-Agreed. MR. THOMAS-We are flawed. MR. STONE-We are flawed, no question it’s flawed. AREA VARIANCE NO. 94-1999 TYPE II PAUL & KAREN KNOX OWNER: SAME AS ABOVE KNOX ROAD, OFF ASSEMBLY POINT ROAD APPLICANT PROPOSES CONSTRUCTION OF A 4,800 SQ. FT. SINGLE FAMILY DWELLING AND SEEKS RELIEF FROM THE HEIGHT REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING TAX MAP NO. 7-1-16.1 LOT SIZE: 3.85 ACRES SECCTION 179-16 CHARLES JOHNSON, REPRESENTING APPLICANT, PRESENT MR. STEC-“Warren County Planning Board Project Review and Referral Form 6 October 1999 Project Name: Knox, Paul and Karen ID #: QBY AV 94-1999 County Project #: October 99-26 Current Zoning: Waterfront Residential Community: Queensbury Project Description: The applicant proposes to construct a 2800 square foot home on this property. The proposed home exceeds height limitation requirement. Staff Notes: A copy of the applicant’s drawing is included with the summaries, along with a narrative description provided by Paradox Design. Staff feels that the issues presented here are totally self-created, and the applicant has all means to rectify the situation. Staff therefore feels that this is for discussion. County Planning Board Recommendation: Denied. The Board would like to see mitigation of these self-imposed conditions.” Signed, Terry Ross, Warren County Planning Board. STAFF INPUT Notes from Staff, Area Variance No. 94-1999, Paul & Karen Knox, Meeting Date: October 27, 1999 “Project Location: Knox Road Description of Proposed Project: Applicant proposes construction of a 4800 sf single family dwelling and seeks height relief. Relief Required: Applicant requests 8 feet of relief from the 28 foot maximum height 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 the desired dwelling. 2. Feasible alternatives: Feasible alternatives appear to be limited to downsizing the structure. 3. Is this relief substantial relative to the Ordinance?: 8 feet of relief from the 28 foot requirement may be interpreted as moderate to substantial. 4. Effects 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.): BP 99-096 4/2/99 demolition Subdivision No. 13- 1998 two lot subdivision modification Subdivision No. 6-1998 8/18/98 two lot subdivision Site Plan Review 36-1993 7/27/93 Site Plan Review 40-1991 7/16/91 8’ x 40’ crib dock Subdivision No. 11-1991 6/23/91 7 lot residential Sunset Hill Farm Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. Given that the proposed setback is planned at a 120 foot setback from the lake, and a reasonable amount of mature screening is in place, visual impacts from the lake may be minimal. Minimal to moderate visual impacts from Knox Road may be anticipated with a structure of this size. If relief is considered, a condition that the structure maintains the 120 foot shoreline setback may be appropriate. How tall will the structure be in relation to the existing/remaining barn? SEQR Status: Type II” MR. THOMAS-All right. Mr. Johnson. MR. JOHNSON-Good evening. I’m here representing Paul and Karen, and they simply wish to build a 2800 square foot year round home on property that the family has owned since about 1902. Current zoning would allow us, with this lot, to build within 50 feet of the shore. We can build a fairly good sized two story home complying with the 28 foot setback, right up to the lake. We wouldn’t have to be here tonight. That’s not what the applicant would like to do. They are opting to come before the Board tonight so that we can be further back from the lake, and that we can preserve as many of the mature trees as possible on the site. That picture I’m showing you is a picture of the site taken from the dock, which is just a little bit in from the actual shore. You can see where the trees end and there’s clearing behind where to where the barn is. That’s where the house is going to be. So if we were to move the house forward to any degree, those trees would come down, and it would be much closer to the lake, and therefore a much greater visual impact from the lake. So that’s really why we’re here tonight. Where that house is going to sit on the property, it’s a sloping piece of property as you can see. It’s a one story house. It’s a cape style house, with a walk out basement. So we’re roughly eight feet over our height requirement, which is the eight feet of 20 (Queensbury ZBA Meeting 10/27/99) exposed basement on the lake side only. This particular design really meets all other zoning restrictions, lot coverage setbacks from everywhere else. I have two adjacent neighbors, one to the north and one to the south, who’ve written letters in support of this. So we have neighborhood support of this project as well. Adjacent properties, both houses on, or the house to the south here is also approximately 120 feet, plus or minus back. So again, to pull this house to where we could build it, it would stick way out. So we’re here asking for eight feet of height increase in lieu of being a burden to the lake’s view and impacting the lake to a greater extent. So we’re trying to get 120 feet back, save the trees on the site for this eight feet of height. Because now where we’re on the site, which is no longer flat, at lake level, we’re on a sloping lot, we’ve got the exposed basement condition. So we don’t need an exposed basement, but it’s a function of where this lot is, where this house will be on the lot. So that’s our case. I’d be happy to answer any questions you might have. MR. THOMAS-Okay. My question is, what is the square footage of the footprint? MR. JOHNSON-It’s 2800 square feet of living. The 4800 comes from that Floor Area Ratio worksheet, which counts decks, screen porches, basement living space, all of that. MR. THOMAS-Okay, but the actual footprint is 2800 square feet? MR. JOHNSON-Of heated living space, correct. MR. THOMAS-No, the actual. MR. JOHNSON-The footprint is 2500. MR. STONE-Twenty-five or fifteen? Mr. Knox and I had a discussion about that today, and he saw the 25, and he said, how did they get that. MR. JOHNSON-It includes the decks and the screen porch. MR. THOMAS-Yes, okay. So that’s where you get the 25. MR. JOHNSON-Correct. MR. STONE-And the basement is included in the Floor Area Ratio because it’s more than three feet exposed. MR. JOHNSON-Correct. MR. STONE-Okay. Knowing that this doesn’t count, is this house going to be heated? MR. JOHNSON-Yes, it’s a year round residence. MR. STONE-Is it going to have chimneys? MR. JOHNSON-No. I’m sorry. We will have a chimney. There’s a fireplace. I’m sorry. MR. STONE-And how much is that going to extend above the roof? It’s not on the drawing. MR. JOHNSON-It will extend minimum of two feet by New York State Code. MR. STONE-Okay. MR. JOHNSON-And that’s not shown, you’re right. MR. STONE-So at some point that’s going to be up an additional two feet, not that it counts in the height, but it’s nevertheless there. MR. JOHNSON-It’s a visual impact. Yes. MR. STONE-How big is the barn? MR. JOHNSON-It’s roughly 24 by 32 or 36. It’s 884 square feet. MR. STONE-It’s 884, okay, and that will be your garage or that? MR. JOHNSON-Yes. 21 (Queensbury ZBA Meeting 10/27/99) MR. STONE-You will not have another garage on the property. If you use that as a garage, otherwise it will. MR. JOHNSON-I can’t say that. We’re going to try to incorporate the barn, perhaps by a breezeway connecting the house to the barn, and use the barn as our garage. However, I can envision in the future we may need to perhaps build a detached garage somewhere on the property. It’s almost four acres of property. MR. STONE-A question I tried to ask Mr. Knox this afternoon when I was over there, as you know, our Code is perpendicular to the ground. So as the ground goes up, the height of the house goes up. MR. JOHNSON-Correct. MR. STONE-If I were standing at the bottom of the house, how high is the tallest part of the house going to be? MR. JOHNSON-That would be right here. However, it’s set back four to five feet back from the roof edge. So if you were standing right here, your visual eye is going to end right there. Because as you step back. MR. STONE-Well, if I step back, let’s say I step back. MR. JOHNSON-You’re going to hit close to that 36 feet, but again, it’s a dormer projecting out of a roof. It’s not a great big, two story billboard sort of an effect. MR. STONE-Are you saying, wait a minute. Now this is where we got confused today. Thirty-six feet from? MR. JOHNSON-From basement floor or grade at lake side to the highest point of the house, which is the ridge. This particular piece of the dormer is only a foot or so below that ridge. MR. HAYES-So the peak of the roof is 36 feet, then. MR. JOHNSON-Correct. MR. HAYES-Not the dormer. MR. JOHNSON-The dormer is 35. MR. HAYES-Okay. MR. STONE-Yes, the peak of the roof, but measured where? MR. JOHNSON-From here down to there. MR. STONE-It comes straight down. You’re not taking advantage of the fact that it’s sloping land, that it’s going up. It’s going to be 35 feet or 36 feet. MR. JOHNSON-At the lowest point. MR. STONE-At the lowest point. MR. JOHNSON-It would be the side elevation where you’d have the vantage of that sloping property, from in here. MR. MC NALLY-You’ve shown us some lake elevations, and are these the final depiction as to what the property will look like from that side? MR. JOHNSON-The only thing that’s changed from these is this dormer. We’ve actually clipped the corners and made it (lost word). So it’s even less obtrusive than it is now, or less large. It will appear smaller because of that. So we’re going to take this same (lost word) that you see here and protect it under the dormer as well, otherwise, it remains unchanged. MR. MC NALLY-And will the amount of glass, then, remain the same on the lake side, as you’ve shown us here? MR. JOHNSON-Yes. MR. MC NALLY-And I take it it’s wood siding, clapboard? 22 (Queensbury ZBA Meeting 10/27/99) MR. JOHNSON-Correct. PAUL KNOX MR. KNOX-I’d like to go with a cedar siding. MR. STONE-Looking at the south and north elevations, where does the foundation begin? Because I see the deck. I mean, that’s all you’re showing on the slice of thing is at the outside of the house. MR. JOHNSON-Right here. MR. STONE-Yes. MR. JOHNSON-The actual foundation itself is eight feet back from this front, somewhere in here, that particular corner, and this elevation would be there. MR. STONE-So that front is going to be cantilevered a little bit? MR. JOHNSON-It’s supported on columns, this deck here. MR. STONE-Okay. Well, yes, I’m sorry, not cantilevered. It’s columns. MR. JOHNSON-Again, we use that porch idea to help break up the verticality of it, so your eye is going to be sort of broken up with the horizontal lines of the railing and the eave. MR. STONE-You’re going to dig a foundation from front to back? I mean, the ground floor is going to be one level from lake to back? MR. JOHNSON-The first floor will be at the barn level. The basement will be at lake level. MR. STONE-I understand, but the level of the floor is going to go straight back into the hill, in other words. MR. JOHNSON-Correct. MR. STONE-Okay. MR. HAYES-It better be level, or he’ll be talking to his contractor. MR. STONE-Right. MR. THOMAS-All right. Are there 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 MR. SEGAL MR. SEGAL-I don’t know if I’m opposed. I have some questions. MR. STONE-Let me state that I know the man who is appearing before us. If he asks only questions, I will not recuse myself. If he takes a negative toward this thing, I will recuse myself because he’s from the Lake George Association, and as Vice President of the organization and member of the Executive Committee, I will recuse myself, if Mr. Segal is negative. MR. SEGAL-I don’t think I’m going to be negative. MR. STONE-Okay. MR. SEGAL-The question I have, it’s really only one question. How much of the building will you see from the lake itself? I know it’s set back 120 foot, and I know there are trees. I have not had a chance to look at the property. MR. JOHNSON-Here’s a photo that might help you. The actual house will fall behind these trees. So it would be way back up in here. MR. SEGAL-And how much farther is, sitting in a boat on the lake, you’re even lower. 23 (Queensbury ZBA Meeting 10/27/99) MR. JOHNSON-Correct. MR. SEGAL-Looking up, how much? MR. JOHNSON-We tried to get some photos from the water. We couldn’t get them developed in time for tonight. It’s going to be even less than what that would show. The farther away you get, and there’s a boathouse that’s going to obstruct some view as well. There’s more vegetation on the lake shore, that’s out of that picture. MR. SEGAL-I answered my questions. MR. STONE-Okay. Then I’ll stay. KATHLEEN SALVADOR MR. SALVADOR-I have just a question. Kathleen Salvador. I’m assuming this is all new construction. There hasn’t been anything been said about the septic system. Is this the Board that talks about the septic system, or is it the Planning Board? MR. THOMAS-The Town Board. MRS. SALVADOR-The Town Board. MR. STONE-It’s a given, any new, well, no, this is not nonconforming. So it wouldn’t automatically. MR. THOMAS-Well, they have to put it into conformity because it’s a new building, a conforming septic system. MR. STONE-Of course, yes. MRS. SALVADOR-Okay. So they have to meet all the setbacks and everything for new construction. MR. THOMAS-Right. MRS. SALVADOR-Okay. So the only thing that Mr. Knox is looking for right now is just the relief from the height? MR. THOMAS-Yes. Just eight feet of relief from the 28 foot. MRS. SALVADOR-Eight feet from the twenty-eight foot. MR. STEC-And typically they would need to get any sewer variance before they come to our Board. I haven’t seen them on the list. So I expect that they’re probably going to say they don’t need a variance. MRS. SALVADOR-Okay. Those are my only questions. MR. THOMAS-Okay. EDWARD CARR MR. CARR-I just wanted to point out. Edward Carr. The septic was addressed during the subdivision hearings, and it was engineered and placed on the lot. MR. THOMAS-Okay. That was back in? MR. CARR-’93. That was part of the Town subdivision. MR. STONE-Okay. MR. THOMAS-There was a subdivision, two of them in ‘98 and one of them in ’91. MR. JOHNSON-’91. MR. THOMAS-From the Sunset Hill Farm. MR. JOHNSON-Right, Sunset Hill Farm. 24 (Queensbury ZBA Meeting 10/27/99) MR. THOMAS-Okay, but they’ll have to put a septic system in that meets today’s Code. MR. CARR-I believe that one did.. MR. HAYES-That’s an enforcement issue anyway. MR. JOHNSON-We’ll be drinking the water, so. MR. THOMAS-All right. Is there anyone else that would like to speak opposed or in favor of? Is there any correspondence? MR. STEC-Yes. I have a fax received October 27, 1999, at 4:19 p.m., Town of Queensbury Zoning Board of Appeals, re: application for height variance for Karen and Paul Knox, Assembly Point, “Dear Sirs: My name is Bruce Logan and my wife’s name is Kathy Gower Logan, and we are Paul’s next door neighbors to the south. Paul has taken the time to review his house plans with both my wife and myself on numerous occasions and has explained to us the location and dimensions of the project. We have no problem with his proposed plans in either size, height, or location. We look forward to the swift completion of the house and property improvements that will go with it. Both my wife and I hope you will look favorably on this variance and allow construction to start as soon as possible. We are unable to attend tonight’s meeting. Please read this letter into the official minutes. Very truly yours, Kathy Gower Logan Bruce D. Logan” And I have a letter dated October 27, th Town of Queensbury Zoning Board of Appeals, re: height variance of Paul and Karen Knox “Dear Sirs or Madame: I am writing in support of the above referenced application. I am a neighbor of Paul and Karen’s on the north side, residing at 29 Knox Rd. In several discussions I have had with Paul I have arrived at the conclusion that the home Paul and Karen wish to build will be both an improvement to the existing land and a welcome addition to the neighborhood. I am in full support of the application and hope that you are able to approve the same. Sincerely, David M. Brown 29 Knox Rd. Lake George, NY 12845” And that’s all the correspondence I have. MR. THOMAS-All right. Reading those made me think of one more question. Looking from Knox Road toward the lake, how high is that roof from the road level? Is it as high at the barn? MR. JOHNSON-Twenty-eight feet. We were just talking, Pete and I, about how high we thought that barn was. We thought between 24 and 26 feet, existing right now. This will be just two feet higher than the barn. MR. THOMAS-Okay. Well, the barn sits up on a level part, and the house is going to sit down a little more, plus it sits down from the road anyway. MR. JOHNSON-Right. MR. THOMAS-Okay. Are there anymore questions for the applicant? If not, I’ll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-And we’ll talk about it. Bob? MR. MC NALLY-I always get a kick that a person can build their home in this location, so much closer to the lake, 50 feet, and sometimes it comes across like a threat almost, that we’ll do that, but it’s never intended. I take it more as just informing us of a very simple and plain fact, and a lot of people on the lake like to build their houses as close to the lake as possible. So Mr. Knox should be complimented that he’d like to build a wonderful home further back, which is going to compliment the lake itself. I don’t see this as being viewed from the lake as a one story structure, no way. It’s clearly more than that, but I don’t find eight feet of relief at 120 feet back from the lake, screened by the existing trees, given the slope of the land, as having any substantial effect upon the neighborhood or community. Didn’t we approve on Knox Road, along the curve there, a garage, I think, higher than the permitted amount? The building itself than, I think, 28 feet, on the corner there. So it’s not out of keeping in the neighborhood, and I think that if it’s built in accordance with these plans, with the natural siding, the minimal amount of glass that’s represented on these drawings, that it would certainly be something I’d be in favor of. MR. THOMAS-All right. Chuck? MR. MC NULTY-I guess I’d basically echo Bob. I was initially concerned about the height of the building, as viewed from the lake side. I’m still a little concerned about it, but with it being back as far as it is, that certainly mitigates some of the problem. Leaving the trees is going to help some. So 25 (Queensbury ZBA Meeting 10/27/99) I guess on balance, since it’s moved back considerably from where it could be built, I don’t guess I have a problem with it. MR. THOMAS-All right. Dan? MR. STEC-I agree with Bob and Chuck. Not that I would propose including this formula in our future zoning code, but looking at the trigonometry of the situation. If you’re allowed 28 feet at 50 feet from the lake, then 120 feet, that equates to something around 67 feet. So I think if we stipulate that the house is 120 feet from the shoreline, and that the mature vegetation on the lot is left largely intact, as it is, I don’t think that the height variance requested on that portion of the dormer that we’re talking about is significant. I’m in favor of the application. MR. THOMAS-All right. Lew? MR. STONE-I don’t really have a problem with this one. I mean, obviously, I’m the first person, not the only person who is concerned with the lake, but the fact that we’re back 120 feet, as stated by a couple of my colleagues, it’s a long way back from the lake. It is a big lot. If we had more of these lots on the lake, we would have much less problems in terms of the overcrowding that we do have now. I don’t like to give eight foot of relief on twenty-eight feet. It’s an awful lot of relief., but I think in this particular case, because of the lay of the land, because it is sloping, because of the trees, and I hope that we can get the applicant to stipulate or accept a condition that the minimum trees will be removed between the house on the lake, then I don’t have a problem with this. MR. THOMAS-All right. Jaime? MR. HAYES-Well, speaking after the lake czar can, at times, be a heavy burden, but not tonight. In this particular case, I think we have a clear choice between two possible plans, and as I viewed the lake, the topography of the land away from the lake, and the mature vegetation, I think this is a natural place, or even a superior place, to locate this property. The fact that the land does slope down to the lake, based on the definition of our height variance is quite possibly, or often in this particular circumstance, could create a height variance issue. I’m okay with the trade-off that’s involved with locating this property 120 feet from the lake, as my fellow Board members have put out. I think it’s a reasonable accommodation, and I think that, basically, the rest has been said. So I’m in favor of the application. MR. THOMAS-All right. I think all the other Board members have said it. I don’t think I can add to it. Would someone like to make a motion? MR. JOHNSON-Could I just make one quick comment? MR. THOMAS-Yes. MR. JOHNSON-No trees will be cut except for septic, and I was just thinking, you’re focusing on 120. As we lay this out, and you said you want to turn it, a little bit better view or move it just around, do you feel comfortable allowing a 10 foot leeway for that final adjustment standing there? If you don’t, that’s fine, but I’m just thinking that might be the only thing else that we might be looking for is a little flexibility once they’re on site actually laying it out. If you’re not comfortable. MR. THOMAS-Flexibility meaning if you moved it 10 feet one way or the other, you might save one of those big trees that wouldn’t have to be cut down, or something like that. MR. JOHNSON-That’s right. MR. THOMAS-Does anybody have a problem with that? So maybe 110 instead of 120 from the lake? MR. STONE-If you want to clock the house a little bit, that’s no problem. MR. JOHNSON-Yes, that’s what I’m thinking. MR. THOMAS-Okay. So, would someone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 94-1999 PAUL & KAREN KNOX, Introduced by Paul Knox who moved for its adoption, seconded by Lewis Stone: Knox Road. The applicant proposes construction of a 4800 square foot single family dwelling and seeks height relief. Specifically, the applicant is requesting eight feet of relief from the 28 foot maximum height requirement of the WR-1A zone, Section 179-16. Criteria for considering such a variance, the benefit to the applicant would be that he would be permitted to construct the home as 26 (Queensbury ZBA Meeting 10/27/99) depicted in our drawings and as located in our drawings. Feasible alternatives, I believe there is a possible feasible alternative to downsizing the structure to fit the Code, in this particular case. Is the relief substantial to the Ordinance? I believe that eight feet of relief, versus the Ordinance at 120 feet from the lake is minimal to moderate. Effects on the neighborhood or community, I believe that the relief will have minimal impact on the neighborhood, based on the mature screening and the location of the proposed home at 110 feet, at a minimal, from the lake. Is the difficulty self-created? I believe that it is, but I believe that cumulatively, the relief, the balance of the test falls in favor of the applicant, particularly accounting for the fact that it’s at least going to be 110 feet from the lake. So, therefore, I move for its approval. Duly adopted this 27 day of October, 1999, by the following vote: th AYES: Mr. Stec, Mr. McNulty, Mr. McNally, Mr. Hayes, Mr. Stone, Mr. Thomas NOES: NONE MR. JOHNSON-Thank you very much. MR. THOMAS-You’re quite welcome. USE VARIANCE NO. 93-1999 TYPE: UNLISTED PC-1A FRANK J. PARILLO OWNER: SAME AS ABOVE 92 QUAKER ROAD APPLICANT SEEKS RELIEF TO ESTABLISH A NONCONFORMING USE, SPECIFICALLY A BINGO FACILITY. WARREN COUNTY PLANNING 10/13/99 TAX MAP NO. 104-1-4.32 LOT SIZE: 5.76 ACRES SECTION 179-22 JON LAPPER & FRANK PARILLO, PRESENT MR. STEC-“Warren County Planning Board Project Review and Referral Form 6 October 1999 Project Name: Parillo, Frank J. Owner: Same ID #: QBY UV 93-1999 County Project #: October 99-28 Current Zoning: PC-1 Acre Community: Queensbury Project Description: Applicant proposes to use vacant former warehouse space and former amusement center Batters Up for a charitable bingo facility which would be an amusement center use. Site Location: Quaker Road and Lafayette Street Tax Map No.: 104-1-4.32 Staff Notes: Correspondence from the applicant’s attorney is included with the summaries. Upon review of the site drawing, which is included in the applicant’s file, there appears to be no new construction on the site, and this is a re-use of an existing building. Staff is recommending discussion from the perspective of clarifying any new construction issues and the issues related to potential parking concerns. Staff therefore is recommending discussion. County Planning Board Recommendation: The Board re-affirms it’s prior approval as an amusement center and requests that all building code issues relating to meeting and assembly requirements be complied with.” Signed Terry Ross, Warren County Planning Board. STAFF INPUT Notes from Staff, Use Variance No. 93-1999, Frank J. Parillo, Meeting Date: October 27, 1999 “Project Location: 92 Quaker Road Description of Proposed Project: Applicant proposes the establishment of a bingo facility and seeks relief to create a non-conforming use. Relief Required: Applicant requests relief from the listed allowable uses of the Plaza Commercial 1 Acre zone, § 179- 22. Criteria for considering a Use Variance according to Chapter 267 of Town Law: 1. Can the applicant realize a reasonable return, provided that a lack of return is substantial as demonstrated by competent financial evidence? The applicant has submitted financial information depicting a projected $47,607 net income. No reference to monthly/yearly mortgage payments was submitted. It does not appear that the applicant has demonstrated the lack of reasonable return for “each and every permitted use under the zoning regulations for the particular district.” 2. Is the alleged hardship relating to the property in question unique, and does this hardship apply to a substantial portion of the district or neighborhood? The hardship may be interpreted as unique. 3. Will the requested use variance, if granted, alter the essential character of the neighborhood? Moderate impacts may be anticipated as a result of this action. 4. Is the alleged hardship self-created: The alleged hardship could be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): SV 41-1993 res. 6/2/93 wall sign SP27-1992 res. 5/21/92 27,000 sf restaurant, lounge & amusement center UV 39-1992 res. 4/22/92 27,000 sf restaurant, lounge & amusement center SV 81-1990 res. 10/24/90 5 business names on freestanding sign SP 78-1990 res. 10/16/90 interior alterations, parking, radio station Staff comments: Moderate impacts may be anticipated as a result of this action. It appears that this is a leasable place of assembly rather than an amusement center. The definition of amusement center would require this facility to have “….various devices for entertainment, including rides and booths for the conduct of games….” Has the applicant considered a reconfiguration of the available space to accommodate permitted uses? Referral to the Planning Board for Site Plan Review is 27 (Queensbury ZBA Meeting 10/27/99) recommended. Any relief, if considered may be conditioned upon the applicant’s strict adherence to the requirements of our Chapter 52, Bingo and Games of Chance. SEQR Status: Type: Unlisted” MR. STEC-I have a letter dated September 29, 1999, from Jonathan Lapper, re: Frank J. Parillo, 25 Quaker Road “Dear Mr. Thomas: On behalf of Frank J. Parillo I hereby submit an application for a use variance with respect to the former Mallinckrodt building located at the southeast corner of Quaker Road and Lafayette Street. The use variance application seeks approval for the rear portion of the building to be used as a charitable bingo facility which is considered an “amusement center” under the Town Zoning Code. The building was constructed with 15,000 square feet of office space along Quaker Road and 25,000 square feet of warehouse space with four loading docks at the rear of the building. After Mallinckrodt moved its operation out of town the warehouse portion of the building was granted a use variance in 1992 for an amusement center known as “Batters Up”. This use was relatively short lived and the 25,000 square foot portion of the building has been vacant for many years. During that time it was owned by KeyBank National Association and vigorously marketed for sale or lease by Bob Sears of Prudential Realtors. On December 8, 1998, Frank Parillo purchased the building from KeyBank for $841,000. A copy of the closing statement is enclosed. The building is assessed by the Town at $1.1MM. Therefore, the $841,000 purchase price was a reasonable price. Since Mr. Parillo purchased the building he has had a large sign advertising it for rent which is visible from Quaker Road and Lafayette Street. While he has shown the warehouse space to a number of parties, the proposed use is the only offer he has received. In order to establish the financial hardship, I have enclosed a statement of income and expenses which is annualized for calendar year 1999. As indicated on the statement the rent for the 15,000 square feet of office space totals $207,780 per year. The expenses total $167,173 which leaves a net profit of $47,607. Based upon the $841,000, purchase price this provides a return of only 5.6%. Five and sixth tenths percent (5.6%) is not a reasonable return on a commercial real estate investment. If the property were mortgaged at even 75% of the purchase price the net cash flow would be insufficient to pay the mortgage. The proposed use will provide a reasonable return. The lease rate for the charitable bingo facility will be $4.75 per square foot, triple net, for 17,500 square feet of space. The financial hardship is the result of the physical design of the building comprising office space and warehouse space. The building is located in the plaza commercial one acre zone. The permitted uses in the plaza commercial one acre zone are primarily retail oriented. Neither the location of the 25,000 square feet of warehouse space at the rear of the building nor the physical size, height and layout of this space are suitable for any of the permitted uses. Moreover, no party has expressed interest in any of these uses since Bob Sears began marketing the building for KeyBank through this date. The operation of the former Batters Up amusement center facility establishes that an amusement center can be located in this space without altering the essential character of the neighborhood. In fact, amusement centers are permitted uses in the highway commercial zone which encompasses much of the Quaker Road corridor and is located only about a block away from the property. The charitable bingo facility will be built by a company called CAN Investments, Inc., a North Carolina corporation established by Robert Norman, a CPA with over twenty years of experience in the conduct of bingo games as a commercial lessor of bingo facilities. The facility would be leased by CAN to various charitable organizations for the conduct of bingo. CAN’s revenues are derived through sales from concessions operations in the facility and lease payments from the charities, which in New York are established and regulated by the State Racing and Wagering Commission based on operating expenses of the facility. By consolidating the bingo games presently held by area charities in various locations into this one facility, it is anticipated that the charitable organizations which currently run bingo games can significantly increase their revenue and the facility can also be made available to other charitable organizations which do not currently sponsor bingo games. More details on the operation will be provided at the Zoning Board Hearing. Please place this matter on the agenda for one of the October, 1999 ZBA meetings. Very Truly Yours, Jonathan C. Lapper” MR. THOMAS-Mr. Lapper, sir. MR. LAPPER-Thank you. For the record, my name is Jon Lapper, and I’m sitting with Frank Parillo, the owner of the building. Also with us tonight are Richard Galt and Bob Norman, who are the two proposed tenants that would be running the bingo facility, and they’ll be available to answer questions, more details about the proposed use. I think that the letter and the attached closing statement and the income and expense sheet detail the first prong of the Use Variance test, in terms of the reasonable return. This building has had quite a history. It’s been vacant for a long time, and when Frank purchased it for $841,000, approximately a year ago, he was under the mistaken belief that buying it at significantly less than it was assessed he would be able to offer a low rent, and because it’s in a commercial corridor, that it would be able to rent up. Unfortunately that has not happened, although Frank, as a commercial real estate owner and developer with a lot of experience and also with large signs on the property in the main commercial corridor has not had any offers up to this point, other than this use, and there have been people that have talked to him, but nothing has materialized, and that’s why we’re here tonight, to talk about a Use Variance and a reasonable use for the building. In the Staff Notes, they’ve questioned whether or not this is an amusement center, and without giving a lot of thought to that, I had some discussions with Craig and Chris, and so did the proposed tenants, early on, before we submitted, and I think that we just assumed that that was an 28 (Queensbury ZBA Meeting 10/27/99) appropriate classification. I would still argue that it is, but I don’t think that it is really relevant to what you call it, whether it’s considered a place of assembly or an amusement center. We’re asking for a Use Variance to permit a bingo operation. So I don’t think that it has a lot of significance, other than that it’s similar to the Batters Up use, just in terms of bringing people to the site and warehouse space in the back, and one of the biggest problems here is just that the building was built office in front, warehouse in the back, and that’s not, warehouse is not a permitted use in the Plaza Commercial zone right now. It’s not really appropriate for a retail use, and in terms of, the Staff mentioned that we didn’t go through every one of the uses under the Ordinance, but I’ve summarized them all as service or retail uses, and because it’s a warehouse space located in the rear of the building behind office space, it’s just apparently not what people want for retail or service businesses, because there’s been no interest, and as you can see by the numbers, Frank’s proposing to lease it out as, this says $4.75, and actually the agreement is $4.50 a square foot, which is pretty low for space in the commercial corridor. We think that this is an appropriate use for the site because the time that the bingo would be used, generally in the evening, is not the same time that the office space in the front would be used. So it would be a shared parking concept, but nevertheless, there’s enough parking on the site so that you could have both uses at the same time. The guys that run the bingo operation are very experienced. They have two facilities elsewhere in South Carolina in Maryland, and they can talk about that, their experience. There are also some other facilities around the State that they’re aware of, in terms of the number of people and the number of parking spaces, but we don’t anticipate that that would be a problem. It’s on the main commercial corridor with the traffic light, good access, good visibility, and no residents anywhere in the vicinity. In terms of whether or not this is self-created, there’s obviously a problem here, because the building has been sitting vacant for a long time, which we think is related to the physical building itself. Certainly the location is a good location. That’s something that I think would have been a case, clearly, if KeyBank, in the time that they owned it, came for a Use Variance because they foreclosed on, apparently, whole lot more than $841,000, but even at the reasonable price of $841,000, Frank’s still not making a reasonable return on his investment. I guess that’s it for the principal case, because most of it was laid out in my letter, in terms of the Use Variance. We can answer questions. MR. STEC-It’s my understanding, correct me if I’m wrong, that there was a day care that was looking into renting that? MR. LAPPER-There was a proposal, and there was an article in the paper that appeared, but that never materialized into an offer. MR. STEC-No offer was made? MR. PARILLO-For the record, I’m Frank Parillo. I’m the owner of the building. The day care center people approached me, and wanted to know if I would consider showing them the building, which I did. I met them there twice for a total of about a half hour, and two or three days later I read in the paper that they were ready for construction, but that’s not the case. Nothing was ever forthcoming. MR. STONE-What was the Use Variance in ’92 for an amusement center? MR. LAPPER-That was Batters Up. MR. STONE-That was Batters Up, and that specific, that Use Variance? MR. LAPPER-No, it says amusement center. MR. STONE-Yes, that’s what I’m wondering. MR. LAPPER-Yes. MR. STONE-I mean, the definition of an amusement center, as we say here, where there are various devices for entertainment, including. Are bingo equipment devices for entertainment? MR. LAPPER-Yes. MR. STONE-Tables and chairs? MR. LAPPER-Yes. We would argue that they are, but I think what Craig hit on is the “including” language, including rides and booths for the conduct of games. MR. STONE-Including, but not limited to, one might argue. MR. LAPPER-It’s certainly an interpretation issue. 29 (Queensbury ZBA Meeting 10/27/99) MR. STONE-Yes. MR. STEC-If somebody says including, it implies not limited to. I agree with you. MR. STONE-That’s what I’m saying. A Use Variance is in place for at least that part of the building, I assume. MR. LAPPER-And that’s the same part of the building that we’re talking about, and if you took that position, which I think is reasonable, you could say that an amusement center, that this use would be permitted because it’s already been recognized by the Zoning Board in ’92 that the building could be used for an amusement center. Because this is a different type of use, and after talking to Craig and Chris, we felt it was appropriate to apply and to come back and talk to the Board, but I think that that is absolutely a reasonable interpretation, that that Use Variance is broad enough. MR. STONE-What’s going to happen with the other 7500 square feet? MR. LAPPER-It’s a mezzanine section. It’s not easily rentable. It’s upstairs. Why don’t you explain how that works. MR. PARILLO-Well, the 7500 square feet, Jon, isn’t upstairs. There’s about 24,000 feet on the first floor. The portion that’s going to be occupied is really the warehouse space. To the north of that, there’s about 7500 square feet. The ceilings are lower. Right now Medaphis is occupying it just for storage. MR. STONE-But they have offices in there on the north side, too. MR. PARILLO-Exactly, right. This is right behind the offices, the 7500. It’s not easily accessible. It would be good for storage, perhaps, if Medaphis ran out of room for their records. MR. STONE-I looked at your numbers, 40,575. You’re renting 15,000. You’re going to do 17,500. That leaves about 7500. MR. PARILLO-Exactly, and that’s about what it is. MR. HAYES-What is the rental income from the 17,500? I mean, what’s the agreement? MR. STONE-You said $4.50 a square foot. MR. PARILLO-$4.50 a square foot. MR. STONE-I just did rough calculations. MR. HAYES-Does that sound about right? MR. PARILLO-That’s correct. I don’t have a calculator, but it’s $4.50 a square foot. MR. STONE-Four times 1750 is 70,000. MR. HAYES-Now is that a triple net lease, or is that? MR. LAPPER-It would not include taxes. It would include an increase in taxes above the current taxes. MR. PARILLO-I’m absorbing the taxes. MR. HAYES-Well, the taxes are staying the same based on your pro forma here, then? MR. PARILLO-Well, there’s going to be an increase in taxes because we got a break in the assessment because it was vacant space, but as soon as it’s occupied, there will be an increase in taxes. So that tax number right there will. MR. HAYES-The assessment of 1.1 million will go up, then? MR. LAPPER-Yes, but they’ll pay the increase. So it should stay the same. MR. HAYES-So this will flow through the pro forma the same, then. MR. LAPPER-Right. 30 (Queensbury ZBA Meeting 10/27/99) MR. HAYES-I guess my question is, correct me if I’m wrong, if the $78,000 goes straight to the bottom line, then what would make that return on the property at that rate? I guess that’s. MR. PARILLO-Around ten and a half percent, providing the expenses stay the same, but I’m absorbing the, in my lease with Medaphis, I’m paying all the utilities, which are substantial, and one of the reasons that the utilities are is that it’s all electric. So in order to convert that over to gas, we’ve done a study on it, and we’re talking about $50 or $60,000 to bring the utilities bill down. However, Medaphis only has a three year lease. So in effect, in two years, they could vacate the property. So I didn’t elect to spend the additional money for the heat and air conditioning if they were to vacate in two years. MR. HAYES-I guess where I’m confused is that, based on your pro forma now, you’re showing a $47,000 net income. If we add $80,000 worth of additional rent to that, it’s basically a $130,000 a year net income, and you paid $841,000 for the property. I’m not quite sure how you arrive at a 10% return. MR. LAPPER-I don’t have a calculator, but it’s probably more like 14%. In terms of the case law for Use Variances on commercial real estate, 10 to 15 is a reasonable return. MR. HAYES-Okay. MR. MC NALLY-This property was purchased from KeyBank? MR. LAPPER-Yes. MR. MC NALLY-And KeyBank had it, it was foreclosed, I think? MR. LAPPER-Yes, for about four years. MR. MC NALLY-Did anyone market it while it was owned by KeyBank? MR. LAPPER-Bob Sears did, and he’s here to answer questions about that. MR. MC NALLY-Is it listed with your agency, Bob? BOB SEARS MR. SEARS-My name is Bob Sears. I’m with Prudential Blake Atlantic Realtors. We’re a commercial real estate company. I had it for approximately almost two years with KeyBank. We marketed it extensively throughout the region, as well as on a national level. We thought it would be especially interesting to a retailer, and unfortunately, over that time period, there was no retailer that stepped forward to purchase the building. So then we were looking at maybe marketing it to someone, an investor such as Frank Parillo, and that’s how it ended up. During that time period I’ve tried to lease out the back space because I thought it would be more interesting to an investor if the back space was leased out, and I couldn’t create a tenant with a long term lease for the back space, during that time period. MR. HAYES-At what rate were you marketing that? MR. SEARS-Believe it or not, $4.00 a square foot gross, which is below market rate substantially. That’s what we were looking at to, because at that point in time we could probably, at $4.00 a gross, the numbers (lost words) around a million dollars as far as the sale price goes. MR. MC NALLY-And when you say a long term lease, what kind of lease were you looking for during that period of time? MR. SEARS-Two years. MR. MC NALLY-You consider that long term? MR. SEARS-That’s as long term as you normally get for a lot of tenants. I was looking at marketing it to maybe a light industrial tenant for storage or for dispatching. I know that’s not a use, but I felt the Board would probably pass that use. Because it’s excellent space for storage, but unfortunately in this area, there aren’t a lot of tenants that would go out on a lease longer than a year or two, tops. MR. MC NALLY-The last time I was there, it was Batters Up in the rear. MR. SEARS-Batters Up was in the rear. It’s great for amusement. 31 (Queensbury ZBA Meeting 10/27/99) MR. MC NALLY-Did KeyBank or Mr. Parillo do anything to convert the property to some other configuration, other than the existing space that Batters Up had? MR. SEARS-KeyBank cleaned this space up. They took out the Batters Up fit ups. So it made it more conducive. We had, unfortunately during that time period, some small attempts, a hair salon for 40,000 square feet. They wanted 1,000. We would get those kind of calls, but we wouldn’t get anyone who wanted substantial space to make it economically feasible to retrofit the space. MR. STONE-So you gave us a brochure that says for sale, but you also tried to rent it at the same time. MR. SEARS-I also tried to rent it at the same time. Because by renting it to a tenant, it would help increase the potential for a sale because it had an income stream that would be substantial. The problem is also, not to elaborate, but the front tenant was a gross lease. So there wasn’t a whole lot of return. Of course the expenses that any landlord would incur were substantial. Thank you. MR. HAYES-I guess, Jon, I kind of keep returning back to return on investment, based on potential usages here, and if Mr. Parillo paid $841,000, a 10% return would be $84,000, roughly speaking. Right now he’s got a $47,000 return, according to his own records. So that would mean he would need a $37,000 return to get a 10% return on the additional space. Is that spitballing? MR. LAPPER-Yes. MR. HAYES-Which by my calculations means he would need like, you know, maybe 2.8 dollars, he’d have to get 2.8 dollars per square foot, to get a 10% return. MR. LAPPER-I think that’s still low on an investment, I mean, if you compare it to safer investments than real estate, that if you’re buying government bonds, I mean, just in terms of buying commercial real estate, really, you know. MR. HAYES-Government bonds are at like seven percent. MR. LAPPER-Yes, but even 15 or 17% is not an unreasonable return on commercial real estate, which is a speculative investment. MR. HAYES-It’s certainly more risky, but 10% is a pretty healthy return. MR. SEARS-Could I address that issue? It’s been my experience with dealing with investments on commercial property, especially in this area, they’re looking at a (lost word) rate of about 15% minimum. They’d prefer 20, but they won’t consider a building for probably less than 15% return, if they’re going to put their own money on it, and the reason why is this area is tentatively economically for tenants in general. That’s just my experience, and also if you look at appraisers appraising property, and they looked at an income stream, they look at least 12 to 15% of an income stream, to interpolate that for value, writing on a value. MR. HAYES-They use 15% for a return when they do an appraisal? MR. SEARS-Twelve to fifteen percent. First they take the face value of what it would be used comparable, (lost words) twelve to fifteen percent in this area. MR. MC NALLY-When they capitalize the income, that’s what you’re talking about? MR. SEARS-Yes. Exactly, and if I’m dealing with an investor (lost words). If I’m appraising a property, looking at an income stream, I won’t list it myself, unless you’re looking at least a 15% return. MR. PARILLO-If I may expound on the rate of return a little bit. Right now, we’re getting about 5.6%. I had mentioned that Medaphis is there for three years. They have two years left on the lease. So for the last year I’ve been getting five and a half, five point six percent. If you include the new rent for this lease, which it brings it down to around to about 12%, keeping in mind that in two years I could be back to the five point six percent or six percent, because that’s a specified use with fit ups for offices, and there isn’t really a big demand for office space, based on what’s available in Glens Falls at a much cheaper rate, Class A office space versus what they’ve got here. The other thing is, keep in mind that there isn’t a mortgage on the property. So if we were paying a mortgage on this, if you factor in the interest rate, it would be a losing proposition. MR. STONE-When I went by today about five, there were a lot of cars, a number of cars out front. I don’t want to categorize them as a lot. Were they all from Medaphis, or were they other things? 32 (Queensbury ZBA Meeting 10/27/99) MR. PARILLO-Well, I don’t know for certain, but I would say that they probably were from Medaphis, but the bulk of, I don’t know how many cars you saw there, but I think the bulk of them leave around three or four o’clock. So, I mean, were there 25 or 30 or 50 cars there? MR. STONE-No. There were 15 or 20. MR. PARILLO-Well, there’s probably 70 people that work there. MR. STONE-Meineke doesn’t store cars there, from across the street? MR. PARILLO-Not that I know of. MR. STONE-I just wondered. MR. LAPPER-The site has 185 spaces now, 187 spaces, and because the truck dock area would not be needed, that area can be re-striped, would get approximately 200 spaces. Under the parking schedule, the 15,000 square feet of office space requires one space for each 150 square feet, for 100 spaces, and a place of public assembly, which I would use for calculating the parking, because there’s no amusement center, regardless of what you call it, there’s no amusement center in the parking schedule, requires one space for every four seats. So if there were 400 seats, which is considerably more people than they would ever expect to be there, but apparently bingo halls like to have extra seats because, A, people like to spread out and, B, they probably think that the odds are better if there’s empty seats, that would require another 100 spaces. So the 200 spaces, even at the same time under the schedule, could cover both uses, but because the bingo would be going on at the time that there’s not the office use, there would be plenty of spaces. MR. STONE-Okay. I don’t want to question the business acumen of the tenants, but it seems to me that there are a lot of bingo games in the area, and most bingo games use owned facilities, a church, their assembly hall, the booster club uses the Civic Center. Would this thing be a successful venture? Or what impact would it have on the games that are currently in town? MR. LAPPER-I want to ask Richard Galt to answer that, because he’s studied the industry, but in general, all of the uses, the charities that have bingo to raise money now in town, this facility would be made open to them, and what this does is that because everybody, the different charities, somebody has it Tuesday/Thursday. Somebody has Monday/Wednesday. The public would see this as a bingo center. So all those charities would use this center, and it would just generate more money, that’s the theory, because it’s one central location that people can go to. If they’re used to going to the Knights of Columbus on Tuesday, and they’re free on Wednesday, it’s just a less rigid schedule, and that’s the theory behind this, that apparently these are quite successful. There’s one in Schenectady that is quite successful. MR. STONE-If you want bingo, you go here, you don’t have to know where you have to go? MR. LAPPER-Exactly, but Richard is here and can answer detailed questions about the use, if now is the appropriate time. MR. STONE-Well, I’ve asked the question. If nobody else is interested, then we don’t. MR. THOMAS-I’ve got one question for you, Jon. In your letter here, in your next to last sentence, organizations which currently run bingo games could significantly increase their revenues. The facility can be also made available to other charitable organizations which do not currently sponsor bingo games. What do you mean, that some other charitable operation could come in and do bingo or do something else? MR. LAPPER-No, do bingo. The way it works is the space is leased out by Frank to CAN Investments that run the center, and they then lease it out, sub-lease it out, to the charities, because in New York, the Racing and Wagering Board requires that the charities have to run the bingo games. So they collect all the proceeds, and they pay rent. The tenant makes money by running the concessions, selling food while everyone’s playing bingo, and getting a cut of the money that, the rent that the charities pay, but that amount is regulated by the State, as to how much profit you can make. MR. STONE-But now the charitable organization does that themselves and makes all the money, and on top of it you’re going to charge them to use the hall. MR. LAPPER-But they’re going to have more people. RICHARD GALT 33 (Queensbury ZBA Meeting 10/27/99) MR. GALT-I’d be happy to address that. I’m Richard Galt. My business Bob Norman is a CPA, and he can address some of the fiscal issues a little more closely for you, but generally what we’ve found is, and it’s also true in New York, based on research we’ve done, that we can provide a larger facility, a more comfortable facility, with air-conditioning, carpeting, a concession stand, things you would normally find in those types of facilities. People get used to it. They like to come. There’s some crossover between charities. So, number one, a charity will be able to attract participants, we hope, from the pool of participants that might be frequenting another bingo. We’ve also found that the space that they’re now using becomes available for alternative uses. Touching on something Jon mentioned earlier, our hope is to always hold hands with those that are doing this in the community currently. It’s only going to be a success if the people that are doing bingo now support it. In this Town, we spoke with the Clerk, as we did with this gentleman when we first met several months back. We’ve identified four charities that are doing bingo in the area. I have contacted all of them. There’s some interest in speaking to us further if we move beyond this phase. They see not only what I’ve identified as positive, attracting more people, attracting some crossover, a centralized location, things of that nature, but also in freeing up their space for alternative activities. There’s some bingos going on on a Saturday night. It’s of interest to them, preliminary, but they’re interested because then their facility will now be available for functions, weddings, other things that might occur on Saturday night. So there’s more economies of scale from combined activities, we believe, and that’s been played out in the research we’ve done, through reviewing filings done by charities, participating in these types of establishments elsewhere in the State. They’ve seen a tremendous increase in their revenues. I can’t quote numbers for you because it’s been some time since I, but significant. I don’t think Jon overstated it when he said the increase in revenues to the charities is significant. So we feel it’s a plus for the community. We feel that it is a neat, clean operation, and I just want to stress, perhaps I’m a little too close to it, but I want to re-emphasize something Jon said. We have absolutely nothing to do with the conduct of bingo. We come in. We put in tables and chairs. We roll out the carpet. We see that it’s a comfortable, nice place to go and participate in bingo games. We think that’s going to be attractive. Our only function will be to have a building manager to make sure the building is in good shape. We will collect our rent, which really is set by the State. We really have no input into that, and hopefully make the concession stand as successful as we can. MR. STONE-Your bingo equipment, or do they bring their own equipment in with them? MR. GALT-Absolutely not. Part of, addressed in Jon Lapper’s letter, it’s based on our operating expenses, which include payments for tables and chairs. What we would do is we would come in. We’ve identified it as an attractive facility. Mr. Parillo’s kept it in very nice shape. We will be able to come in, bring the bathrooms to code, set up a concession, roll out the carpet, bring in comfortable chairs, nice tables, plentiful number of bingo monitors, raised bingo stand, and basically that spread out room, which will allow the charities to attract, we hope, more participants, but giving them that spread out room. There really is a mental part of it that, you know, your odds of winning. MR. STONE-Twenty-seven cards in front of one person, they have more room. MR. GALT-I don’t know about that. I’ve seen some people who know how to keep track of that many cards, but I’m not one of them, unfortunately. MR. HAYES-You are a for profit organization, though. MR. GALT-Yes, we are a for profit organization. MR. HAYES-So presumably you’re charging them more than your expenses to make a profit, which is certainly justified. MR. GALT-We have already visited with the Racing and Wage Commission, at one point, just to see if it was a realistic opportunity, and the process is, we submit our operating expenses and they tell us what we can charge, and they audit us at the end of the year, and if we’ve charged too much, they make an adjustment, but again, we participate not at all in the actual running of bingos. That’s a function of the charity, and we believe Glens Falls would be a good place to do that. We think there’s other charities that would like to participate. We think there’s other fire departments that would like to participate. So we’re actually looking forward to the proposition. We’re looking forward to bringing something to the community as well. MR. THOMAS-So what you’re saying is you do own all the equipment that’s inside that building, inside that rented space? MR. GALT-We, or a related entity, will own every table and chair. I think that’s better addressed to, Bob’s a CPA. MR. THOMAS-And the bingo machine itself? 34 (Queensbury ZBA Meeting 10/27/99) MR. GALT-The bingo machine is a $10,000 machine. We’d own it. It’s part of the rental payment. I guess you could classify it as a facility and equipment lease, but again, that is all encompassed in the rental payment that the State allows us to charge each charity. MR. THOMAS-Who owns the machine itself? That’s what we’re asking. MR. GALT-Who owns the bingo machine? We’d have to go out and get one. We do. MR. STONE-Okay. You’ll own the boards around it. MR. GALT-We’ll own the boards. We’ll own the t.v.’s. We’ll own the tables, chairs, everything in there will be ours. Each charity will pay a rental payment, and that’ll allow them to use the facility and use our equipment. We have a building manager. We have nothing to do with the bingo. It’s there, and charities are quite sophisticated in running the bingo, as you come to find. MR. STONE-But if they find themselves making less because of the charges to you losing the revenues on the concessions, they may say, we’ll go back to our own hall. MR. GALT-We’re not going to be signing charities to long term lease agreements or anything like that. In fact, we’re hopeful that they’ll find it, like other charities conducting bingo, they’ll find it quite successful, and wish to stay, but no one will be obligated to stay with us, and again, I’ll emphasize that I’ve been in contact with the four existing charities, and some others that we hope will join us, and they will be offered, if they wish to participate, the same night that they’re operating now. MR. STONE-But you only have seven nights. MR. GALT-There’s seven days in the week, yes. MR. STONE-Some go every week. MR. GALT-Actually, the law is very specific on how often an individual charity can run a bingo. It’s safe to say that each charity could run it every Tuesday night and be within the law, but again, that’s their obligation. It’s not a difficult process to establish. Once a week and you’re well within the rules of charitable bingo. MR. STONE-Within the Gaming and Wagering, can you go 24 hours a day, according to their rules, three or four games a day? MR. GALT-No, absolutely not. I’ll qualify my answer to this by deferring to Bob or I better look at the law. It’s been some time, because again, we have nothing to do with running the bingo, but it’s specified about the number of games you can have and the pay out that you can have for the entire session. So by definition, the game will run. MR. STONE-Well, I’m not talking about, I mean, if Church A goes from seven to ten, could Church B, or Group B come in from ten to two, ten to one in the morning? MR. GALT-No. There’s a limit of a number of sessions that can occur, can I qualify this? There’s a rule of the number of sessions that can occur in any one day, and I believe on a weekend you can have more than one session, but largely, I’ll say pretty much week days you can only have the one session, which we’ve determined, and I think everyone else in bingo has determined is the evening. MR. STONE-Okay. So you can’t have a morning game. MR. GALT-No. We won’t be having morning games. MR. MC NALLY-The company that will operate this is called CAN Investments, Inc.? MR. GALT-And I’ll qualify that also. We are CAN Investments, Inc. I’m a New York resident. I’m an attorney and I have a New York firm. My family’s had property in Warren County for 25 years, and I was a resident of Warren County for the last eight. I’m thinking of putting it in a New York Corporation, just because that’s where our law firm is, but it will be an affiliate of CAN Investments, and that’s a company that’s, 90% of the equity is owned by Mr. Norman. He’s a CPA out of Fayetteville, North Carolina who used to be President of a company in Bennington, VT, and that’s the relationship we’ve established. MR. MC NALLY-But CAN Investments, Inc. operates in North Carolina currently? 35 (Queensbury ZBA Meeting 10/27/99) MR. GALT-CAN Investments is a North Carolina corporation. It has operations in Maryland and South Carolina. MR. MC NALLY-Where are current bingo operations, what cities? MR. GALT-Maryland is Annapolis, MD. We are the owner of a commercial bingo license. There’s no involvement of a charity. We’ve hired somebody to run that for us. They run the bingo, and they take in the money. In South Carolina, same relationship. We are the owner of a facility, with equipment. We own all the equipment. We lease that to a charitable organization that runs bingo. MR. MC NALLY-Where in South Carolina? MR. GALT-Florence, South Carolina. MR. MC NALLY-And how are you involved in this? Are you the attorney? MR. GALT-Well, I’m an attorney, but I’m also a shareholder of the corporation. MR. MC NALLY-Okay. MR. THOMAS-Any other 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? Is there any correspondence? PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. THOMAS-Is there any more questions for the applicant? If not, we’ll talk about it. I’m down to Chuck. MR. MC NULTY-It strikes me as a reasonable request, given the operating hours, the location, and from what I’ve heard of income flow and return, I think it’s fair to say that they’ve made a fairly good effort trying to do something else with the building and haven’t succeeded. I’m inclined to approve. MR. THOMAS-All right. Dan? MR. STEC-I agree with Chuck. I think that their previous Use Variance from 1992 covers what they’re asking for, quite frankly, but with that aside, I think that they’ve answered all four questions. They’ve demonstrated a financial, or an insufficient financial return, and I think that I have no problem with granting the variance. MR. THOMAS-All right. Lew? MR. STONE-Well, this being a Use Variance, as Mr. Lapper knows, we have to find that all four criteria are met, and let me just for the purposes, it be my turn to go through these things. Cannot realize a reasonable return substantially shown by competent financial evidence. I’m willing to accept Mr. Parillo’s figures that even with the lease of this particular thing, that his return will certainly not be one to jump up and down about, and certainly it’ll relieve a very difficult situation that he has faced in owning this property, as evidenced by both the numbers that he’s provided and by Mr. Sears’ testimony. The alleged hardship is unique, and it certainly doesn’t apply to a substantial portion of the neighborhood or district. There is no other empty building in this particular thing at this time. It’s a unique building, in that there is office space in front, currently occupied by a business which doesn’t need 17,000 square foot of warehouse space, and obviously warehouse space is not desired by too many people. It’s certainly not going to alter the essential character of the neighborhood, particularly since the games will be at night or maybe Sunday afternoon, but it certainly will not be an impact on the traffic in the area. It will feed on to Quaker Road when there’s very little other traffic there, and the hardship is not self-created because I think Mr. Parillo, in good faith, bought this building at somewhat of a distressed price, but even having bought it at a distressed price, he can’t get a reasonable return on it. So I think it’s not self-created. I mean, the man has an opportunity to, a right to buy a particular piece of property, actively market it and find that, well, I’m coming up short. Now, our job is not to relieve a bad business decision, and it’s not as if he bought this building yesterday and has just lost a tenant and said, we’ve got to change the use because I can’t get one. He’s been marketing it actively. So, having looked at all of these four criteria, I’m willing to approve this variance. MR. THOMAS-Okay. Jaime? 36 (Queensbury ZBA Meeting 10/27/99) MR. HAYES-Well, I guess I’ve spent a lot of time talking about the reasonable return and what is a reasonable return on this particular circumstance, and I have to say, at this particular point, I’m not convinced at all that the tenant couldn’t, or the current owner couldn’t yield a reasonable return on his investment with one of the uses allowed in the district. It may not be exactly the return that he wants. It may not be an optimal return. Mr. Sears used 15%, which I find definitely on the high side, from the pro formas that I’ve seen, the investments that I’ve been involved with personally, in this area. In this particular circumstance, if Mr. Parillo rented based on the current usages, and now the Use Variance is a test of whether any one of these usages could return a reasonable return. I think that he could get maybe a diminished rent, certainly, but I have no doubt in my mind that he could get a reasonable return, whether it’s 10%. I don’t think, in case history, with Use Variances, that Use Variances are the proper remedy for a possible bad business decision, and I don’t think that, I think that’s what we’re being asked to do here. I think at 5.6%, Mr. Parillo’s not happy, but I think that he bought this property with full knowledge of the restrictions, the current tenant, the current tenant’s lease. I know Mr. Parillo has substantial holdings in this community, and I’m sure that he was aware that they had a two year thing on their lease, and I’m not convinced at all that he couldn’t obtain a 10% return, which is not a hardship that I think deserves, that would meet the criteria for the test. Is the property in question unique? I don’t think it’s unique, in that the Glens Falls Electric and other properties immediately surrounding this property have office and warehouse space, and they use it adequately. Right now. I mean, I believe Glens Falls Electric would be within a quarter mile, and they have office space and a lot of warehouse space behind. Number Three, will the requested Use Variance, if granted, alter the essential character of the neighborhood? I don’t think that there’s a neighborhood impact here that’s in question or that I would be concerned about. Certainly the only one that would possibly come to mind is having a negative impact on local charities, which clearly use the funds that they generate through bingo to support their own pro formas, if you will, and is the alleged hardship self-created? I believe that it is. Mr. Parillo purchased the property for the price that he did, knowing what the rental base was, as it is there, and I don’t think it’s the Board’s job to rectify that situation for him. I believe a return could be obtained with one of the permitted uses. It might not be a great return, a 15% return, but he could get a return, a reasonable return. MR. THOMAS-All right. Bob? MR. MC NALLY-I always get a kick out of Lew pulling out his blue card. The one thing you didn’t say is you’ve got to meet all four tests. MR. STONE-I’m sorry. I thought I said that. MR. MC NALLY-I know, but you didn’t say you had to meet all four tests. You went through them all, but it’s not like balancing. MR. STONE-That’s right. MR. MC NALLY-Three out of four, fine, you get a Use Variance. You’ve got to get all four, and I have to agree with Jaime, that the first criterion, whether a reasonable return could be had on this property, is not met with this applicant. The proof shown by hard numbers and financials indicate a 5.6% return with approximately 15,000 square feet of the building rented, the total square footage being about 40,000. Five point six percent is a solid certificate of deposit rate, which is very safe and conservative, but with I think any reasonable effort, an additional income could be gained by renting out the balance of the property, albeit not, perhaps, as an entire unit or at the rate that’s desired, and I think that the case law is clear that the fact that another use can permit a larger profit is not the same as a lack of reasonable return. So in this instance, I don’t see the first criterion has been met. On the second criterion, whether the alleged hardship relating to the property is unique, when I went by the property, I was quite mindful of the fact that right across the street is Glens Falls Electric, a very substantial large building, with retail space, but mostly actually warehouse space right there, and I also looked around me, and you’ve got the carpet furniture and showrooms on the same side of the street and across the street in Mark Plaza, again containing a large amount of warehouse space. You’ve got, the insurance company is across the street. Up the street on Quaker you’ve got Kaidas plumbing and kitchen/fixture type warehouse, and a retail showroom. We could talk about the Northway Plaza with a combination of office space and warehouse space and commercial and retail space there, but I think that the fact is that the area is jam packed with large buildings which combine retail, warehouse and commercial space. So I don’t see it as unique. The other thing I don’t think has been met is the alleged hardship self-created. As I look at the Town law, and some of the case law, it seems to me that where a person’s acquired a building, knowing of the existence of a condition that he now complains of, that that indicates that the problem was self-created. We have an experienced developer, a sophisticated man. The property has been zoned as it has been for a great deal of time, and it’s use has been as an office in the front and a warehouse in the back, or amusement place in the back, known for some time. So I find that, having purchased this property only 10 months ago, all right, it’s clear that this is not a pre-existing, nonconforming use that he was surprised as. He must have known what the conditions were when the purchase occurred. That’s 37 (Queensbury ZBA Meeting 10/27/99) three of the four. The last criterion is what impact, and whether the impact, if a Use Variance is granted, will alter the essential character of the neighborhood, and I think that it’s the applicant’s burden to do this. It’s a Plaza Commercial zone. I don’t know that allowing a bingo hall into a Plaza Commercial zone, which is significantly retail and office space and commercial type warehouse space, is going to change the area by increasing the traffic or whatnot. This last characteristic, we’ve got some anecdotal evidence in so far as that it would not, in that the charities in Town would benefit from it. I don’t know if I believe, necessarily, the anecdotal evidence, but simply that three of the four characteristics have not been met, the requirements have not been met, I can’t support it. MR. THOMAS-All right. MR. STONE-Mr. Chairman, may I make a statement before you say? MR. THOMAS-Go right ahead. MR. STONE-I tend to agree with Mr. Stec, in that I think the previous Use Variance could very easily be construed to cover this, particularly the phrase, “various devices for entertainment, including rides and booths for the conduct of games”. Well, put a booth around the machine, and you’ve got a booth for the conduct of games, but I don’t even think you have to go that far. I think t his is an amusement, and I think it can be, the previous Use Variance would cover it. MR. BROWN-Yes. The previous Use Variance would be rendered inactive, in that the use of the building has changed since that use has left the building. It’s been used for a warehouse building. It’s been used for, Adirondack Scenic was in there for a short time using it for a metal fabrication use. So the use changed from the use granted in the Use Variance. MR. LAPPER-I have to jump in there. I disagree with you, legally, that a Use Variance, once granted, runs with the land. So it doesn’t lapse. It’s not like a pre-existing, nonconforming use that lapses over 18 months if you don’t use it. A Use Variance runs with the land. MR. BROWN-Okay. Well, there’s a difference of opinion there. MR. THOMAS-I think we conditioned it, that if that use left, that the variance did lapse. MR. LAPPER-I have a copy of it. MR. THOMAS-I do believe that was one of the first. MR. BROWN-I think, either way, it was a specific use that was granted for Batters Up. This is a different use, and I don’t think the applicant’s trying to use the previous Use Variance. So I don’t know where you guys are trying to go. MR. THOMAS-No. If he was trying to do that, he wouldn’t be here. MR. BROWN-Right. MR. MC NALLY-Exactly. We can only act on the application in front of us. MR. BROWN-Right. He’s acknowledged that he wants a separate Use Variance for this use, and I think that’s what you need to deal with. MR. STONE-Okay. MR. LAPPER-Yes. I was trying to just be cooperative with the Planning Department, but when I read the Use Variance, it did not specify. It just says an amusement use. MR. MC NALLY-Again, prior Use Variance is not an issue here, is it, really? MR. LAPPER-Well, there’s an argument that if this is an amusement use, that that, and the variance is not qualified, which we haven’t determined yet, that that would cover it. Obviously, I’d feel better if a majority of the Board agreed with our dollars and cents proof, which I feel strongly about, but there are apparently two members that feel strongly opposed. “Motion to Approve Use Variance No. 39-1992….to allow the applicant to place an amusement center in the building known as the Mallinckrodt building in the rear portion warehouse space. The testimony from Mr. Sears, the listing agent for this rental property, indicates that for the past years he has been unsuccessful in leasing the property for any use consistent with the zone, and this has created an economic hardship on the owner of the building. The requested activity for this property, although not permitted under the zoning, is very similar in nature to the permitted uses and therefore would not place an undue and detrimental on the purposes of the Ordinance. This variance will not change the character of the 38 (Queensbury ZBA Meeting 10/27/99) neighborhood and will not adversely increase public services and utilities, including the traffic impact, and there’s no neighborhood opposition, and a review of the Short Environmental Assessment Form indicates that there will be no negative environmental impacts.” So, I don’t see any conditions or qualifications at all. I can submit this. This is what I read. MR. THOMAS-I wasn’t on the Board then. I thought I was. It says it’s very similar in nature to the permitted uses. MR. LAPPER-I guess I’d like the Board to just consider that this is not something that was intentional or expected by Mr. Parillo, who is a sophisticated real estate investor, but that when you come into the Town, much like we still have the Howard Johnson’s vacant that nobody’s crazy about. This building’s been vacant for a long time, and it’s not the location. I would maintain that it’s because of the building. I recognize, as Bob and Jaime have said, that there are other buildings in the vicinity that have mixed uses, but they all have single tenants in them. So they were built for a specific purpose. This building was built with a specific purpose in mind, too, but the tenants, owners have moved out, and the building is here and it’s been vacant for a long time, and we view this as a reasonable use to fill up the building and not impact the neighborhood, and create a reasonable return, but not a spectacular return. MR. SEARS-The Glens Falls Electric building, which has been cited two or three times here, was a custom building built specifically for that use, and because it’s custom, that means that it fits their use, but if you wanted to put that on the market, it might be questionable whether or not it could be used as it stands. MR. HAYES-Yes, but I guess that kind of begs the question that, presumably, any buyer that was going to buy that building would be aware of that fact, as Mr. Parillo was when he bought that building. MR. SEARS-But the other issue is, that’s a Highway Commercial, too, the Glens Falls Electric building. This is in Plaza Commercial. The Glens Falls Electric (lost words) put their use in a Plaza Commercial area, they would have to be here for a variance. MR. HAYES-And well they should. MR. MC NALLY-I think the point was that if you look at the uses under Plaza Commercial, there are a lot of them that are, my point was I wasn’t convinced that a reasonable return couldn’t be made if an effort was made toward trying to park tenants of that type there, but I think maybe, again, you’re focusing on trying to rent the entire space out to one tenant. That may be difficult, but the space in and of itself, I think, is imminently useable. It’s been a home center. It’s been office space. It’s been day care. It’s been a metal fabrication shop for Adirondack Scenic. MR. HAYES-There’s evidence that it has, in fact, been used for those permitted uses. MR. SEARS-Anybody that’s been in there, except for Batters Up, over the last five years, has been in there for less than a year at a time. That’s the biggest problem, to find someone who’s willing to go in there for a longer term use. MR. HAYES-How long have you said you’ve been looking for a tenant? Mr. Parillo’s owned it for 10 months, that’s the total time amount that we’re talking about as far as not being able to find a tenant for sale? MR. SEARS-I have marketed that building on and off specifically, over the last five years, that space. I’ve shown it to everybody interested from Barnes & Noble to the craft shop that went over on Nigro’s property, just moved in over there. The biggest issue for all those people has been the back space. It does not front on Quaker Road. I said, don’t worry about that. You’re fronting on Lafayette Street. Why front on Quaker Road? You have a light there, you just come out. You can’t convince them that the impact of the office area is a negative, they think of it as a very negative impact to commercial business. MR. PARILLO-If I could make just a couple of important comments, and just to clarify the matter for Mr. Hayes. When we bought the building, we entered into a new three year lease with Medaphis. There wasn’t an existing lease, and that’s as long as they wanted to go out was three years. Since I’ve owned the building, I’ve had some inquiries. Adirondack Scenic was there. It wasn’t a permitted use. We didn’t realize that, but being that they were only there for two months, the Building Inspector did not pursue the fact that it was not a permitted use. One of the other customers we had was Yellow Freight. They were attracted to it because of the loading docks. They wanted to bring in 15 to 20 to 25 tractor trailers, every single day, twice a day, to use it for a freight transfer station. Do we want that? No. Encore paper looked at it. They had a fire. They were told that they couldn’t store paper in there. They could only store certain types of paper by the Building Department. So it 39 (Queensbury ZBA Meeting 10/27/99) isn’t like we’ve had, haven’t tried. We haven’t had one person that has been a permitted use. So if it were Yellow Freight, we’d be here. If it were Encore Paper, we’d be here. If it we Adirondack Scenic, we would be here. It’s warehouse space that’s not visible, and it’s the nature of the building. I mean, I knew when I bought the building what I was getting. I really felt that it was a good investment. I still think that it’s a good investment. I think that we can turn it around and make it attractive for the Town. If we’re allowed to put the tenants in there, I mean, we can spend some money on landscaping. It’s got a sprinkler system in there. The shrubs have been trimmed. The lawn is maintained. We have a professional lawn service that goes and mows the lawn once a week. The building needs painting, but on 40 some thousand dollars a year on an 800 and some odd thousand dollar investment, there isn’t much left, and we’re asking that you look at the information that’s been submitted and we really think that we’re not asking for anything that’s detrimental to the area, and I think we do have a serious hardship. MR. STEC-Is a warehouse allowed in the Plaza Commercial? MR. THOMAS-No. MR. BROWN-I don’t think so. MR. LAPPER-So even if we found a warehouse tenant, we’d have to come in for a Use Variance. MR. STEC-Right. MR. PARILLO-And probably the most serious inquiry we had was Yellow Freight, who wanted a three year lease, and I just didn’t want to subject that building to that kind of use, not that they would have gotten their variance, because I don’t think they would have, and I wouldn’t have even wanted to attempt to get a variance because it would have torn up the parking lot. It would have been a detriment to Medaphis, and we think we’ve got a nice clean use that’s going to operate, what, three or four hours a day. The parking is not visible from Quaker Road. They’re good tenants. We’ve checked them out. They’re responsible business people, and we really think that it’s a good use for the building and the location. MR. THOMAS-All right. Let’s see. We’ve hit everybody except me. Right? I remember when that building was built. It was built as a lumber yard, in the fashion of Curtis Lumber, and Mr. Sears was talking about specific use, and that was the specific use that building was built for, and since they’ve left there, there’s been a number of uses in there, Mallinckrodt, the Batters Up, the radio station was upstairs there for a while, construction. I mean, it’s had multiple uses in there, and as far as the list that goes down through here, seeing that this is 17,500 square feet, and it really isn’t what you would call a storefront portion of the building, it’s not like the Aviation Mall which has like the Bon Ton from Aviation Mall, or something like in Glens Falls that has a storefront for retail business, and most of these listed uses are retail, with the exception of television and radio station, which they did have a radio station there for a while. Retail businesses. Most of these other places would want exposure to the front. I can understand being reluctant to have your storefront, if you had one, on Lafayette Street rather than Quaker Road. To me, this would be very similar to the variance that was sought and granted for the Batters Up, back in 1992. In there it was for “games”, and I think following that same line of thought, back in ’92, today, it would cry to have this variance granted to Mr. Parillo for a bingo facility, and like the application says and like the Staff Notes says, that they have to follow the Chapter 52 Articles and the Queensbury Code that would be bingos and games of chance, and it’s also State regulated. So you know there that there’s going to be a thumb put on it, and as the applicants have pointed out, this would not be occurring during the working day, because who would go to bingo on a working day, except for those that are retired or skipping work or something like that. I don’t see where it would present any kind of traffic problem, and as far as the most important thing in considering a Use Variance, the money end of the deal, I think Mr. Parillo has presented a very good case. I’m not really up on the money end of this business. I’m not an Accountant. I’m not a CPA. I can barely balance my own checkbook, but it appears that Mr. Parillo does need some kind of relief, in order to keep this building going without operating at a loss. So I would be in favor of this application, as submitted. Having said that, does anyone else have any comments they want to make? MR. STONE-We have to do the Short Environmental. MR. THOMAS-Yes. We’ll do that now. All right. Page Two here, Part II of the Environmental Assessment Form “Does action exceed any Type I Threshold in 6 NYCRR PART 617.4? MR. STONE-No. MR. THOMAS-“Will action receive coordinated review as provided for unlisted actions in 6 NYCRR, PART 617.6?” It would probably have to go before the Planning Board, wouldn’t it? 40 (Queensbury ZBA Meeting 10/27/99) MR. BROWN-Yes. MR. THOMAS-Yes. So we would say yes to that one. Part C, “C1. Could action result in any adverse effects associated with the following: Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, potential for erosion, drainage or flooding problems?” MR. STONE-Yes, it’ll change traffic patterns, but not adversely. No, not adversely. MR. THOMAS-No. “C2. Aesthetic, agricultural, historic or other natural or cultural resources; or community or neighborhood character?” No. “C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats or threatened or endangered species?” MR. STEC-No. MR. THOMAS-“C4. A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources?” MR. STEC-No. MR. MC NALLY-Sure. They’re asking for a change of use and intensity. MR. THOMAS-Is it a significant change? MR. STEC-An adverse change. MR. THOMAS-“Could action result in any adverse effects associated with the following”. MR. MC NALLY-I think at the bottom is whether you think it’s significant or not, is where you consider significance. MR. THOMAS-Yes, but in the top there, it says, could action result in any adverse effects associated with the following. MR. MC NALLY-We disagree. MR. THOMAS-How many would say yes, hands, two. How many would say no, hands, four. The no’s have it. “C5. Growth, subsequent development, or related activities likely to be induced by the proposed action?” MR. STEC-No. MR. STONE-No. MR. THOMAS-“C6. Long term, short term, cumulative or other effects not identified in C1-C5?” MR. MC NALLY-None. MR. STONE-No. MR. THOMAS-“C7. Other impacts (including changes in use of either quantity or type of energy)?” MR. MC NALLY-None. MR. STEC-No. MR. STONE-Well, yes, it’s going to be used at night when it’s not used now, but I don’t think it’s significant, no. MR. THOMAS-Okay. As long as that meter’s spinning. “D. Will the project have an impact on the environmental characteristics that caused the establishment of a CEA?” MR. STEC-No. MR. STONE-There’s no wetlands on this property. MR. THOMAS-No, there isn’t any, but across the street. “E. Is there or is there likely to be controversy related to potential adverse environmental impacts?” 41 (Queensbury ZBA Meeting 10/27/99) MR. STEC-No. MR. STONE-No. MR. THOMAS-All right. “Determination of Significance. MR. STONE-We’ve said no on every one of them. MR. THOMAS-Yes, right. “Check this box if you have identified one or more potentially large and significant adverse impacts which may occur.” “Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WILL NOT result in any significant adverse environmental impacts AND provide on attachments as necessary, the reasons supporting this determination” That’s the box we’ll check. MR. STONE-Yes. MR. THOMAS-All right. MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM FINDS THAT THERE ARE NO SIGNIFICANT IMPACTS CAUSED BY THIS PROJECT, Introduced by Chris Thomas who moved for its adoption, seconded by Lewis Stone: Duly adopted this 27 day of October, 1999, by the following vote: th AYES: Mr. Stone, Mr. Stec, Mr. McNulty, Mr. McNally, Mr. Hayes, Mr. Thomas NOES: NONE MR. THOMAS-All right. That takes care of that. Now, I would ask for a motion. MOTION TO APPROVE USE VARIANCE NO. 93-1999 FRANK J. PARILLO, Introduced by Lewis Stone who moved for its adoption, seconded by Charles McNulty: 92 Quaker Road. The applicant proposes establishment of a bingo facility and seeks relief to create a nonconforming use in the Plaza Commercial One Acre zone, per Section 179-22. The applicant has requested relief from the listed allowable uses in Plaza Commercial One Acre zoning. Criteria for considering a Use Variance according to Chapter 267 of Town Law, which mandates that to allow a use not otherwise allowed in zoning, an applicant must demonstrate to the Board unnecessary hardship. Such demonstration includes all of the following, for each and every permitted use: Can the applicant realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence? The applicant has demonstrated that the existing tenant, the only one that he has been able to find in a period since he’s owned the building and as evidenced by other testimony over the past five years to find a long term lease that would demonstrate a reasonable return on his investment. It is believed that this has been demonstrated by financial evidence, both to the current rental, and by the fact that no tenants have come forth in the past number of years. Is the alleged hardship relating to the property in question unique, and does this hardship apply to a substantial portion of the district or neighborhood? In our interpretation, this hardship is unique because of the mixed use nature of the building office in front, and large warehouse in the back of the building which does not front on the major commercial traffic corridor, namely Quaker Road. This hardship, in that particular case, looking at all of the other properties in the neighborhood, is unique. There are other large buildings, but they’re all different from this one. Will the requested Use Variance, if granted, alter the essential character of the neighborhood? No, the building will stay the same. It will be used in the evenings, when there is little other activity going on in the immediate neighborhood, and while it will have an impact, if a traffic study were done now, at 10 o’clock in the evening, compared to when this facility is in use, that this will not be significant and not be a real impact, and is this alleged hardship self-created? In our opinion, this is not self-created because the building, again, as stated before, is unique. It has problems. It has been offered in many, many cases to many, many kinds of businesses. In addition, the uses permitted in this thing do not really cover 25,000 square feet, and there just is no tenant willing to sign a long term lease for this property. So, yes, it is true that the applicant did buy this property with his eyes wide open, but it has been shown, based on five years of experience, by the offering realtor, that this is just not going to be rented for any other of the allowed uses. In consideration of all of these, I move that we grant Use Variance No. 93-1999. Also, this Use Variance is granted for the bingo facility and for no other activity at this particular time. A bingo facility described as a large open space with tables and chairs and bingo equipment, and a refreshment stand of one type or another. This Use Variance would not go beyond the bingo activity at this point in time. That any relief, if considered, may be conditioned upon the applicant’s strict adherence to the requirements of our Chapter 52, Bingo and Games of Chance, and all appropriate State regulations. 42 (Queensbury ZBA Meeting 10/27/99) Duly adopted this 27 day of October, 1999, by the following vote: th MR. STEC-I have a question. Do we want to define a reasonable rate of return as 12%, as Lew did? MR. THOMAS-No. MR. STONE-So, take it out? MR. STEC-I would feel better taking that out. I’d hate to have somebody come in here saying, well, I’m making nine now. MR. STONE-Okay. Good point. MR. STEC-And if the bingo leaves, the Use Variance dies. MR. STONE-That is correct. Well, unless another bingo facility would come in immediately thereafter, but this Use Variance would not go beyond the bingo activity at this point in time. MR. LAPPER-You can’t use it for anything other than a permitted use without a variance. MR. STONE-Yes, you’ve got to have a variance whatever you do. MR. MC NALLY-What was Mr. Sears going to say? MR. LAPPER-He was saying that maybe the other, that if there’s still space, the warehouse space could be rented, but it could only be rented for anything that would be a permitted use, if somebody came along. The question Frank asked, if they wanted to, if they were successful and needed the other 7,000 square feet, which isn’t anticipated at this point, but I don’t think that’s a big deal. MR. STONE-There was no area mentioned. It was bingo facility in the warehouse portion of the building. MR. LAPPER-I guess I just want to point out, when I applied, the address has changed so many times, it was 25 Quaker Road. Now it’s 92 Quaker Road, but I don’t think that was in the motion. MR. STONE-I said 92 Quaker Road. MR. THOMAS-Okay, and one other thing, too, in Staff Notes, in the Staff comments, that any relief, if considered, may be conditioned upon the applicant’s strict adherence to the requirements of our Chapter 52, Bingo and Games of Chance. MR. STONE-And obviously all appropriate State regulations. Duly adopted this 27 day of October, 1999, by the following vote: th AYES: Mr. McNulty, Mr. Stone, Mr. Stec, Mr. Thomas NOES: Mr. McNally, Mr. Hayes MR. THOMAS-Four to two. Was this denied by the County? MR. BROWN-No. They re-affirmed their previous. MR. THOMAS-That’s right, too, they did. MR. STONE-Which they had granted. MR. LAPPER-Thank you. MR. THOMAS-Thank you very much. Does anyone else have any business for the good of the Board? I’ll make a motion we adjourn. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Thomas, Chairman 43