2001-04-25
(Queensbury ZBA Meeting 4/25/01)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
APRIL 25, 2001
7:00 P.M.
MEMBERS PRESENT
LEWIS STONE, CHAIRMAN
CHARLES ABBATE
ROBERT MC NALLY
PAUL HAYES
ALLAN BRYANT
NORMAN HIMES
JAMES UNDERWOOD, ALTERNATE
MEMBERS ABSENT
CHARLES MC NULTY
EXECUTIVE DIRECTOR-CHRIS ROUND
CODE COMPLIANCE OFFICER-CRAIG BROWN
TOWNCOUNSEL-MILLER, MANNIX SCHACHNER & HAFNER-CATHI RADNER
STENOGRAPHER-MARIA GAGLIARDI
MR. STONE-I just want anybody here who is not here for Mozal, the appeal of the Zoning
Administrator’s position, or the Soresino, which will be a second item on the agenda, that’s all we’re
talking about. So just be sure that, I don’t want anybody wasting any time. So, having said that, I
will call, under Old Business, Appeal No. 1-2000, the applicant Richard and Christine Mozal.
MR. BROWN-Mr. Chairman, I think maybe we were going to do the extension request first.
MR. STONE-Are we? When did that happen?
MR. BROWN-I think it’s on the agenda that way.
MR. STONE-Not according to the agenda I have.
MR. BROWN-There’s a revised one.
MR. STONE-Isn’t this additional?
MR. HAYES-It’ll only take about two minutes.
MR. STONE-I understand, but I thought you said earlier that we were.
MR. BROWN-I think it’s going to be much more expedient if you do it first.
MR. STONE-Okay.
ADDITIONAL BUSINESS:
A REQUEST IS BEING MADE BY PATRICIA A. SORESINO FOR AN EXTENSION
OF HER ORIGINAL APPROVALS OF AREA VARIANCE NO. 35-2000 AND AREA
VARIANCE NO. 36-2000 GRANTED BY THE ZONING BOARD OF APPEALS LAST
YEAR, WEDNESDAY, APRIL 26, 2000. THE APPLICANT PROPOSES
CONSTRUCTION OF A SINGLE FAMILY DWELLING AND RELIEF IS
REQUESTED FROM SETBACK REQUIREMENTS. THE PROPERTY IS LOCATED
ON FULLER ROAD, QUEENSBURY, NY, TAX MAP NUMBER 123-1-15.32 IN A LAND
CONSERVATION 10 ACRE ZONE. (THE APPLICANT HAS NOT APPLIED FOR A
BUILDING PERMIT AS OF 4/19/2001)
PATRICIA SORESINO, PRESENT
MR. STONE-And in a letter received the 24 day of this month, “Dear Mr. Stone: Please grant me a
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one year extension on a building permit, Lot No. 123-1-15.31, Fuller Road, Queensbury. Due to
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medical reasons, we were unable to complete our building plans.” That’s all we’ve got to do, at this
point.
MR. BROWN-Yes. I think at some point you may want to read the resolutions in from the last time,
to familiarize yourselves.
MR. STONE-Yes, read the resolution.
MR. UNDERWOOD-Okay. This is Area Variance No. 35-2000, Patricia A. Soresino. The meeting
date was Wednesday, April 26, 2000.
“MOTION TO APPROVE AREA VARIANCE NO. 35-2000 PATRICIA A. SORESINO,
Introduced by Norman Himes who moved for its adoption, seconded by Paul Hayes:
Fuller Road. The applicant proposes construction of a single family dwelling and seeks setback relief.
Relief required, the applicant requests 25 feet of relief from the 100 foot minimum front setback
requirement of the LC-10 zone per 179-13. The benefit to the applicant would be the applicant
would be granted to construct a home in the desired location, as agreed upon with the revised
setback distance. The feasible alternatives may include relocation of the proposed home to a
compliant location. They have reached an agreed compromise on having done that by moving it
back the additional footage. Is this relief substantial relative to the Ordinance? 25 feet of relief from
the 100 foot requirement may be interpreted as moderate. Effects on the neighborhood or
community, minimal to moderate effects on the neighborhood may be anticipated as a result of this
action. Is this difficulty self-created? The difficulty may be interpreted as self-created. Minimal
impact may be anticipated as a result of this action. With the condition that the lot stays as a whole.
Duly adopted this 26 day of April, 2000, by the following vote:
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AYES: Mr. Hayes, Mr. Urrico, Mr. McNulty, Mr. Underwood, Mr. Himes, Mr. McNally, Mr. Stone
NOES: NONE
ABSENT: Mr. Abbate, Mr. Bryant
MR. STONE-Go ahead, talk. Anything you want to say about, anything more than we’ve read?
MRS. SORESINO-No.
MR. STONE-Introduce yourself on the microphone, so we know.
MRS. SORESINO-I’m Pat Soresino. I want the same variance. We don’t want to change anything.
The footprint is going to be the same. Just, due to medical reasons, we were unable to complete,
unexpectedly.
MR. STONE-I’m just concerned by what you just said. You want us to give you the same relief we
gave you last year?
MRS. SORESINO-Yes.
MR. STONE-Okay. When you started saying footprint and all that sort of stuff, I get concerned.
You want the same variance.
MRS. SORESINO-Yes, I do.
MR. STONE-Okay. Any questions of the applicant? Do we have to have a public hearing? No.
Let me just quickly go down the line, just to see where we stand. We’ll start at the end down there.
Al, how you feel about it?
MR. BRYANT-Fine. I have no objection to the extension.
MR. STONE-Okay. Mr. Himes?
MR. HIMES-I have no objection.
MR. STONE-Chuck?
MR. ABBATE-I have no objections.
MR. STONE-Bob?
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MR. MC NALLY-No objection.
MR. STONE-Jamie?
MR. HAYES-None.
MR. UNDERWOOD-None.
MR. STONE-Neither do I. Do I hear a motion to extend this variance for another year?
MOTION TO EXTEND AREA VARIANCE NO. 35-2000 PATRICIA A. SORESINO FOR
ANOTHER YEAR, Introduced by Robert McNally who moved for its adoption, seconded by Paul
Hayes:
Duly adopted this 25 day of April, 2001, by the following vote:
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AYES: Mr. Hayes, Mr. Underwood, Mr. Bryant, Mr. Himes, Mr. Abbate, Mr. McNally, Mr. Stone
NOES: NONE
ABSENT: Mr. McNulty
MR. STONE-Okay. Do the second one.
MR. HAYES-Is there two?
MR. STONE-Yes.
MR. HAYES-Two Area Variances and one got tabled?
MR. STONE-No, they’re two.
MR. BROWN-Two separate parcels.
MR. STONE-Two separate parcels.
MR. HAYES-Okay.
MR. UNDERWOOD-Okay. The second one is Area Variance No. 36-2000 Patricia A. Soresino,
and the meeting date was Wednesday, April 26, 2000. This one was also approved.
“MOTION TO APPROVE AREA VARIANCE NO. 36-2000 PATRICIA A. SORESINO,
Introduced by Norman Himes who moved for its adoption, seconded by Charles McNulty:
Fuller Road. Applicant proposes construction of a single family dwelling and seeks setback relief.
Relief required, applicant requests 50 feet of relief from the 100 foot minimum front setback
requirement, and both 10 feet and 20 feet from the respective 100 foot side line setback requirement
of the LC-10 zone, 179-13. Further, the applicant requests 20 feet of relief from the 100 foot
minimum setback requirement from the stream on the property per 179-60. Criteria for considering
an Area Variance, benefit to the applicant, the applicant would be permitted to construct the home in
the desired location. Feasible alternatives may include downsizing the proposed home, but as shown
on the drawing, the footprint includes a garage, and it’s felt that downsizing it from what has been
proposed would not be applicable. Is this relief substantial relative to the Ordinance? The
cumulative request for relief may be interpreted as substantial, when you view it against LC-10 zone.
However, this is a nonconforming lot. It’s much smaller than LC-10. It’s an acre and three quarters,
somewhat, an acre and a half, and the aspects of the Glens Falls Water Line on one side of the
dwelling, a natural stream on the other side of the dwelling, and the property lines as they’re
configured, are such that the house is placed in probably the best position on the lot that it can be,
and considering 50 feet from the road, and it’s comparable to many other houses going down
toward, at least in the direction of West Mountain Road, in the areas where relief is needed, it’s 80
feet as opposed to 100. However, it’s not that way all the way around. Overall, the relief is not that
bad. Effects on the neighborhood or community, minimal to moderate effects on the neighborhood
may be anticipated as a result of this action. There are some relevant matters, outside of the control
of the Zoning Board, in connection with stormwater runoff and so on, and reserve septic area, which
need to be reviewed by the Planning Board to approve or decline or measure the impact on the
neighborhood and the community (as a condition of approval). From the zoning standpoint, we
don’t feel that it does impact, except minimally. Is the difficulty self-created? It may be interpreted
as self-created, but much of the difficulty may be attributed to the lot configuration and it’s size in
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relation to the zone that it’s in. It’s a nonconforming lot. So I move that we approve the
application.
Duly adopted this 26 day of April, 2000, by the following vote:
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AYES: Mr. Underwood, Mr. Himes, Mr. McNally, Mr. Hayes, Mr. Urrico, Mr. McNulty,
Mr. Stone
NOES: NONE
ABSENT: Mr. Abbate, Mr. Bryant”
MR. STONE-Anything else you want to add about this one?
MRS. SORESINO-No.
MR. STONE-Any questions about the application? All right. Norm, we’ll start with you. How do
you feel?
MR. HIMES-I have no problem with it. I approve the request.
MR. STONE-Okay. Mr. Abbate?
MR. ABBATE-I’m going to abstain on this. I was not here when this application initially came
before the Board. So I’m going to abstain.
MR. MC NALLY-No objection.
MR. HAYES-No objection.
MR. UNDERWOOD-No objection.
MR. STONE-Mr. Bryant?
MR. BRYANT-No problem.
MR. STONE-And no problem. So I need a motion.
MOTION TO EXTEND THE APPROVAL OF AREA VARIANCE NO. 36-2000
PATRICIA A. SORESINO FOR ONE CALENDAR YEAR, Introduced by Paul Hayes who
moved for its adoption, seconded by Norman Himes:
Duly adopted this 25 day of April, 2001, by the following vote:
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AYES: Mr. Himes, Mr. McNally, Mr. Hayes, Mr. Underwood, Mr. Bryant, Mr. Stone
NOES: NONE
ABSTAINED: Mr. Abbate
ABSENT: Mr. McNulty
MR. STONE-There you go.
MRS. SORESINO-Thank you very much. Good night.
OLD BUSINESS:
NOTICE OF APPEAL NO. 1-2001 APPLICANT: RICHARD & CHRISTINE MOZAL
AGENT: MICHAEL J. O’CONNOR APPELLANT IS APPEALING
DETERMINATIONS MADE BY THE ZONING ADMINISTRATOR WHICH STATE
THAT USE AND AREA VARIANCES ARE NECESSARY FOR THE RECENT
CHANGES TO THE SITE AT THE DOCKSIDER RESTAURANT LOCATED ON
GLEN LAKE ROAD, OLD TAX MAP NO. 38-4-2; NEW TAX MAP NO. 289.09-1-87.
ZONING IS WR-1A AND INA CRITICAL ENVIRONMENTAL AREA.
MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT
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MR. STONE-Before we start, I would like to make an opening statement. I thank everybody here
for coming to express your views on the issue before the Zoning Board of Appeals this evening, but
before we do anything else, let me tell you what our job in the matter before us is. The Town of
Queensbury Zoning Administrator/Director of Community Development, Chris Round, has made a
determination effecting the property occupied by the Docksider Restaurant on Glen Lake Road. He
determined that Use and Area Variances should have been obtained for the recent changes made to
the site. His determination has been appealed to us by the property owners. They feel that nothing
has been done on the property that requires the issuance of any variances. Thus our job is very
simple and direct. Do we agree with the Zoning Administrator’s determination or do we not? Is has
nothing to do with the possible variance applications. Although I was not present at the February
meeting, nor was Mr. Himes, as the Board is constituted here, both of us have read the record and
we appreciate all the comments made, both in support and in opposition. However, I do feel I have
to state, in my judgement, that most of the comments made by the public were off point and should
have been saved for an actual variance hearing. On Page Three of the minutes, Mr. O’Connor
stated, “The bottom line is whether or not the applicant should be required to apply for Area
Variances for the permeability issue, and whether they should be required to apply for a Use Variance
because of the construction of the patio.” That is the issue before us. What I would like to do now
is take a statement from the applicant and/or his agent, her agent. I ask you, Mr. O’Connor, since I
assume you’ll be making the presentation, that it be on point, that we’re talking to the point, was the
Zoning Administrator correct or incorrect, not whether or not the variance should or should not be
granted. I will pay particular attention to your statement, and if I feel you’re getting off point, I will
ask that you stick to the point, and again, I ask that you do appreciate the limited issue on the table
tonight, per your own words, and defer your full presentation, as concerns the granting of a variance,
for such a hearing, if it is decided that we need a variance hearing. Having said that, the floor is
yours.
MR. O'CONNOR-Mr. Chairman, members of the Board, I’m Michael O’Connor from the law firm
of Little & O’Connor, and I’m here representing Chris and Rich Mozal who have filed the appeal to
the decision of the Zoning Administrator. I find myself in a very uncomfortable position, but I think
must do something for the record. This is a quasi judicial Board, and I’ve asked you to exercise your
discretion, as members of the Board, being in a quasi judicial position. I learned, Mr. Stone, of some
of your activities today, and I think they’re most inappropriate. I think you should, at the most,
recuse yourself from this application, if not do otherwise. You cannot make a decision prior to
hearing all the evidence.
MR. STONE-I believe the word that I used in conversation with Mrs. Mozal was incline.
MR. O'CONNOR-Let me finish my statement for the record. My understanding is that you visited
the Mozal property today and you said that you had made a decision that you would make a motion,
immediately at the beginning of the meeting, that the decision of the Zoning Board, or the Zoning
Administrator would be upheld, and I’d state that for the record. That is inappropriate. This Board
acts in a.
MS. RADNER-Mr. O’Connor, you’re out of line. You’re making accusations based on hearsay that
are now a part of the record in this proceeding. You’ve just heard Mr. Stone’s opening statement
and him saying he’s going to listen to what’s said. You’ve got a full Board here ready to listen to you.
They’re well aware of their role, and their duties as members of the Zoning Board, and they’re going
to act and listen and base their decision upon the record, including what’s presented tonight.
MR. O'CONNOR-Okay. Mr. Stone, can I ask him a question? Did he contact other members of
the Board and ask them if they would agree on a consensus to make a motion?
MR. STONE-I did talk up members of the Board, singly, one at a time, just to find out their
thoughts.
MR. O'CONNOR-That’s not hearsay.
MR. STONE-I can talk to the Board at any time.
MR. O'CONNOR-I ask you respectfully, I am very uncomfortable making this statement, Mr. Stone.
I appear here too often to create something that may be held against me on this particular
application, if I have to come back, or on other applications. I’m very careful. I’ve practiced law for
30 years or better than 30 years. I’ve tried to stay within the bounds of appropriateness. Your
activities, in my mind, are inappropriate. I would ask you to recuse yourself from this application.
That is my request to you right now.
MR. STONE-I respectfully decline. Because I know my intentions are, in this particular, I do not see
a conflict of interest. I believe I said I’m inclined to go that way, looking at the record. I have been,
I have not said that on the record, if you notice, my statement contained nothing about that.
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MR. O'CONNOR-Okay. I will proceed with my statement on the record.
MR. STONE-I can also say that anything that happens here will have no bearing on anything at any
other time you appear before me. I don’t work that way.
MR. O'CONNOR-I’ve made my statement. I feel very strongly about it. I really think, we will
pursue what we need to pursue. Okay. This basically, as I indicated before, is a neighborhood fight
that has escalated way beyond being a neighborhood fight. It’s true, as Mr. Stone indicated, that
much of the record, or some of the comments on the record that were made at the hearing on
February 28 weren’t particularly germane. I mean, we got into side issues, which I think clouded
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and may cloud judgement from members of the Board, that had nothing to do with Mr. Round’s
decisions. I do think some of the historical information, particularly the testimony that was given as
to the historic, pre-existing use of the property is most germane, particularly to the issue of whether
or not a Use Variance is needed for dining in the area of the patio, and that really is the most
important issue before the Board. I think the other ones are germane, and the other ones I also have
information for you. I’ve handed out some packets of information tonight. I said I would reserve
and allow all the people to speak at the February 28 meeting, I wouldn’t take a long time making a
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presentation that has very significant, very significant impact upon Mr. and Mrs. Mozal. Are they
going to be able to operate the business on Glen Lake, in a manner that will allow them to have a
successful business there. This is not simply a question of attorney’s fees, that they’re saving
attorney’s fees or not saving attorney’s fees if I make a long presentation or make a short
presentation, and that was mentioned today. This is of significant importance to them. You’re
talking an investment probably in excess of $500,000. So with due respect, I would like to go
through this, and try and go through this, on a point by point basis. One of the issues that was raised
was noise, and Christine indicated that she would give you a schedule. I have it here, and I think I
just confused it, of how many bands were there, their hours of operation during Year 2000. A lot of
the concern had to do with that, and are we talking about because of the change, maybe making that
more of an occurrence, more of a happening. I can tell you that, for the Year 2001, there are two
events that there will be bands, and the bands will be no later than the bands that were there earlier.
I think the latest band was there on one occasion, until nine o’clock. Typically they are there until six
or seven o’clock. You also now have before you, or you’ve probably maybe participated in it, a noise
ordinance. The Town Board has taken jurisdiction of the question of noise, and they will handle it in
that ordinance. I don’t necessarily agree with that ordinance in full. I think it needs a lot of work,
but it was a subjective issue that was put on the table, time and time again, saying, are you talking
about increases here that mean more noise? I think it’s a fair comment to tell you that what we’re
talking about has nothing to do with noise. In fact, there’s been an analysis of the operation, and it’s
not going to be a recurrence of even to the point that it has been. The other question, which was a
fair question, was septic, and part of the reason for the delay in getting back to you was, we took
those comments to heart, and we retained an engineer to put together a septic plan that would
improve the, and I’m not sure of the date of it, the existing septic system. We have a map up here.
I’ve given out two copies. I’ve got another 14 copies for Town Staff. They have not been totally
finalized because we’re still negotiating with the Department of Health, or not negotiating. They still
want more information, but if you take a look at what has been submitted to you, we’re talking about
a totally new system. We’re talking about going from a 1,000 gallon septic tank to two 2,000 gallon
septic tanks with a pumping station. We’re talking about installing an Elgin system, which you’ve
seen on many other applications. We’re talking about moving it to the rear of the property. The
other existing system is much closer to the lake. I think that effort, on behalf of the applicants
answers, in total, the questions and the concerns that were raised in the mission statement of the
Glen Lake Protective Association. They said that they didn’t want to get involved with a
neighborhood dispute, but they wanted to be assured that the quality of the lake would not be
impacted. I think the applicants, in this particular instance, have gone way beyond, and simply said,
we will do a brand new septic system. We will answer any questions that the Department of Health
has, and this new septic system is not grandfathered. It is going to be built to the standards that are
now applicable. It’s a great improvement over what is presently there. Okay. If you look at the
packet that I submitted to you, and I’ll state for the record that this began with a determination by
the Zoning Administrator, dated May 25, and I think it’s kind of important to look at that, and look
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at, chronologically, how this thing progressed, if you will. The May 25 letter was a letter to Mrs.
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Mozal, signed by both Craig Brown and by Chris Round. The letter says that it was “to serve as
confirmation and to document items we discussed during a visit made to the Town offices some time
in April, and a subsequent site visit I made to the Docksider earlier this month.” You’ve heard
testimony that we went and built something without any Town approval. This is confirmation from
my side that we came in here in April. We talked about the patio, which started this whole thing, that
we wished to expand the surface of the patio and it would stay level with the front of the deck and
would go almost over to the white birch tree. Mrs. Mozal was told no permit was necessary. Now,
it’s within 50 feet of the lake, part of that hard-surfacing. She should have been told that site plan
review was necessary, but she put that thing in in good faith, based upon the conversation that she
had with Staff. She’s not going to build a patio in the back of the property. She’s going to build it
out on the lakeside, and I just don’t know why it was missed or why it was not brought to her
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attention at that time. She controverts the statement in here that no specific patio size or location
was discussed, but I’ll tell you that, notwithstanding that, after visiting the site, perhaps in May, seeing
the patio constructed, the only thing Town Staff said was then necessary was application for site plan
review. Sixty days have past since that opinion of the Town Staff. Sixty days past from the time that
opinion was issued to the next decision, and I think there is an equity argument. There is a fairness
argument, how many times do you take the same bite out of the same apple. The next letter was
dated in August 10, outside the 60 day period of appeal for the initial determination made by the
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Zoning Administrator and his assistant. In that determination, they then start talking about the hard-
surfacing, also possibly needing a Use Variance. I think the Town is bound by the first opinion of
the Zoning Administrator that was unappealed. That may be a legal argument, but that is one that it
is necessary to make for the record. If I get to the actual issues that were outlined in the January 17
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letter, I would try and discuss them, and I gave you a copy of those letters so you have a packet that’s
readily available. I would try and discuss them in the same order that Mr. Brown, or I’m sorry, that
Chris Round discussed them in his letter of January 17. The first issue is the grass parking area is
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considered permeable. It is my understanding, and he says basically that he has no issue with the
3760 feet being used for parking. His issue is because crushed stone was put down on it, it changes
the permeability of the site, and because the permeability of the site doesn’t qualify with the zone, an
Area Variance is required. That’s the issue. We went to VanDusen and Steves. We went to Tom
Nace, and we said, is there any scientific basis for saying what is up on the top knoll, the area that is
used for parking, the area that has Number Two crushed stone, is any less permeable than a grass or
dirt parking space? They have given you their professional opinion. It’s in the packet that I’ve
handed to you tonight that says no, there is no difference. So I don’t understand, with or without the
stone, the issue is, do we remove the stone, and we’ve got dirt, it’s okay to park on, or we apply for
an Area Variance to lessen the total permeability on the site, by including that area in the non-
permeable area. I also looked at, and I’ve argued with Staff, and they’ve disagreed with me, that if
you look at the definition of pavement, under Section 179-7, that states that pavement is a
compacted surface intended for pedestrian or vehicle use through which drainage is impeded. Such
material could be compacted sand or gravel or bituminous compound, concrete or other material. I
think common sense tells us that pavement is non-permeable, and we have problems with this whole
application. I think the owners are trying to do the same thing that Staff was trying to do, and we’ve
worked back and forth. We had a number of different discussions. We’re simply trying to put on
paper something that this Board, or your successors, or somebody can enforce. This is a pre-
existing, non-conforming business. We’re willing to step back and say, hey, okay, draw the line in the
sand and tell us, this is what we can use for business. We’re not fighting, and I think Chris is here. If
I misquote him, he can correct me. I think the discussions went on to the point that Chris made a
determination that because the level of public scrutiny might be so high on this, he, in honesty,
wanted the Board to make the decision. I argued with him. I said, well, you’re putting me in a
position where I’m arguing against you, and he said, I’m trying to get the Board to make a decision,
and Chris can address that later if he wants. Particularly on some of these issues, there’s nothing
black and white in our Ordinance on some of them. They are interpretational, and I don’t know if
there have been interpretations made in the past. I have not found them. I know that where we’ve
used grassed parking, and we used it at Worcol, Worcol Management Services down here on Bay
Road. It was counted as being non-permeable. I know that when, I think CVS, in the former
Doyle’s place, had it set aside for parking, but they weren’t going to build, it was determined to be
non-permeable even if it was left in a grassed state. So there’s precedent in that area, but there’s
nothing black and white that says you do this or you do that. I think, again, you’ve got to use
common sense. You’ve got to use the definition of pavement. This has always been parking.
Everybody has always said this total area of 3760 feet, it’s okay to use it as parking. Should it be
determined permeable, should it have been determined permeable in 1990 or 2001? I think it’s the
same condition. It’s non-permeable material. Whether we put a new surface on it doesn’t make a
difference. I’ll say this, that when this was raised, and I think Mr. Brown went back and dug out
some of the material, we actually backed off from the area. The area had been expanded. What is
there now, though, fits within the configuration of 3760 feet. So, our position is that that always was
non-permeable, and I think we have an engineer’s letter to that effect, and whether we have stone on
it or not didn’t affect the condition of the property or the permeability of the property.
MR. STONE-May I ask just a, it is your contention that the grass parking area was impermeable?
MR. O'CONNOR-Because it was compacted by use of parking, yes, and that was part of the
historical testimony that was given by a number of people on February 28.
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MR. STONE-Okay.
MR. MC NALLY-Just one more thing, just so I understand it. In Chris’ original report, it indicated
an expansion beyond the 3760 square feet. You’re saying that it’s been cut back?
MR. O'CONNOR-Yes.
MR. MC NALLY-So the amount is what it was back in 1990?
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MR. O'CONNOR-Yes.
MR. MC NALLY-If you take the total grass and total gravel, it’s the same square footage today?
MR. O'CONNOR-Identical.
MR. MC NALLY-Okay.
MR. O'CONNOR-And maybe that’s an improvement to the site, if that was a concern.
MR. STONE-When was that done?
MR. O'CONNOR-When these plans were prepared.
MR. STONE-For this appeal?
MR. O'CONNOR-No. It was acknowledged in our early meetings with Chris that it would, Chris,
you’re right. Those figures are right. We won’t argue that. We give it up. I’ve given you a letter, as I
indicated, by VanDusen & Steves, and I gave you a letter by Nace Engineering. Do you have any
questions on those letters?
MR. STONE-Just to help me, if you consider the grassy knoll, that area, as impermeable, was the
total property in compliance, or was it non-conforming at an earlier date, in terms of permeability?
MR. O'CONNOR-I think it was non-conforming at that time. I think in 1990, it was some place in
the area of 54%. Actually, if you go further, now Staff looked at the surface water drainage report.
You go beyond that, they talk about a semi-pervious area of 8,000 square feet that we haven’t even
argued about. They talked about the grass parking and the main parking area, and then they also
talked about semi-pervious area of 8400 square feet, and I think it’s been acknowledged that this
knoll has always been used for parking on an on and off basis. It never was very grassy. That was
the historical testimony that was given. I’m not arguing that, though. In all honesty, to fit this septic
system in, we’re about where we can be, with the separation distances and everything else that we
have. There’s probably 1,000 feet. We haven’t figured it out yet. There’s maybe 1,000 feet more up
on top that could be utilized. We’re not going to argue that. We’re going to keep it at the 3760, and
the 16,800, which is what we’ve identified.
MR. STONE-Now, does that include the patio as it currently exists? I’ll be careful with my words.
MR. O'CONNOR-Okay. That is a separate issue.
MR. STONE-In terms of permeability.
MR. O'CONNOR-In terms of permeability, that is a separate issue.
MR. STONE-Is it on the same property?
MR. O'CONNOR-It’s on the same property. Okay. When I get to that point, I am probably going
to admit that there is some change in permeability because of increase in hard-surfacing, but I also
want you to consider the land that is being created when the new seawall is put in. Let me do that, if
I can, when I get there. I don’t mean to confuse, but there seems to be an issue that we separated in
our discussions as Point Number One, which had to do with the simple, the stoning of the paving
area. In fact, I think Mr. Nace said that probably because of the stone that was put on there, that
area is more permeable than if it was just dirt. It’s a Number Two Stone. It’s not finished with a
stone dust. So it doesn’t bind up tight. There’s some old stone dust underneath the stone dust,
when he examined it, but the principle stoning on there is a heavy, course stone which probably will
hold any runoff, and that’s what we’re all talking about with permeability, being able to create
absorption areas. I think that’s what we’re talking about. Point Number Two is the installation, and
I guess Staff finally agreed with me that the walk area that goes parallel to the end of the parking lot,
the concrete walk, is not a change. Early on they said it was a change. Okay. When we start talking
about permeability of the hard-surfacing of the patio area and the walks, that’s where, in 1990, this
Board’s predecessor allowed us to offset against the decrease in permeability, the increase in
permeability with the seawall as it’s reconstructed. We have a valid DEC permit to do that. We
initially were told that we were under a Nationwide permit by the Army Corps. When we tried to get
belt and suspender type approach, which probably turns out to be an error, a letter confirming that
we were under the Nationwide permit, all they’ve done is ask questions. We have not resolved that.
It is still an open issue. We show that, if we restore the shoreline, we will gain 1798 square feet. If
you take all of the walkways that you’re talking about, you’re creating 807 feet. We think that that
more than offsets that, because we ask you, as we asked the Board in 1990, you’ve got to look at the
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(Queensbury ZBA Meeting 4/25/01)
whole site. I think what we tried to come up with was a percentage of the site that would be non-
permeable. Don’t change that percentage when you’re all done. That’s the same thing that we’re
saying. I don’t have a final figure, though, to tell you exactly how many square feet we will get with
that reclamation. There are two areas, even in that 800, or there’s one area in that 807 feet that I
would distinguish, though. If you take a look at the walkway that goes from the walk that runs
parallel to the end of the parking lot out to the front deck, that’s 235 square feet. This walkway right
here, okay. That 235 feet includes all the walkway and this stoop or doorway along the back of the
kitchen. That has always been there. That’s been there since I was a teenager, or before I was a
teenager. Long before you had zoning that stoop or that jut out was there, and there were a couple
of pieces of concrete because I came off it. I used to go there sometimes for food from the kitchen,
and that’s where you’d get served, if you didn’t want to go into the bar, and if you were young, they
didn’t want the kids to go into the bar. The bar used to be in the front of the building here. I think
Mr. and Mrs. Sullivan are here, and Mrs. McPhillips probably can tell you better. I understand we’re
not going to go there, but that’s always been there. The historic testimony of at least five people last
week said that there always was a path around the front of this portion of the property. This
pavement is a different surface. We think that this falls in the same category as the crushed stone up
there. I don’t have an engineer’s report that says that the concrete walk is as permeable as the hard
packed ground, but it always was a walk, and never had an grass on it, and that’s the way you got out
to the front of it. It used to be that’s when they had the big dance hall out here. The dance hall was
principally where the deck was. That hasn’t changed in 50 years. If you go back and you look at the
definition of pavement, again, I’m talking about common sense, it says “a compacted surface
intended for pedestrian or vehicle use”, and I think that the testimony before you is that that
walkway was used, ad infinitum, in the past for pedestrian use. It was compacted. I don’t think
there’s any doubt about it. I don’t think that that really is a change in the permeability of the site,
that 235 feet, and maybe a workshop type thing, these numbers, I don’t mean to confuse the issues,
but I think the numbers are important. There’s a world of difference, whether we have a non-
conforming, pre-existing right to do what we’re doing, or we’re put to the burden of a variance, even
if it is an Area Variance, and I guess I got to Point Number Three quickly. My answer to Point
Number Three is in part you should take that walkway out, the 235 feet, from the 1,000 I have it
calculated as a total of 1,000 feet, as opposed to 1,002, and I think that’s just the surveyor did
different figures than what we had at one time or another. So you’re talking 1,000 feet minus 235.
That includes the Staff’s opinion of total increase of patio. That doesn’t even take a discount
because we’ve got an argument as to what the patio size was or isn’t, and against that, we offset the
1,798 feet that we’re going to gain on this site when we install the seawall. I think if you’re looking
for substance, as to testimony, on Page 11 of your minutes, Jill Sullivan hit the nail right on the head.
The patio size is the fourth issue and we claim it should be 473 feet. Staff claims it should be 280
feet. We submitted an affidavit of Daniel Barber, who is the principle of Sherwood Acres
Corporation, who actually installed the sidewalk, who testifies what was there when he installed, or
when he made the patio. He poured over the patio that was there in existence. He’s given you a
sworn affidavit as to what was there. We also had probably more, not necessarily direct proof, but
supportive proof, with the statement that was signed by Matt Sicard, by Margery McPhillips who was
here, William Sullivan and Jean Sullivan, all who have been familiar with the property ad infinitum. I
also make a point that if you take a look, and I’ve attached a copy of the page of the Assessor’s
record that Mr. Brown referred to. This is a record that was made with the prior owner, not by the
present applicant. It’s not something that I know underwent any scrutiny at any time, but if you just
look at the size of the deck, it says 943 square feet. Every survey I’ve seen it says 943 square feet.
Every survey I’ve seen shows the deck at 974 square feet, and Matt Steves can come in and testify
that the actual size of the deck is 974 square feet. My point is is that this is an Assessment record.
It’s not a survey. It’s not necessarily the most accurate record. If you’ve gone in and looked at your
own Assessment records from time to time, you have found things in there that you did not find to
be exactly correct. Some of the other calculations on there, as to distances, also don’t agree with
what our survey shows, and I asked Matt Steves and he said they don’t always do it, you know, they
go around with a tape, it’s a cloth tape. It’s a good estimate of what’s there. If the final line, and I
think from my own experience, if the bottom line in the assessment doesn’t hit you between the eyes,
you don’t worry about what’s on your card. I don’t know if you’ve all gone to look to see what’s on
your card for square footage. I know on Glen Street, where I live on a year round basis, I haven’t. I
know on Glen Lake I have. Because some day I’m going to have the same issue, as to what they’ve
shown historically has been on my property since 1960. So I think there is a reasonable basis for
overruling the determination by the Zoning Administrator as to the grandfathered size of the deck,
and that it is 473 feet, instead of the 280 feet, and that’s the whole point of the offer. Now, on the
patio size and addition, I don’t know if there’s any controversy to that. We would say there’s no
controversy on our part. The portion that lies within 50 feet of the lake, we need to file for site plan
review, and we will, once we determine that no variances are necessary or if you determine a variance
is necessary, we get the variance and then we do it. I don’t think we’re qualified to apply for a site
plan review, once the issue of Area Variance has been raised, or even Use Variance, but if you take a
look at the break down of the patio, basically, I had the surveyor show you the prior patio, the 473
square feet, and I don’t know what you have in front of you.
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(Queensbury ZBA Meeting 4/25/01)
MR. HAYES-We’ve got two different numbers here, though, one that shows 500 and one that says
473.
MR. O'CONNOR-That’s 473 because we’ve changed the allocation.
MR. HAYES-So which one should we go with?
MR. O'CONNOR-473.
MR. HAYES-Okay.
MR. O'CONNOR-This was updated January, no, there was another.
MR. STONE-March 19, 2001.
MR. O'CONNOR-This one is 4/24.
MR. HAYES-4/24.
MR. O'CONNOR-4/24, but there’s another one that says January that actually talks about the deck.,
the updated.
MR. STONE-Okay. So you said the deck was?
MR. O'CONNOR-The Assessment record says that the deck is 943, and the actual survey shows it’s
974. Okay. If you look at the patio that we’re talking about that brought us all here, there are three
portions or four portions of it, if you will, that are in play, as far as the discussion that we had with
many people on the record, as to the pre-historic use of the property, the dining that was in the front
yard and on picnic tables. You’re talking about a concrete walk where I had him divide out part, it
was all one pour. You go there, you don’ t see four different pieces of cement, but there are no
tables set up on it. It’s not been utilized for table sitting. It’s not used for dining. There was always
a walkway going off to that end of the property, and it’s just a concrete walk over what was the dirt
walkway. In fact, I think at one time or another, that walkway extended down most of the frontage
of the lake and that whole area, but that was where it began on this property.
MR. HAYES-You’re referring to the 127 square feet?
MR. O'CONNOR-The 127 square feet.
MR. STONE-That’s the one that’s parallel to the lake?
MR. O'CONNOR-Yes.
MR. STONE-Okay.
MR. O'CONNOR-That is not used for dining. What is used for dining is the 473, the easterly pad
which is 186, and if you have to say the edge, instead of having a foot of dirt between the patio,
they’ve filled it in with concrete, between the edge of the deck and the patio, they’ve filled it in. It’s
43 feet.
MR. STONE-Forty-three, okay, thank you.
MR. O'CONNOR-If you talk, if you include, and this is where I get confused myself. If you include
the 127 feet, the 186 feet, the 43 feet, and the 473 feet, you’re talking a total of 729 feet. Now, Staff
says 280 of that was a patio that was used and not an issue. You’re talking at most 549 square feet.
That’s what we’re really here talking about. My position is that even 193 of that, because the patio
was larger than the 280 figure, is what’s at issue. You’re talking approximately 250 feet, 350 feet, I’m
sorry. The goal here was to get a definition of what areas are being used for dining. That’s why we
had everybody testify, as to all the use that was in the past, as to the picnic areas. That use has been
without interruption. I don’t think there’s any controversy. There’s no controverting testimony No
one refuted, on February 28, and everybody confirmed it. In fact, one or two of the people that
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were speaking pretty much in opposition, one person at least, that was speaking in opposition,
confirmed the recollection of that use that’s out there. The subjective question of noise is I think
what drove everybody’s interest, but I think you’ve got to separate that, and you’ve got to look at the
historic use of the property, particularly if you take into consideration Use Variance, and there’s no
basis for saying a Use Variance is required for utilizing part of that front yard for dining. We’re
willing to stipulate this is the line in the sand. This patio, as it’s constructed, with the deck, is the
outside seating. I don’t know if that’s necessary, but we are willing to stipulate, on record, that that’s
where we are, that’s where the line is in the sand. Staff talked about a Harris Bay Yacht Club
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(Queensbury ZBA Meeting 4/25/01)
decision. I recall it, to some degree. I remember they wanted to add a new deck to an area that they
had no proof had been utilized for this same purpose prior to that time. That’s a different case.
What we’re talking about is really a reconfiguration, if you will, of our outside dining. We’re not
talking about creating a new use. We’re not talking about expanding an existing use. We, in fact, are
stipulating that we will contract it, if you will. If you look in the packet that I gave you, I actually did
some math, and I get bothered when lawyers do math, but I think I’m correct. When the Mozal’s
bought the property, there were 12 picnic tables in use out in front of the property. I think you
heard somebody testify, Skip Finnegan, that there were more than 12 tables, particularly if they were
going to seat 200 people at a clambake, and that doesn’t take a lot of imagination to think that there’s
got to be more than 12 tables. I took the tables as being eight feet long, three feet wide. That’s the
deck of the table. I added a foot on each side for the bench. I then said, everybody’s got to have
room to get up and get down. So put a foot outside the end of the table. Put a foot outside each of
the two seats. You’re then talking 70 square feet per picnic table that was utilized on this front lawn
for dining. If you’ve got 12 picnic tables, you’re talking about 840 square feet that was used for
dining, and that’s the issue, is this total patio area that we’re talking about, which is possibly 729 feet,
minus the 280, which comes to 549, is that larger than the 840 square feet that you got testimony on,
that historically was used for dining in that front yard? I don’t think anybody using a common sense
approach to this, is going to say that that’s an expansion of exterior dining. Actually, we’re talking
about a decrease in dining area that’s in the exterior. I think the second paragraph and the third
paragraph of that letter pretty much says what I just said. We say in writing there that the Mozals are
willing to stipulate to an understanding that the dining area shall consist of the patio areas as shown
on their mappings without dining at picnic tables which has been, historically, the custom of the
property for many, many years. If you go back to the minutes of February 28, I would ask you to
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look specifically at the testimony of Jean Sullivan Peterson, Nancy Sullivan Quillinan, Rick Meyer,
Betsy Ashton and Skip Finnegan. They all, without contradiction, said that, from their recollection,
some of which goes prior to zoning, in excess of what we’re showing on here for patio dining has
been used, historically, for dining in that area. So, basically, that’s it. I think you’ve got some clear
decisions that you’ve got to make. I didn’t touch, and I’m not sure if you were all copied with some
septic reports, but we actually had a study of the septic reports done by Joe Bliss, that says that they
shouldn’t have been used. I think the person who used them was told by the Glen Lake Association
that they were not conclusive. There was not a control for temperature and time, and that they were
used for data, for base data. There’s also not necessarily a distinction there as to whether you’re
talking about duck droppings or you’re talking about something that came from human droppings.
So, I would suggest to a Board that you look at the issues, in the manner that Chris has presented
them, one through five, and give us your determination based on that. Should the grass area be
considered permeable. If it’s considered permeable, we need to apply for an Area Variance. If it’s
not permeable, life goes on. Then we go down to the, skip the second one because I think that’s an
agreement with the applicant, and then we go down through the others. I probably have confused
you because I confuse myself every time I talk about this 1,002 feet of permeability, as to whether or
not that’s an increase in permeability, because of the make up of it. If you take out that walkway,
which is 235 feet, it gets to be a different issue if you allow an offset because of what we’re going to
create when we finalize our permit to do the re-building of the wall, that also affects that. I’m not in
a position to say. I think you can answer that, one, are we entitled to an offset for that walkway that
comes from the parking lot around to the front. Two, are we entitled to a set off for the land that we
put in to the total parcel when we re-build the seawall, and if the net result of that, mathematically,
creates a difference, we should be applying for an Area Variance for the difference in permeability.
That’s probably the simplest way that would give Staff and myself clear direction as to what we
would be doing and not doing.
MR. STONE-Okay. Well, let me ask a couple of questions. First of all, Cathi, can we separate the
Appeal? Can we say he’s right in one area and wrong in the other?
MS. RADNER-Certainly.
MR. STONE-I just want to be sure we can do that. All right. Mr. Round, do you have any rebuttal
that you want to make?
MR. ROUND-We’ve spelled out the information in the correspondence that you’ve submitted. I
think Mr. O’Connor opened up, our May 25, 2000 correspondence did indicate site plan review
application was required. Typically, we don’t make determinations based on the expansion of use,
whether in violation of a setback, until we have a plan in front of us. We can’t act on something until
we have a building permit application, or until we have a site plan application. So I just want to make
sure you know that that’s the, you know, if there was any delay in our issuing an opinion on whether
there was an expansion of a nonconforming use, that’s the reason for the delay. We do not have an
application in our hands, Number One. So I just want to make sure everybody is clear on that. If
you want, it might be more conducive if you have any questions on a particular point, I think Mr.
O’Connor’s been accurate in his characterization of our opinion in this. We wanted to sit down,
back in April of last year, and come up with a basis to determine what is the existing use, how is that
consistent with the historical use? Because a lot of people will have an opinion about, if a business is
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(Queensbury ZBA Meeting 4/25/01)
more vibrant than it was 20 years ago or less vibrant than it was 20 years ago, that constitutes an
expansion of use. That’s not the case. So we wanted to draw a line in the sand, to use Mr.
O’Connor’s terms, so that we would have something that we could put in our file to go back to, and
we gave the applicant’s and Mr. O’Connor the opportunity to draw that out, on a plan, and put it in
writing. Time expired. I know the public is, and the Mozals, this process has taken a long time. We
offered everybody an opportunity to bring forward information so that we could make the best
decision possible. We made most of our decisions based on a 1990 application from a previous
owner, documenting existing site conditions, the Assessment record that Mr. O’Connor referred to.
We don’t have some of the information that you’ve been given tonight. We didn’t base our decision
on some other information that we may not have had.
MR. O'CONNOR-Some of the information we didn’t have either.
MR. ROUND-Right.
MR. O'CONNOR-And some of the information we only developed based upon the testimony and
when Chris went around to neighbors and we started really focusing on each issue. I mean, I don’t
object to being here for the Board to make the determination. I think you’ve got the full packet.
You’ve got a lot more information before you than Mr. Round had or Mr. Brown had, and I
acknowledge that, but that’s part of the process.
MR. ROUND-Right. So I just want to make sure that, you know, we didn’t delay in issuing, Mr.
O’Connor said 60 days, and there’s an equity argument. I think you need to explore that further. I
don’t think that’s what’s in front of us tonight, though.
MR. O'CONNOR-That was a legal argument for the record only, Mr. Round.
MR. ROUND-Yes. Grass area, permeable area versus the pavement area, we, historically, indicate if
it’s a grass area, regardless whether it’s used for parking or not, is considered permeable, and that’s
consistent with our office’s opinion. We didn’t have any scientific evidence that Mr. Nace may have
presented to you tonight, that said this is more permeable or consistent with paved surface. So we
made our decision based on historical precedent. That’s what, we try to demonstrate consistency.
MR. STONE-And the Town of Queensbury Zoning Code says gravel is non-permeable.
MR. ROUND-Pavement and compacted surface, etc., again ,we’ve consistently, if it’s a grass area, I
think this area was identified in, again, this 1990 site plan, as a grass area, and it was identified in the
stormwater management plan for that application as permeable area, so we based our decision, based
on that information. I think there’s solid basis for that decision, consistency in what was placed on a
previous application. Item Two, the 290 square foot walk, that’s a given. We identified that through
a review of the record that there was always a walkway there, or that was just merely a surfacing of a
gravel parking area. It was changed from a gravel to placement of a walk. So we’re in agreement on
that. That’s the parallel, that’s the one that’s on the perimeter of the parking area, that’s closest to
the lake. So we were in agreement on that, and that’s consistent in our January 17 correspondence.
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Item Three, installation of a 1,002 square feet of concrete walks, patios, and pads, that’s, Number
One, we don’t feel that you should exchange, that you should offer an exchange, because what you’re
doing is creating a change in zone basically. If you’re allowing a 55% impermeable area, or
permeable area, an impermeable calculation of 55%, if you acquire the property next door, that
would allow you to do 55% impermeable area, in violation of what the Zoning Ordinance requires. I
don’t know if I’m being clear on that, so if you had 10,000 square feet of land.
MR. O'CONNOR-That’s not my position, though. We will only be able to use the excess above
55% of the area we recover. There’s a mathematical calculation that’s got to be made. It’s got to be
the total area. Instead of going from whatever the total area of this whole site is, we had 1700 square
feet of it, we’ve still got to be at 54, maybe we’ve misunderstood each other.
MR. ROUND-No. I think we’re saying the same thing. We’re just putting a little different spin on
it.
MR. O'CONNOR-Let me just give you another example, Chris.
MR. ROUND-Sure.
MR. O'CONNOR-For your records, is the Million Dollar Mile, where the Polo shop and that
underground parking is and what not. Those people bought a lot from John McCormack that was
outside of their perimeter, so that they qualified for their permeable area.
MR. ROUND-Right, but consistent with the Zoning Ordinance. So if the Zoning Ordinance, for
instance, allows a 50% permeable area.
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(Queensbury ZBA Meeting 4/25/01)
MR. O'CONNOR-Okay, but we own the area that we’re reclaiming.
MR. ROUND-I think the case that you’re pointing to is that they would still be in conformance with
the zoning regulations. Right now you’re not in conformance with the zoning regulations.
MR. O'CONNOR-But we would not be in less conformity.
MR. ROUND-We’re going to go back and forth, but if you have 10,000 square feet of land, and
you’re allowed 5,000 square feet of pavement, all right, that’s a 50% impermeable area. Now, if I
have 6,000 square feet of impermeable area, I’ve got 60% impermeable area, and I’m in violation of
the Ordinance, okay, for this discussion. Now, I buy another 10,000 square feet, I shouldn’t be
allowed to do 60% impermeable area. You have to comply with the regulation. If you grow, it
doesn’t allow you to continue to grow the net area. So, that’s the point, and I think we’ve been
consistent in the correspondence on that. So let me just move on.
MR. STONE-Well, just keep the number that you’re supposed to be at 65% permeability in this
zone, just have that on the table.
MR. BROWN-Right.
MR. STONE-Not 55, it’s supposed to be 65.
MR. O'CONNOR-No, you asked me what we were at.
MR. STONE-No, I understand. I just want to be sure that we all know that it’s supposed to be at
65.
MR. O'CONNOR-And my argument is that only the excess of the 65% of the land that would be
reclaimed could be counted as a benefit. I’m not saying that we can make more nonconformity. I
think I’m consistent with what the bottom line of Chris Round’s statement is.
MR. MC NALLY-Are you saying that when the land is reclaimed you will be 65% permeable?
MR. O'CONNOR-No. I’m saying the first 65% of that is already designated, and would remain
non-permeable. We get no credit for it. The 45%, we should be able to get credit for because that
piece will be conforming, but it’ll make the other piece less nonconforming, that 45%.
MR. STONE-Yes, but I wouldn’t put numbers on that reclaimed land. It’s just, I mean, totally, it
should be totally impermeable when you reclaim it.
MR. O'CONNOR-There’s no benefit to reclaiming it, then. There’s no motivation.
MR. STONE-It makes the property more in conformity.
MR. ABBATE-Yes, but I think the bottom line, I think Chris and Counselor is basically saying the
same thing, in the final analysis. I’m not sure I see a disparity between both their arguments.
MR. O'CONNOR-I didn’t think I was, either.
MR. ROUND-Maybe we won’t resolve that at this particular moment, and again, I think there was a
reclamation plan in 1990 on this plan. The land hasn’t been reclaimed. So it is speculative right now.
MR. ABBATE-Right. Exactly.
MR. ROUND-So the concrete walks, pads and patios I think, again, what we relied on was the
Assessment record. The Assessment record, that’s what the Assessor does. They measure buildings,
patios, etc., every day. I think Mr. O’Connor said there was some discrepancy in the deck size, the
plans that the surveyor, Mr. Steves, presented here, the numbers have changed several times in the
way he’s measured. So I think we’re both, both entities are capable of varying their measurements
during the course of the thing.
MR. O'CONNOR-Not on the deck, Chris, and the difference in the patio was the break down
between the four elements, as opposed to whatever we were doing before.
MR. ROUND-But just to reaffirm, we based it on the records that we had on file, 1990 site plan that
was an existing condition site plan for a proposed expansion of the property. Patio expansion, we
measured it to, again, that’s similar to, it’s inclusive of this impermeable area growth. Patio
expansion, I think we’re clear on that. They have a different number than we have. They have an
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(Queensbury ZBA Meeting 4/25/01)
affidavit that an individual poured a patio over an existing patio. We said that existing patio was 280
square feet. They say it’s a different area. We’re relying on two different sets of records, and then
the increase in patio size represents an expansion of a nonconforming use. That’s the most
troublesome I think for the applicant and for us, because what we’re trying to do is document what is
the density of the use on the site, and we have talked about, the O’Connors and the Mozals have
proposed, well, let’s use exchange of picnic tables for pavement. We haven’t seen a calculation that
says, we’re proposing, every picnic table equates to 90 square feet or.
MR. O'CONNOR-That was my letter of January 10 to you.
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MR. MC NALLY-There’s the letter that he just submitted tonight to us.
MR. O'CONNOR-No, but I submitted it to you January 10.
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MR. MC NALLY-Okay. Well, we got it tonight.
MR. O'CONNOR-Yes.
MR. ROUND-Yes, but our decision was issued prior to that, and we had issued a decision based on
our measurement in the historical record, and we felt that it opened up too many issues for us to be
involved with, and if the Board chooses to make that exchange, that’s in the Board’s hands, because
when you start looking at numbers of seats and seating, we felt that opened up a Pandora’s box, and
that wasn’t the proper way to measure intensity of use because, you know, what happens if you have
a banquet and you have smaller seats, you’ve got thin people, more people in a room. It just, it gets
real crazy, and we don’t want to be in that position. We wanted something to be on solid ground,
and we felt dimensional requirements of the building, dimensional requirements of the patio, etc.,
that was the sound basis, and I’m not going to instruct my enforcement officers to go out there and
say, hey, well, look, if there’s people standing over there eating or, it gets real troublesome when
you’re trying to do that kind of thing. That’s the extent of, you know, there’s a lot of information
that we’ve received, we’ve talked about a lot, and I’d be happy to answer any questions.
MR. STONE-Let me just ask one question of you. Mr. O’Connor made reference, early in his
presentation, that you wanted us to make a determination. Is that your aim in writing your memo?
MR. ROUND-No. You opened up, Mr. Stone, that we make a decision, they appeal it, you make a
determination. I think in our conversation, he didn’t mischaracterize it, but we felt that, you know,
we made the decision based on our information, and a rationale basis, and if you guys want to take a
different approach, and you want to do something that was a little less than conservative than the
approach that we have taken, that’s your prerogative, especially an exchange of seats. I wasn’t
comfortable saying let’s use 176 seats or 125 seats and we’re only going to go, that doesn’t, from an
enforcement perspective, that’s not going to help us when there’s a complaint issued.
MR. O'CONNOR-My point was, in my presentation, we’re not talking about exchanging seats. I’m
not counting the number of people that would or could sit at 10 picnic tables. I’m talking about
square footage of the lot designated or utilized for dining. We tried, purposely, to get away from
that. Chris and Rich have a whole plan that they shut down one area when the other area is
operating. It’s totally separate from the discussions tonight, and I understand Chris thinks that
they’re problematic, as far as enforcement, but that’s what we do internally, and how we operate. My
whole point of that letter of January 10, at least the portions that I referred you to, was let’s talk
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apples for apples. Let’s talk designation/utilization of site for outside dining. All we’re talking about
is paving, or putting a patio down or putting a patio down. I don’t think has Staff has taken a
position that if we go in with a jackhammer and concrete saws and cut the patio up, we can’t utilize
that for dining.
MR. STONE-You made a comment earlier, too, about, let’s assume, just for the purpose of
discussion, that we say that you don’t need a Use Variance for the patio area. Did you agree that that
patio is too close to the lake, it’s within 50 feet?
MR. O'CONNOR-Portions of it are, yes.
MR. STONE-Portions of it, and you would need an Area Variance for the patio?
MR. O'CONNOR-No, we wouldn’t need an Area, we would need site plan review.
MR. STONE-No, if it’s closer than 50 feet.
MR. O'CONNOR-No. All you need, hard-surfacing within 50 feet of the lake.
MR. ROUND-That’s a zoning determination.
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(Queensbury ZBA Meeting 4/25/01)
MR. BROWN-Yes, that’s just site plan review.
MR. O'CONNOR-That’s site plan review.
MR. STONE-Okay.
MR. O'CONNOR-We may need, we may need an Area Variance if that effects the permeability.
MR. STONE-Okay
MR. O'CONNOR-They’re interrelated, but the principle thing that you need for a patio or a deck
within 50 feet of the lake is site plan review. This patio, it’s maybe not germane here, is sloped away
from the lake. I have no fear going in for a site plan review. It’s not something that’s going to cause
runoff into the lake or create a problem. It was purposely sloped away from the lake. In fact, it
probably helps the drainage.
MR. STONE-Any questions of the applicant?
MR. MC NALLY-I wanted to ask Staff, you know, as a common sense type thing, I go through a lot
of dirt parking lots that are pretty well compacted. There’s no question in my mind. Why can’t
compacted dirt be like compacted sand or compacted gravel and be deemed impermeable as
pavement? What’s your thinking along those lines?
MR. ROUND-From a scientific standpoint, I used to do hydrogeologic work, and so oftentimes, if
you have clay soil, that’s going to be less permeable than graveled areas, but from an inspection
standpoint, what if you had an area that was driven over forever, and then for two years you didn’t
drive over it, and it has a nice lush growth of grass. How do you document that that’s an
impermeable area? Well, we used to park on it two years ago, so, from a common sense standpoint,
this area in this 1990 plan was identified as permeable area, and reading the minutes it was proposed
to be utilized as parking, and then potentially it’s occasional use of parking of boat trailers, something
like that. So we based it on that. If we went out, before any activities, before any gravel, took what
was placed down and we were able to do a permeability test, we might be able to come up with a
different answer, but we had to rely on the information at hand and our historical.
MR. O'CONNOR-You also have not had the benefit of Mr. Nace’s actual on-site analysis of the
property.
MR. ROUND-Right, and that just came, that was delivered today. We don’t have a copy of that.
Are you going to give us a copy of that?
MR. O'CONNOR-Okay. I’ll give you a copy of that right now. Also, you had mentioned the
stormwater management plan. In the stormwater management plan that he refers to, this is the area
that is semi-pervious mound area, 8440 square feet. So even in that plan that you’re referring to, it
was noted as not being a completely pervious area.
MR. STONE-The only retort I would make to that, just for the record, is that we don’t define
anything besides permeable or not permeable.
MR. O'CONNOR-We don’t define permeable.
MR. STONE-Yes, we do. Ground surface to which water can percolate in a natural manner, and
that would say clay is permeable, because natural manner through clay may be very slow.
MR. ROUND-Right.
MR. O'CONNOR-But then you look at pavement, and pavement is any area that’s been compacted
by either vehicle or pedestrian traffic, which is less permeable, if you read them both together. I
understand the definition or the basic problem here is how does Staff look at every site in the Town
of Queensbury and determine what parking lot is permeable or not permeable? It’s easy to say, okay,
everybody will tell you when it was paved and that’s permeable, and we’re going to treat that as
permeable, but I don’t think that’s what you’ve got before you here. You’ve got a survey. You have
an actual dimension area that’s on there. That’s what’s enforceable, and I think, I’ll tell you that part
of our discussion with the Health Department is we are going to have to set up barriers around our
separation area of our septic system so that it cannot be parked on, that septic system cannot be
parked on, and that’s going to define forever on this property the area that we’re parking. We’re not
creating an enforcement issue for Staff.
MR. STONE-Anybody else?
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(Queensbury ZBA Meeting 4/25/01)
MR. ABBATE-Are we going to have a discussion on this? I have some comments, but no questions.
MR. MC NALLY-Can I ask, Mr. O’Connor, I do have two surveys here, and they show the patio
area, between the restaurant and the lake, with different square footages. Was there an explanation
for that, and what was that explanation? Because, when we got the, part of the explanation might be
we got the affidavit from Danny Barber. He gave us an actual dimension of 473 square feet.
MR. MC NALLY-Okay. So it was modified once you got his affidavit?
MR. O'CONNOR-It may have been modified then. I had the impression it was modified because of
the break down of the piece along the rail of the deck and the inclusion of the walk and inclusion of
the other. I call it the east pad.
MR. MC NALLY-Okay.
MR. O'CONNOR-No, one thing I never mentioned, and I probably, for your records, should
mention that 216 feet behind there, that’s not utilized for dining. That’s going to be in the
calculations, that’s in the calculations for permeability, whether we do or we don’t.
MR. STONE-Anybody else have any other questions? I think what I’ll do, because of your very
good and very complete explanation, I will ask anybody in the public, since the public hearing is still
open, I will ask anybody who wishes to speak specifically to point. I don’t want to hear, and pardon
me, the Mozals are nice people. We’ll stipulate that, and they run a good business. We’ll stipulate
that, but I think we want to hear anything that you can add that is not in the record. Certainly, if you
were here two months ago, you should have a fair idea what’s in the record, but anything new, I will
be glad to hear. Anybody wishing to speak in favor? Well, speak on the subject, let’s not talk,
because it gets very confused. Come up, please, state your name.
PUBLIC HEARING OPEN
SUSAN POPOWSKI
MRS. POPOWSKI-I’m Susan Popowski. My family has owned property on Glen Lake for about 75
years. We are five properties to the east of the Docksider. Mr. Chairman and members of the
Board, I will be brief and to the point.
MR. STONE-Good. Thank you.
MRS. POPOWSKI-I would like to just state that this is not a neighborhood fight. However, I spent
a lot of time before this Board. I don’t believe any of you were on the Board 10 years ago regarding
the subject of the Docksider and the expansion of a nonconforming use in the Waterfront
Residential area. I think we all are very well aware that we’re here tonight because zoning regulations
are for everyone. My family knew that when we went through the process 11 years ago and put in
5,000 gallons of concrete tanks in our back yard, holding tanks. Paul Barton was very well aware of it
when he went through the process to apply in 1990 for an increase in his deck seating from 28 seats
to 44 seats, and to up date his facility, and obviously the Zoning Administrator knows that when he
determined that the Docksider had not gone through the appropriate process. Most of this
information here is information I believe belongs in that process because from 1990 these are all the
issues that we discussed at that time. There were determinations made by the Zoning Board and
Planning Board at that time, as to what variances were issued. They expired a year later. So all the
seawall variances and the parking variances and all these variances expired in 1991 or 1992, actually.
I feel that puts us back to base one, and we’re being asked to believe that a new patio, with new
tables and chairs, which does represent an increase in seating outdoors of probably we’re up to 80 or
90 seats. In 1990 we were assured by the Board’s ruling that there would be no more than 44 seats
outside, and this is a very brief digression. We’re talking about historic use tonight of this property,
and, in 1990, when we were all discussing parking, septic, seating, it was denied that there were any
seats outside because we were trying to keep the seating numbers as low as possible. At that time,
Mr. O’Connor was representing Paul Barton, and we were told that there were no more than, or
would be no more than 44 seats outside. Obviously, the concerns were all that that implies, which is
all that’s been discussed here tonight, noise, etc., etc. I won’t go into that. I believe the issue before
you tonight is the unapproved expansion of the site. I don’t think the dreams of what we want to do
or the seawall or anything is relevant to the issue that is on the table tonight. I respectfully request,
Mr. Chairman, that this Board affirm the decision of the Zoning Administrator, and send all of these
issues into the site plan process where they belong. Thank you very much.
MR. STONE-Anybody else wish to speak? Come forward, please.
PHIL SULLIVAN
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(Queensbury ZBA Meeting 4/25/01)
MR. SULLIVAN-As I mentioned before, my name is Phil Sullivan. I live next door to the
Docksider. Just a couple of observations. I see all the studies that you have before you tonight,
determining what’s permeable, what’s not permeable, how there’s such cooperation with the Board,
and the Code Enforcement Department, why the dialogue now, and not eight months ago? Okay,
and in the course of the septic and the seawall, I didn’t hear what we were asking for. I heard the
same thing that was done a year ago, we will. We will have a septic system. We will have a seawall.
To me, that kind of sums up the whole issue. Now, as far as the upper plateau, everybody has been
talking about the itty, bitty gravel there, which is an impermeable situation, all right. By Mr.
O’Connor’s own definition, he said that when they do their new septic system, when we will do a
septic system, two 2,000 gallon septic systems, which I believe needs the approval of the adjacent
property, which happens to be us, when they will do this, they will not park on the septic system.
Okay. Well, they are parking anywhere from between 30 and 40 cars, right now, on the leach field,
on the impermeable plateau. Okay. They are, all right, right now. The thing with the duck fodder
that was in the water, that was commissioned by the Town of Queensbury, with a grant, okay, it was
from New York, okay, and it was approved by the Glen Lake Association and the Glen Lake
Wastewater Commission, a part, one or the other of which Mr. O’Connor was parked. Okay. So he
knows. All right. I’ve come down here twice, okay. I know there’s a lot of nostalgia for the
Docksider, okay, and I have grown up there. I have friends out here that unfortunately we don’t
have the same viewpoint on, but we’re still friends, okay. The thing, you know, what was so, right
here it’s the bottom line. Okay. Bottom line for them, it’s going to cost my clients $500,000. Well,
we live right next door, okay. We have an extra 30 vehicles on an area that, on everybody, on their
side, on February 28, stated it was for employee parking only. Employee parking only. I didn’t hear
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anybody, and I asked anybody that is advocating for the use of the plateau to say that it was for
anything other than employee parking, because it wasn’t said the whole night. Now, as far as the ebb
and flow, Jill Sullivan, who I’ve known for 44 years, said when there got to be too many people there,
her Uncle closed the place down because he didn’t want that many people there, and he didn’t want
to do the work. Okay. Now, if we want to talk about volume, okay, these people are two of the
most successful entrepreneurs in this area. Okay. Rather than two or three, maybe four or five
clambakes, maybe 200 people a year, you know, every day, and on the weekends maybe double, you
have anywhere between two to four hundred people a day, and the septic system should not be
brought up tonight. The septic system is not on the table. Okay. I don’t even see what that’s even
doing here. That’s another issue, and as far as they are going to have a seawall, I would say that it’s
highly in doubt right now, okay, and as far as they are going to have septic systems, I would say that
as far as our outlook is concerned, that is going to be in doubt, too, okay, and I know that this is a
high profile situation. We started out, just with the noise. We started out with the noise. There’s a
gentleman behind me that I have been friends with since I was 14 years old, you know, we called and
we asked just to talk. We never got a call, and you’ve heard this before but you’re going to hear it
again. We didn’t get the call. We did research. You’ve got the data right in front of you, and it’s not
duck doo doo that’s going into the lake. Okay. They don’t come up down the road. There are other
agencies involved, other than the Town here, okay. What I’m asking you folks to do is to look at the
hard evidence, okay, and if you want to look at the hard evidence, if you don’t want to look at the
pebbles, take a look at Mount Rushmore at the end of that parking, you know, over there where the
septic system is, where all those boulders are. Now did they materialize out of anywhere? Is that,
you know, basically can you just take like tons of boulders and just dump them on your property?
MR. STONE-You’re getting off point.
MR. SULLIVAN-No, the point, sir, is that is expansion of, you know, that’s to stabilize the upper
area, okay, the boulders. They were just arbitrarily dumped there. Another thing that I have
contention, I’m an environmentalist. I didn’t want this plate. Another thing that I have contention
with and that I’m just making an observation on is in a critically environmental area, why was an
EAF just the only criteria for application? Why wasn’t there a SEQRA? Okay. By the Town’s own
designation it’s a critically environmental area. The thing that I’m presenting, and I will stop, it’s laid
in front of you, okay. I’m asking you to do the right thing. I’m asking you to follow your
consciences. I appreciate the opportunity to come up and present my views, but, you know, as I said
in the earlier meeting, we’re not going to go away, because we know we’re right, and I hope you guys
and ladies feel the same way, and I hope that everybody in the Town of Queensbury is treated with
(lost word). I hope that the people that own the Docksider are treated in the same way that the
people that own the pool hall on the Boulevard were treated some time back, as far as Queensbury’s
intrinsic concern for its environment, as far as Queensbury’s desire to have a pristine place to live, as
far as Queensbury’s desire to be a standard bearer throughout the State, as far as quality of life is
concerned. I want to thank you all. Have a good night.
MR. STONE-I just want to make two statements in reply to that. One, this Board did not get this
matter until January, until February 28, that’s the first opportunity that we had to have any say in
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this matter at all. So I just want that on the record.
MR. SULLIVAN-I’m aware.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-And, two, if we side with the Zoning Administrator, there will be plenty of
opportunity to appear for a variance application, assuming there is one, and if we don’t side, there
will be site plan review for some of these things. Is that not right, Craig? There will be site plan
review, if we disagree with Chris, still there’s more chance for review.
MR. BROWN-That’s correct.
MR. STONE-Okay. I just want to be sure that we all know that. Anybody else wish to speak?
Okay. That being the case, is there any correspondence, new correspondence?
MR. UNDERWOOD-Other, do you want me to read these into the record, the stuff that was
handed to us?
MR. STONE-No, no.
MR. UNDERWOOD-None of that.
MR. STONE-That’ll go into the record. He certainly alluded to that. Then I’m going to close the
public hearing.
PUBLIC HEARING CLOSED
MR. O'CONNOR-May I make one comment? I’d like to reply to the comments that were made.
MR. STONE-Okay. Surely.
MR. O'CONNOR-Okay. I’ll be brief. Okay. The first speaker spoke of variances for parking or
seawall expiring. My recollection of 1990 is that there were no variance portions or variances relief
granted for either the seawall or parking. As to the number of seats in 1990, it was not these
applicants. There was a stipulation at that time, I believe, that the number was going to be a total of
124, which is in excess of what these people actually utilize. That is gone. If Paul Barton had
actually made the improvements and done what he said he was going to do, we wouldn’t be here. He
would have changed the building. There was concessions given and taken over a period of about a
year and a half in that application process. You go back to the 1987 approval of the deck. The 1987
approval of the deck has no limitation on outside seating. I reviewed those minutes. I reviewed the
resolution. I don’t mean to be arrogant when I say we will have a septic system, or that we will have
a seawall. My understanding is that we have applied to the appropriate agencies for both of those,
and I’m say that I believe that we will be successful. We have applied to DEC. We have a permit in
hand that was given notice to the Army Corps of Engineers, and we are complying with their review
request at this moment. It may not be a seawall that gives us a total reclamation of 1798 square feet.
That’s the issue at the moment, but they will issue, they do issue those permits and it’ll take some
time and we’ll do it. The Mozals, when they took over the property, started talking about building a
seawall and wanted to be affirmed, with a belt and suspenders approach, that if they built it,
somebody wasn’t going to come back and say the permit had been issued to Paul Barton wasn’t valid,
and we’ve begun this task. We have pending before the Health Department the septic system
application. I’m told that they have primary jurisdiction. I’m told that after their approval, we will
have to get a building permit from the Town. It’s an administrative permit that we get from the
Town, from the building inspector, so that we can keep them advised that construction, and we can
get the necessary inspections, and make sure that we comply with what the Health Department
approves. We will also need to get, and we haven’t really talked about it, but because of the septic
system, we will need to get an additional permit from DEC, called a SPDES permit, which is a
stormwater discharge permit. It’s a registration type permit, but we will have to go through that
process, and as soon as we get the configuration from the Health Department, we then do that. It’s
all a matter of steps. Right, what we’re talking, and I don’t even know if you want to go to this
parking on the septic system. The septic system that’s there apparently accommodates parking.
What we’re talking about there will be no parking on the septic system.
MR. STONE-When you say septic system, you mean the leach field, or is it all going to be one?
MR. O'CONNOR-Mr. Stone, as I sit here, wait.
MR. STONE-What are those things on the back of the property?
MR. O'CONNOR-They are an Elgin dispersal.
MR. STONE-Okay.
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(Queensbury ZBA Meeting 4/25/01)
MR. O'CONNOR-Disposal area. I don’t know if you call them a leach, they’re close to being a leach
field, but you can’t park on them.
MR. STONE-Okay.
MR. O'CONNOR-The septic tank, or the pump tank, which will be down next to the patio area and
the building will not be parked on either. That’s where their present, I think there’s a 1,000 gallon
septic tank down there. There’s a 1,000 gallon grease trap down there, and there’s also a pump
chamber. That’s not parked on. Where it goes up the hill, I’m told, I believe what’s there has got to
have travel tops on it, which means you can park on it. If not, we would have some vehicles that
would disappear on us, but that’s not necessarily. Volume was the last comment, and volume is not
the issue before you, you know, that they better utilize the same premises, that’s not an issue. It’s not
a zoning issue, and I would argue with anybody that tries to tell me that it is, and I think Chris has
agreed to that. That’s why we tried to get dimensions. Tell us what we can use in square footage for
parking, tell us what you can use for dining inside outside, whatever. That’s what we’ll use. That’s
my comments.
MR. STONE-Okay. Well, I closed the public hearing, but I’ll close it again, just to be sure.
MRS. POPOWSKI-Mr. Chairman, could I say a few words?
MR. STONE-Is it new information?
MRS. POPOWSKI-Well, it’s just in response to what he just said.
MR. STONE-Okay. I will permit it, then.
MRS. POPOWSKI-I will be very brief.
MR. STONE-State your name again, please.
MRS. POPOWSKI-I’m Susan Popowski, for the record. I have a site plan, it was a site plan, but
there were variances prior to that. I have a copy of it here, referring to the 44 dining seats on the
deck. It’s all in the record. This was the Planning Board issued January 22, 1991, and if you go back
into all the records, you can find all the minutes regarding all the variances, all the discussions about
seawalls, parking, noise, it’s all there, but I really do think this issue needs to go back into something
a little more extensive. Thank you.
MR. STONE-Okay. I’ll give you a chance, this is the last warning.
ANN SULLIVAN
MS. SULLIVAN-That’s it, I promise.
MR. STONE-Well, you can’t promise for other people.
MS. SULLIVAN-Okay. I’ll promise for me. Ann Sullivan. My family’s property is adjacent. I sat in
on it for 10 years. Mike O’Connor taught me a lot about permeability. Thank you, Mike. It’s
coming in handy. In the minutes that Sue’s talking about, Paul Barton, I believe, was 115 seats. Part
of those was going to be inside seating, but he was going to be limited to 51 cars, and we had
meeting after meeting, was it 51 cars, was it 55 cars. So that is something else that should be thought
of. Thank you.
MR. O'CONNOR-With due respect, both of those things are talking about an approval in 1991,
which was not acted upon, and, Chris, there are not conditions on the property because they expired.
If the Staff wants to say that those conditions exist, and we can go ahead with that, we’ll leave.
MR. STONE-Let me close the public hearing now.
MR. O'CONNOR-I don’t mean that sarcastically. That was an expansion that was fought for for
about a year and a half.
MR. MC NALLY-When you were mentioning the proposed septic system, am I to understand,
where that Elgin system is, there’ll be no parking above it? Is that what you were saying?
MR. O'CONNOR-Right, yes, and it will have to be barricaded to the satisfaction of the Health
Department, so that there is no occasional or mis parking on there.
19
(Queensbury ZBA Meeting 4/25/01)
MR. MC NALLY-And how much of that area is the plateau that we’re talking about being graveled
or impermeable?
MR. O'CONNOR-The back end of the plateau area.
MR. MC NALLY-It extends toward the lake, but.
MR. O'CONNOR-With my apologies, okay, this is a moving target, the septic system. Part of it is
the interchange we have between the engineer and the Health Department. We have shown on here
an area that shows 3,760. I think what Chris agreed to was that there was a figure of 3,760 square
feet, okay. That’s the only portion of the plateau that we show utilized for parking.
MR. MC NALLY-Okay.
MR. O'CONNOR-Part of the plateau will probably go to green area, and vary probably even
conservatively because of the width of what’s shown here for travel lanes maybe even a little bit more
than the, even a little less than the 3760 feet will be utilized. There isn’t room to actually put
additional parking spots up. This is the most I think that we can get for parking spots. There’s a big
broad area in here as you come up that ramp way that probably is not going to get utilized.
MR. MC NALLY-The 3760 square feet incorporates the Elgin system, takes that into account and
eliminating that from the parking area?
MR. O'CONNOR-Yes.
MR. MC NALLY-Okay. That’s what I wanted to know.
MR. STONE-Okay. Any other? Let me ask Staff and Legal Department, there are two variances
that you say must be obtained, an Area Variance, as far as the permeability of the total property is
concerned, considering the fact that the plateau, as we call it, has been graveled.
MS. RADNER-Correct.
MR. STONE-And a Use Variance for the expansion, as you have determined, for the patio, which
allows more use for the property, over and above what you believed to be the case prior to this
building?
MR. O'CONNOR-It’s actually broken down right by the letter on January 17.
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MR. STONE-I know, but there’s only, but you have agreed on a couple of them. I’m just trying to
get down. We could say, we accept his whole letter. That’s one thing, but you have asked us to look
at, you mentioned.
MR. O'CONNOR-I think you have to address each one, because each one has a separate issue,
except for Number Two. That’s the only thing that the Mozals and Staff have agreed upon.
MR. STONE-Well, that’s really what I’m saying.
MR. O'CONNOR-Okay. Well, it’s not a yes, no in two instances. Some of it is formula type
motion, as opposed to saying yes, no. In Number Three, are we going to be allowed to set off for
the area that we reclaim, against the area that we have utilized for walks, pads and patios, and even
secondly under that, do you agree with me that the two walk areas that I showed, the one on the west
side of the property, and the portion of the patio on the east side of the property, or at least the one
on the west side is a pre-existing condition. It really isn’t a change in permeability. You’ve got to
give us direction as to how Staff is going to make their calculations. I’m not asking, I don’t think that
Staff is asking you to make a calculation tonight. I’m not asking you to make a calculation on that.
Staff’s going to make that calculation I think.
MR. HAYES-I have a question, Chris. Does an increase in impermeable area in total necessarily trip
a Use Variance?
MR. ROUND-An increase in the overall impermeable area?
MR. HAYES-Overall impermeable area.
MR. ROUND-Not necessarily a Use Variance. It’s a dimensional limit.
MR. O'CONNOR-That’s an Area Variance, and it’s a dimensional issue.
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MR. ROUND-Mr. Stone had indicated just the parking area. What we’re arguing is parking area plus
patio and other paved areas is an expansion of impermeable areas. That’s an Area Variance. Growth
of the patio is a Use Variance.
MR. STONE-Right. That’s the two. That’s where I was trying to go with just two, but you’re
looking for more guidance.
MR. O'CONNOR-If I’m coming back, I’d like to come back with my headlights on and know
exactly what we’re doing and not get into another argument.
MR. STONE-Okay. Let’s, before we go any further, let’s just talk about it, if we may. Let me start
with Bob. Would you start?
MR. MC NALLY-Thank you, Mr. Chairman.
MR. STONE-I’ve got to start with somebody.
MR. MC NALLY-I wish there was some way that we could easily do this, have the Town agree with
the Mozals as to what their plans are. I guess if it comes before us we have to make a decision. If
you break it down, as Mr. O’Connor suggested, and I’d like to hear my other Board members,
because this is a decision in motion, but it seems like the grass parking area, while it may have been
referred to as permeable, back in 1990, on prior applications, I’m pretty satisfied, from Mr. Nace’s
materials, and from actually looking at it, that while there may be Number Two gravel on top of the
surface, below that there was very fine, crushed stone, and I don’t see how the surface is any more or
less permeable than it always was, particularly in view of the fact that I think historically it’s been
established people were parking on it on a regular basis for many years. So in that sense I don’t see
that the addition of the gravel on the plateau as we’ve called it is really a problem that requires any
variances. I am told item two, the 296 square foot concrete walk is off the table, and that the Town
and the applicant have satisfied themselves as to that. So I have no comment as to that. With
respect to the installation, item three, of the 1,002 square feet of concrete walks and pads and patios,
am I to understand that that 1,002 feet is going to result in an increase in the permeability beyond,
even further, the permissive limits under WR-1A zones?
MR. ROUND-That’s correct.
MR. MC NALLY-Okay, and if I understand the defense, it’s basically that the Army Corps of
Engineers are going to approve a shoreline expansion, so they’d need more land.
MR. O'CONNOR-And we also claim the portion of it has been grandfathered, the 235 feet of the
walkway.
MR. MC NALLY-I think that the possibility of expanding the shoreline, while very real, is kind of
speculative. I think that we’ve seen people, from time to time, purchase or make boundary
adjustments to their property in order to meet the permeability restrictions. So I don’t have a
problem with the concept of expanding the shoreline, and thereby having the extra land for which to
use a new permeability calculation, but the fact that it’s not done yet, and I know how difficult it can
be to get done, makes it difficult for me to approve something that’s so up in the air.
MR. O'CONNOR-We would accept a reasonable timetable. I don’t anticipate that we will have a
final say from them in time to allow us to actively do it before Memorial Day, and rather than disrupt
the operation during the summer when it’s probably most utilized, if we could have through the Fall,
with the allowance that we use that, whatever we can salvage out of that, and the net result., then we
need to apply for an Area Variance if we need to.
MS. RADNER-Mr. O’Connor, that’s not something that’s within the power of this Board to grant
you. That would be more a condition of site plan review. This Board’s here to consider an appeal
and either sustain it or deny it, not to grant you time to.
MR. O'CONNOR-It is in a sense, but it also is there before this Board in the sense that we have said
we are entitled to an off set. This Board can say, yes, if you built it, you’re entitled to an off set. I
understand Mr. McNally saying it’s speculative. I might be leaning toward giving you an off set, but
it’s not going to be an open ended pitcher, and I’m saying is all I’m asking for is their determination
that, yes, you can off set, but we’re going to treat it as being speculative if you haven’t done it by such
and such date. I don’t think that’s, that’s part of the interpretation that’s being requested for. It’s
not a condition.
MR. MC NALLY-My point, when I first started, was that I’d like to see the Town and the applicant
try to work it out, but I know from time to time we’ve worked with applicants in that process, and
this might be something feasible. We have always allowed boundary adjustments, so that people can
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meet their variance, or Area Variance requirements. It’s something that certainly should be explored,
and again, the calculation, whatever it would be when they got the extra shoreline, you would
calculate the permeability then, and whatever it is, whether it meets the Code or it doesn’t meet the
Code, but from what you’re telling me, it’s going to, if that’s done.
MR. O'CONNOR-It looks like it will. All I’m asking for is guidance to the Staff that, yes, you can
do this. Then I might even have to work out with Staff the timetable. I mean, that is, if you say an
off set is, if they are actually doing it and can show to Staff that they are going to do it, and off set’s
appropriate, I can work out with Staff some timetable, I presume.
MS. RADNER-That characterization wasn’t quite right, though. Even with the reclaimed land, they
wouldn’t be conforming. They would just maintain the same percentage of nonconformity.
MR. MC NALLY-So there has been no increase in the nonconforming nature of the property or the
percent of the property?
MR. BROWN-No increase in the nonconforming percent, but a net increase in the physical area of
impermeability. Yes.
MR. MC NALLY-I still don’t, I don’t have a problem with that, to be honest with you.
MR. BROWN-Okay.
MR. MC NALLY-The last two items on the letter of January 17, though, they do make me pause a
th
little bit more. I remember the Harris Bay Yacht Club case, and I do recall them trying to make
walkways along the shoreline, and to put gravel down to prevent flooding, and the sense always was
that it was a good idea, because it would have certainly made it a nicer area, as it would have made
this restaurant, but that any expansion that would increase the intensity or any expansion that would
increase the utility of the property beyond what it’s original nonconforming usage was was something
that was not proper. If there were picnic tables all in this grassy area, then you could use picnic
tables for the rest of your lives. As long as that property is there, those picnic tables can be used,
over and over and over again, but when you pave an area, beyond what it used to be, then you’re
going beyond what was the nonconforming use. You’re expanding that use. I was impressed that
two prior Use Variance applications were approved on this site, and I’m not sure how hard it would
be to show a third one, but it seems to me that this patio was smaller. It is bigger now. It is a change
in use, and I don’t think I could support that aspect of this application. In other words, I think that
Chris made a right decision with respect to that. That’s where I stand.
MR. O'CONNOR-Did you make a determination as to what the prior size was?
MR. MC NALLY-Well, I’m satisfied that it was less than it is now. I think that the Assessor’s
records can be given merit at 280 square feet. I think that some of the people, in their petitions that
they signed, for instance, attest to it being more than 15 feet wide, maybe 20 by 20, but it seems
uncertain. I know it is from 280 to 400 and something, probably. It’s less than what it currently is.
That single slab.
MR. O'CONNOR-I would ask for a finding of what the Board deems that to be. So that we know if
we have to tear it up how much we have to tear up.
MR. MC NALLY-I’d have to give it thought.
MR. STONE-Let’s go on. We’ll come back to that. Jamie?
MR. HAYES-Okay. Like Bob, I’m going to be very interested to hear what the rest of the Board
members say. This certainly rotates on some very delicate points. I think a great deal, I think in the
testimony that we had, the first day, and somewhat tonight, there was a great deal of additional
information that was relayed to us, and I think that I feel very satisfied that Chris, in his approach,
too, has sought to seek the truth, or balance even their testimony, and I think he’s to be commended
for that. So let me say that. As far as item one, basically, it’s the appellant’s position that, essentially,
and correct me if I’m wrong, is that the parking lot out front was impermeable, in fact, by the
substance and the surface of the soil, as testified by Mr. Nace, and is impermeable now, and the
addition of the number two stone has not changed that, and from my own history of the property
and recollection, I think that that was parked on regularly, and I think it was compacted. There were
tuffs of grass here and there, but essentially, it was a parking lot, and it was heavily compacted. So,
similar to Bob, I have no problem accepting that, based upon the additional information in particular.
Item Number Three, the installation of the 1,000 square foot plus or minus concrete walks and
patios, similar to that, the 275 foot sidewalk seems to me to be an area that was compacted by foot
traffic and other matters, historically, and that was testified on the record by many people that spoke
before. As to the rest of it and the balancing by recapture of the shoreline, I don’t know, and I’d like
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to hear from everybody else on that. I think, you know, there may need to be an Area Variance here
for permeability. I would probably lean in that direction, in this particular case. As far as the factual
area of the patio, we’ve got some conflicting testimony. We have an affidavit from the actual builder
that essentially places the area of the patio closer to 400 square feet versus, 473 versus the 280 that’s
shown by the record, and I think I would like to investigate that a little further, to get to the root of
that, and it may be difficult to determine actually what it was, but I do believe Mr. Barber’s affidavit
would be probably sufficient for me to believe that the deck, or the patio was in the 400’s, versus the
280’s. As far as the critical issue in my mind, and probably the most difficult, is the determination
does the expansion of the patio represent an expansion of a nonconforming use. Does expanding
that patio physically represent an expansion of a nonconforming business? And it’s a delicate point,
and I’ve listened to the testimony that’s involved, and I think that the appellant, in this case, beyond
his original determinations with Mr. Round, has established that there was a great deal of historical
use in that area, and I think that I’m satisfied that that is in fact the case, and I don’t blame Mr.
Round for not wanting to quantify what picnic tables mean, as far as that use, and what the area
means that those picnic tables would take the use. I think that’s a business he should stay out of,
appropriately. So, in my mind, it’s very close, as far as this use, the use part of this. I would like to
hear from the rest of the Board members on this matter, to see what they feel. So, as far as number
one, I have no problem. Number Three, I think an Area Variance still could be in order, to some
degree on this matter, because I’m not sure the cement that was poured actually would be as
permeable, even as slightly disturbed areas or substantially disturbed areas, but as far as the use, I’m
leaning toward being okay with that, but I’d like to hear what the rest of the Board members have to
say.
MR. STONE-Jim?
MR. UNDERWOOD-Yes. As a lake resident, I’ve always been interested in this, since Day One,
and so I try to go back to the historical record to try and find out what originally was intended by Mr.
Barton back in 1990, as to what has transpired since that point in time, and I think some of the
historical record that was relayed in the first meeting, clarified some of the information, also some of
the historic record by pulling old Planning Board meeting notes and things like that also somewhat
spelled it out. There are a couple of things I’d like to address in regards to this, and that first of all
would be the Area A that was on your original plot that you guys had there. That would be the
raised area that’s over the present septic system, and again, I think that we have to keep in mind that
the applicants I think are moving towards replacing this system, or at least is proposed to replace this
system, and, you know, right now we’re charged with deciding what’s the best use for Area A, at this
time. Area A’s, probably going to change and be used for something different in the future, but in
looking back at the historic record, this was a Queensbury Planning Board meeting that was set up, a
Special Meeting on December 4 back in 1990, and I went back to it, and specifically, if I go to the
th
exact page that relates to that raised area there, I’ll just read a little bit of these things here, and maybe
this’ll clarify some of what the area was intended to be used for. I think in the interim period from
the time that Mr. Barton passed away and his family took it over, up until the time that Chris and
Rich purchased the property, it’s very apparent that that area was used for parking up there, but I
don’t know as if it ever was intended for parking, and I think that this will maybe clear that up, and
this is Mr. O’Connor speaking, “Can I ask a couple of questions, and I don’t have the authority for
one of the questions I’m going to ask, okay. Mr. Barton has agreed to stipulate that there be no more
than five trailers on the premises. If we present to the engineering firm a plan which shows that we
are going to, if you watch this area right here, okay, a boat trailer weighs about 300 pounds, okay.
Just for a reference point, which is not something that this Board has to get involved with
necessarily. If we show to the engineering firm, Mac, do we have a plan, where we will create four
spots which, in essence, will mean that the people will back their car up with the trailer and their
trailer will go up partially on to the septic area, with travel tops on that part, which would not, in any
way, inhibit the septic system from working or functioning to their satisfaction.” Then Mr. Martin,
who was at that meeting, this was Jim Martin at the time, “That would be a designated trailer parking
area only?” And Mr. O’Connor replies, “Only, yes.” Mr. Caimano then chimes in, “There will be no
arguing about the size of the trailers, only for trailers.” So, I think that, at that time there, I think it
was intended that that area was going to be used for parking trailers, but I think that somewhere
along the lines that possibly, you know, back when things changed hands, when Mr. Barton passed
away, that vehicles began to get parked up on there, and I think that, over the course of time, you
know, vehicles have been parked up on that area, but I think at that time, they spoke about
specifically, and you agreed at that time, I think that that area was supposed to be used for trailers
only. Later on, down here on the page here, it again says, Mr. O’Connor “We talked to Rist-Frost,
and they’ve talked about a volleyball court and doing other uses on top of this type of septic. The
boat trailer doesn’t weigh an awful lot more than a good sized lawn tractor. Mr. Cartier asks, “Let
me ask a question, John, the Septic Ordinance. I don’t know if you know this or not, the Septic
Ordinance, in order to allow parking over a septic system, don’t they have to get Town Board
approval?” And Mr. O’Connor replies, “A Town Board variance?”, and Mr. Goralski replies, “That’s
correct”. So, Miss Corpus then replies, “A sewer variance.” So I think that probably that area
originally was intended not to be parked on, but, you know, over the course of years, I think they’ve
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basically clarified that it has been used for quite some time. So I think that we have to keep that in
mind, when we make our decision about it.
MR. O'CONNOR-I think, Mr. Underwood, though, that has to do with the septic system that was
going to be installed in connection with the 1990/1991 approval. This septic system that they’re
operating with was approved, was installed some time prior to that. This is, all that took place in
1990, for whatever reasons, Paul Barton never enacted, and I don’t, you know, that was the
discussion. There used to be a reference in the old Septic Ordinance about parking, and that you
could park, if you had travel tops, on the round, whatever you call the round drywell type systems,
and I think that’s, I don’t know what I did in 1990, but my point is that whole thing wasn’t built.
The system that’s there is 1987. I think somebody has already circulated a copy of it. It’s further
back than where we’re talking about, but I don’t know if that affects your thinking.
MR. STONE-So where do you come out on that?
MR. UNDERWOOD-Well, if it’s not a problem with that Town, I think that, historically, they’ve
proven that the parking has been there for years and years. I think that it was probably intended to
be, you know, whether originally it was grass, paved, you know, I think the record now reflects that it
was graveled over, and I think I would be sitting on the fence as far as whether or not you should
continue to park on it. So on that point anyway. To get on to the other issues.
MR. O'CONNOR-Mr. Chairman, I don’t think there’s an issue of whether we continue to park on it.
MR. STONE-No, I understand that.
MR. O'CONNOR-The issue is whether or not we scrap up the gravel.
MR. UNDERWOOD-Right.
MR. O'CONNOR-Or the Number Two stone.
MR. STONE-Whether we make it permeable by Town definition.
MR. UNDERWOOD-Right.
MR. O'CONNOR-Yes, we take up the Number Two Stone or don’t take up the Number Two
Stone.
MR. UNDERWOOD-In regards to the concrete walkway that comes off the parking lot, I don’t
really have a problem with that. I think that, you know, it’s agreeable that that was impermeable
because you walked on all those other years, and by paving it over you haven’t changed the
permeability in that respect. As far as the tradeoffs with the patio in the front there, I think that
when you had your, someone had come in and spoken at the first meeting to the effect that that
patio was expanded during the time that the Barton family owned it, to a degree, and I think that’s
maybe where that discrepancy with the 280 and the 475 comes in, that maybe that is when that area
was expanded, and I think that when they did repave it last year, I think that they were intending to
just cover up what was already concrete. So I would agree on that point, that that area really hasn’t
been changed that much. The Item Four, the other one, is, on the patio expansion, the only point I
would make is I would have to agree with the previous two people that spoke that when you expand,
you know, when that was expanded, it did, in fact, you know, whether historically proven or
whatever, support the affidavit that it did, in fact, expand the usage out in the front of there to a
degree, but I think that since it has been there for such a long period of time, I think we have to
consider that also, the fact that, you know, it’s been used for that purpose, and perhaps, you know,
when you do go to site plan review for this whole project, at some point in time, you know, you can
buffer that with vegetation or something to take into account some of the non-permeability out
there, to soak up some of the runoff that comes off of there. The only other thing I was troubled
with was, initially, was the plans to do the big reclamation project out front, and I spoke to Chris
about it. Initially, back in January, I called DEC up to find out what was going on with that, and I
talked to Tom Hall up at DEC, and he said that when he pulled the record, he said he was a little bit,
he looked at it and he said, boy, he said, this is a little bit more than what we usually permit, and he
said that the person who had permitted this project up there at DEC was no longer with the DEC,
and I asked, well, what’s the usual amount of in-filling that’s allowed? He spoke to me and said that,
you know, usually, when someone wants to restore a waterfront that, to a degree, you know, maybe
three feet maximum out from shore is what they would grant. That would be reasonable, and he
said, well, maybe you ought to check with the Army Corps and see what they have to say. So I called
to the Army Corps in January to see if, indeed, any kind of permitting had been sent down to them,
which in fact it hadn’t at that time. They got back to me about a month later and said they had no
record at all of anybody asking for permission to do this. They had no pending or outstanding
projects on Glen Lake at that time, and I asked them at the same time, I said, well, would you allow,
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you know, the in-filling of the lake 14 feet out from the shore, and they said, well, in most cases
probably not to that great a degree, and I said, well, how much would you allow, and they said
probably a maximum of three to five feet from the shore, so I think that would have something to
do with the proposed amount of tradeoff, you know, for impermeable versus permeable, if we’re not
going to see that grand amount of land being out on the waterfront area there.
MR. O'CONNOR-For the purpose of your record, it was Ken Copenhagen, out of the Troy office
of the Army Corps of Engineers that we’ve had telephone conferences with. Deb Roberts has also
had, who is a wetland specialist, has also been communicating regularly with them, but it’s not
Copenhagen anymore. I don’t know who.
MR. UNDERWOOD-I think it’s Steve somebody.
MR. O'CONNOR-There’s a fellow by the name of Bruce that they’ve been dealing with. So I can’t
tell you that answer.
MR. STONE-Where do you stand on the Use Variance? I’m not sure you answered that.
MR. UNDERWOOD-I would have to agree that Chris Round’s determination that we have too
much impermeable area there is probably true, and the balance of that would be that I would support
what Chris has said.
MR. STONE-Al?
MR. BRYANT-Just to let you know, I didn’t call the DEC and I didn’t call the other group. Tonight
being the first night that I’ve heard the historical interpretation of this, the permeability of grass that’s
parked on, I had already come to the conclusion that, by definition, the grass that’s used for parking
on a regular basis should be considered impermeable. That being said, let me ask you a question, Mr.
O’Connor. Did you represent Mr. Barton in the ’90 applications?
MR. O'CONNOR-I did, after a time. He initially started represented, I think, by Mac Dean and
Morse Engineering only, and then I did, I, probably for at least a year, did represent him, and was
part of the final team that he obtained his variances.
MR. BRYANT-Well, that being the case, then this whole issue is your fault because had you put
impermeable on the parking area in 1990, we wouldn’t have this discussion tonight.
MR. O'CONNOR-I hate to tell you, they did the stormwater management, I do know this. They did
the stormwater management a long time before I got there. They did the first septic system a long
time before I got there, and then we totally re-did the septic system. That was one of the reasons I
got involved in it, in his proposed septic system. So, I agree with you. It was misinterpreted then.
MR. BRYANT-On the other issues, the swapping, there was some comment as to maybe a timetable
or that sort of thing. Honestly, I don’t think that that’s appropriate. I think that we should look at
what exists now. That being the case, then the expansion of the patios or walkways should have
required a variance. As to the dispute of Area C, the expansion of the patio, I think the Zoning
Administrator based his decision on what was actually on the Town record, the applications, based
on his historical dissertation here, the applications that he cited and so forth and so on, and I think
that’s what he based his decision in that regard. So I would have to side with him, that being the data
that’s available, in that regard. Basically, that’s it.
MR. O'CONNOR-I think I would differ in that he didn’t have the benefit of the testimony of actual
usage, and that’s what really distinguishes this from the time that the determination was made until
tonight. He had no way of quantifying the pre-existing use in the area that we’re talking about.
We’re basically still talking about surfacing. Nobody has said that they can’t serve dining if they want
to have a dirt area there.
MR. BRYANT-Well, I understand that, but, you know, this whole issue of permeability is a double
edged sword.
MR. O'CONNOR-I’m not arguing the permeability on that.
MR. BRYANT-Okay.
MR. O'CONNOR-I’m arguing the Use Variance issue, which I think is separate and distinct.
MR. BRYANT-Okay. I have no argument with that.
MR. STONE-Okay. Norm?
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MR. HIMES-Yes. Thank you. I’d like to preface my comments with something I’ve been wrestling
with, and that is I’m sitting here as if this were a variance application. I find myself drifting into that
groove, rather than the fact that it’s do we agree or disagree with something that the Zoning
Administrator did. So I’m going to try to balance this in my comments. Again, preliminarily, I do
wan to give some praise to the owners of this establishment because it’s certainly, as documented
from testimony, my own experience in driving by the palace, they’ve done a lot to make the place
attractive from an aesthetic as well as business standpoint. On the other hand, too, I have to praise
the Zoning Administrator’s, Chris Round’s action that he has taken. He’s being the watchdog for all
of us in the community, and that’s what we want and expect of him. I don’t think there’s anyone
here that would disagree with that. Even though we may have some disagreement with particular
content here. Now, in connection with the items involved, I’m looking at the Staff notes application
here, as opposed to the letter, the designation of Grass Parking Area A as impermeable, well,
certainly, at some time in history, it was permeable. If you go back 100 years, 50 years, 40 years, 20
years, wahtever it was, and then, little by little, maybe it became impermeable. Whether it’s parked
on, it’s dirt. I would tend to think that, if you’ve got grass, you’re probably not going to have an
awful lot of parking. Because an awful lot of parking is going to result in no grass, and if the
consequences of that is equivalent to something being non-permeable, a little crushed stone being
put on it and this and that and the other, I have some difficulty in saying there’s anything awfully
wrong with the status as it is now, in connection with that parking area. The concrete walks, some of
that has been excused, I guess. Some of the other, including, I guess, part around the patio, these
days, for safety reasons and so forth, probably we would want to have concrete sidewalks here and
there, rather than walking around in the mud or grass or what have you. So that doesn’t bother me
too much, the concrete walks and all. The patio expansion, from the standpoint of impermeability,
is, I don’t intend to say that it’s not important. I look more to that as the next item being the
expansion of use, a nonconforming use. The actual patio, I can remember in the 1960’s that people
used that area out there for picnicking and all, sitting and looking out at the lake and drinking a few
beers on a Sunday afternoon. Now, the expansion of a nonconforming use, that’s the part that I
have the most difficulty with, and I’m looking at one of the letters here from the State of New York
Department of Health, dated October 11, wherein it’s stated here, Paul Smith says on October 3,
th
2000, “On my October 3, 2000 visit, your Staff and I counted 54 seats inside and 98 seats outside,
for a total number of 152 seats”, and whether, you know, certain parts of it are closed down and
others aren’t may very well be the case. In fact, I don’t know, but sitting here on this side of the
equation and just looking at the facts, I have to say, well, I wonder about that. I find that a little hard
to pass over and say, there’s really no expansion. Now, so much for that, and that’s the extent of my
comments.
MR. STONE-Okay. Chuck?
MR. ABBATE-Thank you. I’m going to take a lead from Town Counsel, and she made it quite clear,
and I think she’s absolutely correct, that we’re here to discuss whether we approve or deny the
application. I have read, in the interest of time, listed all my fellows on the Board, as well as
testimony before this Board. I have reviewed Items One, Two, Three, and Four and Five and what
have you, and I’ve been scribbling some notes, and this is what I come down to. In following the
lead of the Zoning Administrator, I’m going to take a little less conservative position. Whenever two
opposing parties appear before any kind of a forum, whether it’s an arbitrator, judge, or a ZBA, the
finders of fact can, with any degree of fairness, find truth and fact in both arguments. In this case,
both the Zoning Administrator as well as the applicant. Mr. and Mrs. Mozal have, in my opinion,
made compelling arguments. In the interest of fairness, based upon sufficient substance in written
briefs as well as oral testimony by Counsel, Mr. and Mrs. Mozal’s position that Area Variances are
not required should be supported. It’s my opinion that the gavel should fall in favor of any party of
which there is an element of doubt. As such, I support the argument that Area Variances are not
required. However, there may be, and I emphasize the word, there may be support for the Zoning
Administrator’s position that a Use Variance may be required for Item Five, and I suspect that, and
am confident that, the time is probably right for review by other Boards and agencies. I conclude my
remarks, Mr. Chairman.
MR. STONE-Okay. Strangely enough, as I listen to what everybody’s said and look at my own
thoughts, which is the more important thing, I am more troubled by number one than I am by
number five. I would like to explore, I would like to have the opportunity, in a variance application,
to explore the permeability issue. As I read a very strict reading of 179-7, permeable is ground
surface through which water can percolate in a natural manner. It also says pavement is surface
material which could be compacted sand or gravel. Gravel, by our definition in the Town of
Queensbury, whether you like it or whether you don’t like it, gravel is impermeable, and I would like
the opportunity to explore a request to consider that. As far as the other three are concerned, the
patio situation, I have no problem with, certainly the 296 feet. That’s a given. The other concrete
walks, I think I would agree, as Mr. Abbate has said, there is conflicting information. It doesn’t
bother me, except as it enters in the overall permeability picture, which, as I say, I would like to
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explore. The fact that the patio may have been slightly expanded, I wish that permission had been
asked for it, but I don’t find it to be, if I’m wrong, did we get permission? I saw the applicant’s face.
MR. O'CONNOR-She asked if a building permit was necessary and was told, no.
MR. STONE-That’s right. Okay, and so it was built. The fact that there is an area to the east of the
deck which is, by all stretches of the imagination a permitted use, I’m sure people, on a nice summer
night, went out that way, walked out that way, took a chair with them, sat out there. I don’t really
have a problem, and certainly I’m one who says that Use Variances are very important, in terms of
the consideration. I don’t consider that this is a terrible expansion. It’s a business. It’s always been a
business where people have come for food and drink and enjoyment, and they use the whole
property, as long as they’re not impinging on other people’s property, they use the property. So I
would be inclined to agree with the Zoning Administrator on the first point, which includes the
whole discussion of permeability, but I would be inclined to disagree on the Use Variance, and say
that one is not required. Having said that, I would like to take the four points that we have, namely
as identified, and let’s see if we all agree on these things, is identified by Mr. Round in the Staff notes
back in January or back in February, designation of Grass Parking Area A as impermeable, 1,002
square foot of concrete walks, pads and patios to be off set by Area B, and if we’ve had some
differences, some agreements, let’s talk about it, factual dispute of area of patio expansion Area C,
and determination of expansion of a nonconforming use. I would like to vote, have motions on each
one of these individually. I’m told by Counsel we can do that. Okay. I would, now, as I looked at
the breakdown, there seemed to be more people in favor that there is no concern about the
permeability of the parking lot. Therefore, I would like a motion to disagree with the Zoning
Administrator on that, as a start. Let’s see where the vote goes. It’s a very simple motion.
MR. HIMES-All right, Mr. Chairman. I’d like to make a motion in connection with Appeal No. 1-
2001, appellant Richard and Christine Mozal, project location: Glen Lake Road. The particular item
involved is one of four, for this motion, pertains to designation of grass parking area “A” as
impermeable. This is being appealed, and the applicant feels that it should be designated as
permeable.
MR. STONE-It’s the other way around.
MR. HIMES-The other way around. Okay. The consensus here among.
MR. STONE-Well, the applicant is saying that there is no difference between what is there before,
when it was grass, and now that it’s graveled.
MR. HIMES-Okay. There was no change.
MR. STONE-That’s what the Zoning Administrator said, it was different.
MS. RADNER-Why don’t you start out with a new motion.
MR. STONE-Yes, we have to. We’ve got to get it straightened out. You’re right.
MR. MC NALLY-We’re being asked whether Mr. Round’s determination that this area was
permeable is correct.
MR. STONE-That is was permeable is correct.
MR. HAYES-And is not now, right?
MR. ABBATE-So the basic question, is the grass parking area considered, is it permeable, period.
Isn’t that the question? And if we agree that it is permeable, then we disagree with the Zoning
Administrator who’s for it.
MR. STONE-Right.
MR. ROUND-Whether you vote to disagree with the determination or not, and I think if you
disagree with the determination, you’re saying that there’s no action required.
MR. STONE-That no change has been made. It should not be in to the calculation.
MR. BROWN-I think Chris’ determination was that it was permeable. Now it’s impermeable, and
there’s a change, and if you agree with that, that’s fine. If you don’t, you accept their position.
MR. O'CONNOR-I think the bottom line, though, is that Chris’ determination is that the placing of
the stone on that area requires an Area Variance because he believes that changed the permeability of
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(Queensbury ZBA Meeting 4/25/01)
the site, and I think somebody made the point that probably in 1990, and maybe, if I was on board at
that time, we should have designated it as non-permeable then. So if the Board’s feeling is that that
area is non-permeable, and it hasn’t been changed, if you say it’s non-permeable, that ends the issue.
MR. STONE-Right. Let me ask a basic question. Did the putting gravel on, by Mr. Round’s
determination, did that make you go from meeting the Code to not meeting the Code?
MR. O'CONNOR-I don’t think it changed the condition of the area.
MR. STONE-No, what I’m saying was, were you at 35%, 65% permeability when it was grass?
MR. ROUND-That’s our, our decision was that, yes, it was an increase in permeable area. What I
think the consensus of the Board that it’s always been impermeable, and the addition of gravel did
not cause an increase in permeable area. Any increase in permeable area increases the
noncompliance. Because the site is already marginal.
MR. STONE-That’s what I’m getting at. It was non-compliant from permeability.
MR. O'CONNOR-This site, since zoning in ’67, probably has been in nonconformance.
MR. STONE-Okay.
MR. O'CONNOR-I don’t know what the permeability requirement was for the zone at that time, but
my point is, and I think we acknowledged we put the Number Two crushed stone on, that didn’t
change how the property, we think the upper 3760 square feet should be considered non-permeable.
MR. ABBATE-That’s the grass parking area.
MR. O'CONNOR-It’s designated Item One Grassed Parking Area.
MR. STONE-Grassed Parking Area.
MR. O'CONNOR-It’s not a grassed parking area.
MR. ABBATE-Well, that’s how they have it in quotes here.
MR. STONE-All right, but the motion should say that we do not agree with the determination that
the old grass parking area was permeable. That’s the motion on the floor.
MR. HIMES-Yes.
MR. STONE-Okay. Do I hear a second?
MR. BRYANT-I second it.
MR. STONE-Okay. A yes vote.
MR. ROUND-Is a vote against me.
MR. STONE-Is a vote against you.
MR. ROUND-How’s that?
MR. MC NALLY-Can I make a motion?
MR. STONE-Well, that’s simple enough. We’ve got one.
MR. HIMES-Yes, is supporting the motion.
MR. MC NALLY-All right. I sense some confusion. Maybe it’s in me. Tell me, again, what this
motion is.
MR. STONE-The motion is that we agree, no, we do not agree.
MR. MC NALLY-It’s whether the decision of the Zoning Administrator, that, not whether we agree
or disagree, just whether it’s correct.
MR. STONE-That the old, the area prior to the gravel was permeable.
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(Queensbury ZBA Meeting 4/25/01)
MR. HIMES-Okay.
MR. MC NALLY-And this is referring to Item One.
MR. ABBATE-Item One.
MR. STONE-And yes says that it was permeable, and no says it’s not permeable.
MR. ROUND-No, it’s the reverse of that.
MR. STONE-Am I still reversed?
MR. ROUND-Yes. I would say Bob should make a motion.
MR. STONE-Try it, Bob.
MR. BROWN-You may want to withdraw the motion you’ve already. You made a motion and
seconded it.
MR. STONE-It’s on the motion.
MR. HIMES-It’s on the motion.
MR. HAYES-Yes, but your answer was in reverse of that logic.
MR. BRYANT-Mr. Chairman, why don’t you just make a motion that you disagree with the Zoning
Administrator’s determination on Item Number One.
MR. STONE-You disagree with it, therefore, a yes vote disagrees.
MR. BRYANT-Disagrees.
MR. O'CONNOR-Counsel, I suggest to you on each of these they should have a reason. It
shouldn’t just be a simple, I agree or disagree. We disagree with the Zoning Administrator’s
determination as to Item One, because we believe the property was always non-permeable, or that
area was non-permeable, in the context of zoning.
MR. ABBATE-And placing stone does not change the permeability.
MR. O'CONNOR-Yes.
MR. ABBATE-Is that correct?
MR. O'CONNOR-Yes.
MR. ABBATE-Okay.
MR. HAYES-Is that necessary, because.
MS. RADNER-It’s a good practice.
MR. STONE-It’s a good practice. Okay. Bob, would you say the whole thing, now?
MR. MC NALLY-Historically, when it comes to these Administrator decisions, we don’t usually give
a rationale. We say yes or no, irrespective of what the merit is. We can do that again, but we’ve
never traditionally done that.
MR. STONE-The problem, when you put a reason, it may not make it easy for people to vote one
way or the other.
MATT STEVES
MR. STEVES-I don’t want to put words in the Board’s mouth, but my name is Matt Steves from
VanDusen & Steves, and what we’re looking for, to simplify it, is to state that the area that we
showed as parking, whether it was grass or dirt, when you put gravel over it, is still considered
parking, and parking, in the definition, is considered non-permeable. So that’s what we’re looking
for.
MR. STONE-You clarified it just as clear as I can throw mud on it.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-No, I hear you, but that’s not the point.
MR. ROUND-Let the Board deliberate.
MR. STONE-I would prefer not to put a reason, because I think then it may change, it may make it
hard for each Board member to say yes or no.
MR. BROWN-I think Mr. Bryant’s got the correct idea on the motions, and I think your rationale is
in the minutes, in the discussion. I don’t think you need to put it in the motion. It’s part of the
record, and to simplify it, you agree with Item Number One or disagree with Item Number One, and
take a vote on that.
MR. ABBATE-Right. That’s as simple as that.
MR. STONE-Okay. If we vote on the motion, yes is you disagree with the Zoning Administrator’s
position, on Item One.
MR. ABBATE-Item One, right.
MR. STONE-Okay. Did I get a second?
MR. ABBATE-Second.
MR. STONE-Okay.
MOTION THAT WE DISAGREE WITH THE ZONING ADMINISTRATOR’S
DETERMINATION ON ITEM ONE (RE: NOTICE OF APPEAL NO. 1-2001
RICHARD & CHRISTINE MOZAL), Introduced by Robert McNally who moved for its
adoption, seconded by Charles Abbate:
Duly adopted this 25 day of April, 2001, by the following vote:
th
AYES: Mr. Abbate, Mr. McNally, Mr. Hayes, Mr. Underwood, Mr. Bryant, Mr. Himes
NOES: Mr. Stone
ABSENT: Mr. McNulty
MR. ROUND-So, Item One, the grass parking area is considered permeable. You’ve ruled in favor
of the appellant.
MR. ABBATE-That’s correct.
MR. STONE-That area designated as the grass parking area.
MR. ROUND-I would just note that this applies to this case only. This is not an interpretation of
the Zoning Ordinance or its language.
MR. STONE-Absolutely.
MR. ABBATE-We understand, Chris. This is not setting precedence. This is only this case only.
MR. ROUND-Right.
MR. STONE-We are using the term grass parking area as a descriptive of this upper area, that has
been called, the so called, maybe that’s the word we need in there, so called grass parking area.
MR. MC NALLY-Our decision’s based on upon the particular facts of this particular parking lot, and
the nature of the permeability there.
MR. O'CONNOR-Of course.
MR. HAYES-And the historical record.
MR. MC NALLY-That’s it.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-Okay. Number Two is off the Board. Number Three is the installation of 1,002
square feet of concrete walks and pads and patios, which I understand is the path perpendicular to
the lake, going around to the deck?
MR. O'CONNOR-Yes.
MR. STONE-And, no, not part of the patio. It’s just that line going?
MR. ROUND-No, it’s inclusive of the patio.
MR. STONE-Inclusive of the patio.
MR. O'CONNOR-It includes that concrete walk of 235. It includes the area around the foot of the
shed, which is 216. It includes that concrete walkway which is 127.
MR. STONE-Okay.
MR. O'CONNOR-It includes that little strip by the edge of the deck, which I think is 43. It includes
the area that’s broken out to the east of the pre-existing patio, which is 186, and it includes 1,095 feet
of what we show of 473. It only gives us credit for 280 out of that 473.
MR. STONE-Okay. His, the Zoning Administrator’s determination, as I read it, the increase of
1,002 square feet, which is without the reclamation, as I understand it, of impermeable area
constitutes a net increase of the impermeable area of the site. In other words, this is another chance
to view the impermeability issue for the Board members.
MR. O'CONNOR-I made two arguments on this. I said that 235 feet of it was in pre-existing
walkway, which some Board members agreed with. I said you shouldn’t count the 127 walkway
going off to the east, and then I made the exchange swap.
MR. ABBATE-You also indicated that some of it was grandfathered, the Army Corps of Engineers.
MR. HAYES-No, that was the reclamation.
MR. STONE-That was the reclamation.
MR. O'CONNOR-The reclamation. Okay. There would be three issues. You’d take it just as it is,
in one piece, which I would ask you not to, if you have the patience, to bear with me, vote on the
two walkway portions and say that that does or doesn’t increase impermeability. Then vote on the
balance of that 1,000 feet, which gets you down to 700, or something like that. Does that increase
permeability or not, and then, thirdly, would you have recognized a credit today, in some manner, for
the reclamation. That’s all built in to that, well, the credit’s one of the big issues. The other issue is
we should be grandfathered for a portion of it.
MR. STONE-If you vote that this increase, without a number, constitutes a net increase to the
impermeable area of the site. That triggers an Area Variance. If we agree with him that, whatever
the number is, that there is an increase of impermeable area, without the reclamation, because that is
a nice thing to hope about, but we don’t have it.
MR. O'CONNOR-I agree with what you’ve said.
MR. STONE-Okay.
MR. HAYES-We can get into those definitions at that time.
MR. O'CONNOR-Well, I would like not to have to include in my application for the Area Variance
the 235, because it’s grandfathered. That’s not a condition you bring out in a variance application
that I shouldn’t be here because it was grandfathered.
MR. STONE-But you can argue that it does reduce the amount of relief that you’d need.
MR. O'CONNOR-Well, I think you could take the 235 out and you could take the 127 out and say
that you think that the rest is an increase in permeability.
MR. STONE-Okay.
MR. O'CONNOR-That seemed to be the consensus of everybody, that you acknowledged,
historically, there have always been those walkways/pathways there. Whether it’s paved or not is not
a big issue.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-Okay. Does anybody have a problem with that? I mean, it’s an increase of about 700,
give or take. Is that the number?
MR. BRYANT-I’m not understanding the purpose of this exercise, because, in reality, we’re talking
about a percentage, and even though this walkway was grandfathered in before, you know, it’s still
part of that percentage. It’s still impermeable. So, whether we accept that this is an expansion or,
I’m not understanding.
MR. O'CONNOR-I don’t know if when I come back with an application for a variance for the
impermeability, whether Staff is going to say, wait a minute, if I figure out that it’s 52% instead of
54%, and I don’t include that walkway as an increase in non-permeable area, am I going to get an
argument? My point is, I shouldn’t have to include that, when I make my calculation. I agree with
you that it’s a matter of percentage, and I probably also would acknowledge to you that maybe
another error that appears to have been made in 1990 is somebody didn’t really look at those
walkways and say, they should have been grandfathered, too.
MR. STONE-Let me, Chris, let me turn to you for a second, if I may. These are your numbers. Do
you have a number, on the basis of what he’s saying, would you admit, or agree that some is
grandfathered, or not?
MR. ROUND-What our position has been is there’s a 280 square foot patio, and all other increases
in the patio area are not grandfathered, but I don’t know that you’re going to resolve this one tonight
because the math is moving around. You guys have got a map in front of you that I haven’t seen. I
don’t want to start adding numbers up again.
MR. O'CONNOR-On your map you show a walk coming perpendicular off the driveway.
MR. ROUND-Yes. You show a 235 square foot, this is your map, a 235 square foot walk. I sense
the consensus of the Board, that’s not an increase.
MR. O'CONNOR-Okay.
MR. ROUND-Okay, and the remainder, I don’t know that there’s any consensus.
MR. STONE-Okay. I think what we’re going to do is we’re going to vote yes or no on Item Three.
MR. O'CONNOR-I also heard that there was a consensus that the 127 was not an increase. I’d like
those two items excluded. They may be able to get out (lost words).
MR. ABBATE-Mr. Chairman, let me make the statement. On Item Three, we should vote yes or no,
period.
MR. STONE-That’s what I just said.
MR. ABBATE-Excuse me.
MR. STONE-Let’s vote, then you can argue when you get a variance, if the vote goes that we agree
with the Zoning Administrator on Number Three. I would like a motion, I think, well, who wants to
make a motion?
MOTION WE AFFIRM MR. ROUND’S DECISION WITH RESPECT TO ITEM
THREE REFERRED TO IN HIS LETTER OF JANUARY 17, 2001 (RE: NOTICE OF
APPEAL NO. 1-2001 RICHARD & CHRISTINE MOZAL), Introduced by Robert McNally
who moved for its adoption, seconded by Paul Hayes:
Duly adopted this 25 day of April, 2001, by the following vote:
th
MR. STONE-Okay. A yes vote, this time, is in favor of Mr. Round’s determination. A no vote is
not in favor. Everybody understand that?
AYES: Mr. Hayes, Mr. Underwood, Mr. Bryant, Mr. Himes, Mr. Abbate, Mr. McNally,
Mr. Stone
NOES: NONE
ABSENT: Mr. McNulty
MR. STONE-Okay. That one’s off the table now.
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(Queensbury ZBA Meeting 4/25/01)
MR. MC NALLY-The next one, do we agree that it’s 280 feet.
MR. STONE-Yes. This is the one, I don’t understand it, quite frankly, this one.
MR. HAYES-Isn’t that going to be by definition now embodied in an Area Variance application,
since, I mean, by definition it has to be because the amount of increase in impermeable is going to
increase the percentage. That’s actually a moot point at this moment, I think.
MR. O'CONNOR-I really don’t think so.
MR. ROUND-Well, Item Four is tied to Item Five, and I think that’s what’s going to have some.
MR. O'CONNOR-If you tell me that the 473 is grandfathered, which we have submitted an affidavit
and proof of, that may end the issue on the patio.
MR. HAYES-You mean as far as the removal of the balance, is that what you’re saying?
MR. O'CONNOR-We may cut the patio down to 473, and that leaves us a fall back position. I
mean, I don’t know what else you’re telling us. I think everybody has agreed we can serve people out
on the lawn, but we can’t do it on a concrete patio, or you might not. I don’t want to go down the
road of a Use Variance. The expense to the applicant of doing that, and the risk factors are just
unbelievable.
MR. HAYES-I guess what I’m saying, Mr. O’Connor, is that whether we determine that was properly
280 or 473, there’s still going to be an entire Area Variance application that has to deal with the
balance, whatever we determine that it is.
MR. O'CONNOR-That portion is correct, but I think a separate issue here is what is grandfathered.
That really doesn’t fall into the permeability issue.
MR. STONE-That’s correct.
MR. O'CONNOR-The issue here is what is the Board going to deem grandfathered? Does the
Board agree that you will rely solely upon the Assessor’s record of 280 or will you accept the proof
that has been submitted that it was at least 473 feet? And that’s separate from the permeability issue.
MR. ROUND-That’s the crux of the issue.
MR. STONE-That’s the crux, and this is a very separate issue.
MR. ROUND-So once you do that, that’s going to affect.
MR. O'CONNOR-That affects everything else we do.
MR. ROUND-It’s going to affect the Area Variance request and whether there’s a Use Variance and
the extent of the Use Variance.
MR. STONE-All right. What we have on the Board, it seems to me, and we can work on a motion,
that we either say that it’s 473, we accept 473, the applicant’s number or we accept the 280, Chris’
number. I think that’s the simple.
MR. BRYANT-May I ask a question? The information that you submitted tonight, the affidavit
from the contractor, Mr. Round, did you see that prior to this?
MR. ROUND-Yes, I did. I don’t have the timeline in front of me. I don’t know if that was after our
original determination or not. I guess I would contend, though, I rely on the 280 square feet,
regardless of whether the contractor poured over an existing patio or not, the permitted and the
recorded, the documented patio is 280 square feet. I could give you an affidavit today I poured over
a 10,000 square foot patio, but that doesn’t make a pre-existing, nonconforming use.
MR. O'CONNOR-You also had testimony on the record, though, that there was only one change to
the patio, from the time the patio first was started.
MR. STONE-No, I understand.
MR. O'CONNOR-So that’s a little different than Chris’ understanding of the intent of that affidavit,
and the affidavit, I think crossed after his determination.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-Okay, but based upon the testimony or the information that we’ve received, we have
to either say it’s 473 or 280. We’ll give you one number.
MR. O'CONNOR-I think that’ll clarify where we’ve got to go, yes, greatly.
MR. STONE-Yes, I understand. Okay. I would like a motion to accept 473 as the grandfathered
size of the patio. If we accept that, then if we get a yes vote on that, it’s 473. If we get a no vote on
that, it’s 280. I think that’s about as simple as we can be.
MR. ABBATE-Mr. Chairman, I’ll take the motion.
MOTION THAT WE ACCEPT THE APPLICANT’S POSITION THAT 473 SQUARE
FOOT IS ACCURATE AS SUBSTANTIATED BY DOCUMENTS, AND THAT WE
DISAPPROVE THE ZONING ADMINISTRATOR’S POSITION (RE: NOTICE OF
APPEAL NO. 1-2001 RICHARD & CHRISTINE MOZAL), Introduced by Charles Abbate
who moved for its adoption, seconded by Paul Hayes:
Duly adopted this 25 day of April, 2001, by the following vote:
th
MR. STONE-Okay. So a yes vote is 473, a no vote is 280, bottom line.
AYES: Mr. Hayes, Mr. Himes, Mr. Abbate, Mr. McNally, Mr. Stone
NOES: Mr. Underwood, Mr. Bryant
ABSENT: Mr. McNulty
MR. STONE-Okay. So it’s 473. That’s the grandfathered amount. We can discuss the other,
however you want to do it. Okay. The fourth thing, or the fifth thing on the list, is the
determination that increases in patio size, that’s to the current of whatever that number is. What
does it come out to be?
MR. MC NALLY-This is a decision that whatever the increase was was an expansion of a
nonconforming use.
MR. STONE-Nonconforming use, that is correct, but we need to know what that number is.
MR. O'CONNOR-There are three components to that number. It’s the concrete walk area behind
where they sit to eat, 127 feet, and the strip that’s along by the edge of the deck, 43 feet, and the area
east of the patio, 186 feet. So you’re talking.
MR. STONE-Three hundred and thirty-six, three fifty-six.
MR. ROUND-Can I see a copy of your drawing? I just would like to confirm that.
MR. O'CONNOR-You’re talking a total of 356 square feet, which includes 127 feet of what’s used as
walk area.
MR. BRYANT-I don’t know that the numbers are important.
MR. ABBATE-I don’t think they’re important, either.
MR. BRYANT-Because we’re really talking about any increase.
MR. ROUND-Beyond the 473 is an increase.
MR. STONE-Well, that’s correct, any increase beyond 473, but it is, in fact, 356.
MR. MC NALLY-Well, no, I calculated it two different ways, depending on which numbers you
choose for this patio and combination.
MR. STONE-What did you get?
MR. MC NALLY-It seems to me we should just make it as simple as possible, and we’ve established
what the existing use is, or area of patio is.
MR. HAYES-The grandfathered portion.
MR. STONE-The grandfathered portion.
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(Queensbury ZBA Meeting 4/25/01)
MR. O'CONNOR-My argument, I think, in the section that you’re referring to, says that if you
expand a facility of a nonconforming property, you have to go by site plan review. I don’t think that
that says that all expansion of facilities in the Ordinance require a variance.
MR. HAYES-Use Variance.
MR. ABBATE-Use Variance.
MR. O'CONNOR-And that’s the world of difference, and I think the size of what you’re talking
about is dramatic. I don’t think you’re telling everybody in business in Town that if you put down a
new sidewalk or you do something like that, and you’re a nonconforming use, you’ve got to come in
here and get a variance, a Use Variance. I think the size that we’re talking about, and that’s why I’m
trying to specify, you’re talking about the walkway across the back of the area. You’re talking about
the pad that’s on the east side of that existing, pre-existing patio, and you’re talking about the foot.
The foot’s going to come off. That’s going to be a drip edge. I mean, that’s, you tell us what you
want with that, but that can come off. That’s not used for service of people.
MS. RADNER-We’re not supposed to be getting into argument now. The Board is supposed to be
making a motion.
MR. STONE-I’ve got, the item that we’re voting on is, it is still my position that an increase in the
physical area dedicated to the conduct of the primary, nonconforming business on the site
constitutes an expansion of a nonconforming use, requiring a Use Variance. I move that we affirm
that statement. That’s the only statement that’s on the table here.
MR. O'CONNOR-That’s contrary to the way you gave your dissertation. You were against the Area
Variance.
MR. STONE-That’s the motion I’m proposing. You’re absolutely right. I shouldn’t have said I
move, but that’s what I suggest is what we’re trying to do here. Because that was the consensus I
had, the consensus of the Board, and I would like to see that motion, because that’s the issue on the
table.
MR. ABBATE-I have one question before we move it, Mr. Chairman. Chris, help me out, would
you please? An increase in the physical area dedicated to the conduct of the primary nonconforming
business on the site constitutes an expansion of a nonconforming use, requiring a Use Variance.
Any amount of expansion? Okay. You answered my question. Thank you. I just wanted to make
sure. Thank you.
MR. HAYES-So, by definition that’s going to be, by the determination we just made, that’s going to
be anything that’s above the 473?
MR. ROUND-Exactly.
MR. ABBATE-Right. Okay. I just wanted to clear it up.
MR. STONE-The only reason I had that number was just so we know what we’re talking about, but
any expansion.
MR. O'CONNOR-Even the walkway, if it’s not used for dining?
MR. STONE-But there is an expansion. It’s his position that an increase.
MR. O'CONNOR-Okay, but increase of what? Increase of dining, outside dining area, patio?
MR. STONE-The physical area dedicated to the conduct of the primary.
MR. O'CONNOR-Okay. If I come back with another appeal, I’m talking about, is it an increase of
the dining patio that triggers it, or if you put a walkway on the property, that triggers it?
MR. ROUND-But your walkway, you said these lines, there’s no physical line in the field. You can’t
see four different, you, yourself, have shifted the lines on the patio area. So if you’re going to say,
well, this portion of the patio is designed for walking. That’s going to cloud the issue.
MR. ABBATE-No, you’re right.
MR. O'CONNOR-We can paint a line. We can cut a two inch trench.
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(Queensbury ZBA Meeting 4/25/01)
MS. RADNER-We’re not in argument. We’re at the point of a motion.
MR. STONE-I know.
MR. ABBATE-Wait a second. We have one issue before us. Is the Zoning Administrator’s position
that an increase in the physical area dedicated to the conduct, etc., etc., a nonconforming use require
a Use Variance, period. That’s the only issue before us. Either we support him or we don’t.
MR. STONE-Okay. Do you make a motion to that effect?
MR. ABBATE-Yes, I do. Mr. Chairman, I move that we support the Zoning Administrator’s
position that an increase in the physical area dedicated to the conduct of the primary nonconforming
business on the site constitutes an expansion of a nonconforming use, requiring a Use Variance.
MR. STONE-Okay. Everybody understand that motion?
MR. HAYES-The only question I have with that motion is, by the way that reads, we’re determining
that the expansion of say this walkway is an expansion of the nonconforming, an expansion of the
business there. Do you see what I’m saying?
MR. STONE-It’s still triggered by this, regardless of whether that’s there or not.
MR. O'CONNOR-That’s the distinction. Mr. Chairman, I’d ask you if I could address that?
MR. STONE-Let me just say the answer to the question of my Board member here, is the fact that
any expansion, and we already have an acknowledged expansion, triggers that Use Variance,
forgetting whether it’s 500 square feet or 300 square feet.
MR. O'CONNOR-I’m not seeing what you’re pointing to, but we’ve kind of indicated, I think, that
we thought that the 235 foot walkway that’s on the left hand side of the property is not an expansion
of business.
MR. STONE-And we’re not saying, this motion.
MR. HAYES-It does by effect.
MR. MC NALLY-Yes, effectively it does.
MR. STONE-We didn’t make that decision.
MR. ROUND-I didn’t say the construction of a 235 square foot concrete walk on the west side of
the building is an expansion of the nonconforming use. I didn’t make that determination. I said the
addition to the patio. Mr. O’Connor’s trying to say, well, the patio’s actually, part of that is a
walkway. I’m not going to buy that.
MR. MC NALLY-He’s concerned. He wants to make sure the decision is right, and reflects what
we’re want.
MR. ROUND-I think 473 feet, you guys have ruled on that. Regardless of whether you call it, you’re
going to start splitting hairs on that, and I appreciate the position, because that’s going to require,
well, how much do I have to shrink it or grow it, etc., but I think you’ve ruled on a fact, and now the
next one.
MR. STONE-I don’t think this is not clear. It is an expansion, it is Item Number Five we’re talking
about.
MR. MC NALLY-But I think what we’re trying to say is that if you expand the patio beyond 473
square feet, then that’s an expansion of a nonconforming use, and Item Five says that determination
that increases in patio size. So our motion should reflect the Administrator’s decision that an
expansion of the patio, not anything else, is going to result in the need for a Use Variance. Okay.
MR. ABBATE-I think Bob has a point.
MR. STONE-It’s correct. I understand what you’re saying, but I think it goes beyond what he said.
MR. HAYES-No, his thing says the patio.
MR. ROUND-No, that’s accurate with what my determination was, the expansion of the patio, a
nonconforming use.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-The patio, okay, but you didn’t repeat that down below. That’s what I’m getting at.
MR. HAYES-He did in Item Five, though.
MR. STONE-No, he didn’t.
MR. ABBATE-Well, he did. It depends on how you want to read it.
MR. STONE-Down here he didn’t.
MR. HAYES-Determination that increases in.
MR. STONE-That, yes, I know, but then we have.
MR. ABBATE-An expansion of the patio.
MR. MC NALLY-But that’s what we’re saying.
MR. ABBATE-Right.
MR. MC NALLY-So even if he didn’t make it clear in the second part, he makes it clear.
MR. STONE-Okay, make the motion, combine the heading and the fact that it requires a Use
Variance. Get those two thoughts in.
MOTION THAT WE AFFIRM THE ZONING ADMINISTRATOR’S
DETERMINATION THAT INCREASES IN PATIO SIZE REPRESENTS AN
EXPANSION OF A NON-CONFORMING USE REQUIRING A USE VARIANCE. SO
WE’RE SAYING (ZONING ADMINISTRATOR) WAS RIGHT ON ITEM NUMBER
FIVE (RE: NOTICE OF APPEAL NO. 1-2001 RICHARD & CHRISTINE MOZAL),
Introduced by Robert McNally who moved for its adoption, seconded by Charles Abbate:
Duly adopted this 25 day of April, 2001, by the following vote:
th
AYES: Mr. Abbate, Mr. McNally, Mr. Hayes, Mr. Underwood, Mr. Bryant, Mr. Himes
NOES: Mr. Stone
ABSENT: Mr. McNulty
MR. STONE-Okay.
MR. MC NALLY-Are we done?
MR. STONE-We’re done.
MR. O'CONNOR-Now, can I ask you how you define a patio?
MR. STONE-It says concrete patio.
MR. O'CONNOR-I will write Mr. Round a letter.
MR. ABBATE-That’s a subject for another, not for this meeting.
MR. O'CONNOR-That’s what I was trying to get you to define tonight. I mean, we cut eight inch
separation so it’s not a service area. Are we out of there?
MR. ABBATE-Well, the door’s not closed to you.
MR. O'CONNOR-We’re trying to close it. I don’t want to come back. I don’t want to have the
same presentation.
MR. STONE-Okay. So we would expect to see, at a minimum, I suspect, an Area Variance on
permeability, I suspect, in the future. Is that correct? Obviously, I don’t want to put you on the
spot.
MR. O'CONNOR-I don’t think so. I don’t think so.
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(Queensbury ZBA Meeting 4/25/01)
MR. STONE-Okay. I move we adjourned, gentlemen.
MR. ABBATE-I second that motion.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Lewis Stone, Chairman
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