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2002-12-18 (Queensbury ZBA Meeting 12/18/02) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING DECEMBER 18, 2002 7:00 P.M. MEMBERS PRESENT PAUL HAYES, ACTING CHAIRMAN CHARLES MC NULTY, SECRETARY NORMAN HIMES CHARLES ABBATE ROY URRICO JOYCE HUNT, ALTERNATE JAMES UNDERWOOD, ALTERNATE MEMBERS ABSENT LEWIS STONE ALLAN BRYANT ZONING ADMINISTRATOR-CRAIG BROWN TOWN COUNSEL-MILLER, MANNIX, SCHACHNER & HAFNER-CATHI RADNER STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 97-2002 TYPE II JEFFREY & REBA A. JOHNSON PROPERTY OWNER: SAME AS ABOVE ZONE: LI LOCATION: 19 EAST DRIVE APPLICANT PROPOSES PLACEMENT OF A 14 FT. BY 76 FT. MOBILE HOME AND CONSTRUCTION OF A 24 FT. BY 24 FT. GARAGE ON A PARCEL OUTSIDE OF A MOBILE HOME OVERLAY DISTRICT. RELIEF REQUESTED FROM THE SETBACK REQUIREMENTS. CROSS REF. TOWN BOARD RES. 461-2002 REVOCABLE MH PERMIT TAX MAP NO. 308.12-1-23, 22 LOT SIZE: 0.15 ACRES SECTION 179-4-030 JEFFREY & REBA JOHNSON, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 97-2002, Jeffrey & Reba A. Johnson, Meeting Date: December 18, 2002 “Project Location: 19 East Drive Description of Proposed Project: Applicant proposes placement of a 14-foot by 76-foot mobile home, and construction of a 24-foot by 24-foot garage on a parcel outside of a Mobile Home Overlay District. Relief Required: Applicant requests 24.5 feet of relief from the 50-foot minimum front setback requirement, 8 feet of relief from the 30-foot minimum rear setback requirement, and 10 feet and 8 feet of relief from the 30-foot minimum side setback requirements of the LI Zone, § 179-4-030. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to relocate their mobile home to their new parcel of land. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: The relief may be interpreted as substantial relative to the Ordinance, being relief is being requested for all four sides (24.5 feet of relief from the 50-foot minimum front setback requirement (49%), 8 feet of relief from the 30-foot minimum rear setback requirement (26.7%), 10 and 8 feet of relief from the 30-foot minimum side setback requirement (26.7 and 3.33% respectively). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the size of the pre-existing, nonconforming lot and the greater setback requirements of the LI Zone compared with most residential zones. Parcel History (construction/site plan/variance, etc.): BP 2002-923: pending, construction of a 576 sq. ft. garage. Town Board Resolution No. 461-2002: 11/18/02, revocable “Mobile Home Outside a Mobile Home Court” permit to move their existing mobile home to their property located at 19 East Drive, Queensbury. 10/11/02: consolidation of tax map parcels 308.12-1-22 and 308.12-1-23. UV 109-1996: denied 11/21/96, placement of a mobile home in an LI-1A Zone and not within a Mobile Home Overlay Zone for lots 22 and 23 (for Robert J. and Mary E. Wood). BP 91620: 08/27/91, demolition of single family dwelling (lot 22). Staff comments: Minimal impacts may be anticipated as a result of this action. The applicant claims they tried to purchase tax map parcel 308.12-1-21 to consolidate with Lots 22 and 23, which would have allowed them to place their mobile home and a garage without the need for any setback relief. The applicants claim they were not able to purchase Lot 21 because of a lien on the parcel. Even though the amount of relief is substantial relative to the Ordinance, the applicants have made a good attempt to even out the setbacks on all sides in their proposed placement of the mobile home and garage on the consolidated lots. 1 (Queensbury ZBA Meeting 12/18/02) The amount of relief sought would be minimal or not needed in most residential zones. Additionally, the parcel is across the street from a large mobile home park. SEQR Status: Type II” MR. MC NULTY-No County. MR. HAYES-Thank you. Mr. and Mrs. Johnson. Good evening. MRS. JOHNSON-Good evening. MR. HAYES-Is there anything you’d like to add to the application? MRS. JOHNSON-Well, it wasn’t just the lien that was the problem with the other lot that we purchased. This was in an estate, and what happened was I guess the estate ended up in a lot of debt. So, in all my efforts, I found out that the lien that is against it outweighs the amount which we could possibly get for the land. It’s sad, but I got a hold of the IRS and I know that, and we had to finally, after not being able to get it, have our attorney send a letter to the estate’s attorney to get our money back because we have $500 we put on it in July, and we hadn’t closed as of November, because the estate wouldn’t follow through and correct the liens and give us a warranty deed. So we did get our deposit back. MR. HAYES-Okay. So that leaves you with just the one lot, then, essentially? MRS. JOHNSON-With the two lots that we did consolidate with Warren County, yes, we did. MR. HAYES-Okay. MRS. JOHNSON-And it’s unfortunate. We wanted the three. MR. HAYES-Do we know that that’s been formally consolidated? I mean, have they provided proof of that? MR. BROWN-I haven’t seen any proof of it, but I have seen the consolidation request. MR. HAYES-Okay. Is there anything else you’d like to add to your application? MRS. JOHNSON-Well, except for my husband and I, when we did design everything, we placed everything as I think you have a copy of. We didn’t want our garage in front of our home. We wanted it beside, which having the three lots would have given us. So the reason we did it was not to ask for a lot of setback, you know, other than what was required by the Town. So we situated everything that took the least amount of setbacks, and that’s we did, even though it wasn’t exactly what we wanted. MR. HAYES-But you said your trailer is currently in a mobile home park right now? MRS. JOHNSON-It’s in the Northwinds Mobile Home Park, yes. MR. HAYES-Thank you. MRS. JOHNSON-And I moved back here two years ago and I purchased it. I own it. I own it. I’m not buying it. MR. HAYES-The trailer? MRS. JOHNSON-Yes, I own it. MR. HAYES-Okay. Are there any other questions for the applicant at this time? Having no questions, I’ll open the public hearing. Is there anyone here that wishes to speak in favor of the application? Anyone opposed? Any correspondence? PUBLIC HEARING OPENED MR. MC NULTY-Yes. We have one piece of correspondence. It’s from a Richard Barry, who says he, it says “The property located at 19 East Drive, Tax Map No.: 308.12-1-23, 22 is not zoned for mobile homes. I purchased my house at 23 East Drive in 1990. Since then, I purchased land at West Drive, Lot #93-3-3.2 & East Drive, Lot #93-3-2 knowing this land was not zoned for mobile homes. I oppose this variance! Richard Barry” MR. HAYES-Thank you. Is that it? MR. MC NULTY-That’s it. MR. HAYES-I’ll therefore close the public hearing and poll the Board. 2 (Queensbury ZBA Meeting 12/18/02) PUBLIC HEARING CLOSED MR. HAYES-I guess tonight we’ll start with Roy. MR. URRICO-I guess I do have a question for the Staff. Is that letter correct? Is it not zoned for mobile homes? MR. HAYES-Right. They got a Special Use Permit, essentially, right? MR. URRICO-That’s what the revocation was? That’s what the Town ruling was? MR. BROWN-In 1990. Is that what it said, in 1990 he was ruled that? MR. URRICO-This resolution by the Town, that’s what allowed them to place the mobile home outside of a mobile home. MR. BROWN-Allowed them to place the home outside the mobile home park. Right. MR. URRICO-Okay. MR. HAYES-It’s a revocable permit, essentially. MR. BROWN-That’s right. MR. URRICO-Okay. In that case, I really don’t have a problem with this application, and, based on the criteria that we’re asked to examine, I believe it would be a benefit to the applicant. I think they’ve examined feasible alternatives, and this is the only feasible alternative they have. As far as the relief substantial to the Ordinance, it is substantial, but given where the location of this home would be, I don’t think it would be a real burden to have it that close to the road. I don’t think there would be an effect on the neighborhood or community, and I believe this pre-existing, nonconforming lot creates the problem. So, therefore, I would be in favor of it. MR. HAYES-Thank you. Chuck? MR. ABBATE-I tend to agree with my fellow Board member. You folks, in my opinion, are acting in good faith. In looking for a place to live, you don’t want any problems with anyone else. The Town has seen fit to grant a resolution authorizing a revocable permit to locate your mobile home there. Who am I to say no. So, you know, I support your application. MR. HAYES-Okay. Jim? MR. UNDERWOOD-Yes. I basically would be in agreement, too. I think you went to the effort to try and consolidate to three lots, which says you’re trying to make good on it, and I think that, too, you know, you’re in a bit of a transitional zone there. So a mix of housing and trailers is fine with me. MR. HAYES-Thank you. Norm? MR. HIMES-Yes. Thank you. I feel pretty much the same. There is something I wonder about, two things I want to confirm. You already own that 74, 76 foot long trailer? MRS. JOHNSON-14 by 76 home. MR. HIMES-Okay. You already own that? MRS. JOHNSON-I own it, yes. MR. HIMES-Okay. All right. I was going to say it could be something a little smaller in length, but since you own it already, all right. The other thing that I, two things. First is that lot that’s kind of tied up with the estate, we’re probably going to be faced with dealing with that at some point here, and I wish, and it’s a small lot, and I don’t know if it’s contiguous to a, estate owns other land right next to it, and I’m just wondering whether you know the status of the estate matter. It would seem, for all involved, to be advantageous to have you be able to acquire that lot, I mean, to the estate, the creditors, whatever it is. They may find that it’s a better solution to their financial objectives than anything else that might come along. MRS. JOHNSON-I agree. 3 (Queensbury ZBA Meeting 12/18/02) MR. HIMES-So I’d like to pose, it’s important here, I think, again, for future problems, as well as enable you to do this, really, without any variances, according to the Staff notes. So I would kind of like to know a little more about the disposition of the estate matter and why something couldn’t be done? MRS. JOHNSON-All right. Could I add something here? MR. HIMES-Sure. MRS. JOHNSON-I will tell you I’m quite concerned now because we now see that this estate who, the children, and because I’ve been a real estate agent, I’m aware of what trails a piece of property, and one of the heirs of the estate is now being foreclosed upon. So my fear is that, not only is there leans on it so great now, I think it’s going to get greater in the hands that it’s in right now. So, if we were not able to acquire it and be able to get the substantial amount of money that’s owed against it, how would anyone else be able to? MR. HIMES-Well, I mean, in terms of the estate filing. There’s going to be some conclusion to it all. I was just wondering, of course they can go on for a very long time, but. MRS. JOHNSON-There’s no way we can get it. MR. HIMES-There might be some provision in there where you might be given first shot at it or something, and the other, I’ll let that go now. I just wish it was something that could be done, and at this point I’ll hold t that thinking in abeyance, and the other thing that I have as a problem here is that what happened in 1996, where it’s just the exact the same circumstance, it appears, and I don’t mean to put Staff on the spot asking if they know the history of that, because it goes back a ways, but it was the same two lots, and I don’t know about the size of the trailer, but it seems pretty much the same, and yet that one was denied a Use Variance. So you evidently didn’t have any Town permit, like this one does. That may be a significant difference, but I look at it from the standpoint of I hear you saying, well, as much as I’d like to do so, why should we say yes, now, when there was a no said to almost the exact kind of application just a few years ago? And I don’t have the notes of that, but you wouldn’t just offhand, you guys have looked at that at all, that declination back there? Do you have any comment at all on that, Craig? MR. BROWN-The 1996 Use Variance, is that what you’re asking about? I wasn’t here at that point. I did not look into it. I think the difference between then and now is our Zoning Ordinance which was adopted this year in April of this year, which puts mobile homes allowable in a Light Industrial zone if they’re in a Mobile Home Overlay District, and what I decided is, since it’s in the Light Industrial zone, but outside the District, the Town Board needs to review it and issue that permit. So I think that’s going to be the difference between the old Ordinance when it was denied in 1996, and the new Ordinance, that allows mobile homes. MR. HIMES-So we’d be creating overlay just for this one lot. Is that what’s happening? MR. BROWN-Effectively, yes. MR. HAYES-There’s two different tests between a Use Variance, that was a Use Variance test, essentially, that was applied. MR. BROWN-Right. MR. HIMES-Yes. MR. HAYES-The special permit is essentially, I don’t want to say it as a Use Variance, but it has the same effect. MR. BROWN-Similar. MR. HAYES-Yes. MR. HIMES-All that notwithstanding, I think I would tend to be in favor of the application for the reasons given by the fellow Board members. Thank you. MR. HAYES-Thank you. Chuck? MR. MC NULTY-Okay. I’ll basically agree with what’s been said before. My first reaction is, boy, that’s a lot of relief, but when we looked at it and realize that it’s essentially a residential area, even though it’s zoned Light Industrial, and with it being adjacent to the existing trailer park, which is also a residential area, it seems like a reasonable request. I think the applicant has made best effort to avoid having to come in for a Use Variance, or for an Area Variance, and they’ve done the best they can in compromise, and as Staff pointed out, it’s likely that if this were a regular residential area, there might not be any variance, needed, or it would be a minimal one if it was needed. It seems like a reasonable proposal, and I’d be in favor. 4 (Queensbury ZBA Meeting 12/18/02) MR. HAYES-Thank you. Joyce? MR. HUNT-I agree with the other Board members. I don’t see any reason not to grant it, for the reasons that have been mentioned before. MR. HAYES-Okay. Thank you. Well, I essentially agree with the rest of the Board members. I certainly don’t think I would vote for it if it was a Use Variance, but you’ve applied with the Town Board, or are elected officials, and they’ve, in their wisdom, decided to give you a revocable permit and to me that only moves us on to an Area Variance test, which is the benefit to you versus the detriment to the neighborhood. I’m not really sure, as my other Board members have pointed out, that there’s any real detriment to the neighborhood that I can foresee. It’s near a mobile home park. It certainly, as other Board members have pointed out, is a transitional area. The fact that you have done, made a good faith effort to acquire the land to eliminate the need for a variance in the first place, and you’ve established good reasons why that wasn’t possible, to me, all weigh in your favor. There certainly is very limited feasible alternatives, based on the fact that this is a pre-existing lot, and you own the trailer. I mean, there’s no way to shorten that. So I’d say on balance I’m in favor of the application. MRS. JOHNSON-Thank you. MR. HAYES-Having said that, is there a motion? MR. ABBATE-All right. I’ll take it. MOTION TO APPROVE AREA VARIANCE NO. 97-2002 JEFFREY J. & REBA A. JOHNSON, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 19 East Drive. Mr. and Mrs. Johnson are proposing a placement of a 14 foot by 76 foot mobile home and construction of a 24 foot by 24 foot garage on a parcel outside of a Mobile Home Overlay District. The applicants are requesting 24.5 feet of relief from the 50 foot minimum front setback requirement, 8 feet of relief from the 30 foot minimum rear setback requirement, and 10 and 8 feet of relief from the 30 foot minimum side setback requirements of the Light Industrial zone, Section 179-4-030. The benefit to the applicant, the applicants will be permitted to relocate their mobile home to the new parcel of land. Feasible alternatives. Feasible alternatives appear to be limited, and this has been discussed. Is this relief substantial relative to the Ordinance? The relief may be interpreted as substantial relief relative to the Ordinance, being relief is being requested for all four sides, 24.5 feet of relief from the 50 foot minimum front setback requirements (49%), 8 feet of relief from the 30 foot minimum rear setback requirements, which is 26.7%, and 10 and 8 feet of relief from the 30 foot minimum rear setback requirements which equals 26.7 and 33.3% respectively. The effects on the neighborhood. Minimal effects on the neighborhood may be anticipated as a result of this action, and is this difficulty self-created? The difficulty, I do believe, is attributed to the size of the pre-existing, nonconforming lot and the greater setback requirements of the Light Industrial zone compared with most residential zones, in addition to the scenario that was described to us by the applicant in their attempt to purchase additional property. I would like to also add that, in my view, based on the verbal comments of the applicants, there is no doubt in my mind that they are acting in good faith, and I move that we approve Area Variance No. 97-2002. Duly adopted this 18 day of December, 2002, by the following vote: th AYES: Mr. Urrico, Mr. Underwood, Mr. Abbate, Mr. Himes, Mr. McNulty, Mrs. Hunt, Mr. Hayes NOES: NONE ABSENT: Mr. Bryant, Mr. Stone MR. HAYES-The motion is carried. I guess you need to see the Building Department for a permit or whatever, but good luck. MRS. JOHNSON-Thank you. MR. JOHNSON-Thank you. AREA VARIANCE NO. 98-2002 TYPE II NORTH STAR DONUT GROUP, LLC AGENT: GARRY ROBINSON, PE CONSULTING ENGINEER PROPERTY OWNER: CEDAR HOLDING ASSOCIATION ZONE: HC-INT. LOCATION: 713 GLEN STREET APPLICANT PROPOSES DEMOLITION OF EXISTING BUILDING AND CONSTRUCTION OF A 2,244 SQ. FT. DUNKIN DONUTS BUILDING AND SEEKS RELIEF FROM THE BUFFER/TRAVEL CORRIDOR OVERLAY DISTRICT REGULATIONS AS WELL AS SHORELINE SETBACK RELIEF. WARREN COUNTY PLANNING: 12/11/02 TAX MAP NO. 302.06-1-10 LOT SIZE: 0.44 ACRES SECTION 179-4-030 5 (Queensbury ZBA Meeting 12/18/02) GARRY ROBINSON, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 98-2002, North Star Donut Group, LLC, Meeting Date: December 18, 2002 “Project Location: 713 Glen Street Description of Proposed Project: Applicant proposes demolition of the existing Dunkin Donuts building and construction of a 2,244 sq. ft. Dunkin Donuts building. Relief Required: Applicant seeks 40 feet of relief from the 75-foot minimum shoreline setback requirement of the HC-Int Zone, § 179-4-030, and 7 feet of relief from the 75-foot minimum setback requirement of the Travel Corridor Overlay District, § 179-4-060C. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to redevelop the site, which includes constructing the desired building in the preferred location. 2. Feasible alternatives: Feasible alternatives seems to be limited due to the size and shape of the pre-existing nonconforming parcel and its close proximity to other buildings and the small brook. 3. Is this relief substantial relative to the Ordinance?: 40 feet of relief from the 75-foot minimum shoreline setback requirement may be interpreted as moderate and 7 feet of relief from the 75-foot minimum Travel Corridor Overlay District setback requirement may be interpreted as minimal relative to the Ordinance (53.3 and 9.3% respectively). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be attributed to the size and shape of the pre-existing nonconforming parcel and its close proximity to other buildings and the small brook. Parcel History (construction/site plan/variance, etc.): Variance #895: denied 03/21/84, 28-foot freestanding sign (3’ of height relief). Variance #525: approved 12/21/77, additional 6 sq. ft. sign to existing freestanding sign. Variance #169: approved 07/16/70, relief from minimum lot size and for minimum road frontage for construction of a Dunkin Donuts building. Also, for freestanding sign setback relief (66.6% relief). Variance #161: denied 06/18/70, relief from minimum lot size and for minimum road frontage for construction of a Dunkin Donuts building. Also, for freestanding sign setback relief (100% relief) and an oversized roof sign. Staff comments: Minimal impacts may be anticipated as a result of this action. Should the application be approved , the only part of the new building that will encroach on the Travel Corridor Overlay District will be 56 sq. ft. of the entryway, and the permeable area for the site will increase by 4.5%. Diverting stormwater flow away from the brook by grading and/or a small retaining wall might help mitigate the close proximity to the small brook. Additionally, the applicant has discussed with staff the design guidelines of the Lower Route 9 Corridor for the large green area proposed at the site entrance, which will be further reviewed by the Planning Board. SEQR Status: Type II” MR. MC NULTY-And we do have a Warren County Referral Form “Warren County Planning Board Project Review and Referral Form December 11, 2002 Project Name: North Star Donut Group, LLC Owner: Cedar Holding Association ID Number: QBY-02-AV-98 County Project#: Dec02-27 Current Zoning: HC-Int Community: Queensbury Project Description: Applicant proposes renovation of the Dunkin Donuts building and site and seeks relief from the Buffer/Travel Corridor Overlay district regulations as well as the permeability requirements. Site Location: 713 Glen Street Tax Map Number(s): 302.06-1-10 Staff Notes: Area Variance: The applicant proposes to remove an existing 1,480 sq. ft. Dunkin Donuts building to rebuild a 2,244 sq. ft. Dunkin Donuts building with a drive thru. The applicant requests variances for the following: 1) Front Setback proposes 70’ where 75’ is required – existing is 100 ft. setback. 2) Shoreline Setback (property borders Halfway Brook) proposes 35’ where 75’ is required – 30’ setback is existing. 3) Permeability proposes 8.4% where 30% is required – 4.1% is existing. The applicant proposes to renovate the site with defined curbing where needed, additional landscaping, improve traffic flow on the site, and angled parking. The applicant has indicated that the surrounding businesses are all closer to the road then they propose. All proposed alterations seem to improve the site, however, there is not a clear reason for the increase in building size. Staff recommends discussion in regards to the increase in building size by almost double. County Planning Board Recommendation: Approve The applicant provided the requested information in regards to the increase in the size of the building. The Board recommends approval of the application.” Signed by Thomas E. Haley, Warren County Planning Board 12/12/02. MR. HAYES-Thank you. Would someone like to step forward? MR. ROBINSON-I’m Garry Robinson. I represent North Star Donut Group, and I’m not sure there’s much else to say. I think he said everything that we were going to say when he went over the application. I think you guys have seen the plan, I presume. What we’re doing is the old Dunkin Donuts, if you’ve been in there, it’s seen better days. It’s quite small. There’s not a lot of room for storage, storage of product, storage of things that get used day in and day out, and we’re looking to put a new store in there, a little larger. In addition, we’re looking to move the store forward on the site so that we can get a drive through on this site, and that’s really the reason why we would need these variances, just the location of that store on that site. This site is about a little less than a half acre in size. It’s about 100 feet wide, and the locations where we can put the store really are limited. The variance from the shoreline, this is a small stream that runs across Route 9. Right now I believe it’s about, the setback from the existing store to that stream is less than 30 feet, and what we propose to do is we propose to expand that actually a little from where it is. So it’ll be a little better than it was. In addition, we’re looking to put a rip rap, not a wall, but a little retaining wall adjacent to the edge of the parking lot, adjacent to the stream. It’ll have some grass in between it. It’ll look kind of natural, and that’ll help filter any runoff that does want to run down toward that stream. In addition, when we do 6 (Queensbury ZBA Meeting 12/18/02) renovate the site, which will be a total renovation of the site, we’ll be picking that up a little, so that less of the parking area would be draining that way, to that stream. The second variance, which is the front variance to Route 9, I think the reason that you have those regulations is because of possible future widening of Route 9, and the stores that are next to us, there’s a computer store just to the north, which is probably 20 feet from Route 9, and also the Auto Zone. I don’t know if it’s Auto Zone, but it is an auto parts store that’s just to the south, also is quite a bit up from where we are. So that I think that we’re only encroaching seven and a half feet, I think, there, and I don’t think it’ll have any impact, any adverse impact on the widening of that road, versus what the neighbors would have, and I think those are the only two things that we’re looking for tonight. I can answer any questions. MR. HAYES-So you’re essentially moving the building five feet toward the road, then? MR. ROBINSON-We’re moving the building more than five feet from where it is now, but we’re only looking for seven feet of relief from that 75 foot setback. The building is actually a little bit longer than it is now, and in order, we need drive lanes around the back, and when we put in a drive through, not only do we need a drive through lane, we need a bypass or an escape lane that goes around that. For people who have parked and don’t want to wait in that line. It is one way traffic around the building. You can see, when we’re coming in on the north side, that’s a one way lane that comes in, and in order to get around that building to get out, if somebody parks here, the parking is a little angled there, in order to come out they have to go around the building. So we need a wide enough area here, and we need enough area behind the building, so that we can actually make a radius that people can actually drive around and also that we have enough width so that people can get around somebody waiting in line for their drive through buildings, and then once we get down out here, it’s pretty much the same layout as what we had. Just the building is moving up a little, and the building’s getting a little bigger. MR. HAYES-Okay. Thank you. Are there any questions for the applicant? MR. URRICO-Did you consider moving the building back? MR. ROBINSON-We can’t physically move the building back any further. If you look at the plan of the building, we’ve got some preliminary designs of the building, we actually have if you’re interested in looking at them. The part that actually encroaches on that setback is just that little vestibule where you walk in. I’m sure you’ve all been to Dunkin Donuts. It’s a typical thing where you have that double door vestibule in the front that you walk through, and the way that it’s set up there, and it’s pretty efficient right now, is that sidewalk that goes through the middle, and we would change that a little so it’s a little curbed and you’re a little safer when you walk through there, and the doors would actually be on the end of this, and it’s just the width that we need so that you have enough space to get through there with the doors. We can’t physically move the building back. Could we change the entrance a little? We could if we had to. I’m sure we could make it work, but we can’t physically move the building back, and it would be certainly much more convenient for us to keep it this way. Otherwise we’d be forced to look at some different kind of layout. MR. HAYES-Any other questions of the applicant at this time? If not, I’ll open the public hearing. Is there anyone here that would like to speak in favor of this application? Anyone opposed? Please come forward. PUBLIC HEARING OPENED JOHN DOTY MR. DOTY-Yes. I’m John Doty. I own the U-Rental property and the computer store property next door. I am greatly concerned about parking and access to my buildings and as you see in my letter, and I believe there’s a plan that I gave you a copy of, they are not eliminating just a few parking spaces by widening their traffic lane in their. They’re eliminating a large number of parking spaces, in an area which is already jammed for parking. I don’t know how they’re going to get fire apparatus in there. If there were a fire in my place in the back, when there are cars in that lane, the traffic lane there, which is for cars parked in the lane for the drive through. So actually I feel that they are eliminating not three or four spaces as indicated, but there’s seven spaces on the diagram that I submitted that I know from having watched people there for 27 years that people really do park in, in addition to the spaces that Dunkin Donuts has lined in the front of their building. So, you know, that’s two reasons, and I think my letter outlines a few other problems. Number of employees parking spaces. I’ve counted seven employees in there, on some Saturday mornings, and they’ve got two spaces in there for employee parking. I don’t know what, I also realize the zoning only requires for one parking space for every four seats. Dunkin Donuts isn’t the type of business where you have people come in for dinner. Dunkin Donuts is a business where the average car in there has maybe a little more than one person in it when they are stopped there. So they almost need a parking space per seat, not counting the people standing at the counter waiting for donuts. I understand that the drive through may alleviate some of that, but I also know that I am impatient enough that I wouldn’t wait in that drive through for somebody getting 10 sandwiches, which takes 20 minutes to prepare. So I have a lot of physical concerns about the area and their current plans. I think they could make their building considerably smaller, and give a lot more drive through space. I think the problems are self-created because they’re trying to put the maximum amount of building in that space they possibly can. Storage, you can go up for storage. You don’t have to necessarily 7 (Queensbury ZBA Meeting 12/18/02) stay on the ground level. A few extra feet holds an awful lot of boxes of cups, for height. So I think they’ve got a lot of, I think they ought to go back and look at this. I’m disappointed that they didn’t come talk to me before they proposed this. The first I knew of their proposal was when I got a notification from the Zoning Board, and I’d have been glad to talk to them and make my suggestions to them, and point out a few difficulties that I saw in the area. I’ve said what I need to say. MR. HAYES-Do you still want us to read your letter into the public hearing? MR. DOTY-Please. MR. HAYES-We’ll do that, then. MR. MC NULTY-Okay. You need to understand, now, most of the issues you brought up are Planning Board issues, not Zoning Board. They’re not here asking for a variance for less than the required number of parking places. So that’s not before us. MR. DOTY-Okay. MR. MC NULTY-But those are legitimate Planning Board questions, when they come before the Planning Board. MR. DOTY-They also have to come before the Planning Board? MR. MC NULTY-Yes, and that’s the time to raise a lot of the issues that you brought up. MR. DOTY-Okay. MR. HAYES-Traffic flow, that type of thing. We have two variances in front of us, and that’s basically the placement of the building, versus the stream, versus the Travel Corridor Overlay. That’s what we’re considering tonight. Thank you for coming. MR. MC NULTY-Thanks. MR. HAYES-Is there anyone else that would like to speak? MARK DICKINSON MR. DICKINSON-I’m Mark Dickinson. I’m the new owner of U-Rental, John Doty’s property. Mine basically would be with the Planning Board, too, but I do have a couple. I feel if the building was moved up further, it’s going to create more of a backup onto Route 9, because there’s less parking, and then with the drive through coming through, that same corridor that I share with my customers, pulling trailers in and out, is going to make it difficult to come in and out. Other than that, the rest that I would have is for the Planning Board. MR. HAYES-Is it possible to ascertain what the legal relationship is there, as far as, I mean, how do the people go back to U-Rental? MR. DICKINSON-It’s a shared right of way between the buildings. MR. HAYES-So it’s a deeded right of way, then? MR. DICKINSON-Yes. There’s a right of way between them. MR. HAYES-Okay. MR. DICKINSON-And I tow equipment in and out of there all day long. I counted over 50 cars there this morning. You come through, it’s right full. I don’t know if you’ve been to Wendy’s at lunch hour, but they’re backed up to the street, with the drive through, and I feel Dunkin Donuts will be the same thing, but early in the morning, because that’s when their business is the busiest. MR. HAYES-Okay. Thank you. Is there anyone else that would like to speak in opposition to the application? If not, correspondence? MR. MC NULTY-Yes. We have several pieces of correspondence. First one is a letter signed by Marianne Doty and John R. Doty, and they say, “For the past 27 years, we have enjoyed a cordial and cooperative relationship with the owners of Dunkin’ Donuts on Glen Street. We look forward to continuing the same association with the new owners. In that light, it is difficult for us to voice our objections to the proposed renovation of their property at Upper Glen Street. Although the drawings do not adequately illustrate it, there will be a substantial reduction in the number of parking spaces at their site. The spaces we refer to are 8 (Queensbury ZBA Meeting 12/18/02) two alongside Dunkin Donut’s present building, two at the head of the driveway in front of the U Rent All building and three alongside the building housing Northeast Technology Associates, formerly Gordon’s Paint Store. Please see enclosed sketch. The proposed curbing in the vicinity of the U Rent All sign on Glen Street will also effectively eliminate two spaces in front of the Northeast Tech Store, and cause customers, when leaving, to have to back out onto Glen Street from the remaining two spaces. There is no provision in the plan on file for parking cars and pickup trucks towing trailers. We have observed many such vehicles stopping at Dunkin Donuts on a daily basis over the years. Two spaces for Dunkin Donut employee parking are insufficient. I have observed some morning shifts on busy days having as many as seven employees waiting on customers. Several times over the years, Dunkin Donuts and we have tried to institute a one-way entrance and exit traffic pattern. Each time it has failed. It proved to be unenforceable. We have concerns about semi tractor-trailer access for both Dunkin Donuts and U Rent All product delivery. Traditionally, the Dunkin Donut delivery truck comes once a week and requires all of the available property, blocking present traffic lanes, to maneuver for delivery and departure. The daily delivery trucks, milk truck, Dunkin Donut’s own truck, garbage pickup truck, etc., all block present traffic lanes when servicing Dunkin Donuts. Mary Anne C. Doty John R. Doty” There is a diagram attached to this. So maybe we should pass it down and let the Board members see it. MR. HAYES-Okay. MR. MC NULTY-And then, let’s see, we’ve got a letter from Mark Dickinson, and he says, “My name is Mark Dickinson. I am the new owner of U Rent All on Upper Glen St. in Queensbury (Behind Dunkin Donuts). I am very concerned about the new construction of the Dunkin Donuts at 713 Upper Glen St. I truly believe that if the building is constructed as shown in the plans that it will indeed hinder my business dramatically. Below I will list several problems that I have with the new plans hopefully the town will look over the plans and come down to our location to see how much it will effect my business. 1. I am afraid that if I had a fire on my back property and people are waiting for the drive-thru that fire trucks would not have enough room to get to my property. 2. As far as I understand people waiting in line for the drive-thru cannot block or stay in the Right of Way because then there would be no way for my customers to get onto my property. If there were enough people waiting with how much traffic comes and goes through this Dunkin Donuts the line could reach out to Glen St. 3. I also do not believe they are leaving enough room for the delivery trucks, garbage trucks and normal traffic that use the Right of Way. As it is now when the Dunkin Donut truck (which is a tractor trailer truck) blocks all traffic around the building and that even when he is using my property to parking his truck on. The same goes for the garbage truck he also parks on my property to empty Dunkin’s garbage. This doesn’t include normal cars and trucks towing trailers or commercial vehicles that either go to Dunkin or are customers of mine. 70% of my business depends on trailers and larger vehicles to travel in and out freely. Contractors and even homeowners do not want to wait behind people in line at a drive-thru to be able to get to my store. I have trailers with equipment in and out at all times of the day and I do not believe there would be enough room. 4. As far as parking goes I feel there would not be adequate parking for any of the surrounding businesses if the building was built as planned. I can see where at least 7 parking spots would be lost. As for Dunkin’s Employee parking 2 would not be sufficient considering that at least 5 or 6 are working at a particular time. As it is now, the employee’s have to cross my property to access their parking spaces. These are just a few of complaints I have about the new plans for the building. In my opinion, I feel that if he really needs a drive-thru he should plan on a much smaller building. As it is now Dunkin Donuts parking overflows onto other commercial properties. I believe with a drive-thru there would be way too much congestion for such a small area. In closing, I hope the Town of Queensbury will not allow the building to be built as planned. It needs to be much smaller and more parking for the type of business. Even now in the mornings it gets very congested and there is not a drive- thru at this point. U Rent All has been at this location for over 30 years and hopefully we can be here for many, many more, but if my customers cannot get to me I cannot stay in business. Thank you for your time. Sincerely, Mark Dickinson” And, let’s see, we also have a letter from Marvin L. Rudnick, and he is an attorney, and he says, “This firm represents Abraham Rudnick, owner of properties in the immediate vicinity of Dunkin Donuts. Mr. Rudnick requests that this letter be made part of the record in the above Variance application. Mr. Rudnick does not object to the demolition of the Dunkin Donuts building on Upper Glen Street and the construction in its place of a new building, however, he requests that any such construction include the installation of a new and larger water drainage pipe along the property’s southern line with the auto parts store. Please be advised that the existing drainage pipe is too small to encounter the water draining from a natural stream immediately to the west of the Dunkin Donuts property and thereby causes flooding to upstream neighbors on Foster Avenue. Since the existing pipe was constructed for the benefit of parking for Dunkin Donuts and adjoining businesses on either side of the stream, Mr. Rudnick requests that the Town should require mitigation of the flooding as a condition of any Zoning variance including the enlargement of the pipe. Please let me know if there is any further information the Board needs regarding the above. Thank you for your courtesies. Very truly yours, LAW OFFICES OF MARVIN L. RUDNICK Marvin L. Rudnick” And I believe that’s it. MR. HAYES-Okay. Thank you. Is there anyone else that would like to speak opposed to the application? If not, I will close the public hearing. PUBLIC HEARING CLOSED 9 (Queensbury ZBA Meeting 12/18/02) MR. HAYES-And I’ll talk to the Board about it. We’ll start with Jim. MR. UNDERWOOD-Yes. I think we need to focus on what’s before us here this evening. The redevelopment of this site, I would think it would be a bonus for the Town and the community. As to whether or not the drive-thru window comes to fruition, I think that the Planning Board will probably handle that issue and look into that more conclusively. I think for us, though, what we need to do is focus on the relief that’s requested, and I think most of that relief, the new building, with the exception of the frontage on the road there, which is going to intrude into the entryway slightly, is going to increase the setbacks, you know, from what they are at the present time. I know I’ve been a patron of both businesses, both U Rent All and Dunkin Donuts in the past, and I’ve never had a problem driving in there. I’m sure at certain times, when deliveries are being made, it’s a problem, but, you know, the Dunkin Donuts is there now, and if they redevelop the store, it’s going to be a nicer store. It’s going to have more room and things like that, as they mentioned so I’d basically be in favor of granting the relief they request. MR. HAYES-Thank you. Chuck? MR. ABBATE-Okay. Thank you. I think that must focus on the request from the applicant, on the Area Variance number, and I think that we should address and concentrate and focus in on the actual request of relief that’s being required. North Star Donut Group, I think, in demolishing the ancient building that they presently have, is a plus to the community. Increasing the size of Dunkin Donuts I think would be advantageous to the community and benefit to the community, and based upon the focus in which we are charged with, I would be in support of the application. MR. HAYES-Thank you. Norm? MR. HIMES-Yes. Thank you. I agree with what’s been said. However, I think some of the things that are facing us, although they pertain only to zoning, certainly will have some bearing on some of the other things that have been brought up here, and even though that’s matters for the Planning Board, we do have some impact on what happens from here on, and it seems, I’ve been thinking while we’re talking here, that I’ve seen some new Dunkin Donuts buildings in areas where they’re quite small, but I never thought of making any comparison, so I don’t know how much smaller they might be. There’s one in Greenwich. It seems to me there’s one over towards Fort Edward. I would just wonder what kind of alternate plans could be prepared or submitted that may just not require any variance at all, and so I don’t know whether the applicants might want to respond to that. This is just, at this point, I would like to see that before I would approve the application. Because I think there has to be more than one plan possibly here, and I don’t know what the business plan is that requires it be this size or that size, but that’s something that I would want to see before approving this application. So, I guess you could take that as a no right now. MR. HAYES-Okay. Thank you. Chuck? MR. MC NULTY-A couple of thoughts, delving into the Planning Board area for one point, as somebody else mentioned, I think the current plan, in moving the building forward a little bit, probably will help rather than hinder some of the access and as the applicant has indicated, there’s going to be a bypass lane around the drive-thru. So, there again, that will provide some access to the rear property. As one of the people that wrote in mentioned, I’ve got some concerns about that stream, but I think that’s a bigger project for somebody to pay attention to. One thing I would like to see, not necessarily as a condition of approval, but for the applicant to consider, is when they plow snow, not to plow it into the stream, but plow it away from it. I think that may be part of the reason that there’s some flooding. When I was there the other day looking at it, it looked like both properties, the auto property and Dunkin Donuts, were making a practice of plowing their excess snow into that header where the stream goes underground. Addressing the actual things that are before us, distance to the stream, it would be nice if it was a lot more, but that would move the whole building forward more and create other problems, and at least the proposal makes a slight improvement getting a little further away from the stream, which is good. I don’t see any big problem with that little entryway protruding into the Travel Corridor Overlay zone. As has been mentioned, there’s several other buildings that are much closer to Route 9, and should that space ever be needed, it would be relatively easy to modify that entryway at that time. So, I have no big problem with that, and I’ll be in favor. MR. HAYES-Thank you. Joyce? MRS. HUNT-Thank you. I agree with what’s been said. If we just focus on the two reliefs that are asked for, 40 feet and 7 feet, I don’t see any problem with those. They seem to be, we’ve answered the questions about why they needed them, and I don’t think it’s excessive. I would go along with the application. MR. HAYES-Thank you. Roy? MR. URRICO-Yes. At first glance, this doesn’t seem to be a big problem, but there are two things that stick out in my mind. I know the distance to the stream, the brook there is something that existed before, and I’m happy to see that you are committed to putting a wall there. Is that definite? 10 (Queensbury ZBA Meeting 12/18/02) MR. ROBINSON-Yes. MR. URRICO-I’m happy to see that to divert some of that water. MR. ROBINSON-It’s a small retaining wall. It’s not going to be very high, and we would be picking up the grade so that much of the runoff that goes that way would now go toward the front. MR. URRICO-And I’m also encouraged by the, I noticed the Staff notes that the permeability of the area will increase by 4.5%, which anything we can gain in that area would be a benefit, and the other thing is, even though it’s much further back than some of the other businesses you point out in the area, those businesses are changing. They’re there, and you have an opportunity to make the setback at 75 feet, rather than asking for 7 feet of relief from 75 feet, and my question is, why not make it 75 feet? If you’re going to go that far, why don’t we just make it 75 feet. I am bothered by that, but I think I am willing to accept it as it is, and I’d be in favor of it at this point. MR. HAYES-Okay. Thank you. Well, in this particular case, I kind of feel like the Coca Cola man getting caught reaching into the Pepsi cooler. I like donuts, so I’m familiar with the store, and my general impression is, is that the store does need recycling. It’s an old store and there certainly has not been a lot done to that facility, as long as I can remember. I think I agree with the rest of the Board in this particular case, that as far as the Travel Corridor Overlay Zone, there’s no doubt in my mind that if the road was to be expanded, all the rest of the stores on the street present a greater obstacle to that than Dunkin Donuts being moved forward a few feet in this particular case. I don’t really see that by granting this variance, that we would be really, in any way, compromising the ability to widen Route 9 in the future, which I don’t think there’s a big possibility because of the nature of the retail strip that’s there, and the fact that it’s already four lanes. Seven feet of relief from a seventy-five foot requirement is pretty minimal to me. I’m not really troubled by that. Additionally, the setback from the stream, the shoreline setback, in this particular case, it’s actually improving slightly, that’s my understanding, and the applicant has proposed some additional mitigation to any stormwater overflow into that stream or encroachment into that stream that probably doesn’t exist now. As I examine the site, it’s relatively, the stormwater management is relatively not existent that I could see there at this time. So, I think that represents an improvement of that situation, and that’s certainly a benefit, to whatever extent, to that microenvironment there. I guess, examining the case, therefore, on the balancing test, the applicant has said he needs a new store, needs to improve the store, needs a drive-thru to improve his business, and that certainly is a benefit to him. I don’t think that there’s a lot of feasible alternatives in this case because the lot is pre-existing and the existence of Mr. Doty’s businesses and others certainly complicate what needs to be done on this site, but as the other Board members have pointed out, I think that those issues need to be handled by the Planning Board. That’s what they’re there for, the parking and the traffic flow, the complications of those two items I think that that should be addressed and will be addressed. I don’t find any impact on the neighborhood that’s negative. In fact, I honestly believe there’s a possibility that a new, more modern, more attractive store would be a benefit to the other merchants in that area, and I think that if they were here, they would probably say they were in favor of that. So, on balance, I would be in favor of the application. Having said that, would someone like to make a motion? MR. UNDERWOOD-Sure. MOTION TO APPROVE AREA VARIANCE NO. 98-2002 NORTH STAR DONUT GROUP, LLC, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 713 State Route 9. The applicant proposes demolition of the existing Dunkin Donuts building and construction of a 2,244 square foot Dunkin Donuts building. The applicant seeks 40 feet of relief from the 75 foot minimum shoreline setback requirement of the Highway Commercial Intensive zone, Section 179-4- 030, and 7 feet of relief from the 75 foot minimum setback requirement of the Travel Corridor Overlay District, Section 179-4-060C. The benefit to the applicant. The applicant would be permitted to develop the site, which includes constructing the desired building in the preferred location, and feasible alternatives seem to be limited due to the small size of the parcel and the pre-existing, nonconforming nature of it. Is the relief substantial relative to the Ordinance? 40 feet of relief from the 75 foot minimum shoreline setback requirement may be interpreted as moderate, but that’s also due to the fact, where the lot is, it’s always been there, and 7 feet of relief from the 75 foot minimum Travel Corridor Overlay District setback requirement may be interpreted as minimal relative to the Ordinance, 53 and 9.3% respectively. Effects on the neighborhood and community will be anticipated as minimal. It will probably be a positive having the new store being built there. Is the difficulty self-created? The difficulty is basically attributed to the size and shape of the pre-existing, nonconforming parcel, and it should be noted that almost all the setbacks are going to be better than they are at the present time. Duly adopted this 18 day of December, 2002, by the following vote: th AYES: Mr. Abbate, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Hayes NOES: Mr. Himes 11 (Queensbury ZBA Meeting 12/18/02) MR. HAYES-The variance is approved. MR. ROBINSON-Thank you very much. MR. BROWN-If I could, just for the members of the public that were here, this application will need to be before the Planning Board, and the earliest that’s going to be is going to be February some time. You’ll get notification similar to the notification you got for tonight’s meeting, and I encourage you to take those comments to the Planning Board, because they’re the ones who can really deal with those concerns that you have. Okay. That’s it. NOTICE OF APPEAL NO. 3-2002 JOHN SALVADOR, JR. APPEAL FROM THE ZONING ADMINISTRATOR’S “POSITION” (DETERMINATION) THAT BECAUSE BOAT DOCK AND BOATHOUSES WERE REGISTERED IN 1981 AND 1982 PER 6NYCRR PART 646 (JULY 3, 1981) THEY WERE GRANDFATHERED AND THEREFORE LEGALLY PRE-EXISTING. TAX MAP NO.: NONE INDICATED PROPERTY LOCATION: LG SHORELINE FROM TOWN OF LG TO TOWN OF FORT ANN JOHN SALVADOR, JR. & KATHLEEN SALVADOR, PRESENT MR. HAYES-Before we begin the reading of this application, I just want to clarify for anybody here in the public that basically, at the last hearing, Staff, as well as some members of the Board, felt that Mr. Salvador did not have standing to present his case. It is still Staff’s position that Mr. Salvador does not have standing to present his case. We took a vote among the Board to decide whether we would proceed with the reading and the hearing of Mr. Salvador’s appeal, and decided in favor of hearing that appeal, and that’s what we’re going to do. So I guess Staff is still reserving your opinion on the matter of standing. MR. BROWN-I think if memory serves correct, I think at the end of the meeting last time we met on this matter, one of the Board members, I think it was Mr. Abbate, suggested that Mr. Salvador provide any additional information that he has to support his position in the matter. MR. HAYES-Of standing. MR. BROWN-Of standing and the appeal, whatever other information he has for the issue. MR. HAYES-Okay. MR. BROWN-Mr. Salvador submitted an additional letter a day or two after, I think two days after the last meeting, and in that letter, I don’t feel that’s there any information that supported the standing position, and that’s reflected in the notes that you have before you now. So, yes, I guess Staff’s position is still that it’s not a standing, a position of standing has not been established. MR. HAYES-Okay. Thank you. MR. BROWN-But, notwithstanding that, you guys have voted that he has. MR. HAYES-Well, we’ve voted, not that he has as much as that we chose to hear the appeal. MR. BROWN-Okay. MR. HAYES-So, that’s what we’re going to do. Mr. Salvador. STAFF INPUT Notes from Staff, Notice of Appeal No. 3-2002, John Salvador, Jr., Meeting Date: December 18, 2002 “Information requested: Applicant is appealing to the Zoning Board of Appeals seeking information regarding the grandfathering of legally pre-existing structures. Staff comments: Recognizing that the Zoning Board of Appeals has rendered a decision regarding the “standing” of the appellant. It is my opinion that the determination may have been premature. The appellant argued that a previous Zoning Administrator, under a previous Zoning Ordinance, applied a different standard (some 25 years ago) when establishing the validity of his docks. Yet, no substantive evidence has been provided, as requested by the Board. These assertions seem untimely. The other argument presented by the appellant argues that since he has a dock, has been through the permitting process, is subject to the same zoning regulations and they are in the “zone of influence” of the determination, that they have standing. Having a dock, like many other people, being subject to the permitting process, like everyone else, being subject to the zoning regulations, like everyone else in the Waterfront zone and being in the same area as the property affected by the original determination does not establish standing. The appellant has not demonstrated that he has suffered any injury in fact that separates him from the public at large. Therefore, I would request the Board to reconsider its findings regarding the appellants standing in this matter. With regards to the merits of this appeal, my position has not changed. My determination, allowing the docks to be “grandfathered” due to the issuance of 12 (Queensbury ZBA Meeting 12/18/02) a Town building permit, has not changed. My determination does not state that because boat docks and boathouses were registered in 1981/82 per 6NYCRR part 646(July 3, 1981) they are “grandfathered” and therefore legally pre-existing. This is not a statement from the August 13, 2002 memo and as such should not be considered accurate nor should it be the basis for any appeal, as it is not the position of the Zoning Administrator.” MR. SALVADOR-Good evening gentlemen of the Board, and ma’am. Departing from this Board’s previous hearings of August 21, October 23, November 20, and November 27, and specifically the resolution strdthth adopted on November 27, we considered the procedural issues of the validity of this appeal and our th standing to bring such an appeal before the Town ZBA to have been debated and settled. However, since receiving Staff notes prepared for this meeting, we see new arguments being brought forth as to whether or not this subject is right for appeal, and that the Board’s determination to protect our constitutional rights to a redress of grievance may have, in fact, been premature. I should say that in my furnishing additional information, that that is not all of the information we have to support our argument. Let’s say it was a teaser. That we have not demonstrated to have suffered any injury, in fact, which might separate us from the public at large, we say, stay tuned, even though we do not agree that failure to make such a showing should be grounds barring us from a hearing before the ZBA. We are not sure that the ZBA will not allow the Zoning Administrator a second bite at the apple, and therefore feel compelled, once more, to substantiate the judiciability of this Board in this matter. That is whether or not it is feasible for this Board to carry out and enforce any order it might issue relative to a Zoning Administrator’s determination, and that we qualify as aggrieved parties, and therefore have standing to bring these issues before this quasi-judicial Board of Appeals. Time permitting, we’re prepared, also, to argue the merits of Appeal No. 3-2002 MR. HAYES-Excuse me. Are you segmenting your arguments, then, Mr. Salvador? Just so I understand what you’re saying. MR. SALVADOR-Yes. MR. HAYES-Okay. MR. SALVADOR-I would like to put and reinforce these arguments on the record. That’s what I want. MR. HAYES-Okay. So we’re back to standing at the moment. MR. SALVADOR-Yes. MR. HAYES-Okay. MR. SALVADOR-Okay. In the first instance, the question of whether or not our appeal could be considered valid, a valid appeal, judiciable by the Town ZBA was raised by your Chairman during the October 23 rd session, and continued at the November 20 meeting. We thought the matter to have been thoroughly and th adequately addressed and put behind us. However, to preclude that the question of the validity of this appeal might arise again, we would like to reiterate that we have searched Town Code, Chapter 179, and have been unable to find criteria enumerating any restrictive language or conditions for which an appeal from a Zoning Administrator’s determination can be determined to be non-judiciable by the Town ZBA. The lack of such definition and restrictive language is proper, offering an aggrieved party a wide berth to appeal a Zoning Administrator’s action, including inaction, before this administrative board. Any appeal and the filing of a notice therefore need only be timely in accordance with Chapter 179, Section 179-16-050, and prepared on forms proscribed by the ZBA in accordance with Chapter 179, Section 179-16-060. Also in accordance with Section 179-16-060, we attached the Zoning Administrator’s memorandum of August 13 we met all of the th conditions prescribed by this Board. Section 179-16-050, Appeals, reads, in relevant part, “An appeal from an action, decision or rule by the Zoning Administrator regarding a requirement of this chapter may be made only to the Zoning Board of Appeals within 60 days of such decision or action.” This appeal was brought because the Zoning Administrator took an action. He decided a grandfathering privilege was appropriate in the subject we’re appealing. Based on the Zoning Administrator’s memorandum of August 13, which is th embodied in our appeal application 3-2002, as referenced in Staff, I’m quoting from August 13 memo, “As th referenced in Staff notes from George Hilton, the information we received from the Lake George Park Commission, and from our old building permits indicates that the current number and placement of docks on both the Smith and Hopper properties are consistent with those conditions in the early 1980’s.” With no respect or consideration for any other construction and use permits required at the time for the placement of the docks on Lake George, the Zoning Administrator made a legal determination. “As such, it is my position that the number, location, spacing and size of the docks on both parcels shall be considered “grandfathered” with the exception of the lengths of the docks on the Smith property.” The Zoning Administrator’s move to base his determination on only the evidence in the Town’s old building permit files would allow the applications to proceed based on legally pre-existing uses. Otherwise, the applications are dead in the water, absent after the fact approval for any illegal activity. In accordance with Chapter 179-16-050, an appeal such as this must be brought to an administrative board such as the ZBA, within 60 days, in an effort to exhaust our administrative remedies. This makes sense. Address the grievance in an administrative hearing before seeking judicial intervention, should the aggrieved party not be satisfied with an order of the ZBA. 13 (Queensbury ZBA Meeting 12/18/02) Additionally, we were in total compliance with Section 179-16-060. “Unless otherwise stated, all petitions, applications and appeals provided for in this chapter shall be made on forms prescribed by the Planning Board or Zoning Board of Appeals. Completed forms shall be accompanied by whatever further information, plans or specifications as may be required by such forms.” In summary, we have perfected a judiciable appeal. The Zoning Administrator took a position, after making a determination, see the text of the August 13 memo. We filed a notice of appeal according to Town Code, in accordance with Town Law th Section 267, and we are in the appropriate venue. At the November 27 hearing, we were practically th blindsided by the Zoning Administrator’s assertion, based upon belated advice he received from the Town Counsel, that we lacked standing to maintain this appeal to the Town ZBA. Further, the issue of our standing turned on the question of whether or not we could qualify as an aggrieved party, as is the generalized condition in Section 267 of Town Law. Is the Zoning Administrator going to be allowed to establish rules for the degree of grievance where none exists? Section 267 is consistent with basic constitutional protection, in that every American citizen from the top down enjoys a right of redress of grievance. Finally, Town Law, which is derived from the State constitution, and Article 16, Zoning and Planning, Section 267, mandates that a Town Board appoint a Zoning Board of Appeals, and that the Board of Appeals shall hear and decide appeals from the review of any determination of an administrative official charged with enforcing an ordinance adopted pursuant to Article 16. Further, that such appeal may be taken by any person aggrieved. The plan and unambiguous language of Section 267 dictates that the ZBA shall hear and act upon any and all appeals from determinations of the zoning official charged with enforcing the Zoning Ordinance. In the case of the Town of Queensbury, we call him the Zoning Administrator. Actually, every matter before this Board is an appeal of sorts resulting from the Zoning Administrator’s determination not to grant a variance requested by the applicant, which he has the authority to do as an administrator. Personally, I think it’s ridiculous that applicants have to come before this Board and seek a two foot relief out of fifty feet. That’s something a Zoning Administrator can do. MR. BROWN-I do not have the power to do that. I have the power to grant building permits. I do not have the power to grant variances. That’s incorrect. MR. SALVADOR-Well, I don’t see, in the Town Code, and in Town Law, that you are prohibited from making a judgment call that someone could get a small, you know, insignificant variance. I agree, 50 feet out of 100 is. MR. BROWN-There’s nowhere in there that gives me the power either. MR. SALVADOR-Okay. All right. We are before this Board as two who are aggrieved by the Zoning Administrator’s determination relative to grandfathering of certain pre-existing, nonconforming structures and consequently their use. As a result, we are due a right of redress, that is a hearing before the ZBA of competent jurisdiction. Our natural rights to life, liberty and property, to free speech, free press, the freedom of worship, peaceable assembly and redress of grievance are fundamental and may not be submitted to vote. They are not dependent on the outcome of any election, including that of a ZBA. We have searched the New York State statutes, Town law, and the Town Code, Chapter 179, and have been unable to find any mechanism for gauging how an applicant is measured in order to establish one’s standing before a ZBA. The terms an aggrieved party have not been articulated in any of the Town Ordinances. Therefore, we conclude that it was intended that the ZBA be a board of competent jurisdiction with regard to any aggrieved party standing before it. Normally application forms or petitions outline and include a request for information necessary for the Town administration to establish standing. There is a presumption in the absence of duress, menace, fraud, undue influence, error, that an applicant answering all of the questions has standing. It is important to remember that we make this appeal from a Zoning Administrator’s determination, not the determination of a ZBA. We recognize that a ZBA, sometimes referred to as a quasi-judicial board, is in fact an administrative board within the executive branch of government. Many of the criteria dished up by the Zoning Administrator come from court rules one encounters when seeking judicial intervention in the Supreme Court, the judicial branch of government. Different independent branches, different independent rules of adjudication. I understand that, if we were to challenge the determination of this Board in Supreme Court, there are tougher tests to pass for standing, but we’re challenging a determination made by a Zoning Administrator to an administrative board, and there don’t seem to be any definitions, any restrictions on who has standing, how you get before, this is any person. Regardless, we can still meet the more stringent requirements of the judiciary by showing that if the Zoning Administrator’s decision to grant grandfathering privileges is to stand, we will suffer special damages, over and above the community at large, and that we had a legally cognizable interest which will be affected. In addition, we are in close proximity to the property being affected by the Zoning Administrator’s determination. We can easily show that we are in close proximity, being affected, and even closer proximity to some of the others who may eventually require Special Use Permits to operate a Class A Marina on Lake George as well as those permits due to expire. Remember, Special Use Permits to operate a Class A or Class B Marina will be required at even those marinas already permitted, who’s Lake George Park Commission permits were issued prior to our recent zoning change. All Lake George Park Commission issued marina permits are for limited duration, five years. As for close proximity, how close is close? It is often said it’s a small world, or Canada being referred to as our neighbors to the north. Close proximity is sometimes referred to as within the neighborhood. There are a host of property boundaries we share in common with the applicants, as well as others who need apply for Special Use Permits, and will find it necessary to obtain after the fact permits or otherwise illegal installations if they 14 (Queensbury ZBA Meeting 12/18/02) cannot qualify for grandfathering. Our common boundaries include we both abut the navigable waters of the United States and the navigable waters of the State. We both abut public lands of New York State, the bed o Lake George. We both abut the taxing and zoning jurisdiction of the Town of Bolton. The Bolton/Queensbury common boundary is known to be in the near shore area of the east side of Lake George and is identified in law as the east shore of Lake George. We share a common Queensbury Town boundary. We share a common zoning district boundary, we share a same Town zoning district, one acre waterfront zoning. We were both made to apply for building permits from the Town of Queensbury in order to construct more than one dock in a residential zone, which represented a nonconforming use at that time and still does to this date. As property owners abutting a navigable waterway, we are both entitled to the same littoral rights, sometimes referred to as riparian rights. Conversely, neither of us is allowed to exceed those water use rights except by permit. We both hold title, in fee simple form, to land submerged by the flood waters of Lake George below the mean high water mark of 320.2 mean sea level. We are both in the same Town’s Comprehensive Plan district, namely Neighborhood Number One. Incidentally, I served on the Town’s Comprehensive Planning Committee. The present Zoning Ordinance we have is an outgrowth of the recommendations of that Planning Committee, and I can assure you that this Special Use Permit was not a recommendation of that Comprehensive Planning Committee. Other factors weighing in favor of us being in the zone of interest include, we are subject to the same Town Zoning code, particularly the requirements of Class A Marinas within the definition of 6NYCRR Part 645 and 646, and we must both obtain a Special Use Permit which cannot be issued until a site plan is approved by the Town’s Planning Board. In fact, we have been subject to the same Town Zoning code since the first code was adopted in 1968, as well as the same dock building permit procedures. Both the applicants applied for and were granted building permits for the construction of boat docks on Lake George by the Town of Queensbury. We were both, both did that. We both have been bound by State laws which prohibit any encroachment on public lands, without a lease, grant, license, permit, etc., from the Commissioner, Office of General Services. We both conform to the requirements of 6NYCRR Part 646 dated July 3, 1981, in that we registered our wharfs, docks and moorings with the DEC by January 1, 1982. We’re both subject to the successor regulations embodied in Chapter 617 of the laws 1987. These are the Park Commission Regulations. We both pay commercial dock fees, which is mandated by State Finance Law, Section 97H. As commercial docks, we are both subject to U.S. Department of Justice requirements for the Americans with Disabilities Act. Both required to obtain Sales Tax Vendors License for services we sell, including, if we vend gasoline, pump outs, parking, parking is sales taxable. Federal and State laws concerning the reporting of unearned income such as rents, commercial registration. Commercial facilities require, although it’s frequently overlooked in this arena, commercial construction requires certified drawings. We, if you’ll look into the Code, you’ll see where it just says that all docks and wharfs shall be designed to withstand the forces of wind and waves. Forces are numbers. A dock is a structure, and it seems to me someone has to certify the stability of that structure, but anyway, as commercial entities, we’re all required to do that. We both received letters from the Lake George Park Commission concerning the need to obtain a Class A Marina permit. We both received invitations to the December 3, 2002 Planning Board workshop meeting held to discuss several items of concern, including recommendations to the Town Board regarding revisions to the Town Code concerning Special Use Permits. Even if Town Law Section 267 required us to meet the standards of aggrieved persons which might apply to a petition or challenge, determination of a ZBA, which we are not, we stand squarely within the zone of interest, in that we have a legally cognizable interest that will be affected by the Zoning Administrator’s determination that boat docks owned by the parties with applications before the Town Planning Board for Special Use Permits for nonconforming uses are entitled to grandfathered privileges. Again, we do not feel that the arguments we’ve heard from the Zoning Administrator with regard to standing are on point. Our standing here tonight is as aggrieved parties before an administrative board, a Zoning Board of Appeals, within the Executive Branch of government, and we are not required to meet the standards of someone who has a petition pending in the State Supreme Court system which is a part of judiciary part, another independent part of our government. They have different standards and different rules, and we can understand that. In addition, there are not any standards in determining an aggrieved party. They’re non-existent in the Town Code, and that is your purview to sort out the differences in the Town Code. Those issues settled, and that said for the record, we are now ready to continue our appeal addressing the merits of granting grandfathering privileges to pre- existing, nonconforming boat dock structures and the consequent use thereof. This is the fourth hearing scheduled to address what we feel is the inappropriateness of the Zoning Administrator’s determination that grandfathering privileges can be extended to certain nonconforming marina uses, namely the commercial boat docks. The graviment of this appeal weighing most substantially against the Zoning Administrator is whether or not these boat docks can be considered grandfathered, simply because their physical layout today is consistent with two things that he mentioned in his August 13 letter, one, the registration conditions which th existed in the early 1980’s, when the applicant registered their wharfs with the DEC, in accordance with Part 646 of July 3. As Mr. Brown further asserts, certain of these facilities have been the subject of building rd permits issued by the Town of Queensbury. Grandfathering is a legal term, used to describe the discretionary privilege granted to any nonconforming structure, use or location that pre-existed a zoning change whereby such a zoning change created a degree of nonconformance. The privilege of grandfathering affords the structure, use or location to continue in its present form, even though it does not conform to the present requisites of the law. Expansion or change of pre-existing, nonconforming uses is not allowed without a permit. However, the immunity of grandfather cannot be considered unless the pre-existing structure, use or location met all of the essentials of the pre-existing laws including any variances and/or permits required upon which such a grandfather privilege rests. It is horn book law that an applicant is fully responsible to obtain all such permits, further that any and all such permits are a nullity in the law, if certifications and/or 15 (Queensbury ZBA Meeting 12/18/02) affirmations are incorrect or incomplete. As grandfathering privileges are matters of law, the Zoning Administrator has overstepped the boundary of his authority, and might better have sought legal advice to support his position. As such, he has put himself and our Town at risk, and he has made a legal interpretation without authorization to do so. The significance of this appeal is unmistakable when viewed in the context of the Town’s recently adopted Zoning Ordinance, which now requires marinas to obtain Class A or Class B Marina permits from the Lake George Park Commission. MR. HAYES-Pardon me. Craig, you wanted to just? MR. BROWN-Well, just before we get too far into the merits of it, I don’t know if you guys want to make another determination or find that you’re consistent with your position on standing before. The appellant started out with a standing argument and kind of flowed right into the merits of the case, and if you want to dissect them and not have to come back to this. MR. ABBATE-Let me say this. I think it’s appropriate. MR. BROWN-Quick response to the comments. MR. ABBATE-Yes. Quick response. Quick response to you. MR. HAYES-No, Craig wants to make a couple of comments, and then you can. MR. ABBATE-I’m sorry. I thought you were finished. Sorry. MR. BROWN-I do not disagree. MR. SALVADOR-We’re never going to get to this if we keep. MR. BROWN-I do not disagree that this is the correct Board for the appellant to be in front of. This is the Board that hears appeals from Zoning Administrators decisions. MR. HAYES-You’re not saying there’s anything incomplete about his application, so we can stipulate that essentially. MR. BROWN-Correct. I don’t disagree that the appellant has followed the procedures, proper procedures, proper applications were filed. I guess my only contention is. MR. HAYES-The limiting language of who can file an appeal. MR. BROWN-Is the appellant an aggrieved party, that’s correct. I do not disagree that our Town code does not have any standards that list what is standing. I think case law, and this is my two cents on law, but says that in the absence of a written standard, you use reasonable findings of fact, Supreme Court findings, other cases that have been decided that say here’s what you use for standing. You have to be two feet from the property. You have to own the property. Whatever the finding is going to be. If you don’t have a written standard, you use those standards to compare whatever cases you have before you. I think that’s a reasonable assumption. The Town law does say, as Mr. Salvador quoted, Town law does say that an appellant that appears before the Town Zoning Board has to be an aggrieved party, and my only contention is that the aggrieved stature hasn’t been provided. I don’t think Mr. Salvador has shown that he’s an aggrieved party. MR. ABBATE-Let me respond. I disagree with you. I think the vote, four to two last week, did, in fact, agree that he is an aggrieved party. We talk about a person being aggrieved, we’re talking about injury or distress. Now, injury and distress can be either pain and suffering bodily or mind. If he has been stressed in mind, then he is an aggrieved party, and furthermore, we’re talking about a quasi-judicial Board. We talk about prima fascia case, what we’ve basically said when we voted four to two is that a prima fascia case is one that, at first glance, presents sufficient evidence for the plaintiff to win, at first glance, and I think our vote four to two was a fair and equitable vote for a voice to be heard in the Town of Queensbury, and further I would also like to stress and enter into the record a Lake George Association Special Use Permit marina which was submitted to this Board, which plays right into the entire role here. Thank you. MR. BROWN-I would just submit that all of the similarities and the arguments that Mr. Salvador has submitted that are the basis for his standing don’t separate him from the other several hundred lakeshore properties in the same zoning district. They all followed the permit process. They’re all in the same taxation district. They all have property on the lake. They all are in the same zoning district. That doesn’t separate them as an aggrieved party that’s affected by this action that no one else is, and that’s the requirement to have standing. You have to be affected by the decision at hand. MR. SALVADOR-That goes to the merits of our complaint. 16 (Queensbury ZBA Meeting 12/18/02) MS. RADNER-May I weigh in as the legal counsel here? I don’t know everybody here, so some of you may not know me. I’m Cathi Radner from Miller Mannix, and I’m your legal counsel. I do object to Mr. Salvador’s characterization of our belated legal advice, as is consistent with the advice we’ve always given to Craig Brown and he had asked for it in writing form so that you could have it for your meeting, and we managed to get it to him in written form, but it’s consistent with the same advice we’ve always given him. An administrative tribunal has standing criteria, regardless of what sort of administrative tribunal it is. If you accept Mr. Salvador’s argument that anybody who’s aggrieved or dissatisfied with a decision has standing to appeal a Zoning Administrator’s determination, then what you are saying is that basically anybody who lives in the Town of Queensbury who is unhappy with any building permit that is issued or any decision made by your Zoning Administrator, they have the right to appeal that because they’re aggrieved, they’re dissatisfied. Aggrieved is not equal to dissatisfied. Aggrieved means you are somehow impacted by the decision, and what you folks need to focus on is the decision that’s being appealed from here, and part of what might be the problem is that it’s being mischaracterized. Mr. Brown made a determination that the size, number and placement of the docks had not changed since the early 1980’s, and that that was grandfathered. He then proceeded to say, however, I don’t find registration of permits for 6NYCRR 646, I think both of these are subject to review by the Planning Board. That was his determination. Mr. Salvador hasn’t said how that determination has impacted him. It impacted by applicant, what Mr. Salvador is suggesting is that implicit in that decision is a determination that if he had found that, then everything would be fine and life would go on. That determination’s never been made. So if that is what’s being appealed, it’s not right. He’s putting words in Mr. Brown’s mouth that aren’t there. MR. SALVADOR-Well, may I? Firstly, the Town Code, when it talks about an aggrieved party, doesn’t even say you have to be from the Town of Queensbury. It doesn’t say you have to be a resident, a taxpayer, a citizen. It just says an aggrieved party. Town Law doesn’t say you have to be from that town. An aggrieved party. There are standards, I understand there are standards for standing, but I don’t believe that this Town ever considered it such an important thing that they should narrow it. They have given a broad breadth to this issue by not defining it. If you want to channel something through a small opening, you begin to issue restrictions that make you come into this small opening, and everybody knows them. We all play by the same rules, but that hasn’t been done. The Town Code, nowhere, I’ve looked through it. It just does not address this issue, and we all, you folks don’t have a background to measure us against, a standard to put us up with regard to appearance before this Board. MR. HAYES-Well, we have a lawyer, certified by the State of New York, that’s saying that. MR. SALVADOR-Certified by? MR. HAYES-The State of New York. MR. SALVADOR-Excuse me, she is a member of a Bar Association. MS. RADNER-The New York State Bar Association. MR. HAYES-But, I mean, there’s a State test that you have to pass essentially. MR. SALVADOR-A Bar Association sponsored test, not a State test. MR. ABBATE-Well, maybe someone can answer me this then. A leading, very respected law firm locally has stated, “Although the Code does not expressly state that one must be aggrieved to appeal a Zoning Administrator’s determination of the ZBA, there is support for this concept and it seems to make good sense.” Now I’m not sure I understand what that means. Perhaps somebody, the attorney, could explain that to me. Although the Code does not expressly state that one must be aggrieved to appeal a Zoning Administrator’s determination. Now this is from a leading, respected law firm in this Town. MR. BROWN-That’s correct. If I could, in our Town Code, in that section of appeals, it does say, that is a quote from that section. It does not require a party to be aggrieved, in the Ordinance. I can’t disagree with the Code, nor can I disagree with the memo you received from Counsel. They don’t disagree with the concept of requiring the party to be aggrieved. It’s not a determination that I make, is this party aggrieved, can they go before the Board. I don’t have the power to do that. This Board has the power to get the appeals, then decide whether they want to hear it or not. If you’re happy with the decision you made last time, that this party has standing, then you need to continue. MR. ABBATE-Well, the vote was four to two. Why shouldn’t we be happy with it? MR. BROWN-Let me finish. If you’re not happy and if you don’t think that the appellant has shown that he’s been injured or affected by this determination at hand, then you need to reconsider it. If you’re happy, we need to move on. MR. URRICO-Okay. Can I just, from my perspective, the way this has evolved, when we first had a chance to hear this, it was November 20, or we started to hear this. You weren’t present, and we wanted to hear th 17 (Queensbury ZBA Meeting 12/18/02) both sides. That’s why we postponed it for a week, and at that point, that’s when we first heard about the standing issue. We still hadn’t heard both sides, at that point, and that’s all we, my perspective, that’s all I wanted to do was hear both sides. MR. HAYES-Of the standing issue. MR. URRICO-No, of the issue, of the whole issue. MR. ABBATE-The whole issue, exactly. MR. URRICO-Which we still haven’t heard, and I thought we settled the standing issue at that point, and now we seem to be reviewing it again, and from my perspective, I’d just like to get on with this and hear what has to be said, what you have to say, and then go from there. MR. ABBATE-And I agree. I’m not sure I understand what the problem is. We voted four to two. MR. HAYES-Chuck, I think the problem is that it’s like a direct examination, the applicant refortified his case for his standing, which means he is re-addressing the issue of standing, which means we should be. MR. SALVADOR-Excuse me, only because Staff memo before you today. MR. HAYES-I understand that, but what I’m saying is that the whole, that’s why I asked you if you were segmenting your arguments because the issue is being revisited, to some extent, by both sides. That’s why, Chuck. MR. ABBATE-Okay. MR. SALVADOR-I’m forced to because I don’t know what, if you’re going to allow the Zoning Administrator a second bite at the apple, if you’re going to allow that, then I have to reinforce my arguments. MR. ABBATE-One way to settle this is have a vote right now, whether we believe he has standing, and that way that’ll close the issue and close the door, once and for all, and then maybe we can get on with the case. MR. SALVADOR-You’ve already voted. MRS. SALVADOR-You’ve already voted. MR. ABBATE-Well, that was my opinion. That was my impression. MRS. SALVADOR-You don’t re-do a presidential election just because you’re not pleased with who’s elected. MR. ABBATE-I thought four to two meant four to two. MRS. SALVADOR-Yes, I thought that two meetings ago. MR. SALVADOR-We tried once. MR. HAYES-I just want to speak to Town Counsel and ask her, what is the nature of a vote that’s taken previously on an issue that’s revisited? I mean, let’s just hear from, we have Town Counsel for a reason. MR. BROWN-I think I can probably answer that question real quick, and she can correct me if I’m wrong. MR. HAYES-Okay. MR. BROWN-If the Board decides to go back and revisit a vote, it has to be a unanimous decision of the Board to go back and revisit it, and then the vote can come out any way you want to, but in order to go back and hear it, it has to be a unanimous vote with the members present, but my recollection, again, is something I said in the very beginning of this topic, was at the end of the meeting last time, one of the claims from Mr. Salvador was that he was treated in a different manner than the applicants at hand here, that those applicants were required to do a certain process to get a building permit, and he was required to do a different process, and that gave him some basis to be harmed. We haven’t proven that yet. MR. SALVADOR-You’re right, I haven’t come to it yet. MR. BROWN-And that goes to the standing. Does he have the right to be here? Has he been harmed by that decision? And even if he has, that was 25 years ago, different Ordinance, different administrations. MR. ABBATE-So it has to be unanimous, the decision? 18 (Queensbury ZBA Meeting 12/18/02) MR. BROWN-To go back, yes. MR. ABBATE-Well, I would be against it, which would not make it unanimous. Proceed. MR. SALVADOR-Avanti. MS. RADNER-Before you proceed, may I urge you to do something here? Focus on the issue at hand. A determination was made August 13. That’s what’s before you. If you’re going to consider the merits of that th determination, you want to know how that determination impacts Mr. Salvador, and that is your focus, and I can tell you right now, whether I’m certified by the State of New York or have merely passed its bar, I went to law school. I can guarantee you that much, and I passed. What happened 25 years ago is absolutely irrelevant and equal protection of the laws has no play in this whatsoever. MR. ABBATE-Well, that’s okay. That’s her position. Now I would like to hear your position. MR. HAYES-Chuck, I’ll determine, if you don’t mind. MR. ABBATE-Go ahead, then do it. MR. HAYES-My position on this matter, it seems like we need a unanimous vote to revisit the, even though we’ve kind of misdiagnosed the standing issue to some degree, of why he is an aggrieved person, why he’s an aggrieved person, versus is he an aggrieved person, and that’s basically the argument that you’re making. It seems like, in the first vote on this, I was against, I did not think that Mr. Salvador had standing, and I don’t now, but it seems like the Board, in essence, I’m not sure that we’re not going to have a unanimous vote to undo the hearing, the only thing we can do is have a vote on that aspect of the standing. I mean, is that a different vote? I think it is. MR. BROWN-No. I think you voted that he has standing. MR. HAYES-Right. MR. BROWN-So, unless there’s a unanimous vote to go back and revisit that, you need to accept that and move on to the merits. MR. HAYES-I agree. MR. BROWN-Okay. MR. ABBATE-I agree. MR. BROWN-My point in the Staff notes was that it was my understanding that he was going to submit some additional information to support that position, and to date, he has not done that, and in order to proceed and hear the merits of the case, we have to substantiate that he has the standing. I guess it’s still out there, will be. MR. HAYES-Do you want to add anything at this point, or have you said your piece? MS. RADNER-I’ve said my piece. If you have further questions for me, I’m hear to answer your questions. MR. HAYES-Okay. Thank you. Mr. Salvador, welcome. MR. SALVADOR-Thank you. The significance of this appeal is unmistakable when viewed in the context of the Town’s recently adopted Zoning Ordinance, which now requires marinas to obtain Class A and Class B marina permits from the Lake George Park Commission. As you know, the Commission has taken the position that before they can issue the Class A, Class B marina permit, the facility must first obtain a Special Use Permit from the Town, Town of Queensbury, because our new Ordinance requires that. The key element in the Special Use Permit process is a requirement for the preparation of a site plan to be reviewed by and approved by the Planning Board. The present use of these boat docks does not conform to the new Chapter 179, that is marinas in a one acre waterfront zone, without a Special Use Permit. As such, the question of the prior legal conformity with all the rules and regulations prevailing for any structure shown on the site plan requires satisfaction. Time cannot cure an illegal installation. Just can’t do it. This Board is reminded that a site plan approved by the Planning Board imparts a property right to the owner and successors in interest to that site. Chapter 179, Article 9, Sections 179, 9 10 through 40 specifies the requirements for mapping any site plan to be reviewed and approved, and it’s a long list. It is a technical document. It’s a technical document. Accuracy is imperative. Section 179-10-50 adds to these requirements general standards for Special Use Permits, and they pile more on top of it. If boat docks were, in fact, illegally permitted by the Town as we can show, any grandfather privileges extended by the Zoning Administrator could allow applicants to proceed with the approval of their site plan, which would serve to allow the Town 19 (Queensbury ZBA Meeting 12/18/02) to issue the Special Use Permit, paving the way for the Park Commission to issue a Class A Marina permit, all with no foundation in law. Both Special Use Permits and Site Plan approvals become a property right. They run with the land, and when completed, certified, approved and signed by the Chairman of the Planning Board, in strict compliance with the Town’s requirements for site plan approval, could add enormous value to what might otherwise be considered junk land. Site Plans are frequently filed with the Warren County Clerk’s Office and after approval by the County Treasurer, they then become a basis for tax mapping and are often referred to in deed conveyances of real property, rather than the old fashioned metes and bounds description. Assessment inventories are taken from tax maps, as is information recorded on building permit applications. The Town’s zoning district map is a simple overlay of the tax maps produced by the County tax mapping service. The Lake George Park Commission uses tax map information for inventory of boat docks and boathouses. All of these uses are basically in violation of the real property tax law which says you only use tax maps for assessment purposes. Title insurance underwriting can refer to site plans. It seems fitting that we take a few moments to examine how our appeal fits into the scheme of permitting marinas on Lake George where although marinas are an otherwise legal use, they have never been an allowable use in the Town of Queensbury in any waterfront zone without a permit. The newly adopted Zoning Ordinance, Chapter 179 of the Town Code, and specifically Section 179-10, requires that certain land uses and activities require special consideration with respect to the Zoning Ordinance. Section 179-10-20 of Chapter 179 empowers the Planning Board to conduct Special Use Permit review, which advances the need for a site plan review, according to Article 9 of the same Chapter. However, Chapter 179 does not enumerate or establish criteria for those certain land use activities which require special consideration. Rather, specific standards for Special Use Permit arbitrarily list A through E a number of such land uses where marinas are positioned at the top of the list. Town Code Chapter 179, Article 2, Section 179-2-10, Definitions and Word Uses, is at Page 23 and 24, if you have your Code, there is a lengthy description of a Class A and a Class B marina, linking the Town Code with the regulatory program of an independent State agency. There is a linkage there. The Lake George Park Commission is that State agency. Such a linkage would logically require the two specifications be consistent with regard to scope of applicability, definition of terms, zone of jurisdiction. If you study this in-depth, you’ll find that there are many gaps, there are many overlaps, and a lot of inconsistencies. Zoning Ordinance Page 23 and 24, we find the essential criteria for classification of a Class A and Class B Marina in that the facility provide berthing places on Lake George for vessels, vessels, plural, regardless of the remuneration or profit, except that the, singular, berthing place is used for other purposes, such as, now, the way this is written, you need a Class A Marina permit if you have berthing places, more than one, it says plural, except if you have a berthing place that’s used for the following. So if you have more than one berthing place you are automatically a Class A Marina. MR. ABBATE-What Section is that? MR. SALVADOR-Page 23 and 24 is your Definitions Section. MR. BROWN-If you have more than one place for rent? MR. ABBATE-Give me a paragraph. Cite me a? MR. SALVADOR-It’s Definition. It must be Marina. MR. BROWN-It’s in the front, in the Definitions Section. MRS. SALVADOR-179-2-010. MR. BROWN-It’s the Definition of, Class B Marina. MR. SALVADOR-Class A and Class B. MR. ABBATE-Got it. Thank you. MR. SALVADOR-Okay. So, all you need are berthing places to be a Class A or Class B Marina. Now, you can escape this hopper of a Class A or Class B Marina if, if your berthing place is used for a residential or association dock, it’s used as a hotel, resort for guests, visiting guests, it’s an accessory use to a restaurant or persons engaged in fishing products. Now, safe to conclude that every facility merely providing berthing places, that’s more than one, for vessels on Lake George is either a Class A or Class B Marina. Regardless of remuneration. It doesn’t make any difference if you’re selling them, giving them away, renting them. It doesn’t make any difference. All you have to do is have berthing places, then you’re a Class A or Class B Marina. MR. BROWN-If we could just clarify, the berthing places have to be for boats that aren’t registered to the dock owner. So if they’re berthing places for your own boats. MR. SALVADOR-Where does it say that? 20 (Queensbury ZBA Meeting 12/18/02) MR. BROWN-It’s in the definition. It says if you have berthing places for the berthing of boats not registered to the owner of the property. MR. URRICO-Not registered to the owner of the property. MR. BROWN-So if they’re for use for boaters who aren’t property owners, then they’re thrown into the Marina definition. MR. SALVADOR-Yes. MR. BROWN-Okay. MR. SALVADOR-Okay. Regardless of remuneration, unless the facility fits into one of those enumerated categories. If they do not qualify for exemption, if they do not qualify for exemption, they are defacto a commercial use. They’re not commercial use because they’re, they’re commercial use by definition. Okay. That should be clear. They’re commercial use by definition. Nowhere do these people have to demonstrate that they’re using it commercially. I mean, we know what commercial use is. This is simply, you don’t qualify for the exemption, you are a Class A or Class B Marina, and therefore defacto commercial, because the Definitions Section of the Park Commission Regulations, commercial use or purpose is enumerated, and it says means, the use of lands or the waters of Lake George, including structures thereon, for any purpose from which a profit or any form of remuneration is or may be derived. MR. URRICO-Just so we’re not mixing Codes here, the definition in Queensbury says activity involving the sale of goods and/or services carried out for profit. So if we’re going to use the definition from here, we have to use their definition as far as commercial use. MR. SALVADOR-Well, somehow you’re going to have to get from the Queensbury site plan approved, okay, for whatever use it is, they’ve got to get this Class A Marina permit, okay, there’s going to be a different criteria. This is what the Park Commission requires in their permitting process. This is their book. Well, let me continue. I’ll get to more, okay. The Zoning Administrator has accepted, prima fascia, that because certain Town building permits, old ones at that, were issued, and that there is supporting documentation supplied by the Park Commission from as far back as 1958, that these commercial boat dock structures can therefore be grandfathered, accordingly we have dissented. Let us first set aside the subject of the Town building permits, those old ones, and let us dwell on the supporting documentation supplied by the Park Commission, okay. That was sent to you upon your request. You requested this information from the Park Commission, they supplied it to you. MR. BROWN-For these two properties. MR. SALVADOR-Yes. I have copies of that for distribution. Now, Mr. Brown will assure you that upon his request for information to help him make a determination as to the legal pre-existing status of these docks, the Park Commission sent this. Okay. Where does this come from? Let’s look at the title block. It’s an aerial survey of the shoreline of Lake George, and you’ll notice the date on it is 1958, and in 1958, the aerial survey was conducted and it was commissioned by the New York State legislature, and it was the result of enactment of Chapter 805 of the Session laws of 1957, and it reads as follows, “Authorizing and directing the Conservation Commissioner to cause a survey to be made of the shoreline of and of certain lands underwater in Lake George to determine the extent of any unauthorized encroachments on State land.” Okay. Section One of Chapter 805 reads, “The Conservation Commissioner is hereby authorized and directed to cause a survey or surveys to be made of the shoreline of Lake George, indicating thereon the mean low water line of said lake. Each of such surveys shall also indicate thereon the extent by which any structures erected or fill placed upon land now or heretofore underwater in said lake encroaches beyond such mean low water line and such surveys shall also bear the name of the reputed owner of the adjacent land. A print of each of the surveys shall be forwarded to the Conservation Commissioner.” Section Two says, “If the Board of Commissioners of the Land Office shall ascertain that any owner of adjacent upland shall be using or occupying any land underwater of Lake George for any purpose other than the exercise of riparian rights inherent in upland ownership, without first having received from the State a grant, license, easement permit or otherwise.” Now, there was concern, there was concern at that time for unauthorized encroachments occurring upon certain State lands. I have the legislative bill jacket here, and I would like to just read you a few quotes. The Conservation Commissioner, in a memorandum to the Governor’s, the Counsel to the Governor, talks about a vexious problem of unauthorized encroachments, and they need to provide the necessary machinery to deal with the problem, the survey. The Executive Deputy Secretary of State writes this letter to the Counsel to the Governor in support of this legislation. This Bill authorizes and directs the Conservation Commissioner to cause a survey to be made of the shoreline of Lake George indicating thereon the mean low water line, and the extent to which any structures or fill placed upon land now or formerly underwater encroaches beyond such mean low water line. There is reason to believe that there are many instances of illegal occupancy of State owned lands located under the waters of Lake George, in the nature of structures, docks, and fill,” and it goes on to say that the State will benefit if this Bill is passed. The Superintendent of Public Works, in support of this Bill, says, “The purpose of this Bill is to protect the shores of Lake George against the spread of encroachments which have been rapidly increasing and are a hazard to 21 (Queensbury ZBA Meeting 12/18/02) navigation and mar the natural beauty of the shoreline.” Way back in 1956, concerned about it. Anyway, the work is commissioned, but there’s difficulty because the mean low water mark doesn’t have a definition. You’re supposed to map the mean low water mark. Where is it? And so it’s not until 1963 that the legislature, after scientific study, the legislature established what we use today as the mean low water mark, 317.74, and that’s what you see mapped. It’s a very poor print, but if you study it, you can see here there is a line along the lake, and that line is the line of elevation 317.74, mean low water line, and that shows the relationship between that line and the encroachments. You see that on there? Okay. So, I should add that the 1963 Bill establishing the mean low water mark was introduced by the Lake George Park Commission and Mr. Bartlett, Mr. Richard Bartlett, was our Assemblyman at the time, and he introduced it into the legislature, and there are letters in here in support of that, if I can find them. Mr. Saul Neil Corbin, who was Counsel to the Governor, but also a member of the Lake George Park Commission, “It is noted that the mean low water mark line is used as the criteria for determining where the State owned land under the waters of Lake George begins, and this term is very carefully defined.” The Lake George Park Commission is in support of this 1963 legislation, and they say, “The Bill was introduced at the request of the Lake George Park Commission and our information is that it passed both houses of the legislature without objection. The Commission earnestly recommends that the Bill be approved by the Governor.” So here we have a program to identify the mean low water mark. It’s mapped, put on the map. We all know where the State land is now, in relation to private land, and it was the Lake George Park Commission that fostered this legislation. So we have what we need. We have what we need. We know where the State owned land is. We know where encroachments exist, and you know today in our Code we use this number, 317.74, mean low water mark. It’s in there. We measure certain things from it. Now, I’ve got a lot of other things here, but I can fast forward this and in essence what I’m saying is that, as the Town has permitted dock construction below the mean low water mark, they are outside their boundaries, have no authority whatsoever to permit construction on State land. As they do that, they are permitting construction outside the Town. That mean low water mark is the Town boundary between Queensbury and Bolton. As they permit that beyond 317.74, they are beyond the zoning district boundary, and they are without authority. Now, my argument is further supported by the fact that in 1970, the Second Department of New York State Supreme Court Appellant Court, in 1970, opined that a zoning power of a local government does not extend into the navigable waters of the State, and they use as a reference a State law 7A. Now, believe it or not, there’s a book, it’s a very thin book, of the State statutes, and it’s entitled State law, and it’s Section 7A of State law, Section 7A of State law reads, “The jurisdiction of this State shall extend to and over and be exercisable with respect to all submerged lands. The ownership of the waters and subsurface waters enumerated or described in Subdivision One of this Section shall be in this State, unless it shall be with respect to any given parcel or area or any other person or entity by virtue of a valid and effective instrument of conveyance or by operation of law.” Now, in 1970, it was determined that the navigable waters are within the sole jurisdiction and control of the State, except to extent of any delegation of power to the United States. Paramount authority of State to control uses upon navigable waters precludes local government from exercising jurisdiction with respect thereto. 1970 court decision. So, all things said and done, any permits that the Town of Queensbury has issued for the construction of, which constitutes an encroachment on State land are not valid. They’re acting beyond their authority, and therefore the Zoning Administrator cannot grandfather these. MR. MC NULTY-Mr. Salvador, though, it seems that you’re arguing that the Town of Queensbury’s permitting procedures are not legal. MR. SALVADOR-I’m arguing that the, I just said it, because of this, the Zoning Administrator cannot grandfather. It is an illegal use which cannot be grandfathered. You can only grandfather a legal pre- existing. MR. MC NULTY-But Section 179-10-35 says that to substantiate the use, to qualify for an exemption, it’s got to show that the structures associated with the use were constructed according to the permitting procedures which were enforceable by the Town at the time of construction. MR. SALVADOR-An illegal procedure is not enforceable. MR. MC NULTY-But it’s beyond our jurisdiction to declare a Town Ordinance illegal. You’re in the wrong jurisdiction. MR. SALVADOR-I’m not, I’m saying that the Zoning Administrator cannot grandfather an illegal use, and I have demonstrated here that the permitting, they were without power to grant a permit on the State land. It’s as simple as that, and there’s case law, I can give you the citations. MR. BROWN-Now, when you say I can’t grandfather a nonconforming use, you mean a nonconforming structure. I haven’t grandfathered any uses. The determination was the structure. MR. SALVADOR-The structure, we’re talking about docks. MR. BROWN-Okay. It’s going to be in the record. So if we’re going to talk uses, marinas are uses, docks are the structures. 22 (Queensbury ZBA Meeting 12/18/02) MR. SALVADOR-Yes. MR. BROWN-I understand it goes together, but. MR. SALVADOR-Yes, one leads to the other. MR. ABBATE-I need a refreshing voice in the wilderness. Are we going to open this up? I see several people here this evening. Are they going to be allowed to comment on this? MR. HAYES-Yes, but I wanted the appellant to tell me that he’s finished. MR. ABBATE-Because I really want to hear what other people have to say. MR. HAYES-Well, he’s asking if I’m going to open the public hearing and I said I wanted to be sure that you had concluded your argument. MR. SALVADOR-Yes. As I say, I can give you the citation of this. It’s 63 Miscellaneous 2 at Page 818, 63 nd Miscellaneous 2 at 818, 2 Department, excuse me. I read the wrong citation. I’m sorry. 35 AD 2 564, ndndnd 35 AD 2 564. I should also, I should mention one more thing, that this is not only our Town that is having nd this problem at this time. I’ll read to you from, I clipped this from the Pilot Knob Newsletter. That’s the Town of Fort Ann. They’re going under a reassessment, a reassessment project. I think you call it a reval. “Finally the Assessor addressed the issue of whether or not the Town plans to assess and tax boat docks in Lake George. He stated that this issue is still under discussion and legal review and that no final decision has been made at this point. New York State recommends that the docks be taxed. However, and since the Town has received special State aid for the reassessment project, he believes that the State may pressure the Fort Ann Board to take this step.” Confusion. Confusion. But that’s the. MR. ABBATE-That concludes your presentation? MR. SALVADOR-If you have any questions. MR. HAYES-You’re done for now, then? MR. SALVADOR-Yes. MR. HAYES-Very good. What I’d like to do, Craig, being that this is, is to just have you summarize one last time, in brief, your position, and then we’ll move to the public hearing aspect of it. MR. BROWN-Sure. I guess my position would be that the Town issued the building permit. When I made the decision to grandfather that dock, the location, size facing the docks, I didn’t find it necessary or reasonable, even, to require that applicant or that person to go back and reconstruct the case from 30 years ago, to demonstrate that those permits were issued legally at that time. I don’t think that’s a reasonable thing to do. If the building permit was issued, the applicant has proceeded in good faith to maintain those structures, build the structures the way they were proposed in the application. The Town hasn’t changed the rules, done anything different in their permitting process with regards to those specific docks. I didn’t see the need to reconstruct the history for the existence of those docks. I made, I guess, a reasonable presumption of validity. The permits were issued. They built the docks. They’re still there. I consider them grandfathered. It’s pretty cut and dried. MR. HAYES-Okay. Thanks. MR. BROWN-Yes. MR. SALVADOR-If I could just make a comment? MR. HAYES-I guess a short re-direct, or whatever that is. MR. SALVADOR-Okay. Believe me, there are, Mr. Brown’s fortunate that he found something in the file on these two applicants. I think as you go through this you’re going to find empty files. You’ll find docks but empty files. So, no, and I think his point is well taken. However, it’s your determination as to whether or not he’s gone far enough. Okay. That’s your call. All right. MR. HAYES-Thank you. At this time, I will open the public hearing. Is there anyone who wishes to speak in favor of the appeal, that is in essence in agreement with Mr. Salvador? Is there anyone here that would like to speak in opposition of the appeal, in favor of the determination of the Zoning Administrator? Any correspondence? MR. MC NULTY-I find no correspondence. 23 (Queensbury ZBA Meeting 12/18/02) PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. HAYES-Let me say that in the past, in reference to votes on appeals, we have simply voted to agree with the Zoning Administrator’s decision or disagree with the Zoning Administrator’s decision. It’s either a yes or a no. That’s what we’ve done historically. So you’re either in favor of the appeal or opposed to the appeal, yes or no, Mr. Salvador’s appeal, Appeal No. 3-2002. MR. HIMES-Could you state that again, please, Mr. Chairman? You’re in favor of the applicant or in favor of the Zoning Administrator? MR. HAYES-If you’re in favor, you’re in favor of the applicant, in favor of the appeal. MR. ABBATE-Right. MR. HAYES-If it’s a no, then you are disagreeing with the applicant, disagreeing with the appeal, agreeing with the Administrator’s decision. MR. HIMES-Okay. Thank you. MR. HAYES-All right. So I’m just trying to think. Actually, we have to make a motion and then go in favor or against that, essentially. Right? So what I will do is ask for a motion, in favor of the appeal, so that we keep the same rationale, essentially. Yes is for the appeal. No is for the Zoning Administrator’s determination. MS. RADNER-I think you better rephrase that. I think you’ve just confused your Board. Turn around what you said. MR. HAYES-To keep it, to maintain consistency, and so there is no confusion, I will ask someone to make a motion in favor of the appeal. What that will do is if you vote for the appeal, you know, you make a positive response, you will be voting for the appellant’s argument, essentially. If you vote no, you will be voting against the appeal, against the applicant and essentially be agreeing with the Zoning Administrator’s determination. Does everyone understand that? I’m not asking for a motion in favor, only so we can have some consistency here and have everyone understand exactly what they’re voting for. So would someone like to make that motion? MR. UNDERWOOD-Yes. MOTION THAT WE UPHOLD THE APPELLANT’S APPEAL OF THE ZONING ADMINISTRATOR’S DETERMINATION THAT’S APPEAL NO. 3-2002. THE APPELLANT IS JOHN SALVADOR, JR. PROJECT LOCATION WOULD BE THE SHORELINE OF LAKE GEORGE WITHIN THE TOWN OF QUEENSBURY SPECIFIC TO HANNAFORD ROAD, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: Duly adopted this 18 day of December, 2002, by the following vote: th MR. SALVADOR-I would, waterfront residential zones. MR. UNDERWOOD-It’s going to apply to all of it. MR. BROWN-Yes, but the decision was specific to the Hannaford Road property. MR. HAYES-Right. I guess I’ll have Maria call the role. I don’t know if we need a second to make the motion? Whoever makes the motion, I want you to understand that if you second it, we’re doing this to have a vote. It doesn’t necessarily have to reflect your position. MR. ABBATE-Yes. I second it. MR. HAYES-Okay. AYES: Mr. Abbate, Mr. Underwood NOES: Mr. Himes, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Hayes ABSENT: Mr. Bryant, Mr. Stone 24 (Queensbury ZBA Meeting 12/18/02) MR. HAYES-The Appeal is denied. Is there any further business before the Board? MR. MC NULTY-Not as far as I know. MR. HAYES-Any minutes that we need to approve, Maria? MS. GAGLIARDI-I think there’s a couple, on September 25 and October 23. thrd MR. HAYES-Does anyone have the 25 minutes with them that I can? th MR. HIMES-I’ve got the 20 and the 27 of November. thth MR. HAYES-All right. In order to make a proper vote, we need to have a copy of the minutes to determine the people who were present and are allowed to vote for their approval. Barring that, I will adjourn the meeting. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Paul Hayes, Acting Chairman 25