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2002-05-15 (Queensbury ZBA Meeting 5/15/02) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING MAY 15, 2002 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY NORMAN HIMES PAUL HAYES CHARLES ABBATE ROY URRICO JAMES UNDERWOOD, ALTERNATE MEMBERS ABSENT ALLAN BRYANT CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-MARIA GAGLIARDI MR. STONE-If any of you are here in connection with Area Variance No. 36-2002, Green Mountain Development Group, because the Planning Board has taken Lead Agency status and will be making some determinations later in the week, it will not be on the agenda tonight. Thank you for coming. It won’t delay anything. It will be on the agenda next month, but they have to go through the Planning Board. Mr. O’Connor, you can probably say it better than I can in terms of what has to be done. MR. O’CONNOR-Because of the nature of the project, it’s a Type I project, they have to give a notice to all the different boards that have a say in this thing, do they want to be Lead Agency, or will they allow the Planning Board to be Lead Agency. They have to give them a 30 day notice. They have not done that. They would issue that at the Planning Board meeting, and they would do a resolution saying it is a Class I project, Type I project. MR. HAYES-You better open the meeting officially. MR. STONE-Yes. Let me open, I’ll open the meeting, and we’ll let you go again, the Queensbury Zoning Board of Appeals first regular meeting, Wednesday, May 15, 2002. Mr. O’Connor, would you explain, for the record, why Green Mountain is not on the agenda. MR. O'CONNOR-Okay. It’s because of the nature of the project. It’s a Type I project where you have over 100 units. It automatically goes past the threshold of being a Type I project. That means that one of the agencies involved in the permitting process has to take the position that they will be the Lead Agency. The way that they do that is that they give notice to all the other agencies saying we will be the Lead Agency unless you object and want to fight for Lead Agency, and we will keep you apprised of how the application is proceeding. In this case, the Town did not do that ahead of these meetings. So at the first Planning Board meeting, all they will do is classify the project, take a position. We probably will make a presentation as to the nature of the project and what it is, and then they will make a resolution that they will be Lead Agency, and that they will send notices out to the other agencies. The other agencies are, I think, I don’t have the application with me, but the other agencies are DEC. It’ll be the Zoning Board of Appeals because of the Area Variance, the New York State Division of Housing because of the financing for the project, and maybe Department of Health, and the Warren County Highway Department. I think those five, they are the five permitting agencies that are involved in the project, and they will give four of them notice that they are going to go forward with the project. MR. STONE-So there will be a number of steps, and you will have opportunity to comment yes, no, whatever you want, next month. AUDIENCE MEMBER-Will we get notified? MR. STONE-It’ll be advertised just like this one was. If you’re within 500 feet, yes, you will be notified. MR. O'CONNOR-Yes, and if there’s some interest, I will be glad to have a meeting in my office, or I can get this building up here, I’ll give you some advanced notice. If somebody wants to call me, as a spokesperson, I’d be glad to get the teams together and let you know what we’re doing. If you want to do it that way. Okay. 1 (Queensbury ZBA Meeting 5/15/02) MR. STONE-Okay. Sorry that you were dragged out, but hopefully you understand the explanation. A point of housekeeping, last meeting Area Variance No. 22-2002, I neglected to close the public hearing, and we took final action on that application. So I am closing the public hearing, after the fact, on 22-2002. OLD BUSINESS: AREA VARIANCE NO. 102-2001 TYPE II RANDY BARRETT PROPERTY OWNER: SAME AS ABOVE AGENT: N/A ZONE: CR-15 LOCATION: 10 NEWCOMB STREET APPLICANT HAS CONSTRUCTED A MODULAR HOME ON THE PROPERTY AND SEEKS RELIEF FROM THE SIDE SETBACK REQUIREMENTS OF THE CR-15 ZONE. TAX MAP NO. 309.10-1-68 LOT SIZE: 0.48 ACRES SECTION 179-24C MR. MC NULTY-We had a motion to table this variance. “MOTION TO TABLE AREA VARIANCE NO. 102-2001 RANDY BARRETT, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: 10 Newcomb Street. For one month, no more than one month, until such time as the enforcement action and the subsequent court action is completed to the Town’s satisfaction, and then we’ll take it up again. Duly adopted this 17 day of April, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Bryant, Mr. Underwood, Mr. McNulty, Mr. Urrico, Mr. Stone NOES: NONE ABSENT: Mr. Hayes” STAFF INPUT Notes from Staff, Area Variance No. 102-2001, Randy Barrett, Meeting Date: May 15, 2002 “Project Location: 10 Newcomb Street Description of Proposed Project: Applicant has placed a modular home on the property. Relief Required: Applicant requests 12 feet 4 inches and 9 feet 2 inches of relief from the 20-foot minimum side setback requirement of the CR-15 zone, § 179-24. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the modular home as constructed in the preferred location. 2. Feasible alternatives: Feasible alternatives seem to be limited due to the home being placed on a block foundation basement. 3. Is this relief substantial relative to the Ordinance?: 12 feet 4 inches and 9 feet 2 inches of relief from the 20-foot requirement may be interpreted as moderate to substantial, considering relief is being requested on both sides. 4. Effects on the neighborhood or community: Moderate effects on the neighborhood may be anticipated as a result of this action. Public Comment has been submitted. 5. Is this difficulty self- created? While difficulty may be interpreted as self-created, a portion of the difficulty could be attributed to the pre-existing lot configuration. Parcel History (construction/site plan/variance, etc.): AV 102-2001: 04/17/02; tabled until applicant’s site is in compliance with violations of the junkyard ordinance. AV 102- 2001: 12/19/01; tabled until a survey can be provided. Town Board Res. No. 198-2000: revocable permit issued (Mobile Home Outside a Mobile Home Court). AV 60-2000: 9 feet of relief granted for both side setbacks (same home in current application). Staff comments: Moderate impacts may be anticipated as a result of this action. The applicant applied for this variance due to enforcement action from a formal complaint by Mr. Klein (neighboring parcel to the south). The applicant claims the foundation for the modular home was constructed in the wrong location because of human error. The Code Enforcement Officers during their inspections did not discover the human error, as it is not their responsibility to check setbacks. The Code Compliance officers have the responsibility to check setbacks; however, a survey is necessary to accurately check setbacks. The Code Compliance Officers would have discovered the setback error when the final survey was eventually submitted, as required by Town of Queensbury Code. Part of the tabling motion of 12/19/01 includes a request for the status of the current enforcement action against Mr. Barrett for violations of the junkyard ordinance. According to Dave Hatin, Director of Building and Codes, Mr. Barrett had until 04/19/02 to bring his site into compliance, which included removing all of the debris from the demolished trailer and the removal of all junk vehicles that are in excess of those allowed by Town of Queensbury Code. Mr. Barrett appeared before the court on 04/22/02 where Mr. Hatin reported Mr. Barrett was still in violation of the junkyard ordinance. A trial date has been set for 5/20/02. SEQR Status: Type II” MR. STONE-Is there anybody here to speak on behalf of this application, I mean the applicant? Anybody here? Therefore, because of the impending trial on Monday, as we have done in the past, I move that we table Area Variance No. 102-2001. MOTION TO TABLE AREA VARIANCE NO. 102-2001 RANDY BARRETT, Introduced by Lewis Stone who moved for its adoption, seconded by Norman Himes: 10 Newcomb Street. Until such time as the court action is finalized. At that point, we will, again, entertain a variance application. 2 (Queensbury ZBA Meeting 5/15/02) Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Hayes, Mr. McNulty, Mr. Abbate, Mr. Urrico, Mr. Himes, Mr. Underwood, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-Okay. We’ll try again, after the courts get through with this. AREA VARIANCE NO. 37-2002 TYPE II MARY CAROL WHITE PROPERTY OWNER: SAME AS ABOVE AGENT: AMERI-LOG CONSTRUCTION LOCATION: 5 WILD TURKEY LANE ZONE: WR-3A APPLICANT HAS CONSTRUCTED A 938 SQ. FT. DOCK AND SEEKS RELIEF FROM THE MAXIMUM SIZE DOCK ALLOWED. CROSS REF. SPR 10-2002 ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/2002 TAX MAP NO. 239.15-1-4 LOT SIZE: 0.83 ACRES SECTION 179-5-50 MICHAEL O’CONNOR & ROBERT SUTLIFF, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 37-2002, Mary Carol White, Meeting Date: May 15, 2002 “Project Location: 5 Wild Turkey Lane Description of Proposed Project: Applicant has constructed a 938 sq. ft. dock. Relief Required: Applicant requests 238 sq. ft. of relief from the maximum allowable 700 sq. ft. for docks of the Docks and Moorings regulations per § 179-5-050. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the desired structure in the preferred location. 2. Feasible alternatives: Feasible alternatives may include reducing the dock area to the maximum allowable 700 sq. ft. 3. Is this relief substantial relative to the Ordinance?: 238-sq. ft. in addition to the 700-sq. ft. maximum allowed may be interpreted as minimal to moderate (34%). 4. Effects on the neighborhood or community: Minimal to moderate effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty appears to be self-created. Parcel History (construction/site plan/variance, etc.): SP 10- 2002: 03/26/02 (tabled); open sided boathouse with sundeck. BP 2002-068: 01/31/02; replace existing dock. BP 92-068: 03/05/92; upper floor 763 sq. ft. addition SP 1-92: 01/21/92; construction of upper floor level addition, and 7’ x 24’deck. AV 6-1990: 04/18/90 (tabled; shoreline and side setback relief for a 16’ x 17’ addition) BP 89-692: 12/08/89 (application submitted): never issued; application was withdrawn on 10/30/90. BP 88-24: 02/03/88; 20’ x 22’ two-car detached garage. BP 8548: 06/07/84; 18’ x 22’ two- car detached garage (never built?). Staff comments: Minimal to moderate impacts may be anticipated as a result of this action. However, it appears the applicant never received any permits from the Town of Queensbury to modify or rebuild their dock prior to BP 2002-068. The applicant has submitted information (copies of Lake George Park Commission Notice of Complete/Incomplete Application) dating from 1988 requesting to convert a n L-shaped crib dock to a 28’ x 36’ U-shaped crib dock. The applicant’s history reflects their knowledge of the required building permit, site plan review, and variance processes in the Town of Queensbury. Staff wonders why the required processes weren’t adhered to prior to 2002 for the dock. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 8, 2002 Project Name: White, Mary Carol Owner: Mary Carol White ID Number: QBY-AV-37-2002 County Project#: May02-44 Current Zoning: WR-3A Community: Queensbury Project Description: The applicant proposes to resurface/repair a u-shaped dock of 938 sq. ft., where a maximum of a 700 sq. ft. dock is allowed. Site Location: 5 Wild Turkey Lane Tax Map Number(s): 239.15-1-4 Staff Notes: The applicant requests approval of a 938 sq. ft. dock that has been resurfaced/repaired that exceeds the 700 sq. ft. dock maximum. Staff does not identify an impact on county resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed Thomas E. Haley, Warren County Planning Board 5/10/02. MR. STONE-In the interest of fairness, Mr. Barrett, I see that you’ve shown up. We tabled your application on the advice, on the information that no work has been done on your property, and that there is a court date set for Monday. Is that correct? You have not done anything that, why don’t you come forward and just answer into the microphone. We’re not going to take very long. I don’t want to delay this very long. RANDY BARRETT MR. BARRETT-(Lost words) I don’t know how you can say I didn’t do anything. MR. STONE-But you still have a court date on Monday? 3 (Queensbury ZBA Meeting 5/15/02) MR. BARRETT-I’ve been cutting up the trailer, but every time I start cutting it up, I start the grass on fire. So you can’t do it when it’s not raining. You can’t do it when it’s raining. So you tell me, and I can’t lift it out. So at this point, I don’t care what you guys do, okay. MR. STONE-Well, we’re just going to table it. We’re not doing anything. We’re going to let the judge on Monday, and we’ll see what happens, and we’ll get it back after we hear what the court’s decision is. MR. BARRETT-I don’t really even care. MR. STONE-Okay. Thank. MR. BARRETT-I don’t know how you guys own my land. I thought I bought it and I’m paying the mortgage, but I guess you guys own it. I don’t know. It’s a bunch of bullshit is what that is. MR. STONE-Mr. O’Connor, would you, I’m sorry for the interruption. MR. O'CONNOR-For the purpose of your record, I’m Michael O’Connor from the law firm of Little & O’Connor. I’m here this evening representing Mary Carol White, and with me is Robert Sutliff who is the builder, who has become involved in this project. First I’d like to tell you a little bit about what they have there. We’re not, and I apologize. We’re not asking for permission to build something. We’re asking for after the fact approval for something that already exists. We have a dock that the best that we can tell by measurement has 936 square feet of surface area. When it achieved that surface area seems to be of great question. I’ll give you a couple of pictures of it. This is, and I think there’s a legend written on each picture that pretty much makes them self-explanatory. There’s pictures from the upland portion of the White parcel. There’s pictures of the dock from the south. There’s pictures of the dock from the north. They, I believe, clearly show that the dock is not, in and of itself, anything abnormal, anything greatly different than many, many docks that we’ve all seen on Lake George. This parcel has frontage of 127 feet. It’s not a gigantic, gigantic dock, if you will, in comparison to the frontage. If I have it correct, I believe that the setback on the north is 29 feet, and the setback on the south is 76 feet. It doesn’t encroach upon navigation, the way that it is set up. It doesn’t encroach upon a neighbor’s swim area or something of that nature. What brought this about was the builder brought an application in and had an application for site plan review to build a boathouse, an open boathouse, on top of the dock, and at that point, Staff said, and I guess Staff was questioned, maybe that we were before you, or I’m not sure who they were before. The neighbor questioned, how did the dock get to be 936 or 938 square feet. This is, and I disagree greatly with Staff comments, particularly the history that they give you here. This is not something where, and I’m dealing indirectly, second-hand, with Mr. and Mrs. White, but the people I’m dealing with I’ve dealt with before, and I believe what they have represented has been represented to them by the Whites. This is not something where the Whites took on to go out and build a dock in excess of 700 square feet. The dock is in excess of 700 square feet. The best permitting for the dock that we seem to have was permitting done in 1988, when it was very close to what is there now. It’s been before the Lake George Park Commission in ’82, ’88, 2002, all either getting registered or being approved as it went along. I’m told that between ’88 and 2002 the dock has been knocked out a number of times by ice. Apparently that’s an area that will move the dock or whatever, and my suspicion is that perhaps in one of those re-modelings, one of those reconstructions, the dock was added to. I don’t know, but I will tell you this, that in good faith, these people, in January, spent $25,000, based upon a building permit issued by the Town of Queensbury, to rebuild the dock, and that’s what you’ve got in front of you. It’s not a dock that I think has any impact of any significance on an adjoining property owner, upon a municipal interest. I think the County Planning Board has agreed with that, saying it has no impact on the County or County facilities, and they are the guardian of the lake. Lake George Park Commission, after getting a very long, detailed history, in March, about how this dock progressed from ’82 to present, still issued the permit to reconstruct the dock. They issued a permit in March, they got a letter March 7 with all th the history about what happened in ’82, what happened in ’88, with diagrams and everything else, and March 15, they issued their permit to reconstruct the dock, and the Whites, in reliance of that, went forward and th had the dock reconstructed, had the cribs brought up to Code, if you will, so that the cribs are open, as they’re supposed to be open, so that there’s a free flow of water through them. There were solid, some of the cribs were solid before. Bettered the crib system, as opposed to what was there. To try and make that dock conform right now would be in excess of $10 to $15,000. It’s not a simple thing to go in and simply pick up your cribs and cut back your decking. So I think this is not a self-created issue. I’ll go through the file that I have, and maybe point out a couple of things to you. First, my understanding that the present contractor first became involved with the property in January of 2002, and he works through somebody who goes out and does quotes and makes estimates for him. When that person went out, in January of 2002, they measured the dock. They did a sketch, and they show that there was 938 square feet there, in need of repair. They went back, after their construction, at my request, and made the same measurements, and in fact what was reconstructed was 936 square feet, two less square feet, and there are two little triangle corner pieces that may not be counted in either one, but I think they’re the same in both. What was done in 2002, when they spent the $25,000 based upon this building permit, did not change dramatically in any manner what was there before they began, except that they made it a safe dock. They made it a conforming dock, particularly as to the crib construction. The fellow who made these measurements is Steve Moffitt from American Log Construction. I’ll give you all a copy. If I were to go backward, this, obviously, is the placard that’s placed on the property that’s issued by the Town when they issue a building permit. This is the actual building permit 4 (Queensbury ZBA Meeting 5/15/02) that was issued to Bob Sutliff January 31, 2002. The permit expires January 31, 2003. It was issued under building permit 2002-068. This is the actual sketch and photographs that were submitted in January of 2002. It shows that the decking of this dock is in excess of 700 square feet. I thought, and I had questions with Craig. That’s who I dealt with in part, and I’m sorry he’s not here. I thought that in 1988, when we adopted our lakeshore restrictions, we didn’t adopt all of the size requirements that Lake George has in the Lake George Park Commission, but we did go back. We looked at the ’88 rules, and it appears as though they did have the 700 square foot in ’88. Now this dock work that was done in ’88 was permitted, I believe, before that. So I don’t know, necessarily, if the version before had it or didn’t have it. I know that the Lake George Park Commission, from Day One, has had, if you have permission to have one dock, you’re supposed to have 700 square feet, and they’ve issued three different things on this thing. So I’m not sure where it fell in the cracks or where it didn’t fall in the cracks, but this is the actual drawing, and you can take a look at it. You can see it. It shows what was there. It shows what they’re going to build. It’s marked received January 28, 2002 by the Town of Queensbury. It’s got the photos on it, and it’s got a review date by Building and Codes, and that’s how they issued the building permit. As I said, the Lake George Park Commission also reviewed this project in 2002, before the modification that we have. This is a copy of the notice for the repair that they issue. This is their comment letter. “The public comment period for the above application has ended, and the Commission has completed its review. We are prepared to approve the application pending approval from the Town of Queensbury. Please forward a copy of the Town’s decision once they have completed their review. Thank you.” And that was done, and they did approve it. January 29, they issued a th standard activity permit, and that’s the permit that was issued. Now, I’ve said that I differed greatly with Staff’s comments, and one of the areas that I differ greatly with them is that their comment in reference that they don’t understand why this dock was not before the Town of Queensbury before. I have a Lake George Park Commission Notice of Complete Application that was signed off on the bottom by Mac Dean, in 1988, and he was then the Building and Codes Director for the Town of Queensbury, with a handwritten statement by Mr. Dean on the statement saying proposed project in compliance with the Town of Queensbury dock regulations. What he had in front of him I don’t necessarily know, but it was here, and it’s in pretty much the same conformance as what was approved and what we found in 2002 when we went there. The only substantial difference, and there are some minor differences. I’ll get to those in just a minute. I also have the Lake George Park Commission permit that was issued in August of 1988. This is the second time that the Lake George Park Commission approved the substance of what is there. I can’t say that they approved exactly what is there, and I think, from what I can see, either in ’88 or in one of the rebuilds, one of the side pieces was changed from six feet, ten inches wide to eight feet wide. That appears to be different from the ’88 permit drawing that was submitted, and what we found when we went there in 2002. Whether it was reconstructed because it was knocked out or whether it was built that way in ’88, I honestly don’t know. MR. STONE-Are you saying that it was six and a half at some point, 6, 10? MR. O'CONNOR-Six feet. One spar of it was six feet, ten inches. MR. STONE-Ten inches, and approximately thirty-five feet long? MR. O'CONNOR-Well, no, it’s never been that short. See, somehow or other, and I’ll go through the notes, even, that the neighbor who has done this, Mr. Grey, refers to a 35 foot dock. I don’t think it was ever that short. Somehow, somebody was cutting off the measurements, and if you see some of the sketches there, you will see, not on the one that we did for 2002, but if you look at the permit notes, they seem to make a differential between mean low water mark, upland and out into the lake. They measure to that, and then they measure back from that. I don’t know, necessarily, why. If you stopped your measurements at the mean low water mark, or the place where the mean low water mark would hit the dock, you could call it a 35 foot dock, but you’d be on an island then. MR. ABBATE-Mr. O’Connor, let me just raise this one point, question, if I may, please, so I don’t get confused here. The correspondence, unless I misread it, that’s going down the table right now from the Lake George Park Commission indicates that this approval is based upon the fact, only for legally permitted docks? MR. O'CONNOR-Right. MR. ABBATE-Was this dock a legally permitted dock? MR. O'CONNOR-They have the same rules that we do. MR. ABBATE-They have the same rules. MR. O'CONNOR-I don’t have an explanation as to why they approved it in ’88 or why they approved it in 2002, unless their files are very sketchy as to what they had or didn’t have. I know what was there in 2002. I know what we’ve reconstructed in 2002. I can measure what was sketched out on the applications, and that’s a photocopy of an application that I think was floating around in ’88, and if you take a look at the big printed application there, that’s where I got the six foot, the northerly spar. The northerly spar was six feet ten inches wide. It still was 51 feet long. This dock has never, this dock is not a perpendicular dock, or a rectangular dock. It’s always had one side longer than the other side. The shore isn’t even. If you try to put it at right 5 (Queensbury ZBA Meeting 5/15/02) angles to the shore, you end up with one leg longer than the other leg. That accounts for some of the difference between, in the size of the dock. I think, presently, right now, one side is 47, if you go from the very inside of the dock to the very end of the dock, the southerly side, and the northerly side’s 51 feet, which probably means that that average of the inside piece is the difference between 12, 16 feet, is 14 feet, 14 by 27. MR. STONE-The question I asked earlier, though, there seems to be no dispute on the length of the pier, the two piers, the legs of the “U”, if you will, until you get back to the wide piece. That’s approximately, on the drawing, 35 feet. MR. O'CONNOR-Yes. MR. STONE-And that’s not in dispute, I don’t think. That’s 35 feet long, which means that if you, these things were widened, and you don’t know when, you don’t know how, but they were widened, and that made about an 80 square foot increase to the dock. MR. O'CONNOR-The one on the south was not widened. That was shown, in 1988, as being eight feet. MR. STONE-Okay. Then we’re talking roughly 40 feet extra. MR. O'CONNOR-You’re not talking a great deal. MR. STONE-No, but I just want to, that’s all. MR. O'CONNOR-Yes. If you look, people stop measuring it at either mean low high water, or mean high water mark. It’s on the map that I’ve given you. I get confused every time I look at the map. MR. ABBATE-While you’re doing that, I wonder if I may. How long have you been involved with the construction of these docks? How far back does it go? MR. SUTLIFF-This particular dock, sir? MR. ABBATE-Yes. MR. SUTLIFF-Just this year, sir. MR. ABBATE-This year? Okay. Fine. Thank you very much. MR. O'CONNOR-He sent his estimator up. His estimator measured the dock, and we rebuilt the docks. The docks, and I have a problem, I think, with the Town all of a sudden saying, hey, wait a minute, guys, we know. I didn’t give this to you. Here’s 1988 by Mac Dean, and the Lake George Park Commission, and in ’88 they didn’t do a lot, but there’s Mac Dean’s signature on the bottom of that. He was the Building Inspector for the Town of Queensbury. 1988 they approved it. People spent I don’t know what on it, and it fell into disrepair between 1988 and now. They spent another $25,000 in January of this year, based upon the permit that accompanied that green placard. MR. STONE-Has it always been an open dock like this? In ’88 there was never a boathouse on it, never a cover? MR. O'CONNOR-No. I don’t think it’s ever had a boathouse, that we’re aware of. MR. SUTLIFF-Not that we’re aware of, right. MR. STONE-Okay. MR. URRICO-Mr. O’Connor, is it your position that the dock is relatively unchanged in size, in total size, since 1988? MR. O'CONNOR-Yes. MR. STONE-And the building permit was issued on the basis that it was repair of an existing structure, without concern that it was oversized, assuming that it was legal. I have to, Bruce, is that what they’ve been saying? MR. FRANK-I believe so. MR. STONE-In other words, they said, as the Code allows, if it got damaged, it can be rebuilt, and the question of size did not come up until the boathouse engendered that discussion? MR. O'CONNOR-Yes. 6 (Queensbury ZBA Meeting 5/15/02) MR. ABBATE-And you said the key word, existing structure. Can we assume that the existing structure was, in fact, legitimate? There was no question as to the legitimacy of original structure. Correct? MR. O'CONNOR-The approval, in 1988, was to make this U-shaped dock, and what I can see on that, if you take into consideration the difference in the leg length, because it doesn’t fit to the shore like a rectangular square, and you add the foot and a third, or the foot and a fifth for the difference between the leg of six feet ten inches and eight feet. The best I can tell, that’s what was approved in ’88. MR. ABBATE-Yes, right, because it says here the description of authorized activities is to convert existing, existing, okay, L-shaped, it doesn’t say 980 square feet, existing L-shaped crib dock to 28 by 48 U-shaped crib. MR. STONE-In ’88. MR. ABBATE-In ’88, right. MR. STONE-And everybody signed off on that. MR. ABBATE-Right. MR. STONE-The Park Commission, the Town of Queensbury. MR. ABBATE-Right. MR. O'CONNOR-Yes. MR. STONE-And the Town of Queensbury, in January or February of this year said, okay, it’s in bad shape, rebuild it according to the way that it is, or was. MR. O'CONNOR-As did the Park Commission. MR. STONE-As did the Park Commission, right. MR. O'CONNOR-All of which discussion goes to our good faith, I guess. I think the crux of this is still what impact is there on anyone, if you looked at this as though it were a new project, even though it’s not. MR. STONE-Okay. The impact that I see, and that’s, we’re before the fact on that, is what will be the impact of an oversized boathouse, which is what triggered this thing in the first place. What’s going to be on that dock. MR. O'CONNOR-But the boathouse could fit on that dock, even if, the boathouse that’s being built could fit on that dock, even if it were a 700 square foot dock. MR. STONE-Okay. MR. O'CONNOR-That’s not, and I think that Mr. Grey’s biggest complaint, and although I think he’s here, and I’m not going to speak for him, was as to the height of the boathouse, and that has nothing to do with the platform. MR. STONE-No. MR. O'CONNOR-We didn’t ask for a variance for the height. MR. STONE-But a 700 foot boathouse would fit, would cover the water opening. So that you could be conforming with the boathouse, if everything else was all right. MR. O'CONNOR-Yes. MR. STONE-That’s the concern that I would have. MR. O'CONNOR-There are things that you could do, if you want to waste $10,000, $15,000 on behalf of somebody, okay. You could go in and cut this out, pardon me, you could cut this out here, gain a lot of the square footage here. MR. STONE-Would you put words to what you’re saying, for the record? MR. O'CONNOR-All right. You could create the boathouse into more of an island dock, or the dock more into an island dock, and have a causeway, if you will, to get to it, which is permitted, but it would mean re- 7 (Queensbury ZBA Meeting 5/15/02) doing all the cribbing, and you may have to make one of the two cribs on one side narrower than what’s there now. The boathouse on the top would still be the same. It would still be the same height. MR. ABBATE-But the boathouse isn’t an issue before the committee tonight. MR. O'CONNOR-No, but well. MR. STONE-No, it’s not. I agree. MR. O'CONNOR-I didn’t want it to be an issue, either. MR. STONE-No, and the only concern is that the applicant is going to seek a variance for the boathouse in the future. MR. O'CONNOR-No, we’re not. MR. STONE-We can’t hold you to that. MR. HAYES-Yes, we can. MR. O'CONNOR-We have no problem stipulating to that. We have no problem with that being a condition of approval. MR. STONE-Okay. MR. O'CONNOR-If that’s a concern that you get the footing, and all of a sudden you’re going to come back and want something bigger than what is permitted. MR. STONE-Okay. That would, obviously, looking my fellow Board members shaking their heads, that is a concern that seems to be present on the Board. MR. O'CONNOR-It’s a weighing of equity. It’s a weighing of I don’t know what. We’ve, at least twice, been to this Town, and gotten approval both times by this Town, to do what the people have done. We’ve been to the Lake George Park Commission and gotten approval for what’s there. MR. ABBATE-Mr. O’Connor, let me ask you this. You went to the Town twice? MR. O'CONNOR-Yes. MR. ABBATE-And received permission to do the 980 square foot dock, 38 square foot dock, and they granted that? Unless I misunderstood what he said. MR. STONE-Did they use those numbers at all? That’s the question. MR. O'CONNOR-If you look at the sketching, which was there with the ’88 permit, whoever has that, okay, that has 836 square feet of decking. The difference there, the best I can tell, is that the northerly spar actually is eight feet wide, not six feet ten inches wide. The other difference that I can tell is that the back piece, the piece back by the land, is longer at one end than at the other end, and when I average it out and tell you what it is, I increase the square footage. MR. STONE-Did anybody ask the question, when this project site application, or this, which is part of the building permit, did anybody ask the question what is the size of the dock that you’re going to fix? MR. SUTLIFF-It’s all right there in the permit, all the measurements are right there on top of the permit in the sketch. It’s measured. It shows you eight foot’s right there. The information was there. MR. STONE-The information was provided to Staff. MR. SUTLIFF-Yes, it was, for Craig Brown. MR. STONE-Looking at the building permit. MR. SUTLIFF-Yes. MR. STONE-That this was, if somebody did the math, that this thing was approximately 930 something square feet? MR. SUTLIFF-That’s correct, sir. 8 (Queensbury ZBA Meeting 5/15/02) MR. STONE-And you’re saying in 1988 that the Park Commission and the Town gave approval for 930? MR. O'CONNOR-The only thing, neither one of us were part of the ’88. The only thing we can look at is the documentation, and the documentation is there, very, very close to what we’re talking about, except the one side, I think, is the, I keep saying it, the six foot ten inches, instead of the eight foot in length. MR. STONE-It certainly wasn’t 700 square feet. MR. O'CONNOR-No, it wasn’t. MR. STONE-That’s clearly well over 700 square feet. MR. O'CONNOR-Yes. MR. STONE-Okay. I appreciate your very thoughtful presentation, and I think if you’re done, we’ll open the public hearing, or ask, any other questions, gentlemen? MR. URRICO-I have one question, on the application, Item One, How would you benefit from the granting of this Area Variance. It says, allows the applicant to retain pre-existing 938 square foot dock, in view of previous discrepancies to the record, and that’s in quotes. Which discrepancies are we talking about? If it’s presumed that. MR. O'CONNOR-We can’t go back and pull out a permit that says that you can do 938 square feet, and we partially agree with what the Town says. The Town doesn’t have a file on this, but Dave Hatin clearly signed off on it in ’88, and I don’t know what the practice was in ’88. I was surprised, in all honesty, that we had the shoreline restrictions in place then. I thought they came in in August or September of ’88, and this dock was build prior to that in ’88, and that I have not really pinned that down. MR. STONE-Okay, but everybody that, the two agencies and the two times, both were aware it was 938, 36, or 930, approximately? MR. O'CONNOR-At the very least, the worst configuration in ’88 is 836 square feet. MR. STONE-836, okay. MR. O'CONNOR-836, that’s the worst configuration that I could come up with, trying to do those measurements. MR. STONE-Okay. I appreciate you doing that calculation. So it’s always been at least 130 feet oversized. MR. O'CONNOR-Yes. MR. STONE-Okay. Any other questions, gentlemen? All right. Let me open the public hearing. Anybody wishing to speak in favor of this application? In favor of? Anybody opposed? Come forward, sir. PUBLIC HEARING OPENED JOHN MATTHEWS MR. MATTHEWS-John Matthews. I’m a neighbor. My history with this property goes back to 1957. My parents owned the property directly to the south in 1957. In that time, I helped, probably in 1958 or ’59, I helped the owner who owned the property build the original dock, which was approximately 35 or 36 feet long, because I remember helping him drag two huge telephone poles on a trailer down the hill, out, and what was built there was a pier, about six feet wide, with an L, which faced to the south. It originally started out with one pier at the very end of the dock, which went, was probably ten or twelve feet wide going east and west. MR. STONE-Do me a favor. You say south and my familiarity would be that the lot looks north. MR. MATTHEWS-Okay. Looking at the piece of property, the long measurement I’m saying is north and south. MR. STONE-Okay, and which property are you talking about? Right there. MR. MATTHEWS-Where the X was. That was our property. MR. STONE-Okay. I just wanted to be sure which direction we were going. All right. 9 (Queensbury ZBA Meeting 5/15/02) MR. MATTHEWS-So the front, the pier went out. It was actually two big poles that went out and spanned on to a crib that went parallel to the shore, approximately eight feet deep, and maybe twelve feet long, going east and west. Probably the permit, throughout the years, Hewey Matthison, the owner, added cribs underneath these poles in the back, filled them in with stone from the lake. When they did the dock in 1988, Joe Roulier did the dock at that time, I’m pretty sure, they built a crib in front of this 36 foot long dock, and made it 40 some odd feet long, probably 45 or 46 feet long. It was probably a 10 foot crib, and then they built the pier on the north side, to make the U-shaped dock. It was an “L”. They removed the leg that stuck out to the west, so that it was a straight pier, and at that time they made it eight feet wide. That’s what has been remodeled. My contention and my reason for being here is it’s after the fact. Now I’ve been a builder, and I’ve built docks for 30 years on the lake, and before we built a dock, we came to the Board. We got a variance. We got the permit. We didn’t come after the dock was built. There was a dog fence in the back yard. Several years after that there was a carport. Now there’s a garage, and from what I heard him say, there still isn’t a permit on that garage. Now maybe they came after the fact and got a variance. That garage is like two feet from the property line. They added on a third story on the house. Now when I was doing work on the house and putting siding on that house, I know for a fact that when they added that third story on, it’s well over 28 feet high, and I don’t know what was going on with the boards when they approved things, but it was approved well over. MR. STONE-When was this done? MR. MATTHEWS-A few years ago, when they put the third story on. He’s got a list of the permits. It was after the zoning said 28 feet. MR. FRANK-1992. MR. STONE-’92. It didn’t say 28 feet then, did it? MR. MATTHEWS-I’m pretty sure. MR. STONE-All right, well, I don’t believe it was 28 feet. MR. MATTHEWS-Well, I could be wrong there, but my point in the whole scenario here is, that here’s a major project being done on the shoreline, and they’re here for site plan review and a variance. MR. STONE-Well, they’re not here for site plan review. MR. MATTHEWS-Well, they’re here for a variance. Now, at this point in time, I feel that you know that they’re going to do a major project because they’ve told you they’re going to put a boathouse on top of it. The dock should be brought into compliance. When I remodeled my dock, several years ago, the piers were 50 or 60 feet long. Now they were built back about the same time that this dock was built, in the early 60’s. When I got my permit to build the docks and the boathouses, I was told that I had to make my docks in compliance. So I dug out all the cribs. I removed all the stone, and I built new piers 40 feet long in compliance, just the way the rules say they have to be. That’s my point, that we’re here, so many times I sit at these meetings and people go ahead and they get a permit and it’s, they blame it on the builder. They blame it on the Town for not following the rules or picking up the fact that this was an oversized dock. I mean it was black and white. I read the thing. The Lake George Park Commission stated plain and clear that they noted that this is an oversized dock, but yet it was there. So what were they going to do, make the people take it out? No. You can rebuild an oversized dock. As a contractor, I’ve rebuilt hundreds of them, but not when they were making a substantial change to the property. When they were making a substantial change to the property, then they brought the property into conformity prior to them getting, unless it was a setback situation or something like that. I can’t think of anything else that I’d like to say. Thank you. MR. STONE-Okay. Thank you, sir. Anybody else opposed? DON JONES MR. JONES-My name is Don Jones. I’m also an abutting landowner. Actually, I guess from that map it would be, as you’re looking at it to the right, or the east side, I believe. I think when I first received notice about this dock, it was regarding the neighbors wishing to place a boathouse on their dock, and in fact, you know, when I saw the dock being built, or resurfaced, I thought it was strictly a resurfacing job, and then, lo and behold, the notice came for the site plan review and the boathouse. My wife and I are not great fans of boathouses, but they exist on the lake, and they certainly are acceptable, and they’re there. The thing we were concerned with, and at the time I looked into it to do a little bit of history of things and just to see, you know, how the construction was going to go, and I looked at the height, and it was difficult to, you know, from the height, to decide how is that going to look, and where do you determine the height from, the high water mark. So it’s not generally from the deck of the dock. They determine it, I believe, from the high water mark. So it’s very difficult to get a real true number on that from somebody who’s looking at it, if you will, but as an abutting landowner, I think you can appreciate, you know, I’ve heard discussions here of $25,000. I’ve been here before this Board trying to get a few variances as well, and I’ve gone to the Board to get a 10 (Queensbury ZBA Meeting 5/15/02) variance before I made my building project, and in fact there has been an instance where I had, even with the variance we received regarding a setback, lo and behold, after all was done we couldn’t meet that. So what did we do, we spent more than $25,000, but still, to keep within the setback that was granted by this Board. So on principle, you have to decide as code members here, whether or not you believe in your codes, whether they’re there for a purpose. I hope they are. I mean, there’s a reputation here in moving to the Queensbury area, that this community is the toughest on rules, and I think they’re there for a reason. I think you probably have them to kind of have an aesthetic value to the community, also to protect other owners who are building in the community, and I think that’s a big issue here. I think if you look at the lake and if you look at the values of the property there, and I’m an investor in that particular area, I spent a great deal keeping to your codes, and I respect your codes. Now regarding this situation, you know, I went, you know, what I thought was just a simple construction lead me to quite a history of this, and I think John has mentioned a bit of that, but, I don’t know, do you have my letter dated March 7 to the Lake George Park Commission? I believe it th was passed, I know it went to Queensbury because from the site planning board, and I’m wondering if they passed it on to you here? MR. STONE-It’s not in the packet. MR. HAYES-We don’t have it. MR. STONE-If it was written just to them, they would not pass it on. MR. FRANK-I have a copy over here. MR. STONE-Okay. MR. JONES-You do? I don’t know if it would be prudent for me to raise it, because it is a very valuable history of this, and I think it has to be, the Board has to realize what went through here. So if you’d give me a moment. This is Molly Gallagher of the Lake George Park Commission. So I address it to you and the Queensbury Zoning Board. It is addressed to Miss Molly Gallagher, who’s the Deputy Permit Administrator. “Dear Miss Gallagher: This letter is in regards to the David and Mary White “White Application No. 5234- 10-02 and Lake George Park Commission Notice for Review that I received February 21, 2002. So, again, what happens is, we didn’t receive notice of a dock being resurfaced. There’s a way of circumventing a situation here that if you want to build a dock house, resurface the dock first. You don’t have to advise anybody, and then when you have to build a boathouse, then you have to advise people. Okay. Do you follow me on that? Okay. For the proposed construction of a boathouse and sundeck. That sundeck accessed by a set of stairs from the dock level. As expressed in my meeting with you on March 4, I th expressed concern with the height of the proposed deck and railing. The height of the surrounding decks and nearby neighbors is approximately eight feet from the dock, deck level, compared to the proposed White application of 12 feet 6 inches from the high water mark of the lake. My preference would be to see this boathouse/deck elevation to be consistent with the neighbors, both for consistency with the local boathouse architecture, and to minimize the blockage of view from our property as we look towards the southwest direction. My comments are not to prevent the construction of a boathouse, but for the proposed deck height to be reviewed and reconsidered. I say that, this is before I realized there was no variance for this size of dock proposed. Secondly, after discussing and reviewing the Lake George Park Commission regulations with you, it is evident that docking regulations on Lake George were enacted on July 31, 1981. You mentioned that docks built prior to this effective date were grandfathered or exempt. In the regulation of 1981, it stipulated that the surface area of a dock was not to exceed 700 square feet, and the part is identified here of the Code. Although new dock regulations were re-issued by Lake George Park Commission after 1981, I believe you said January 1, 1988, the dock surface area of 700 square feet remained the same. The history of the White dock construction permits shows the following. So all you have to do is go to their office and get their permits, and the history is there. On 11/15/82, the existing wharf was registered and shows a dock within existence prior to the effective date of the Lake George Recreation Zone, Regulation 6NYCRR Part 646. It was an L-shaped dock, 37 feet in length, with a 15 foot long section, from the sketch, the area of the dock was calculated to be approximately 435 square feet. I don’t know if you understand that. They registered their dock after that registration was put in place as law. Back on June 21, 1988, an application was made to the New York State Department of, DEC, what’s that. MR. STONE-Environmental Conservation. MR. JONES-Environmental Conservation. They showed the full length to be 36 feet, with a width of six feet, ten inches. An extension off the end of this showed it to be twelve feet by sixteen feet eight inches. The proposal was to remove the extension off the end and make a “U” dock with the new leg of the “U” being eight foot by thirty-six feet, with the bottom deck at the bottom of the “U” measuring 12 feet 6 inches by 10 feet deep. On the sketch, it’s on the sketch that was submitted, it indicated the surface area would change from 456 square feet to 650 square feet. Okay. That is documented, and then on that same period, this really confuses things, they submitted another sketch to the Lake George Park Commission and the proposal showed the full length now to be 48 feet. The original width of the leg was maintained at six feet, ten inches. An extension off the end showed it to be twelve feet, six foot eighteen inches. The proposal was to remove it, extension off the end and make a the “U” dock with the new leg of the “U” being eight feet by forty-eight 11 (Queensbury ZBA Meeting 5/15/02) feet, with the bottom deck of the “U” measuring twelve foot six inches wide by ten feet deep. On the sketch, it indicated, again, the surface area would change from 456 square feet to 656. This is on their diagram submitted. All of a sudden we’re into 2002, and on June 29, 2002, a permit was issued by Lake George Park Commission to repair the existing dock, Permit 5234-3-02. There was no Notice of Activity issued by Lake George Park Commission to the abutting property owners, or to you people, or to the Town of Queensbury. Each width of the “U” is now eight feet wide and the length of the northeast side is 51 feet on one side and 47 feet on the southwest side. Let me rephrase that statement, the Town of Queensbury not being notified. They came to the Town of Queensbury asking for the dock to be resurfaced, okay, but again, in all prior permits, in black and white, in their contractor’s hands, it states a measurement of 650 square feet. Why does nobody get alarmed? Because it’s in compliance. To summarize, the surface area of the dock in 1982 was 435 square feet. They went to a calculated area of 836 square feet in 1988 and now the latest permit is for the construction of 936, I say 950 square feet. The contractor has measured it at 938 I believe. Furthermore, although the sketches in Schedule Four of the White permit, 5234-3-02 show to be in compliance with Section 646-1.111, I question the accuracy of the dock’s position and whether the complete leg length on the northeast section complies. I think I heard from the presentation earlier that, is there a picture on there? That they’re speaking of, they said there’s a 29 foot, I think they’re saying on the application that it’s 25 feet from this point to the property line on the application. It was stated here tonight at 29 feet. I strongly disagree that that is 25 feet, and in fact, as you can see from my thoroughness here, I believe it doesn’t meet the Code of 20 feet, and as a result, if it does, it’s awfully close, it’s very, very close, but in any event, it’s certainly not 25 feet, or it’s certainly not 29 feet. So I question that, and I still question it, and I don’t think there was any, was there any survey presented here to the Board? MR. STONE-We have the building permit survey. It does not have that, it says 25 feet to the property line on this thing, which is not a survey but was received by the Building and Codes Department and stamped by them. MR. JONES-So who made the sketch? MR. HAYES-The applicant. MR. STONE-The applicant. MR. JONES-The applicant. Okay. So I question, you know, with all these measurements and dimensions and history thrown around, I question what one inch or one foot equals. MR. STONE-Let me ask you a question. Are you saying between the application of 1988, which I think you said was still less than 700? MR. JONES-On the application it shows 650 square feet. MR. STONE-So if we were to assume that it was built to that, that somewhere between then and now it was increased? MR. JONES-I’m saying that it got no attention by stating it was 650 square feet, because the Code is 700. MR. STONE-Well, the drawing that’s on file. MR. JONES-Is 650 square feet. MR. STONE-The Park Commission, in 1988. MR. JONES-It states right at the top, 456 to 650 square feet. MR. HAYES-Do you have a copy of that? MR. JONES-I do, yes. MR. ABBATE-And while you’re looking for that, let me also do this. You indicated that in 11/82 we started out progressively with 435 square foot, then ’88 went to 650 square feet, and then the 656 then now to 938 square feet in 2002, is that your position? MR. JONES-My position is this. What was submitted says 650 square feet, and as a result, if I’m anybody who’s issuing a permit, and I see 650 square feet, I’m saying, you’re in compliance. Here’s your permit. MR. STONE-Okay. Are you saying that it was not built originally in ’88 according to the application? Is that your contention? 12 (Queensbury ZBA Meeting 5/15/02) MR. JONES-I’m saying that it’s very confusing. It’s confusing because on one application, and I will submit, you would have my letter on file. In there I state quite clearly that there’s two kind of things that went on here, the same dock building, two drawings. MR. STONE-Okay. So you’re questioning? MR. JONES-My questioning is really this. MR. STONE-All right, state it, what you want us to know. MR. JONES-My question is, you know, and I ask this of you. I question, is it the responsibility of the property owner to meet regulations, or is it the responsibility of you that the property owner meets those regulations? I, as a property owner, I believe I heard John hear earlier, as a builder, but not only as a homeowner, boy, I respect your Code, and I respect it as the law. If I want to make a move, I come here first, and then I build, and I think John said the same. MR. STONE-I would ask you to hang around, because we have a couple of more on the program tonight that fall under this category. MR. JONES-No doubt, but I think there is, and possibly, the history, I think, is a little different here, though. I think probably with them, than here, because the homeowners themselves went on file in 1982 saying, yes, here’s our dock and we meet, you know, you’ve got a new regulation, here it is. It’s on file. MR. STONE-Okay, but it seems to me, and let me summarize, we’ll get to you, Mr. O’Connor. It seems to me what you’re saying, and I just want to, for everybody. What you’ve said that in ’82 there was a statement made by the property owner that this dock was approximately 450? MR. JONES-Right. MR. STONE-You’re saying, further, that in 1988, when application was made to the Lake George Park Commission to make it a “U” shaped dock, that they stated this finished dock would be 650 odd, and then, and in 2002, the dock, and these are the facts that are in evidence, if you will, the dock was reconstructed, repaired, replaced with an area of 936, 938 square feet. You seem to be saying, and I don’t want to put words in your mouth, that either there have been changes between ’88 and 2002 that were done without permit, to exceed 700, or that when it was actually done, in 1988, following receipt of a permit, that it was built to something like 930? MR. JONES-I’m saying there’s no permit, outside of 650 square feet. MR. STONE-Okay. Well, Mr. O’Connor will be allowed to comment. MR. JONES-I’m saying that’s their application. What can I say? MR. HAYES-Are you happy with that, though? MR. JONES-Sure. I mean, I thought, my impression was the Lake George Park Commission and the Board and you people all work together. MR. STONE-Well they have their requirements, as far as (lost words), but we also have our requirements, in terms of square footage, which happened to be the same, in terms of height, and in terms of setbacks. MR. JONES-Here’s the (lost words) application, I circled it for you, the two. MR. STONE-This is the Park Commission, and this was received on July 8, 1988, and July 21, which says st the existing structure was 456. The proposed structure, which appears to, was 650 square foot, and this was, do I have a top view of this thing? I’m not sure where the dock is here. MR. MC NULTY-The original dock was a straight dock out with this “L”. MR. STONE-Okay, on the end. Okay. MR. MC NULTY-What they’re proposing in this is the dotted line down across. MR. STONE-Right. MR. MC NULTY-Yes, and they took that part out. MR. STONE-And that was six foot ten, the thing that was approved was six foot ten of the right crib as we look at it. 13 (Queensbury ZBA Meeting 5/15/02) MR. JONES-I think the spokesman earlier mentioned, had claimed that there had been some changes due to ice damage and so on, possibly, John’s a full time resident there, I understand. He could maybe comment whether the dock was destroyed. MR. STONE-All right, but this permit showed a dock of six foot ten on the east side, and a dock of eight foot width on the west side, and according to the calculations presented by Mr. Roulier and accepted by the Park Commission, at least received by the Park Commission, claimed that this dock will be 650 square feet. MR. JONES-Is that not your impression? MR. STONE-That’s what I read. MR. JONES-Yes, I read the same. MR. ABBATE-That’s accurate, I think. That’s an accurate statement. MR. JONES-I think, you know, the bottom line here is, you say what is the impact. With all due respect, I just went through a homeowner who tried to sell their home, and next to their home, the neighbor had built a boathouse, if you will. That, you know, had a lovely piece of property, and that boathouse came along, trying to be nice neighbors, but they lost a fortune. It took them three years to sell their home, and if you look at the view, you’ll see what I mean. I’m saying, the impact to me is I’m looking at a 50, you know, if this was in compliance, and I told Mrs. White this. MR. STONE-Yes, but let me state, you are extending the argument to something that is not before us tonight. The boathouse is not something, and we’ve already heard from the applicant that if we were to stipulate that the boathouse is conforming to current Code, that they have no problem with that. MR. JONES-But the problem is, the boathouse, if you accept this dock as is, that boathouse will go on this dock that you see there. MR. STONE-That is correct. MR. JONES-But my argument here, and this is where I’m confused, how you can have two separate entities looking at this, because it’s a package deal. You are, if you accept this variance, you accept the impact of a boathouse. MR. STONE-We have no control over accepting or not accepting a boathouse. MR. JONES-No, but I’m telling you, if you accept this package, it leads to that next step, which is a major impact. MR. STONE-It is not under our agency. MR. JONES-You don’t deny it, though. You don’t deny what I said. MR. STONE-We’re not here to talk about that. MR. JONES-No, I know, but I’m saying it’s a major impact. I’m making a statement, it is a major impact. MR. STONE-And that is something that you have to find a way to argue, but this is not the forum to argue. We are concerned, I think you have heard us. We’re concerned that an oversized boathouse might be built on this oversized dock, and we have said, and the applicant has agreed, not formally, because they haven’t proposed it, that this boathouse will be in conformity with current Code. Therefore, it is not something for us. You raise valid points. Don’t get me wrong, and we will consider that. MR. JONES-No, I understand your position. I respect the position you’re in. I’m not necessarily going to agree with it, but that’s. MR. ABBATE-You made another allegation here that I really would like to get cleared up. MR. JONES-Not an allegation, I hope, facts. Facts. I hope facts, that’s all. MR. ABBATE-All right. Let me rephrase it then. I withdraw the word “allegation”, and I put in, you stated the fact that it is your belief that the distance between the property and the boat is not 25 feet? MR. JONES-Right. MR. ABBATE-But you stated the fact that you believe it’s 20 feet, as a fact. Is that correct? 14 (Queensbury ZBA Meeting 5/15/02) MR. JONES-I’m saying as a fact it’s not 25 feet, and it’s questionable. When you’re on that 20 foot, you’re asking me is it 19 foot or 20 foot? I can’t answer you on that, because I don’t see any surveys submitted here, but I’m saying, and I questioned the Lake George Park Commission, I questioned, does it run according to that. MR. ABBATE-So the Code is not 20 feet, it’s not a fact. You’re saying that perhaps it may not be in compliance. MR. JONES-I’m saying perhaps it may not be in compliance, yes. That’s all. MR. FRANK-For the record, Code is 20 feet. MR. JONES-I understand the Code is 20 feet. MR. STONE-The Code is 20 feet, and if it’s 20 feet 00, it’s in compliance. MR. JONES-I understand. MR. STONE-If it’s 19’ 11’’ and .97 it’s not in compliance. We go on the basis it is or it isn’t. So if it’s not 20 feet, then it’s not in compliance. If it is 20 feet, it is in compliance. We don’t know what it is, but the survey that was put in, or not the survey, the drawing said 25. MR. JONES-And I strongly disagree with that. MR. STONE-And we appreciate that. We will get to the bottom of that. MR. JONES-With all due respect to the Code, this is an awful position for you to be put in, and to tell you the truth, me as a neighbor. I believe I purchased the property three years ago, and it has been a challenge. It is a challenging piece of property there, and you do have a lot of Codes, and there’s been a lot of effort to meet those Codes. After, you know, I’ve had, I think John mentioned there was a fence over the property line, and so on. Before I could buy the property, I had to get clear title to that my property. MR. STONE-I think you’re wandering a little bit. MR. JONES-No, I’m not wandering. I’m just telling you, Mrs. White approached me just the other day, it was the first time meeting her, lovely woman. It’s ironical that they may require something, but my position, I told her, has not changed. If you can meet Code, I have no problem with your dock or boathouse, but, you know, I think Code is required here. It’s required here to protect my property. MR. STONE-And that’s why we sit here, and probably deny or as many applications as we approve. That’s, we have to do a balancing test. MR. JONES-Put it this way. It’s a difficult position. It’s the last place I want to be. MR. STONE-Okay. MR. ABBATE-Thank you. MR. JONES-Thank you. MR. STONE-Thank you very much. Anybody else wishing to speak in favor of or against? Any correspondence? MR. MC NULTY-We do have one piece of correspondence. It’s from Diane Matthews, and she writes, “I am writing to express concern about the dock variance requested by Mrs. White. In granting such a variance, you will have created a disservice to all those who have properly followed the rules asking for a variance and have been denied. It is time to stop giving variances to those who have already built nonconforming and thus illegal structures. You are not sending the right message to those who follow the rules. The Whites are not new residents of the lake. I am very disappointed they allowed the dock construction to take place and are asking for a variance after the fact. They should know better, having several businesses and other properties. If you study this parcel of land, you will notice that it has a few other nonconforming areas. Please study and review this request very carefully. A boathouse is planned at this dock. Reconstructing the dock to comply would impose little hardship on the Whites. I request that the variance be denied. Sincerely, Diane H. Matthews” MR. STONE-Is that it? MR. MC NULTY-That’s it. 15 (Queensbury ZBA Meeting 5/15/02) MR. STONE-Thank you. Then I will close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Mr. O’Connor, do you wish to rebut? MR. O'CONNOR-I do. I apologize for being anxious. I have the nature of trying to cross examine somebody that might get us a little bit closer to the question. With due respect to John Matthews, these people didn’t go build this without getting a building permit, in either event, in 1988 or in 2002. They had the signoff, I’ve given you the signoff, by Mac Dean in 1988. I’ve given you a copy of the building permit that they obtained in 2002. So, I distinguish, very simply, what his argument is with people who haven’t tried to come into compliance or bring themselves into compliance. These people didn’t step across the line intentionally. There’s no showing of that. How they got there I can’t necessarily tell you square foot by square feet, but I think they’ve done what is reasonable. The next speaker, I think, is completely wrong on his facts. I have not found, and was not able to find, the earliest sketch of the boat registration or the dock registration that he found or said that he found at the Lake George Park Commission. You can do it by negative reference, if you will, looking at the ’88 permit, because there appears to be an underline in there of an “L” shape, and they show where they’re going to build it into a “U” shaped boat, or boat dock, but if you look at, and there is a statement on the ’88 permit that says that the total square footage is 650, but if you do the math, it doesn’t come close to that. If you take a look at it, he’s showing this again, the rectangular box was not the rectangular box, if he gave you a picture of the whole permit. He shows 48 feet on the, I guess we’ve decided that’s the east side, and it presumes 48 feet on the south side. It shows a width at the shoreline of 27 feet 4 inches. I think we have a width of 27 feet 4 inches. The width, or the length at the north end is 51 feet, and the width at the west end is 47 feet. I think what was built in, what was permitted in ’88 is what was built, except I can’t explain the difference in width of that one spar. That one spar is clearly shown as six feet, six, ten, and what was built and what we found when we went there in 2002 was eight feet. MR. STONE-Okay. Would you comment on, there seem to be two things here. One is a direct, specific statement. The other requires a calculation. Do you think, would you comment on, was the 650 possibly meant to deceive? MR. O'CONNOR-I don’t know who made the 650. I don’t know, but I’ve never taken anything to the Lake George Park Commission where they didn’t do their own calculations, to be honest with you. They don’t take your calculations, and as far as whether or not we have the correct mean low water mark or mean high water mark, they go out and check you. That’s not a guessing game. We did it with the last dock that I had in here. I’ve never had them just take calculations and say, application doesn’t require this or whatever. So I don’t think that’s a fair statement or assumption to make. MR. STONE-I’m only asking. MR. O'CONNOR-Okay. Well, I want that on the record. I don’t think it is. MR. STONE-That’s fine, but let me ask you. Is there any record, you’ve been more familiar with this than maybe I have, although I’ve read it. Is there anywhere in here where the Park Commission has written, on its own letterhead, on its own statement, that it’s approximately 900 and something square feet in 1988? MR. O'CONNOR-No. MR. STONE-It’s nowhere. MR. O'CONNOR-No. They just issued a permit. I gave you the permit. MR. STONE-Yes, I know. MR. O'CONNOR-The ’88 permit says 28 by 48 feet, “U” shaped dock. That’s actually bigger than either, what we’ve talked about, I haven’t looked at that. That says it’s a foot wider than what we’ve talked about. Take a look at the second page of the ’88 permit, description of authorized activity, convert existing “L” shaped crib dock to 28 by 48 feet “U” shaped crib dock as depicted in project plans, attached and made apart hereto. MR. STONE-It does say in the application, expand existing 23 by 48 “L” shaped crib dock by eight by eight finger and four by twenty four stake finger. MR. O'CONNOR-So I think what happened, they built what they got a permit for. I think what was interesting, I think it’s Mr. Grey, and I apologize if I’m mixing up the witnesses, but it’s Mr. Grey’s first observation in January of this year that there was a resurfacing of the dock, which to me leads to the inference that what was there, what was done in 2002 was the equivalent to what was done before. Now I 16 (Queensbury ZBA Meeting 5/15/02) don’t know if he owned it the full, if he owned it in ’88, or if what he found in 2002 was actually what he found when he bought the property, which also would go to a statement of impact. MR. ABBATE-Is a permit required to resurface docks? MR. O'CONNOR-I was getting into that. MR. ABBATE-That’s my question. MR. O'CONNOR-They didn’t used to. MR. ABBATE-Okay. That’s my question, because I’m going to follow-up. Is a permit, when the dock was resurfaced, did it require a permit? MR. O'CONNOR-I think Craig takes the position now that if you’re going to do crib work as well as surfacing, you need to get a permit. MR. ABBATE-Now. MR. STONE-Yes, if it goes below the water. MR. FRANK-That’s correct. MR. O'CONNOR-Yes, and that’s why we got this permit. MR. STONE-And obviously we recognize that was granted in good faith. I mean, it’s one of those situations where stuff was done in good faith. MR. O'CONNOR-The question is impact. I may have misstated. My builder tells me that the setback on that side is 25 feet. It’s not 29 feet. I misstated that from the side. We’re not asking for a sideline setback. MR. STONE-I know you’re not. MR. O'CONNOR-We’re not asking for a blessing of the sideline setback of any nature. MR. ABBATE-But it meets the setback requirements. MR. O'CONNOR-Yes, and it also the length requirements. I heard that question. Maybe I should, for the record, state that it does meet the length requirements. You cannot go beyond 40 feet beyond the mean high water mark. MR. MC NULTY-Mean low water mark. MR. STONE-Mean low water mark. That’s why you’ve got the mean low water mark shown on here, and I think that’s where some of the confusion is, and I haven’t been able to pin anybody down, whether or not the Lake George Park Commission considers the dockage above the mean low water mark as part of the dock. That would make a difference in square footage, and that just about comes out even, the difference between the 800, 900 and the 650 figure. There’s a line there, and if you take a look at it on the sketch, you can see somebody drew, they may have drawn those for purposes of saying how long is the dock, too. It may not necessarily be for square footage. MR. MC NULTY-As far as I can find in the current Code, though, it doesn’t say anything about how to measure the dock. There’s something somewhere, whether it was Town Code or whether it was Lake George Park Commission, that said something to the effect that a dock starts eight feet from the shoreline. Because I know of several instances where people built docks 10 feet out and waded out to the dock because some official somewhere said you couldn’t have a dock between eight feet and (lost words). MR. O'CONNOR-In the revised Code, because I argued that as a comment, when they asked for public comment on the Code, they do not measure above mean high water mark as dock surface. MR. STONE-It says no dock shall extend more than 40 feet offshore from the mean low water mark except (lost words). MR. O'CONNOR-Okay, but there’s another provision that talks about docks, and they don’t measure above mean low water mark. MR. FRANK-All surface area that extends above the mean high water mark is not included in that 700 square feet. 17 (Queensbury ZBA Meeting 5/15/02) MR. O'CONNOR-Is not included, but that’s the 2002 Ordinance. MR. FRANK-Which is what you’re applying here. MR. O'CONNOR-Yes, okay. MR. STONE-That’s what we’re working with. MR. O'CONNOR-But that wasn’t here in ’88. It wasn’t there in January. MR. STONE-No, but it says the maximum surface area of any dock shall be 700 square feet, including any walkway. For the purpose of computing the maximum surface area, no portion of the structure shall be included within the computation which extends upland of the mean high water mark, upland of the mean high water mark. So it goes mean high water to out 40 feet from the low water mark. So it might be a little longer than 40 feet, but it’s all included in the computation of the 700. MR. O'CONNOR-Yes. MR. URRICO-In January, when the building permit was applied for, was there any thought given to reducing the size of the dock at that time? MR. O'CONNOR-I don’t believe there was, because it was never raised as an issue. What they thought they were doing is they actually went out, that’s why I had this guy who did the estimate come back to us and say, what did you find when you went out to estimate the job. Pre-existing docks, you just go resurface them. MR. URRICO-Nobody understood, at that time, that it was above the? MR. O'CONNOR-Nobody had an issue between the interpretation of the ’88 permit and what was built in ’88. MR. URRICO-But we’re talking about 2002, and what exists now, when the building permit was applied for. MR. O'CONNOR-When the building permit was applied for, there was 938 square feet. What was reconstructed, based on that building permit, is 936 square feet, one side is a foot shorter, I think. MR. HAYES-I just did the square area, on the ’88 drawing by Joe Roulier, and like you said it shows a 650 square foot application, but the actual drawings, when drawn, come out to 872, and that’s without those two corner pieces. So I guess that’s what you’re saying. There’s a difference between. MR. O'CONNOR-And that’s presuming, in your calculation, that it’s a rectangular box that fits the shore in a rectangular manner. You have to average that back piece. MR. HAYES-Yes, well, no, actually, there’s a little, I increased, there’s like 25 square feet that is to the lower right according to the drawing. That’s all. MR. O'CONNOR-All right. It’s much larger than 700 square feet. Nobody was pulling the wool over anybody’s eyes. MR. STONE-Right. Any other questions, gentlemen? MR. MC NULTY-I’ve got just one, thinking ahead. While we’re not considering the boathouse, at the same time, if the boathouse were built to conform to boathouse requirements now, it’s going to go over the “U” shaped portion and be out from the shore a little bit. Right? There’s going to be space between the boathouse and the shore. MR. O'CONNOR-Yes. MR. MC NULTY-If we were to require conformance to 700 square feet, as you mentioned, one possibility is taking that extra square footage off the portion that’s near the shore and pulling the dock back. MR. O'CONNOR-No. All we do is create an island. Make it a walkway. MR. MC NULTY-You’d cut it off, but you’d leave the rest up (lost words). MR. O'CONNOR-You’d make it a causeway. Then you’re talking a lot more than $10, $15,000. MR. MC NULTY-So whichever you do, it’s not going to change the position of the boathouses in relation to the shore. 18 (Queensbury ZBA Meeting 5/15/02) MR. HAYES-Or the piers, I guess, like you’re. MR. STONE-Just for the purposes, I know, again, we’re not determining whether or not we’re approving the boathouse, but where would a conforming boat cover, or is this going to have sides or not? MR. O'CONNOR-No. MR. STONE-Okay. So where would the posts. MR. O'CONNOR-I did one for Dr. Farber. We did one for Dr. Farber. It has an open, built on posts. It has a mansard roof so the deck itself isn’t the full width of the boathouse, and it has a land bridge that will go down to the back of the boathouse, or go down to the, upland of the “V”. It won’t go to the land. Won’t do a land bridge. MR. STONE-Right, I understand that. MR. O'CONNOR-Okay. The surface, how big is the surface area? MR. SUTLIFF-The flat part? MR. O'CONNOR-Yes. MR. SUTLIFF-Mansard, the flat part is 600 square feet. MR. O'CONNOR-What’s the dimensions? MR. SUTLIFF-The dimensions are 16 by 30. MR. STONE-Thirty feet long and 16 feet wide. MR. SUTLIFF-More like 28 by 30. MR. O'CONNOR-This is a single boat slip. This is not, you see a lot of double boat slips. People can make a much bigger building and then put the boathouse over it. The boathouse, and I don’t mean, the boathouse doesn’t seem to have the same decking restrictions that the decks do, and that’s kind of surprised me a little bit, but that’s Lake George, that’s Bolton. That’s Lake George Park Commission, and it’s pretty much the Town position. MR. STONE-Well, I think the assumption, and we know what an assumption is, is that with a 700 square foot dock, that the boathouse will be appropriately sized. MR. O'CONNOR-But not necessarily so because you don’t count the boat openings or the water openings in your 700 square foot calculations. MR. STONE-No, that’s true. MR. O'CONNOR-And I don’t mean to be facetious, but somebody could build a very small, I think the requirement is that the pier has to be at least two feet in width, and you could easily build a double boathouse, if somebody were trying to be greedy, if somebody were going to, you know, they have enough frontage to do that. They have enough setback. This is not a gigantic boathouse. This is not an overuse of property. It is not an over density or even an attempt to come close to that. It really is modest, and I’m not sure why the documentation isn’t as good as it should be. MR. STONE-We appreciate your candor. We appreciate the explanation. We appreciate the thoughts of the two gentlemen who came forward. There are obviously a lot of questions in our mind, but go ahead. MR. HIMES-I just wanted to ask a question, maybe Staff could answer it even. In the building permit process, doesn’t it show in there somewhere the square footage that’s involved when something’s going to be? MR. FRANK-The current building permit that was issued? MR. HIMES-Yes. MR. FRANK-I believe so. MR. HIMES-Well, like Mr. O’Connor got, this is after the fact, I guess, that he went back to the estimator or what not and got the figures right here at, you know, the lengths and widths and so forth, and then on the side he’s done the calculations for each one of the dimensions involved and comes up with 938 square feet. 19 (Queensbury ZBA Meeting 5/15/02) So wouldn’t that have shown up in our application file, or at least the dimensions would have been there where the total square footage could have been calculated? MR. O'CONNOR-It was part of the application. MR. FRANK-It was calculated. MR. HIMES-Yes. It’s gone along the line, but I’m just saying, in effect, that we have the information, that it was 938 square feet. It was clear. MR. STONE-The Building Department had the information, and obviously a building permit was issued and we’re not into their heads, and this is not a court where we’re getting into why they did what they didn’t do, but the point is there is a dock there that our Staff, people that we work with, have said is oversized and the only way it can stay is by the Zoning Board of Appeals granting a variance for this oversized dock. MR. HIMES-I understand. Thank you. I’m saying that, again, in our same church, different pew, we’re saying that it’s oversized after it’s built, and there’s some emotion here in connection with the fact that it had been constructed prior to when the process should have been followed, but really the information was in our hands, in the Town’s hands. So, I just think that that has significant bearing in connection with at least that part of the question that might pertain to someone doing something underhanded, which definitely is not the case. Thank you. MR. FRANK-I don’t believe the Building and Codes Department researched the history of an application for a building permit. MR. HIMES-No, I don’t mean that. I just mean, here’s what they’re asking to do, and I don’t know if this information was on the application. I would think it is, what little experience I’ve had with building permits, they ask for. MR. STONE-There are two to three people, and this is not taking sides, there are two or three people who have said, for the record, Mr. Sutliff who built the dock, said what he replaced was what was in the water was approximately 930 some square feet. I don’t want, you didn’t measure. MR. HAYES-Over the 700. MR. STONE-Way over the 700. Mr. Moffit, independently, who estimated this thing, has said that this is to provide the Whites with an estimate of replacing the existing dock. So there’s another person who has signed a piece of paper that says it was 900 and whatever this, approximately, and certainly the applicant, in making the application, has also sworn, so to speak, that this was 930. When it happened even Mr. O’Connor isn’t sure, but it appears that in 1988, some of the numbers to the contrary, that a permit was issued by the Park Commission for a 938, 36 square foot dock. Am I? MR. O'CONNOR-That’s where we’re at. MR. STONE-Yes. MR. O’CONNOR-And I think you’re back to the fact of what impact does this 236 square feet of surface have. I think Mr. McNulty raised a valid point. Does it permit us to do something that we aren’t otherwise allowed to do, and it really doesn’t. So it doesn’t have an impact, except that these people, in good faith, went forward and spent a considerable amount of money, and that’s why you have the authority that you have. MR. STONE-Agreed. MR. O'CONNOR-And on a case by case basis. MR. STONE-Well, let’s talk about it. Chuck, let’s start with you. MR. MC NULTY-I’ll do at least a half a job on looking through the criteria. The benefit to the applicant is obvious. It would save the applicant a considerable amount of money if he does not have to modify what is there now, and the feasible alternatives I think have also been described. As a feasible thing, the only thing that can be done is take some of the decking off the back side, or the shoreline side of that structure, to get the square footage down to 700 square feet, and connect it with a bridge, if you will, to the shoreline. It would be nice if it was possible to take that piece off that, pull the dock back, but it’s obviously not practical with all the piers and cribbing that’s under it. Is the relief substantial relative to the Ordinance? I think that Staff has stated it. It’s moderate. It’s 34%. The effects on the neighborhood or community, there are some effects, probably some detrimental. Possibly a little bit in aesthetics. Certainly a little bit general precedents of allowing something larger, but again, I think there’s been some good justification for why this is necessary. Is the difficulty self-created? I think maybe the owner could take 50% credit for that anyway. Where I come down, I looked at, on one test that I apply to it, if the applicant had come in before redoing this and had 20 (Queensbury ZBA Meeting 5/15/02) asked for this, would I have said yes or no, and I probably would have been inclined to say no, depending on what existed there in the way of piers, but at the same time, viewing that the applicant has done what he’s done, apparently in good faith, thought he was just replacing what was there, thought that was permitted, I think in this case, I would be inclined to reluctantly approve the application, with the explanation to people interested that I would not do this if this were a new application. I think that the benefit to the applicant is probably going to outweigh the detriment to the neighborhood in this case. So I’d be in favor. MR. STONE-Norm? MR. HIMES-Yes. Thank you. I, too, feel much the same as Chuck has indicated, and certainly seems to be some very thoughtful input from people who are not in favor of the application, which I recognize and give some weight to, that I think, again, in terms, I recognize especially the arguments that the Code is there for a reason. I’m very sensitive to that. Although sometimes I may not know the reason myself, but the history, and whether or not the status of the dock, when the work was done, was as a result of measuring procedures, you know, the mean high water, and all this, or something going back to the 1980’s. It doesn’t seem, and I don’t think it’s likely that we’re going to come up with an easily followed audit trail of how it got to be where it is, but I do have the feeling that I think the resurfacing and so forth was done with the idea that they were just fixing up something that was there. We know the other question about the boathouse is another matter, and I think there’s a bit of emotion here about that, but that’s not before us. So I believe that, in spite of my sympathy to, feelings to the contrary, I would support this application. MR. STONE-Jim? MR. UNDERWOOD-Yes. I’m basically going to have to decide, too, that it’s a pre-existing condition that was re-fabricated as it was prior to, when you started construction this year. It’s unfortunate that it’s so big as it is. Obviously back in ’88 they stretched the imagination a little bit and increased it to the eight feet, probably from the six and a half feet on that north side there, and as far as the future of the parcel, boathouses are an abomination. I don’t think that they should exist. I think that the Adirondack Park Agency, this year at their spring meeting, finally has seen the light on boathouses, and I think that probably you’re going to see, within a year’s time, that boathouses aren’t going to happen anymore, even up here on lake largess, you know, where everybody gets everything they want. So it’s a shame. That’s the way it goes. MR. STONE-Okay. Roy? MR. URRICO-I’m probably going to be the first negative one on this. This isn’t a typical case of someone seeking an after the fact approval, because we don’t know exactly when the dock increase to 900 square feet. Is it any less in compliance because it took place 14 years ago or some time between then? I don’t know. I look at it as if this was being brought to us today, and I would use the same balancing test. I agree with everything that Chuck said on this as far as the balancing test goes, but I think if this was being presented to me today, I would not approve it, and I understand the history. I understand the questions, and I also understand the concerns of the neighborhood and community, and I would not be in favor of it. MR. STONE-Chuck? MR. ABBATE-Okay. Let me approach this a little bit differently, if I may. In my opinion, the real question is was this project done in bad faith. Two, is there any evidence that the applicant attempted to conceal what he was doing, the 938 square feet, from any of the authorities. I believe the answers to these questions rises to the level of believability of the applicant, that there was no intent to act in bad faith. It’s just a set of circumstances, in my opinion, that just got out of control, and there was a permit that was issued, and taking everything else into consideration, the adjoining property owners, and what’s in the best interest of everyone along the line, I don’t believe, in my opinion, I don’t believe we should punish an applicant that we have determined has acted in good faith, and as a result, I will support the application. MR. STONE-Jaime? MR. HAYES-I think I agree, pretty much, with the rest of the Board in this case. I think, as this application unfolded, I think the equities involved with the balancing test, the benefit to the applicant versus any possible detriment to the neighborhood are fairly close, and most probably fall slightly in favor of the applicant that’s on the equities and the balancing test. I think, like the other Board members, the only thing that could shift that balance in my mind was some initial concern about whether the permit variance process had been compromised intentionally by the applicant, through the process, and based on some of the information that we’ve heard, I think that that presumption has been eliminated, to the extent that I wouldn’t feel comfortable holding it against the applicant, and therefore placing me right back on Square One, which is the equities that are involved, in my opinion. I think that the amount of relief over the 700 square feet is moderate. It certainly is a little more than I would normally grant under this circumstance, like Chuck has pointed out, but I think that’s accurate. I really do, but I think in this particular case, the benefit to the applicant of not having to, you know, demolish or go to a substantial expense of having to reconfigure this whole deck to satisfy that could be a greater burden than granting the 238 square feet of relief. So, in summation, I feel that I’ve been 21 (Queensbury ZBA Meeting 5/15/02) satisfied that there wasn’t an avoidance of the process that I could clearly identify, and therefore I think it’s a slight benefit to the applicant that would exceed. I’m in favor of the application on its merits, slightly. MR. STONE-I think Mr. Hayes has expressed my feelings quite well. I do hope that both Mr. Matthews and Mr. Jones, it was Jones, wasn’t it, sir? MR. JONES-Right. MR. STONE-That was representatives of the public recognize our sincerity in examining the total issue. This is not a rubber stamp. We have done it much longer than I think anyone could have imagined in discussing this, but we have thoroughly explored this thing, to the exclusion, I mean, we didn’t, and it’s not our job to determine history and hire private investigators to go back. I think, as Mr. Hayes said, and Mr. O’Connor certainly said it, was good faith. This was done. It is oversized. It has been oversized for some time. Certainly it’s not this iteration that made it oversized. Hopefully it was oversized in 1988. We continue along. Therefore, I am inclined to grant this application. I did hear Mr. O’Connor say earlier, and I think we can find the proper words to condition this variance to a boathouse of some size, since we don’t have a Code, I guess exactly to limit it, I guess we need, do you have any suggestions, Mr. O’Connor? You made a good statement before. MR. O'CONNOR-We would stipulate, and be willing to stipulate in two fashions, and amend the application to include the stipulation, one, that the boathouse, if it is constructed, will be in compliance with the Town regulations, and, further, that the boathouse will not be larger than a boathouse that has a platform for sitting purposes within the platform a 16 feet by 28 feet. There will be a mansard roof that will run away from that, and I think the railing goes in pretty much like a picture frame around that seating area, and there is a small platform on the back end of it, typically that you step off the stairs to get to it. MR. STONE-The stairs will be between the dock and the house? MR. O'CONNOR-Yes. MR. HAYES-What’s the minimum that’s code to? MR. O'CONNOR-The total height is 16, well, it’s two different interpretations. The Lake George Park Commission says 16 feet from mean high water mark, total, everything. MR. FRANK-From the mean high water mark. MR. O'CONNOR-Fourteen feet, but they don’t count railings. MR. FRANK-That’s not what my interpretation of it is. MR. MC NULTY-Boathouses and covered docks shall not exceed 14 feet in height, measured from the mean high water mark to the highest point of the structure. MR. FRANK-The top of the railing. MR. MC NULTY-The top of the railing. MR. O'CONNOR-Okay. We will not exceed that measurement. MR. STONE-Okay. MR. O'CONNOR-Okay. MR. HAYES-So you’re not going to be asking for any variances for the boathouse? MR. O'CONNOR-No. MR. STONE-Is that satisfactory to everybody? All right. I would like a motion, therefore, to approve this application, with the reference to the condition as stated by Mr. O’Connor, since it’s the only way we’re going to get it exactly right. MOTION TO APPROVE AREA VARIANCE NO. 37-2002 MARY CAROL WHITE, Introduced by Norman Himes who moved for its adoption, seconded by Paul Hayes: 5 Wild Turkey Lane. The applicant has constructed a 938 square foot dock. I might modify that to some extent to say that the dock was resurfaced. The relief required, the applicant requests 238 square feet of relief from the maximum allowed 700 square foot for docks on the Docks and Moorings regulation per 179-5-050. The benefit to the applicant, the applicant will be permitted to keep the desired structure in the preferred 22 (Queensbury ZBA Meeting 5/15/02) location, as it is now constructed. Feasible alternatives may include reducing the dock area to the maximum allowable 700 square feet. However, this would not, although possible, is not really practical, and we feel in this case really isn’t necessary in connection with the past history and so on leading up to this hearing today. Is the relief substantial relative to the Ordinance? 238 square feet, in addition to the 700 square foot maximum allowed, may be interpreted as minimal to moderate. Effects on the neighborhood or community, minimum to moderate effects on the neighborhood may be anticipated as a result of this action. Nearest neighbors have shown some animosity to this for various reasons. However, the impact, we don’t feel, is significant. We also feel that there is a considerable amount of frontage on this property on the lake which lessens that, compared to what we often see. Is the difficulty self-created? Well, that’s a big question that we’ve talked about tonight. Could it be? Perhaps, but there is testimony that the dock was oversized for some undetermined period of time, perhaps back to 1988 or previously, and we have some question as to how even the dimensions used to decide the square footage, what sort of procedure was used, possibly leading up to when actually did this suddenly become oversized, because of maybe a change in measuring procedures. So, I don’t know that the applicant could have really self-created any of this, and I might add lastly that I think the dimensional requirements were available to us or should have been available to us before the building permit was issued. So I move that the application for the variance be approved, with the stipulation that if and when the boathouse is constructed, that it’ll be within all the Code requirements. That is there’ll be no variances requested, and I would like to refer to the stipulations that Mr. O’Connor specified a few minutes ago. Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Hayes, Mr. Abbate, Mr. Underwood, Mr. McNulty, Mr. Himes, Mr. Stone NOES: Mr. Urrico ABSENT: Mr. Bryant MR. O'CONNOR-Thank you very much, gentlemen. I apologize to everybody else for taking as long as I did, but I think you wanted to know the information. MR. STONE-And we appreciate it. MR. HIMES-Thank you. MR. O'CONNOR-Thank you very much. AREA VARIANCE NO. 39-2002 TYPE II WINTER D. HORTON, JR. PROPERTY OWNER: SAME AS ABOVE AGENT: JACK DAVIS; VAN DUSEN & STEVES LOCATION: HICKOK PLACE ZONE: WR-1A APPLICANT PROPOSES CONSTRUCTION OF A SEASONAL RESIDENCE AND SEEKS RELIEF FROM THE MINIMUM ROAD FRONTAGE REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/2002 TAX MAP NO. 227.18-1-19 LOT SIZE: 0.47 ACRES SECTION 179-4-90 MATT STEVES, REPRESENTING APPLICANT, PRESENT; WINTER HORTON, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 39-2002, Winter D. Horton, Jr., Meeting Date: May 15, 2002 “Project Location: Hickok Place Description of Proposed Project: Applicant proposes construction of a 1,080 sq. ft. seasonal dwelling. Relief Required: Applicant requests 40 feet of relief from the 40-foot minimum required road frontage per § 179-4-090(A). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to construct the desired home on a parcel that does not front on a Town of Queensbury road. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the Ordinance?: 40 feet of relief from the 40-foot minimum required road frontage may be interpreted as substantial. 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 pre-existing, nonconforming lot. Parcel History (construction/site plan/variance, etc.): None applicable. Staff comments: Minimal impacts may be anticipated as a result of this action. Even though the parcel does not front on a town road, Hickok Lane appears to be wide enough to accommodate emergency vehicles, and currently serves as a road for the residence to the south. Staff wonders what is the status of the existing “ice house” on the parcel? SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 8, 2002 Project Name: Horton, Winter D., Jr. Owner: Winter D. Horton, Jr. ID Number: QBY-AV-37-2002 County Project #: May02-34 Current Zoning: WR-1A Community: Queensbury Project Description: The applicant proposes to construct a 1,080 sq. ft. seasonal residence that does not have frontage on a Town road. Site Location: Hickok Lane – ½ mile from intersection of 9L and Pilot Knob Road. Tax Map Number(s): 23 (Queensbury ZBA Meeting 5/15/02) 227.18-1-19 Staff Notes: The applicant proposes to construct a 1,080 sq. ft. seasonal home. The location and the construction of the home meet all other zoning requirements except having frontage on a Town Road. The proposal is for a two bedroom, one bath, with a great room. The applicant’s engineer provided information in regards to a septic system design that would be compatible with the home and site. Staff does not identify an impact on County Resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed by Thomas E. Haley, Warren County Planning Board 5/10/02. MR. STONE-Mr. Steves. MR. STEVES-Good evening. My name is Matt Steves with VanDusen and Steves, and I represent Mr. Horton who is with me here also tonight on this application. Staff pretty much has summed it up. This is an existing parcel on Lake George, on the east side off of Pilot Knob Road, at the end of a private road called Hickok Lane. It’s a pre-existing lot. We’re not here asking for a variance to create a lot that doesn’t have road frontage. It existed this way for many years. We’re not asking for any other variance. We’re completely in compliance as far as the side setbacks, lake setback, road setbacks, square footage of the building, which would be the floor area ratio, everything’s in compliance. The house, as you can see, is proposed is a ways from the lake. There shouldn’t be any impact whatsoever, as far as neighboring properties, and the condition of the ice house, that’s the original ice house that is going to remain on the property as a storage shed, and that’s all I have unless the Board has any questions. MR. STONE-Okay. Well, for the purposes of correctness, Mr. Horton, would you tell your architect that it’s not in Fort Ann. It’s in Queensbury. MR. HORTON-I’d be very happy to. MR. STONE-He says here Fort Ann. It’s on his drawing. It’s also nice to see someone from California. MR. HORTON-Thank you. If I might digress for only a moment. This is property that has been in our family since 1915, and now that our family has grown larger, and grandchildren have once again found the glories of the lake, as I did in 1934, when I first came. I’m very happy to return as an owner and a house builder. MR. STONE-Any questions, gentlemen? MR. ABBATE-No. Mr. Horton, there’s certainly one thing in your favor, and I love it. You propose construction. MR. STONE-Any other comments, gentlemen? Let me open the public hearing, having heard no questions. Anybody wish to speak in favor of this application? In favor of? Anybody opposed to this application? Any correspondence? MR. MC NULTY-I find no correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Anybody have anything more to ask? It’s relatively a simple thing, I think. Having said that, let’s talk about it. Let’s start with Norm. MR. HIMES-Thank you. Yes. I feel positive in connection with the application here, for a number of reasons. It is, appears it’s going to be in compliance in every other respect, toward our Code. These residences are, this one and the main house are both seasonal. This is intended to be seasonal. We might think or ask, rather, at some point whether we might, whether it would be advisable for us to suggest that there be a stipulation or condition that the thing remain seasonal. I don’t feel awfully strongly about that. The main house is further from the main road, Pilot Knob Road, and evidently with maybe a mishap or two in the distant past, that emergency vehicles have made it there. So I see that, given the lot as I looked at it, and where this is going to be placed in relation, as Mr. VanDusen stated, to the lake and the other properties, is not suggestive of a problem to me, and I think that there is access, suitable access, so the need for what’s in the Code about the 40 foot frontage on a Town road, the real need is met. So I tend to be okay on this. Thank you. MR. STONE-Okay. Jim? MR. UNDERWOOD-Yes. I would agree with Norma. I don’t think there’s any impact here whatsoever. I think that, you know, Mr. Winter, when I spoke to him, said that a letter had been forwarded and that they 24 (Queensbury ZBA Meeting 5/15/02) had signed off as far as the emergency vehicles and the fire department getting back in there, and I think the fact that it’s so secluded, you know, you’re never going to see it from the lake or anywhere really. It’s in the middle of there, and obviously you guys have taken the future of the lake into consideration. It looks great up there. So it’s nice to see somebody that cares. MR. STONE-Roy? MR. URRICO-Yes. I’m in agreement. I think this is a nice application, and I would be in favor of it. MR. STONE-Chuck? MR. ABBATE-Right, and I also agree. I think it’s a reasonable request. I don’t see anything that would deter me from supporting the application. Thank you. MR. STONE-Jaime? MR. HAYES-I agree. The fact that emergency vehicles can get back to, or the other purposes behind the 40 foot requirement have been met. I don’t think there’s any reason why this pre-existing, nonconforming lot shouldn’t be allowed to be developed. So I’m in favor. MR. STONE-Chuck? MR. MC NULTY-I can basically say ditto. I’d like to also mention it does help the front of the property, the dock looks neat and it’s well kept up, and that makes all the difference to me, but I can see no big impact, and really considering the frontage on the Town road. There certainly is adequate access for emergency vehicles. So I’d be agreeable. MR. STONE-Yes. If I could get in there with my car, I’m sure emergency vehicles can get in there, and that’s obviously the only consideration. That’s why it’s a 40 foot. I certainly agree with the rest of the Board. MR. ABBATE-Mr. Chairman, I neglected to say something. What is the status of that ice house? MR. HORTON-The ice house foundation was there, I believe, when the property was originally purchased, in 1915, and it fell. It had a wonderful kind of a curved bow roof at one time. So on the same foundation we built the same structure. It’s 12 by 12 and we use it as a storage place, and I don’t want to tear it down. We even have the big ice saw in the main house, in the lower house, that was used on the property during the. MR. STONE-Well, guess what, if you were going to use the place this summer with the ice house, you would be out of luck, because we didn’t have any. MR. HORTON-That’s what I understand. MR. ABBATE-Thank you very much. MR. STONE-I need a motion to approve. MR. URRICO-I’ll take it. MR. STONE-Go. MOTION TO APPROVE AREA VARIANCE NO. 39-2002 WINTER D. HORTON, JR., Introduced by Roy Urrico who moved for its adoption, seconded by Charles Abbate: Hickok Place. The applicant proposes construction of a 1,080 square foot seasonal dwelling. The applicant requests 40 feet of relief from the 40 foot minimum required road frontage per 179-40-090(A). The benefit to the applicant, the applicant would be permitted to construct this desired home on a parcel that does not front on a Town of Queensbury road. The feasible alternatives seem to be limited. Whether this relief is substantial relative to the Ordinance, 40 feet of relief from the 40 foot minimum required road frontage may be interpreted as substantial. However, there’ll be minimal effects on the neighborhood that can be anticipated as a result of this action, and the difficulty is partially attributable, in fact entirely attributable, to the pre-existing, nonconforming lot. Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mr. Himes, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: NONE 25 (Queensbury ZBA Meeting 5/15/02) ABSENT: Mr. Bryant MR. STONE-There you go, gentlemen MR. STEVES-Thank you. MR. HORTON-Thank you very much. AREA VARIANCE NO. 30-2002 TYPE II MARY KILBURN PROPERTY OWNER: SAME AS ABOVE AGENT: VALENTE HOMES, INC. LOCATION: 23 CHESTNUT LANE, ASSEMBLY POINT ZONE: WR-1A APPLICANT HAS CONSTRUCTED AN 1,871 SQ. FT. SINGLE FAMILY DWELLING AND SEEKS RELIEF FROM THE FRONT SETBACK REQUIREMENTS. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/2002 TAX MAP NO. 226.19-1-16 LOT SIZE: 0.34 ACRES SECTION 179-4-30 DAN VALENTE, REPRESENTING APPLICANT, PRESENT; MARY KILBURN, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 30-2002, Mary Kilburn, Meeting Date: May 15, 2002 “Project Location: Hickok Place Description of Proposed Project: Applicant has constructed a 1,871 sq. ft. single family dwelling. Relief Required: Applicant requests 3.5 feet of relief from the 3-foot minimum front setback requirement of the WR-1A 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 keep the desired structure in the present location. 2. Feasible alternatives: Feasible alternatives seem to be limited. 3. Is this relief substantial relative to the ordinance?: 3.5 feet of relief from the 30-foot minimum front setback requirement may be interpreted as minimal to moderate (11.7%). 4. Effects on the neighborhood or community: Minimal effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty may be interpreted as self-created. Parcel History (construction/site plan/variance, etc.): BP 2001-164: 09/10/01; 1871 sq. ft. single family dwelling. Staff comments: Minimal effects on the neighborhood may be anticipated as a result of this action. The applicant claims the foundation was placed 3.5 feet too close to the road in error. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 8, 2002 Project Name: Kilburn, Mary Owner: Mary Kilburn ID Number: QBY-AV-30-2002 County Project#: May02- 35 Current Zoning: WR-1A Community: Queensbury Project Description: The applicant requests front setback relief of a constructed 940 sq. ft. 2-story home. The front setback requirement is 30 feet and the house was built 26.6 feet to the front property line. Site Location: 23 Chestnut Lane, Assembly Point Tax Map Number(s): 226.19-1-16 Staff Notes: The applicant requests front setback relief from an already constructed home. The as-built survey indicates the front setback is 26.6 feet from the house to the front property line, where 30 feet is required. See survey. Staff does not identify an impact on County resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed by Thomas E. Haley, Warren County Planning Board 5/10/02. MR. STONE-You’re up. MR. VALENTE-Good evening. I’m Dan Valente, President of Valente Homes. I represent Miss Mary Kilburn, my client. Everything, as he read, is pretty much all I can say, other than it was just an error on my part. Accidental. Not much else I can do about it. I wish I could take it back and move it back, but I can’t. MR. STONE-You are a builder of many homes in the Town of Queensbury. MR. VALENTE-Yes, sir. MR. STONE-How did it happen? MR. VALENTE-What I figure I did was, the lot was surveyed by a surveyor, I had the corners of the lots. When laying out for excavation of the hole of the foundation, I feel I took it, and in actuality, if you look at the as built, or the plot plan, the actual foundation of the home is 33.35 feet from the property line. So I was trying to give myself an extra three feet, and I forgot about the front porch. So, actually only the deck is what is encroaching on the setback is in the setback, not the actual foundation of the home itself. Everything else is in compliance throughout the structure. Everything meets every Code, other than that. MR. STONE-Miss Kilburn, are you living in this house? MISS KILBURN-Yes. MR. STONE- Do you have a Certificate of Occupancy? 26 (Queensbury ZBA Meeting 5/15/02) MISS KILBURN-No, I don’t think so. MR. VALENTE-No, she doesn’t. MR. STONE-She doesn’t, and therefore you are not following the code that says a house cannot be occupied unless it has a Certificate of Occupancy. MR. VALENTE-Unfortunately, I have put her in this predicament. She was forced out of where she was renting, and about a week ago she had to occupy the place. Like I said, we meet every other. MR. STONE-Did you ask the Town for a temporary because of that, any recognition? MR. VALENTE-Actually, no, I did not. It didn’t come across my mind. MR. STONE-You might say that’s two strikes, but we’ll talk more. MR. ABBATE-Well, one thing is refreshing, that people are ready to admit that they’re in error. That’s refreshing. MR. VALENTE-When I make a mistake, you know, I’ve got broad shoulders. I can take it. We’ve built many homes in this Town, as you well know, I’m sure, hundreds, and it’s been two times, this is the second, that we’ve had this situation, and the first time it was done by a licensed land surveyor. So we’re all there. We can all make mistakes, and that’s as much as I can say. MR. HIMES-I have a question, in connection with something that’s in the application file that either you or the applicant completed. It’s in the, part of the general information, and on to that, you go site development, floor area worksheet, compliance with zoning ordinance, down in the, it says the following questions reflect the criteria for granting this type of variance, please complete them using additional sheets if necessary, and the very first question, how would you benefit from the granting of this area variance, and it’s answered, better placement of home on small lot. It’s an interesting choice of words, better placement of the home on small lot, which means you put where it is because that’s where it was wanted to be. That’s what that implies. MR. VALENTE-Well, we do feel that it is in the right spot, but if I had picked up on my error prior, I would have been here long before this, obviously, but I didn’t realize I did what I did, obviously. It wasn’t done intentionally, but the house does suit the lot where it is located. MR. HIMES-Whether it’s a Freudian slip or whatever, it seems an interesting selection for that phrase, better placement of the home on a small lot. So, thank you. MR. STONE-Question, Mr. Valente. The Elgin system that is being used for wastewater. Is that draining out to the street? What is that pipe that’s? MR. VALENTE-Because of the topography of the land, we had put two, if you want to call French Drains on the perimeter of that upper lot, one running to the road, and one running down the back of the lot to catch all the water that comes off of that hill behind the house, to divert it. MR. STONE-Yes, but you’re taking stormwater that comes off of your lot, and you’re putting it on a Town road. MR. VALENTE-Well, it doesn’t necessarily come off the lot. I mean, it’s coming from other people’s lots. It’s not our lot, but we’re just trying, if I didn’t do that, your septic system would fail. So, I mean, we’re trying not to inundate the system. MR. STONE-I know, but you are responsible for all stormwater. You’re supposed to contain your own stormwater, and you’re saying you can’t, so you’re letting it go, run down into the swamp. MR. VALENTE-We are controlling it. We’re controlling it from running through their yard and into their septic system. I mean, I’d much rather have a controlled stormwater system that way than a septic system failing on them. I mean, we’re trying to control the situation we have. That lot was pretty severe as far as, the way the topography was. We had about 11 feet of pitch from one end of the lot to the other, prior to construction. Obviously, we had to move a lot of dirt from one end of the lot to the other to try to make that site feasible. It was a difficult site, and very tight. MR. STONE-How big is the garage? There are two sections to this garage, one for a boat, I assume? MR. VALENTE-It’s actually like a little, yes, storage shed they have on the back. Yes. It’s not really a boat. MR. STONE-It’s a garage door. 27 (Queensbury ZBA Meeting 5/15/02) MISS KILBURN-There’s a garage door on it only to keep it locked. Actually, the garage door had to be cut in order to fit that, so that I could lock it down, actually. MR. VALENTE-It’s more of an attached shed style, than anything else. It’s not actually part of the garage. MR. STONE-Is there, I mean, as I looked at the house, and knowing nothing, the foundation as you said, of the house is in compliance. Is there a way to get rid of that porch and use the back for an entrance? Just throwing out an idea. MR. VALENTE-Anything’s possible. I mean, would it be advantageous? I don’t think so. I mean, would it, it definitely wouldn’t make the house look as nice. I mean, it definitely looks. MR. STONE-Could you have an alternative, and I’m just throwing ideas out, right in front of the garage door, could you have steps coming down that are within the width of the porch? The steps seem to be, I mean, the front porch slightly offends. The steps certainly offend more. I mean, they’re, what, a foot and a half from top to bottom. MR. VALENTE-Maybe a little more than that, yes. MR. STONE-I’m just wondering if you could put steps, as a possible remedy, put steps down from the covered porch. I don’t know if the Board, you know, I don’t know where they stand, but I’m just asking. MR. VALENTE-Sure, that would be feasible. MR. ABBATE-How much does that reduce it, from the 3.5? MR. VALENTE-3.5 is to the actual deck itself, the steps are not included in that. MR. STONE-It’s not? MR. ABBATE-So the steps exceed that then? MR. VALENTE-Yes. MR. ABBATE-That’s what I was going to get at. MR. STONE-Steps count. MR. VALENTE-But they’re not a permanent structure. MR. STONE-The steps count. Sorry. Right, Mr. Frank? MR. FRANK-According to the Zoning Administrator, the way he’s explained it to me is, it depends on how substantial the steps are. So it’s a gray area. In this case he reviewed the, obviously, the building permit was reviewed by the Zoning Administrator. He did not count the setback to the steps, and they clearly have displayed it in their site plan that it’s to the deck. I mean, they’re not trying to hide anything. MR. STONE-No, you’re right. The dimension line is to the deck. MR. FRANK-So, in some cases it is. In some cases it isn’t. In this case, it’s not being considered to the steps. It’s to the deck. MR. STONE-Well, thinking about precedence, we have asked a resident of the neighborhood to take feet off a deck that was closer to the lake, and that deck certainly was considered an integral part of the house. I understand. I hear you, but I. MR. FRANK-I think, everything considered, is a front setback more of a problem than a shoreline setback? I don’t know. I mean, I’m not the one that made the decision. MR. STONE-Okay. While this is in a Waterfront zone, it is not a waterfront home. It just happens to be in the zone. MR. FRANK-That’s correct. MR. STONE-It’s certainly no different than a home in another part of Town, from that standpoint. Anyway, any other questions? MR. ABBATE-Mr. Valente, you admitted, and you’re to be congratulated that you made an error. We all make errors. There’s no question about that. Number One. Number Two, you suggested, or you permitted, 28 (Queensbury ZBA Meeting 5/15/02) or you did something to allow this young lady to reside in a home which has no Certificate of Occupancy. Number Two. Number Three, there seems to be, and I underline the word seems to be, potentially, a questionable problem with stormwater. Now, explain to me what your remedy would be, so that I could support your application. MR. VALENTE-The only thing I can do is talk to an engineer and see if they want to put in some kind of retention basin. This whole project was put before APA. We’ve been through that, those motions. The only thing we can do is try to retain whatever stormwater runoff there is. That’s about the only thing we could do. MR. ABBATE-Okay. That addresses stormwater. We still have two other issues. MR. VALENTE-The C of O, I guess I should have talked to Dave about getting a Temporary. It didn’t even cross my mind, to be honest with you. MR. STONE-I have to admit, and I don’t want to get anybody in trouble, it wouldn’t have crossed my mind if I hadn’t talked to Miss Kilburn’s son yesterday, who told me he was living there, and I just wrote the question down because normally a new property that requires a variance does not get the CO until the variance is granted. MR. VALENTE-If I hadn’t had a final inspection or anything of that nature, I definitely would have not even considered that at that point. MR. ABBATE-How many homes have you built in the Town of Queensbury, approximately, plus or minus? MR. VALENTE-Hundreds. MR. ABBATE-Two, three, four, five? MR. VALENTE-Probably a couple hundred anyway. MR. ABBATE-Two hundred, okay. How many times have you come before the Board, after the fact? MR. VALENTE-Never. MR. ABBATE-Never. Thank you. MR. STONE-Anybody else? Okay. Hearing nothing else, I’ll open the public hearing. Anybody wishing to speak in favor of this application, in favor of? Anybody opposed? Opposed? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Then I’ll close the public hearing. If I’m hearing no more questions, Jaime, let’s start with you. MR. HAYES-Well, we’ve had these cases before, in this particular circumstance, and I think possibly Chuck’s last question is the most relevant in my mind. If Mr. Valente had made it a habit of being here, then I would think that there would be a problem, and we’d have to let them know there’s a problem, but in this particular case, as I look at the criteria, the benefit to the applicant would be that they could live in their house legally, I guess, at this point. That’s pretty big, but the feasible alternatives, I think they’re limited in this case, now that a mistake has been made, in this particular case, because I think that taking the front porch off or even talking about moving the house back would be pretty substantial, I would think. I think the house is designed to have a porch on the front, and I’m sure that’s what the customer in this case wanted. So that would present a pretty big burden to Mr. Valente to remedy that, I’m sure, that he would like to avoid. Is the relief substantial relative to the Ordinance? I think it’s minimal. I really do. As Mr. Stone accurately pointed out, that the 30 foot minimum front setback in this case has to do, partially with the fact that you’re in a lakefront, WR-1A zone. What’s the normal front setback, like for an SR-1A? MR. FRANK-30 feet. MR. HAYES-So that’s the typical one, then? MR. FRANK-That’s correct. MR. STONE-Thirty’s typical. 29 (Queensbury ZBA Meeting 5/15/02) MR. HAYES-Right. I guess my real thing here is that, when I look at the neighborhood and community, and the relief, this house is extremely remote, based on the map that is saw here. I don’t foresee an approval past that point, into that other area there to the left. So I think there’s virtually no impact on the neighborhood, being that where it is. Outside of a survey, I’m not sure whether somebody, by eye, could even determine that it was the 27 feet instead of the 30, or 26 and a half feet instead of 30 setback. So I think on balance, this one time, that Mr. Valente and Miss Kilburn are entitled to the benefit of the doubt, particularly because there is not an egregious amount of relief that is being requested here. It’s actually very minimal. So I’m in favor of the application. MR. STONE-Chuck? MR. MC NULTY-Well, I basically agree with Jaime. On the one hand, I would really like to say, no, tear the porch off, because we keep getting these after built situations, and like Mr. Hayes, if Mr. Valente had been in here repeatedly for this kind of problem, I’d be more inclined to say no, and there are things that can be done. You can tear the porch off. You can jack the house up and move it. I live in a house that had to be moved before I bought it for that very reason, but in this case, I think we’re back to a balancing thing of the benefit to the applicant versus the detriment to the neighborhood, and on that basis, I think cutting three and a half feet off that porch, or taking the porch off is going to change the whole style of the house. Having to jack the thing up and move it back would be extreme in this situation, and as Mr. Hayes has pointed out, I think you’d be hard pressed to tell, just looking, that the house was in violation compared with the other houses on the road. I don’t think it’s going to affect them. Given the balance of the benefit to the applicant versus the detriment to the neighborhood, I have to come down in favor of it. MR. STONE-Norm? MR. HIMES-Yes, thank you. I acknowledge what’s been said, and certainly can hear it, and all, and I think, and I’m not saying that something was definitely intentional. I’m somewhat suspicious because of the way the application was answered, the question I referred to. However, the thing being that sometimes a mistake has to be put right somehow, and I think this is one of those cases. I don’t want to see a lot of harm come to the applicant, and I don’t think that making right here is going to put the builder out of business. When someone is building, doing a job on a small lot where there’s some likelihood that a mistake could be made, it would seem that professionals would devote more attention to making sure that there were no omissions, make more effort, it would seem, than what has been shown as evidence here to avoid the result that we have here. So I would not be in favor of the application. Thank you. MR. STONE-Jim? MR. UNDERWOOD-I’m basically in favor of the applicants. I think that they’re at the end of a dead end road. The house itself is set back the proper distance from the road. It’s only the porch that’s sticking out a little bit. I don’t think there’s any real detriment to anyone. MR. STONE-Roy? MR. URRICO-Yes. I’m in agreement with the majority of the Board, so far, and I agree with Jaime’s assessment, based on the criteria. I think I would just like to add that if this was being presented to me tonight, I would be in favor of it as well, and that’s, the after the fact aspect of it is bothersome, but if this were being presented tonight, I don’t think I would be bothered by three and a half feet, from the 30 foot minimum front setback. MR. STONE-Chuck? MR. ABBATE-Thank you. It’s a nice home. There’s no question about it, and I think the reputation of Mr. Valente plays an important role in this, and I believe that we have to be reasonable, that folks are going to make mistakes, honest mistakes, and these things happen in life, and fortunately or unfortunately we must accept it. In this case I do believe it was an honest mistake. Mr. Valente doesn’t want me to put him through what I would put him through. So I would go along with approving the application. MR. STONE-This is one of those occasions where honest indignation comes into play. You look at something and say, good, maybe we can make these people change this egregious positioning of this house, but then when you get into it, and you listen to the honest humility expressed by Mr. Valente, and you consider the location of the lot, the location of the house, and the fact that we’re talking neighborhood. It’s always a balance between, we always say the neighborhood or the community. In this particular case, the neighborhood is the thing that is determining as far as I’m concerned. It’s at the end of a road. There’s wetlands at the bottom of the hill. Nobody’s going to go any further. It also happens to be in my neighborhood, and I’m not offended by this at all, and on balance I think Mr. McNulty and the rest of the Board who have expressed approval I think have said it. It’s an honest mistake. Mr. Valente is known to us as a builder of fine reputation in the Town, and while that has nothing to do with the merits of the 30 (Queensbury ZBA Meeting 5/15/02) application, it certainly has to do with the honesty of the mistake, and it’s a mistake. He admits it. It’s on the record. I don’t think he’ll do it again. MR. VALENTE-I don’t want to be here any more. MR. STONE-So, having said that, I think, on balance, this is not an occasion that we are going to require some physical relief, although I think it is something we could have done, and there is a way to get some relief, but I don’t think it’s going to have any effect except being a slap when I don’t think one is necessary. I think that has all been said. Having said that, I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 30-2002 MARY KILBURN, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: 23 Chestnut Lane, Assembly Point. The applicant has constructed a 1,871 square foot single family dwelling, and the applicant is requesting 3.5 feet of relief from the 30 foot minimum front setback requirements of the WR-1A zone, Section 179-4-030. The benefit to the applicant, the applicant would be permitted to keep the desired structure in the present location, and I recommend we approve this based on our conversation this evening. An honest mistake has been made, and I don’t believe it will happen again. Feasible alternatives, feasible alternatives really are limited. It would be, as one of my Board members sitting next to me likes to use the word a draconian decision to require that the fort should be taken down. Is this relief substantial relative to the Ordinance? 3.5 feet of relief from the 30 foot minimum front setback requirement may be interpreted as minimal to moderate, 11.7%. The effects on the neighborhood or community, minimal effects on the neighborhood may be anticipated as a result of this action, and is this self-created? Unfortunately, an honest mistake was made and it’s self-created. However, Mr. Chairman, in view of the information discussed this evening, presented to us this evening, and the humility of the builder, I recommend that Area Variance No. 30-2002 be approved. Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Urrico, Mr. Underwood, Mr. McNulty, Mr. Hayes, Mr. Abbate, Mr. Stone NOES: Mr. Himes ABSENT: Mr. Bryant MR. STONE-Now where are you going to go tomorrow? MR. VALENTE-We’re going to get our CO. MR. STONE-There you go. MR. VALENTE-I apologize for putting this in front of the Board. Thank you, though. MR. STONE-Thank you. AREA VARIANCE NO. 32-2002 TYPE II DAVID AND JANE HOPPER PROPERTY OWNER: SAME AS ABOVE AGENT: J. MARK NOORDSY, ESQ. LOCATION: 35 HANNEFORD ROAD, OFF PILOT KNOB ROAD ZONE: WR-1A APPLICANT HAS RECONFIGURED AN ENCLOSED PEAKED ROOF BOATHOUSE TO A BOATHOUSE WITH A FLAT ROOF/SUNDECK. RELIEF REQUESTED FROM THE SIDE SETBACK REQUIREMENTS, AND EXPANSION OF A NONCONFORMING STRUCTURE. AREA VARIANCE NO. 40-1999 WAS REVOKED BY THE ZONING ADMINISTRATOR. THE CURRENT APPLICATION IS TO REHEAR THE MERITS OF THE PREVIOUS AREA VARIANCE. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 5/8/2002 TAX MAP NO. 240.06-1-14 LOT SIZE: 0.43 ACRES SECTION 179-4-20; 179-5-50 MATTHEW FULLER, REPRESENTING APPLICANT, PRESENT; DAVID HOPPER, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 32-2002, David and Jane Hopper, Meeting Date: May 15, 2002 “Project Location: 35 Hanneford Road, off Pilot Knob Road Description of Proposed Project: Applicant has reconfigured an enclosed peaked roof boathouse to a flat roof/sundeck boathouse. Relief Required: Applicant requests 13 feet of relief from the 20-foot minimum side setback requirement of the Docks and Moorings regulation, § 179-5-0505 and for the expansion of a nonconforming structure, § 179-13-010(E). Criteria for considering an Area Variance according to Chapter 267 of Town Law: 1. Benefit to the applicant: Applicant would be permitted to keep the flat roof/sundeck boathouse. 2. Feasible alternatives: Feasible alternatives appear to be limited. 3. Is this relief substantial relative to the Ordinance?: 13 feet of relief from the 20-foot requirement may be interpreted as moderate to substantial. 31 (Queensbury ZBA Meeting 5/15/02) 4. Effects on the neighborhood or community: Moderate to substantial effects on the neighborhood may be anticipated as a result of this action. 5. Is this difficulty self-created? The difficulty is self-created. Parcel History (construction/site plan/variance, etc.): AV 40-1999: 04/10/02 (revoked); side setback relief for boathouse/sundeck. AV 62-2001: 10/17/01 (denied); height relief for single-family home. BP 2001-638: 08/28/01; demolition of seasonal residence. BP 2001-640: 8/23/01; septic alteration. BP 99- 338: 06/17/99; construction of covered boathouse/sundeck. SP 21-99: 05/24/99; construction of a covered boathouse/sundeck. AV 40-1999: 05/19/99; side setback relief for boathouse/sundeck. Staff comments: Moderate to substantial impacts may be anticipated as a result of this action. The relief being sought in this application is the same as that in AV 40-1999. AV 40-1999 was revoked and deemed no longer valid by the Zoning Administrator on April 10, 2002 due to personal communications between the Zoning Administrator and the Hoppers and information received by the Zoning Administrator contained in the Hopper’s Lake George Park Commission Class A Marina Permit application revealing the docks have been continuously used as rental slips since approximately the 1980’s. The Docks and Moorings Regulation, § 179- 5-050 (A8) does not allow for E-shaped docks constructed on lots having less than 150 feet of shoreline frontage. The application depicts the lot as having 100 feet of frontage and two E-shaped docks, one of which appears to be over an extension of the property line. Also, since the property has only 100 feet of frontage, only one 700 sq. ft. dock would be conforming. The existing square footage of dock space depicted in this application is approximately 1008 sq. ft. the total square footage decreases with the proposed reconfiguration, but only to approximately 962 sq. ft. The majority of the proposed reconfiguration takes place within the 20-foot setback. SEQR Status: Type II” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form May 8, 2002 Project Name: Hopper, David and Jane Owner: David and Jane Hopper ID Number: QBY-AV-32-2002 County Project#: May02-33 Current Zoning: WR-1A Community: Queensbury Project Description: The applicant requests approval of alterations to a boathouse roof going from a flat roof to a sundeck roof. The applicant’s previous town variance approval was revoked due to incorrect information being provided in regards to the operation of a rental slips. Site Location: 35 Hanneford Road – off of Pilot Knob Road Tax Map Number(s): 240.06-1-14 Staff Notes: The applicant requests approval of a constructed of a boathouse with a sundeck that did not meet the side setback requirement. The structure is over the side boundary line. The Town of Queensbury Zoning Administrator revoked the applicant’s previous May 1999 variance because the applicant had indicated the boat slips were not rented in the May 1999 application. Since that time is brought to the Zoning Administrator’s attention that the slips were being rented and the applicant was filing a marina permit with the Lake George Park Commission. The boathouse with a sundeck is constructed structure. The operations of marinas is regulated by the Lake George Park Commission. Staff does not identify an impact on County resources. Staff recommends NCI. County Planning Board Recommendation: No County Impact” Signed by Thomas E. Haley, Warren County Planning Board 5/10/02. MR. STONE-Thank you. Gentlemen, identify yourselves. MR. FULLER-My name is Matthew Fuller. I’m an associate attorney with the law firm Fitzgerald, Morris, Baker, Firth. My clients are the Hoppers, and I’m not dodging bullets here, because I’m fully aware of what has gone on with this in recent weeks. It was my intention to have both of the Hoppers up here, and this is not a request for sympathetic overtures or anything, but during the break, we’ve learned some unfortunate family news, which we won’t go into. So if you do want to question Mrs. Hopper, we’ll bring her up here. Otherwise, I would choose to leave her in the audience. MR. STONE-Okay. Is there anything you want to say? MR. FULLER-I certainly have spoken with Craig Brown on a few occasions on different projects, and as recently this one, and he initially sent me the, or my client dropped off the minutes, and I came quickly up to speed. This has been through a couple of different counsel who have been excused for one reason or another, Mark Schachner because he represents the Town. So that was quickly evident that he went on and then eventually came to myself. I reviewed the notes and see, regarding the dock structure itself, I think, if the two matters here, I think, the structure itself and then what went on at the previous meeting, I think the structure, as it is in existence today, is a marked improvement over what was there previously. The expense that they went through to put it in there. I think, you know, I’d have trouble arguing with them that it is a marked improvement over what was there. That being said, I understand why we’re here, that that approval has been revoked, and the reason for that revocation is information in the minutes, that’s really all I have to review. I wasn’t there. Still in college I think. MR. STONE-Okay. Well, I just want to quote from minutes of approximately three years ago, less than three years ago, when I asked the question, answered by Mrs. Hopper, I have a number of questions, I said, quote unquote, are you a Class A Marina, do you have a marina permit from the Park Commission. Mrs. Hopper answered no. Two statements later, I asked how many boats you own, then I said, so, are you renting docks. Mr. Hopper said, no, sir. MR. FULLER-I would relate back to the context when Mr. Hopper first came to Mark and myself, and I read those exact minutes. There’s no question what it says, and I, there just isn’t, and I told them, too, I said it looks the way it looks. The flow of the question, and I understand, having been at hearings before I was an 32 (Queensbury ZBA Meeting 5/15/02) attorney, how it is up here. You’re at the stand here and hoping that things go your way, and I see, from what I looked at, not as a witness. MR. STONE-Let the record show that that was a flub. MR. FULLER-And the only explanation that I’ve talked to the clients about is the context of, from what I read that section of the minutes, the flow of the question that I see there, it started out with the question, are you a Class A Marina. To be quite honest with you, it would have been better if they’d have said they don’t know. I don’t think they did know, and I do believe them, and I think they are sincere in that. That being said, when the questions followed, do you rent boat slips, do you rent docks. I think at that time, the questions changed, and the point that was brought up to me, and, you know, I agree that it hangs on a fish line, but the context that, are you a marina and do you rent boat slips, it’s somewhat related. Should they have clarified the record? Absolutely. Should they have said, you know, they didn’t know they were a marina, or they would have gone to the Lake George Park Commission. They know now. MR. STONE-The question was, so, are you renting docks. MR. FULLER-Absolutely, and I. MR. STONE-Clear, unequivocal. MR. FULLER-I think where you’re going on that is, should they have said, yes, we rent docks, boat slips. I think it’s apparent that they should have. I don’t think there’s any excuse. MR. ABBATE-Let me go a little bit further, maybe another direction, and you’re going to have to bear with me, because I was not here initially, okay. MR. STONE-There were three of us here, for the record. MR. FULLER-Yes. MR. ABBATE-Yes. So I’ve got a little dissertation here, and just bear with me, okay. MR. FULLER-Sure. MR. ABBATE-I have read 96 pages of documents relating to your case, to reconfigure and enclosed, peak roofed boathouse to a flat roof sundeck/boathouse, and I will admit that the more I read, the more I realized that there was something lost in 96 pages, and I listed eight, if you can help me out. On May 19, 1999, you denied renting docks. On 12/21/01 both Mr. and Mrs. Hopper signed a Short Environmental Assessment Form which each of you stated “I certify that the information provided above is true to the best of my knowledge”. Number Three, in that form, 12/21/01, paragraph five, you stated “Application is for registering of longstanding rental of six slips on two docks”. Number Four, in your letter of April 27, 1999 to the Town of Queensbury, each of you stated you were seeking a hardship variance in relief of a portion of the 20 foot setback as well as other considerations. Nowhere was it mentioned that you rent dock space. Number Five, on April 10, 2002, both Mr. and Mrs. Hopper stated, during the hearings for the 1999 variance that the slips were not rented. Six, in the Fall of 2001, both of you were notified by the Lake George Park Commission that a Class A Marina permit was required for the rental of boat slips. Number Seven, on April 10, 2002, Mr. Brown, Zoning Administrator, wrote you a letter revoking Area Variance 40-1999, and that letter also addressed the fact that both of you stated for the record, Mr. and Mrs. Hopper, your assertion that the usable dock slips were not being utilized for rental purposes. Where am I going wrong here? This indicates to me that somewhere along the line there’s a question of credibility. Maybe this will help you out. Let me ask four questions, okay. Maybe this will help you out. On 12/21/01, did you apply for a Class A Marina permit? MR. FULLER-I was not representing them, but, yes, they did, to the Park Commission, yes. MR. ABBATE-For what purpose did you apply for the marina permit? MR. FULLER-The Park Commission had advised them that they required a Class A Marina permit. MR. ABBATE-Why? MR. FULLER-A neighbor complained, I believe. I’m not sure. MR. ABBATE-No, no. That’s not the right answer. MR. FULLER-Because they rent boat slips. MR. ABBATE-Thank you. Three, if you’ve ever rented docks, how long have you been renting docks? 33 (Queensbury ZBA Meeting 5/15/02) MR. FULLER-The three they’re talking about that they rented, I guess since they bought it. MR. ABBATE-From what year? MR. HOPPER-My name is Dave Hopper. I’m the owner of the property in question. Okay. MR. ABBATE-How long have you been renting docks? MR. HOPPER-Ever since we bought the property. MR. ABBATE-Give me a year, please. MR. HOPPER-1998 we purchased the property, and ’99, I believe, was the first year we, when we applied at that time, in addressing your question of the 1999 variance proposal, what properly should have been stated is the fact that the two most southerly docks are related to Number 36 Hanneford Road, a property directly behind 35 Hanneford Road, that we also own, and those two docks, I guess if you’re in reference to renting, they go along with the rental of that seasonal property, those two southerly most slips, okay, and then, the next three slips, one of those slips I was bartering with Frankie DeNardo for building docks. It was a barter situation. The next dock, my one son had. The other one I was renting. Then my dock, and then the other one was being rented also, the one that was underneath the covered boat slip, and then we were also renting the dock, we weren’t renting the first year because my neighbor, Nelson Harris, went to the Park Commission and stated that he had riparian rights and I guess they went along with that decision. So we didn’t rent that dock. MR. ABBATE-Counsel has already explained to me, but I’d like you to explain to me. Why, in May of 1999, did you deny renting docks? Would you explain that to me? MR. HOPPER-I didn’t really understand what a Class A Marina license was. I mean, in those days, you know, you said marina license. I was under the impression that, you know, you had to pump gas, do boat repairs, take boats in and out. MR. ABBATE-But wasn’t the question, are you renting? Wasn’t that the question? MR. STONE-That was the second question. MR. ABBATE-The second question, follow-up, are you renting. MR. HOPPER-I didn’t mean to mislead the Board. MR. ABBATE-So you really didn’t understand the question? MR. HOPPER-I thought a marina would be somebody that repairs boats, somebody that does all that type of thing. MR. ABBATE-I’m not talking about the marina. The second question, are you renting boats, or docks, or whatever the case, are you renting docks. Your answer was, unequivocally, no. MR. HOPPER-Unequivocally no. MR. ABBATE-Why? Why did you say that? MR. HOPPER-I didn’t mean to mislead them. I hadn’t rented them at that period of time. I was only utilizing docks for my sons’ boats, two sons, myself, Frankie DeNardo, and the two slips that were there for 36. MR. ABBATE-Well, you were renting docks at the time, and you actually, in effect, according to the record, you said, no. You were. MR. HOPPER-Yes, there was docks there. MR. ABBATE-Okay. All right. Well, thank you. I appreciate that. MR. HOPPER-Well, one of them was a barter deal. MR. ABBATE-Okay. Thank you. MR. HOPPER-Yes, I was renting. 34 (Queensbury ZBA Meeting 5/15/02) MR. STONE-Okay. Norm? MR. HIMES-Yes. Just, again, back in the minutes from that meeting in May 19, 1999, there are several references in here in regard to questions about the rentals of the dock, and they refer to one dock for that cottage, but it really wasn’t rented. It came with the cottage. MR. HOPPER-That’s correct. MR. HIMES-There were no rentals at all, and their, even in connection with future likelihood of selling that lot, is an answer that, by you, that we might sell one of the docks with it, but two lines above that, Mrs. Hopper said, in connection to the relationship of renting and the docks and the cottage, no more rental, and there are other references in here. So it’s pretty clear to me, in here, that it was stated and confirmed that there were no rentals of docks, except the one dock that was used by whoever was renting the little cottage. Thank you. I just wanted to make that, that’s my understanding from what I read from the minutes of that meeting. MR. HOPPER-With respect to that, there was some discussion about the southern dock. Now we have two docks. Both of them are E-shaped configurations, and it was being interpreted that the southern dock, being the entire E-shaped complex, would go with Hanneford Number 36. At that time I stated, no, not the entire E-shaped dock, but only two slips of that dock go with Number 36 Hanneford. MR. HIMES-It relates in here that one dock was the term used in here, but I see you’re talking about one and then maybe they. MR. HOPPER-If it was one dock, then that cottage would be entitled to three slips. MR. HIMES-Thank you very much, and I can see there could be some confusion, but it just seems to me here that there was much discussion about dock rental, and it certainly could have been not obvious inferred from the conversations that we were interested in whether there was any commercial renting going on of dock space, and we came away, and I think maybe even on the resolution on the end of it it refers to rental. In any event, that would have been my thinking, but that was, I think the Board would have been mislead also at the conclusion of things, as maybe perhaps you misunderstood some things. The Board certainly, I felt, (lost words) might have come to conclusions that they otherwise might not have. Thank you. MR. ABBATE-Well, the other thing is here, in Paragraph Five of the Short Environmental Assessment Form, you quite blatantly state application is for registering of longstanding of rental of six slips on docks. What’s “longstanding”? MR. HOPPER-To my knowledge, purchasing the property from Olga Hopper, and it was an estate. Her daughter stated that she had been there all her life, and that they’ve been renting docks there for 41 years, and that was in ’99. So it would be about 44 years now, consistently renting docks there. I’d just like to state, gentlemen, that I didn’t realize we needed a marina permit to rent docks. I thought a marina was a marina repair facility, the whole nine yards. This thing came to light when a neighbor of mine complained, and the bottom line is, when we got our variance from the Town, and we got our approval from the Park Commission, we were told we couldn’t rent the north slip because of the riparian rights. My neighbor, the one that’s complaining, has come to me, after, and said it’s kind of foolish to go along with not renting that dock slip, Dave. He said, why don’t you go ahead and rent it and give me half the money, and that’s the way it went for three years, gentlemen, and then he came to me last year and said, that’s not good enough. Now I want the full rental, and that’s when I said, no, I’m going to go by the numbers. I’m going to contact the Park Commission. I’m going to get a Class A Marina license. I’m going to do it right. From that bridge right there on Pilot Knob, for two miles there’s nothing but rental properties there. They’re all nonconforming. They’re all non-permitted, except for one or two that I can think of, and when I was pressured, almost blackmailed into giving him the entire rent, I said, the hell with it. I’m going to go by the numbers. I’m going to go before this Board. I’m going before the Park Commission. I’m going to get my license, if that’s what’s required. I apologize for misleading the Board, but I’m just trying to do it by the numbers now. MR. ABBATE-I accept your explanation, but you can understand why, since I wasn’t on the thing, I had a whole list of questions. Okay. So you’ll have to. MR. FULLER-Absolutely. Just as an aside on that north dock thing, I’m not quite sure that the Park Commission is correct on that riparian rights issue. They just conceded it, the Hoppers, that ’99, as part of the whole conditions. I believe that was a condition that they couldn’t use that northern dock, and I’m, you know, the laws of adverse possession and what not. MR. STONE-We had conditions as to the size of the boat, but we didn’t. MR. FULLER-Okay. It was rowboat, right. 35 (Queensbury ZBA Meeting 5/15/02) MR. STONE-And I can quote the motion. I think the point that is troubling some of us, and certainly the three of us sitting here, I can’t speak for either one of them, and they’ll speak for themselves, but the three of us voted in favor of this variance, which had to do with, certainly the flat roof, but had to do, the position of the dock, visa vie the property line, and we made a certain stipulation that boats of only a certain size could be in that northern slip, as I remember it. We were inclined, I certainly was inclined to do it because I was, I thought, assured by my questioning, that these were family boats, and that they were not rentals, because we have a lot of rental space on the lake which sort of falls through the cracks. I mean, the Park Commission isn’t aware of them because either by commission or omission, owners don’t tell the Park Commission. (Lost words), and so I, at the time, was favorably inclined toward the application, because I thought, One, it was an attractive proposal, as far as the dock was concerned. I recognized all of the things that Mr. Hopper and Mrs. Hopper said about the traffic and the noise and all of these things, and that was well, seemed to do it, but then as the Zoning Administrator determined, based upon things that just happened, I was lied to. I can’t say it any other way. I was lied to, and we have to consider the ramifications of that. All right. Anybody else want to say anything? Any questions? MR. UNDERWOOD-I have one. Who, at present, is using the deck up there? Is it just your family or are the renters using it, or, I mean? MR. HOPPER-None of the renters are permitted to use the deck facility. These people are all local people that live there. Two of them live about a quarter mile down the road past Williamsons’ store. The other one lives over behind Castaway Marina. They virtually walk to the facility a lot of the times. A lot of the times they just park in my back yard, and I tell them, you know, whatever you bring in, you take out, and, you know, these docks have been rented since, for over 44 years now, and there’s no additional impact to the community. They come and go as they always have historically, and my neighbor to the south side has written a letter stating that he’s in favor of it, that my people are all courteous. Basically, right now, the two southern docks are, go along with, two southern slips, I should say, not southern docks, because there’s two docks there, but two southern slips go with 36 Hanneford Road, and then the next three slips I’m basically renting because one son moved out of State. The other one is mooring his boat down at his cousin’s house nearer the village because that’s where the kids party. The boathouse is mine, and then I’ll utilize the small dock underneath the slip there, where historically the cover was, and then we’re not currently renting the north dock. So that takes care of all the docks. So basically we’re renting three dock slips. MR. ABBATE-I think I owe you an explanation. I wasn’t here on the original Board. I didn’t speak to anybody on the Board about this, but I’m going to be very blunt about this. When I went through these 96 pages, and went through all this dissertation, in my mind, there was deception, and that is why I came down hard, because I still believe, in my mind, unless someone can prove to me differently, that there was deception, based upon what I read in the 96 pages. I wasn’t here during the initial hearing. JANE HOPPER MRS. HOPPER-I’m Jane Hopper. Mr. Stone asked me the first question, were we running a marina. At the time, Mr. Stone, before another question was asked, I was the one that said no, and I’ll look at this Board and tell you honestly what Mr. Fuller said and what my husband said is the truth. I thought a marina was what was, gas, whatever. It wasn’t until Mr. Stone went down the road and asked about renting docks that I realized what he was speaking of, and from then on, Mr. Stone is absolutely correct. I should have stopped him right there and said, Mr. Stone, what is a marina? I did not know what the implications were, or I swear to you I would have said something to you then. I apologize because you’re absolutely correct, and I give you my heartfelt apology. MR. STONE-Thank you. MR. ABBATE-Thank you. MR. STONE-Anybody else have anything, before I open the public hearing? Because I know we have at least one person who wishes to speak. All right. Let me open the public hearing. Anybody wishing to speak in favor of the application? In favor of? Opposed to the application? Opposed? Come forward, sir. PUBLIC HEARING OPENED NELSON HARRIS MR. HARRIS-My name is Nelson Harris, and I live at 39 Hanneford Road, which is the next lot above the Hoppers. MR. STONE-Above meaning to the north. MR. HARRIS-To the north. MR. STONE-Thank you. 36 (Queensbury ZBA Meeting 5/15/02) MR. HARRIS-And my main objection to the whole thing is the property line. The dock that was under the slip is totally on my property, and more than half of that, where that boat was underneath, that you guys have maps of that? MR. STONE-Yes, sir, we have. MR. HARRIS-Yes. MR. ABBATE-Could you show me up there what you’re talking about, please. I see, all right. You’ve cleared it up for me. Thank you. MR. HARRIS-Okay. This is my property here. MR. ABBATE-Right, and so the boathouse is on this yellow? MR. HARRIS-No, that’s not the boathouse. That’s where the, that cover was. MR. ABBATE-Okay. MR. HARRIS-On the north dock. The boathouse is right next to it. MR. ABBATE-Okay. I see what he’s saying. MR. STONE-The lean-to went from the porch down to that, what do you call those things, a finger, as I recall, and you’re saying, Mr. Harris, your property line is where on that drawing, on that picture? MR. HARRIS-It’s more than halfway over that. MR. HAYES-In fairness to the Hoppers, though, the lean-to wasn’t pretty, though. I mean, that is part of what we talked about. MR. STONE-That is correct. MR. HARRIS-I have no objection to that. The only thing I have objection to in the whole thing is the property line. MR. STONE-You’re saying your property line goes through? MR. ABBATE-Show us up on the map, will you, please? MR. HARRIS-It goes right through here. MR. STONE-That’s what I want to know. MR. HARRIS-It goes halfway over, right here is my property line. MR. STONE-It’s there. MR. HARRIS-It’s here. MR. STONE-Okay. Your drawing, I guess that’s still, it’s not covered anymore. Okay, but you’re saying your property line, according to this drawing, is between the building, the boathouse with the deck and that finger, right there. Yes. Okay. MR. HARRIS-Well, it’s better than halfway across that slip. MR. STONE-Okay. MR. HARRIS-So that is my main objection. As far as the looks of the boathouse and everything, that’s fine. I have no problem with that, just the fact that he’s over 10 foot onto my property. MR. STONE-And how long, it’s your statement. Are you done? Do you have anymore more you want to say? MR. HARRIS-Well, except when he said I blackmailed him, of course, I disagree with that, too, but that’s another whole. MR. STONE-We’re not going there. 37 (Queensbury ZBA Meeting 5/15/02) MR. HARRIS-That’s another whole subject. Okay. MR. ABBATE-Let me ask you a question, sir. Were you there in residence when that portion was built on your property? MR. HARRIS-Not the original. MR. ABBATE-No, but that portion that’s on your property right now. MR. HARRIS-That was always there. MR. ABBATE-That was always there. MR. HARRIS-That was where that lean-to thing came down. MR. ABBATE-Did you ever object? MR. HARRIS-I objected to the Lake George Park Commission. MR. ABBATE-Do you have a copy of it, do it in writing? Did you object that someone was building on your property in writing? MR. HARRIS-Yes. MR. ABBATE-Do you have a copy of it, by any chance? MR. STONE-When did you buy your property? MR. HARRIS-May ’99. MR. STONE-You bought it May ’99, and you got title insurance on your property? MR. HARRIS-Yes. MR. FULLER-You can’t get title insurance for riparian rights. MR. STONE-Well, you can on property line adjustments. I mean, if the dock is on his property. MR. HARRIS-Yes, I do have title insurance. What am I looking for? MR. ABBATE-Just a letter or something to the effect that you’re complaining that the. MR. HARRIS-I’ve got it. MR. HAYES-I guess the natural question to that is, was there a response? MR. HARRIS-They said it wasn’t in their jurisdiction. MR. ABBATE-That was the response? MR. HARRIS-Yes. I went to a meeting in Bolton, and that’s when I found out that you cannot moor a vessel in front of someone else’s property. MR. ABBATE-Do you want to read it into the record, or is it important? MR. HAYES-No. We can just stipulate that he objected. MR. STONE-That he objected. So through your attorney you objected, and you were told by the Park Commission that it’s not in their jurisdiction, but they did say, at the same time, that somebody can’t moor a boat. MR. HARRIS-That’s right in their rules and regulations. MR. STONE-Okay. MR. ABBATE-Finish the sentence. MR. STONE-That they can’t moor a boat on somebody else’s property. 38 (Queensbury ZBA Meeting 5/15/02) MR. ABBATE-Okay, and are they mooring a boat on your property? MR. HARRIS-Not now, but they were. MR. ABBATE-Not now. All right. You have to understand, I wasn’t here. So I’m asking these questions. I’ve got to understand. Okay. MR. HIMES-Well, then who owns the dock? MR. ABBATE-Who owns the dock? That’s a good question. MR. HARRIS-They do, and I’ll get to that one. MR. STONE-Okay. MR. HARRIS-Well, that brings up, then, who is liable, if their dock is on my property. MR. HAYES-That’s a property issue, though. MR. HARRIS-Okay. I’m paying taxes on the property, and he has 10 and a half foot of it. MR. HAYES-That’s still a civil matter, though. MR. ABBATE-Yes, we can’t address that. MR. STONE-Well, remember what we did three years ago, sir, just for the record. We gave Mr. Hopper and Mrs. Hopper permission, a variance to build that boathouse roof, take down their, the half structure that was there and put a deck on the top, with the stipulation that the cover, the lean-to, if you will, that extended from the boathouse to the north, over that slip, which you say is part on your property, go away forever. We did not address the question of where the property line was. That was not our call. MR. HAYES-It still isn’t. MR. STONE-It still isn’t. It’s still not our call, but we stipulated, we put the stipulation that it had to go away, the cover had to go away, and on the basis of everything else that was said to us, we granted the variance, the Zoning Board of Appeals, May 19, 1999. The property line dispute is a private matter, as far as we’re concerned. The only thing that we can say is we can grant relief from the side setback, which I believe we did too at the time. We had to, because it was a fact. That’s where the building was. MR. HAYES-Proposed expansion of a nonconforming structure, which requires a variance. MR. STONE-Right. So, we did not address, and could not address the issue that you bring up, in terms of the fact that the property line goes through the, or the extension of the property line, but you’re saying, as I hear, you’re objecting to what exactly, the granting of the variance that we granted the last time? MR. HARRIS-To the dock that encroaches on my property. That’s what I’m objecting to. MR. STONE-The only thing that encroaches, well, the thing that encroaches on your property is the dock which, in a sense, has not changed for many years. MR. HAYES-At least ‘81, according to the records. MR. STONE-Yes, since ‘44. Okay. I mean, that dock is too close to the line for Queensbury zoning. We granted relief from that time because the dock is there, and that’s what we would have to do again. MR. HARRIS-Too close to the line? It’s 10 foot over the line. MR. STONE-Not the dock, not the thing that we’ve granted relief to. We didn’t grant relief to that little pier. That was not the thing that was before us. We’re not saying we’re not sympathetic to what you’re saying, sir. I’m just saying, that we did not grant. I believe the minutes. MR. FRANK-You granted 13 feet of relief from the side setback and the expansion of a nonconforming structure. You stipulated to remove the lean-to that physically touched that dock, but you didn’t grant any relief in relation to that structure, that dock. MR. STONE-Thirteen feet of relief from the twenty foot minimum side setback of the wetlands and shoreline regulations 179-60 at the time. 39 (Queensbury ZBA Meeting 5/15/02) MR. HAYES-Which is for the boathouse itself, not the other dock. MR. STONE-That’s correct. MR. FRANK-That’s correct. MR. HAYES-Right. Because that was the structure, it was a nonconforming structure that they were going to alter. MR. FRANK-That’s correct. That’s what was at issue, just that structure, which they proposed to change and it was nonconforming. MR. HAYES-The other thing wasn’t at issue, because it was essentially grandfathered. It was a pre-existing condition. MR. FRANK-That’s correct. MR. HAYES-The pier to the right, to the north. MR. FRANK-And the only relation it had to anything in the previous area variance application was that lean- to physically touched it, and you’ve requested that that be removed and the Hoppers agreed to it. MR. STONE-And what is being sought tonight is relief for that structure slightly off center to the left, the boathouse with the roof which requires 13 feet of relief, because it’s only seven feet from the property line. MR. HAYES-By extension of the property line out into the water. MR. FRANK-That’s correct. MR. STONE-But we use that for docks. We certainly. MR. HAYES-Yes, no, I understand. It’s not a matter of title insurance. It’s a matter of code interpretation. MR. STONE-And you’re objecting to that? MR. HARRIS-I’m objecting to that dock, yes. That’s on my property. MR. STONE-No, we’re not talking about that dock. We’re talking about the boathouse. The relief that’s sought is 13 feet of relief from the property line, to where the building actually sits now. MR. HAYES-The right corner of that boathouse. MR. STONE-Right. MR. FRANK-The Town can’t help Mr. Harris in this matter because we don’t have the power to do anything. It’s a civil matter. MR. STONE-That’s correct. Yes. We’re being asked to grant relief from where Mr. Fuller is showing you. MR. HAYES-Which would be an extension of the property line is what he’s. MR. STONE-Right, right in there. MR. HAYES-Right there. MR. STONE-From where the red’s going back and forth. That’s what we’re being asked to do, Mr. Harris. It was revoked because of the information, misinformation provided by the Hoppers three years ago. So we are revisiting that very small issue. MR. HAYES-There’s literally nothing we can do about the northernmost pier here tonight. MR. HARRIS-Right. MR. ABBATE-Would you like a copy of what they’re actually requesting, so that you’d have it set in your mind? See, 13 feet, it’s right here. That way, it’s in writing. That way there it’s easier, sometimes, understanding. Keep it. MR. FRANK-There’s additional Staff notes on the table. 40 (Queensbury ZBA Meeting 5/15/02) MR. ABBATE-There are? Okay. Good. MR. STONE-Now, we’re being asked, tonight, to approve their application for side setback relief, for the boathouse. If we grant that relief, then everything is moot and they go ahead with the dock the way they have it right now. You still have the opportunity to challenge that slip on your property, but that’s not through the Town. That’s through the courts. If we deny the variance application that’s before us tonight, technically, they have to take half of the dock down. MR. FRANK-Would they have to put the boat slip cover, the lean-to back in place? MR. HOPPER-Let’s hope not. MR. STONE-Thanks, Bruce. MR. HAYES-They wouldn’t have to do that. MR. FRANK-It’s just a thought. MR. ABBATE-That’s not mandated. MR. STONE-We could say restore it to the way, we can’t even say restore it to the way it was because the dock was nonconforming, and because the Hoppers requested a change, now it becomes in our purview to take it down. MR. ABBATE-And we can only address, are we going to give them this relief or not. That’s the only thing we can address this evening. MR. STONE-That’s correct. MR. ABBATE-Nothing else. MR. STONE-That is correct. We appreciate your thoughts. MR. HARRIS-There was no need to be coming here because nothing is going to be done. Is that correct? MR. STONE-Well, are you objecting to the granting of 13 feet of relief from the side, on the side setback, from your property line to the closest point of that covered boathouse? That’s what we’re talking about tonight. Are you objecting or not? MR. HAYES-Yes, put the boat slip, the other thing out of your mind. MR. STONE-Yes, put it out of your mind. Would you like to see us grant relief, so that that dock, that covered boathouse with the deck, can stay as it is? MR. HARRIS-The boathouse I have no problem with. MR. STONE-Okay. That’s the point that we’re debating. MR. HARRIS-It sure as heck looks a lot better than what was there. MR. STONE-Okay. I mean, I would advise you, so you’re for, in a sense, you’re supporting the application. MR. HARRIS-No. I’m neutral, then. I’m not for it at all. MR. STONE-Okay. MR. ABBATE-Okay. That’s fair. MR. STONE-Okay. All right. Thank you. Anything else? MR. HARRIS-Now you’ve got me confused. MR. STONE-Okay. I’m sorry, sir. Okay. Any correspondence? MR. MC NULTY-Yes. There were a couple of pieces of correspondence. One is a short note from Mr. Harris saying, “This is to formally register my objections to the Hopper’s dock that encroaches on my property. Accordingly, I strenuously object to any action that would permit this encroachment to continue. Very truly yours, Nelson E. Harris” And the other is a letter from Bruce and Kim Hanson at 33 Hanneford Road, and it says, “In May 1999 we wrote in support of the Hoppers’ application (site plan #21-99) for 41 (Queensbury ZBA Meeting 5/15/02) rebuilding their boathouse and dock slips. It appeared that previously some of the docks were used for seasonal rental. Since the Hoppers have owned the property, their dock renters have been responsible and courteous. The lake bottom in this area is soft and weedy, and is unsuitable for swimming or as beach front. The continued rental of dock slips on the south side of the Hoppers’ boathouse would not seem to create an adverse impact on the area. We therefore support the Hoppers’ application for the rental of dock slips on the south side of their boathouse. Sincerely, Bruce & Kim Hanson 33 Hanneford Road Queensbury, NY 12804” MR. STONE-Thank you. Mr. Harris, before you go, I want to be sure you understand. You said you’re confused. I want to be sure you understand that what we’re being asked to do tonight is allow that building, with the deck on the top, to remain where it is, as it is. That’s all we’re doing. The fact that that finger is on your property is a matter between the Hoppers and you and any people you want to represent you, so to speak. MR. HAYES-Any two lawyers. MR. STONE-And the thing that’s, technically, according to the Code, in Queensbury, no building, no dock, can be within 20 feet of the property line. MR. HAYES-Your property line. MR. STONE-Your property line, the one goes up the water. MR. HAYES-Which, of course, runs directly against your original objection. MR. HARRIS-Say that again? MR. HAYES-What I’m saying is that that obviously, see, that’s going to put him back to where he was, because that very fact that that Code exists would question why somebody could have a dock. MR. STONE-And that’s the point that he has cause. MR. FULLER-If somebody tried to build this today they would never get away with it in 100 years. MR. STONE-That’s right. That’s correct, and you have cause you argue that that dock is on your property, as it is, and that some compensation, I can’t, it’s the lawyers to talk about, you might be due some compensation for that being on your property. MR. HAYES-It’s an adverse possession issue, though. MR. STONE-Yes, adverse possession. MR. FULLER-It’s a motion to quiet title, the action that he would bring to expel them, and the defense to a motion to quiet title is adverse possession. The reason I know that is I lost one. It wasn’t pretty. MR. ABBATE-Let me say this to you. In effect, they’re requesting that their boathouse can be closer, by 13 feet, to your property, which the only way to get approval is to come through us. Are you willing to accept the fact that that boathouse, they’re requesting 13 feet of relief, which you have every right to reject, and say, no, no, no, but they’re requesting, they’re 13 feet closer to your line that it should be. That’s the problem. MR. HARRIS-Okay. I object to that. MR. ABBATE-Okay. That’s what I want to make sure. MR. STONE-Now, let me go back, though, that when that dock was put up, 40, however, there was no zoning code in Queensbury. Therefore it was not in violation, but when the zoning code went into effect, it became nonconforming, and as long as they did nothing, then it was perfectly legal. When they came and they wanted to make changes to it, it became a variance issue. It became nonconforming and had to either be brought into compliance by moving it, or obtaining a variance from this Board. This Board, three years ago, gave them that variance. They said, Hoppers, go, do what you want to the dock, and it can stay where it is. The question that is, and that’s the only question that’s before us tonight, because the Zoning Administrator, because of some of the things that we talked about earlier, the fact that the Hoppers made some misstatements, I won’t go any further than that, to us, might have had, part of the test. MR. HAYES-It effected the test, the balancing, the points of debate and the balancing test. MR. STONE-And because it wasn’t rental, and those of us who, I can only speak for myself, I am not a fan, I’ll be very frank, of rental, of people renting boats to other people on the lake, and I don’t want to go there, but that was my position at the time. I was assured that the Hoppers were not. Therefore, I was favorably 42 (Queensbury ZBA Meeting 5/15/02) disposed to granting this longstanding setback incursion, if you will, with the provision that the Hoppers take away this offending lean-to, which we all felt was pretty ugly. MR. FULLER-And also as a benefit, a bittersweet benefit, not to put a boat on the northern dock. MR. STONE-And we made the other condition about a boat. So, the reason we’re back here tonight is the lean-to is obviously gone. So that benefit exists. The building has been improved. You’ve said the building improved, but are we willing to grant this variance again to the Hoppers after at least some of us, and by definition the Zoning Board of Appeals, even though there are different characters, this is the Queensbury Zoning Board of Appeals, were we deceived into granting that variance? That’s the issue that’s here before us. We have heard you. You would, you’re not in favor of us granting the relief because for whatever reason. That’s fine. We accept that. MR. HARRIS-I object to it. MR. ABBATE-You object to it. Okay. That’s fair enough. MR. STONE-That’s noted. MR. FRANK-Mr. Chairman, Mr. Harris really needs to be on a microphone. I’m not sure if that’s on the record. If you’re asking him a direct question, if he wants to state that, he should state it into the microphone. MR. STONE-Just say what you just said, that you are in objection to us granting the variance. Is that what you’ve said? MR. HARRIS-Right. I am objecting to you granting the variance. MR. STONE-Okay. Fine. Thank you. MR. ABBATE-Okay. MR. STONE-Having said that, we read the letters. I will close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Gentlemen, it’s up to you to respond if you want. MR. FULLER-I don’t want to make any comments to his objection. I’m not entirely convinced myself of what was objected to or the content of it. I guess the closing remark that I have is that I think that I had the benefit, when they first came in to me, of looking at it as some of the people on the Board that haven’t seen it, that didn’t see it before tonight, that weren’t here in ’99. I looked at it, I said, what are you talking about, look what the minutes say. It’s just cut and dry. I mean, I think there was a duty to correct when it became evident that it was probably misleading. I don’t think there’s an objection, and I don’t know if anybody can argue otherwise. I think you’re standing on no ice if you try to make that argument. MR. STONE-You’re talking about you, gentlemen? MR. FULLER-Yes. MR. STONE-Okay. MR. FULLER-I just don’t see the argument, and I don’t buy it. I see the two different points. Did they intentionally, right from the get go, want to mislead you that there was no rental of the docks? I don’t think that’s the case, and obviously members of the Board have said otherwise, that they think that there was misconception. I see the problem that the Hoppers have is their duty to correct something that was, that became misleading, and I don’t think that there’s any argument, as I’ve said before, against that. MR. STONE-I’ll tell you what I’m going to do. I’m going to do what we normally do at this point in time. I’m going to poll the Board. I want you to listen with me, in terms of what you hear. If it appears, and I have no idea where we’re going, because we don’t discuss, as you know, until now. If it appears that the Board is not going to grant you the variance, I want you to be prepared, if you want, recognizing that if we don’t grant the variance, the boathouse, in a sense, has to come down. Are you prepared to make any concessions, and I don’t know where we’re going to go, and I’m not even looking at shaking your heads. I’m going to start, as I always do, I’m going to start with Mr. Abbate. MR. ABBATE-You’re right. I don’t know where I’m going to go. I’m being very, very honest with you. As I indicated earlier, I was not here with these gentlemen right here. So I, you could say that I have a pretty objective appreciation of the 96 pages when I said, God almighty, there’s deception here. Was it intentional? 43 (Queensbury ZBA Meeting 5/15/02) That’s not an issue, and you’re probably right, it wasn’t intentional, because it doesn’t gain anything, but nonetheless, I suspect that if the Board, at the time at least if I were on the Board, and I was aware of the fact that you were renting these, I would have said, absolutely not. Where am I on this? I don’t know. I mean, how honest can I be? I don’t know. I have to think, I have to listen, see what the other Board members have to say. I don’t know where I’m at. Somebody has to convince me to say okay. If I had to make a decision now, it would be negative, but I want to be fair. I want to be fair to the Hoppers. I want to be fair to everybody. So I’m willing to listen to what my other Board members have to say. MR. STONE-Okay. Jaime? MR. HAYES-Well, I was there for that hearing. I don’t know if that’s good or bad at this point, but I know my memory of the application, we were being asked to expand the use of a nonconforming structure, the boathouse, because the Hoppers were proposing to eliminate the lean-to, which most of us saw as a very good thing, and they were talking about putting a flat roof and enjoying enhanced use of the boathouse that they had, which didn’t have a roof on it, this way. So in a way you could say that was a negative because they were increasing the intensity of the use of a nonconforming structure, and that was the balancing test that we applied in my opinion, speaking for myself. In doing so, it was still a relatively close issue, because some of the other Board members, Bob McNally in particular, felt that we weren’t asking the Hoppers for any concessions, and yet we were essentially granting them an increase use in the boathouse, per se, by allowing this flat roof sundeck. I think the boathouse looks great. I think that I would stipulate any time, as I think most people would, that it looks better than the boathouse that was there by a lot. That was one of my impressions when I went there was anything was going to be better. I have to say that, but going back to the issue of the boathouse itself, it was a close issue, as to whether they should be allowed to increase the usage of this boathouse, being that it was already fairly congested in that area, and that we could have further requests for increased usages, and how would we mandate that, because essentially it’s like boat alley there with all the boats going all different, the docks going all different directions. The Hoppers, as I saw the property again today, have run a good site. The workmanship and the quality of the docks is fine. I would say my opinion would be that I think the boathouse is an improvement. The relief, would I have given the relief knowing that all these docks were rented? I don’t know. That’s certainly an open question at this point, and we all made our decision, with the broad context of effects on the neighborhood or community, based partially on Lew’s question, because as has already been pretty much acknowledged by the applicant, we were all very clear that there were no boats being rented there. As a matter of fact, there were explanations about some of them were for the sons and there was some rather detailed explanations of the rental property, as Mr. Himes has pointed out. I think the Hoppers, to gain my vote, which I’m still willing to give, as I did then, need to make some concession about the total number of rental docks or some concession to the dock to the north or something, and then I think, once again the balance, even with the new set of facts, would fall in their favor, but I’d like to think that the fact that these docks are rented is a change, in my mind, toward the intensity of the use, the impact on the neighborhood, all these things, and I think that the Hoppers need to address that. They didn’t address it then, but they need to address it now, and I think they can be given the opportunity to address it now by making a concession about either the northern dock or some of the other docks or whatever, and put the record straight, in my mind, retroactively. So, that’s where I stand on the application. MR. STONE-Chuck? MR. MC NULTY-Well, I’m kind of on the fence that Chuck Abbate’s on. I’m trying to separate things. Obviously, when you feel you’ve been mislead, there’s an immediate angry reaction or whatever. I don’t want to react and retaliate, if you will, and look at this, trying to think, how would I have acted on this had we had confirmation at the time that the other docks were rental docks, and I’m not totally sure. I think I would have gone where I’m going now, is I’m not sure that it makes a great deal of difference to me whether they’re rental docks or whether they’re docks used by relatives. I think the net effect is the same. If there’s six docks there, and there’s boats there, then there’s six boats there, and whether they’re rented to somebody or owned by either a son or a daughter or whoever, I’m not sure if it makes any difference in the amount of use. At the same time, I don’t know, I guess what I would like to see is something done at least for that northern dock that is over the property lines, and that might be something the applicant could think about and come back with some kind of a proposal, whether he gives that dock to the neighbor or tears it down or what not, but I’d like to hear what might be proposed, I guess, in the way of concessions, but my general inclination is probably going to be to approve, but I think my reaction would have been the same then as now, and certainly what is there, in the way of that boathouse, is a distinct improvement to what was there prior, and I think, personally, I like seeing it there. I would like it better there than to have it torn down. So that’s where I’d be. MR. STONE-Norm? MR. HIMES-Yes, thank you. I feel that there’s certainly indications in the file here about the rental business, and it’s certainly the rental that brought everything up again, and why we’re here again, and you made statements, sir, that, you had a little side deal, on one slip, and then it got a little rough, so then you decided to come clean and, you know, start doing things the right way. So what I think will bring things back to maybe what I understand they were in the May ’99 thing, that there be no rentals, period. The dock that goes with 44 (Queensbury ZBA Meeting 5/15/02) the one dock, that goes with, you know, your piece of property there, the cottage. They rent the cottage, they get the use of the dock. That’s what the file says the arrangement was, and I hope still is, because if it isn’t, I say, okay, I’d go along with the variance, in spite of the fact that there’s a lot of dockage there, beginning a good break, as far as I’m concerned, with what I’m proposing, or what was granted previously and over time, but I would say, no rentals, and go back to the body that asked you, gave you the permit, and have that rescinded. Otherwise, I’ll vote no. Thank you. That’s all. MR. STONE-Jim? MR. UNDERWOOD-Yes. I think that we’re supposed to be talking here about granting relief for the boathouse, and there’s no doubt that the boathouse looks very nice, but, had I been there at the early meeting and had been deceived, I would have been very upset at the same time, too. I guess people can’t help being what they are and who they are, and, you know, you have to look at yourself every morning in the mirror. So that’s your choice, but my vote would depend on what concessions were made regarding that northern dock. That’s up to you, and then I’ll make my decision. MR. STONE-Roy? MR. URRICO-We’ve had an interesting night, three variances after the fact, but each have had extenuating circumstances, and I guess the question I ask is what our former President asked, are we better off now than we were three years ago? And that’s what I’m trying to figure out. We’re concerned about the traffic and congestion at that part of the lake. We’ve had similar cases, similar circumstances for a case not too long ago, we were concerned about the extent the dock extended out into the water, and we made them bring it back in order to keep that area less congested. When I examine the criteria, I don’t know if it makes it any better, but the benefit to the applicant, they would be permitted to keep the boathouse as is. What are the feasible alternatives? Well, I guess we could make them cut down part of it, but, I don’t know, that seems kind of rash at this point. They were granted permission, even if the permission was granted due to a misunderstanding. So, in part, they went ahead thinking that everything was okay, but then discovered it wasn’t okay, and now we’re trying to back track and make it better. So I don’t know if that’s a feasible alternative. As far as relief substantial relative to the Ordinance, well, 13 feet of relief from 20 feet is rather moderate to substantial, compared to what it was before, when the lean-to was there, it really is further away than what the lean-to, where the lean-to went. So that’s also an improvement. The effects on the neighborhood or community, well, Mr. Harris was here and it has an effect on him. It obviously had a very big effect on him, and the, is the difficulty self-created? Well, yes and no. If they were purposely deceiving us, yes, they did create it themselves. If it was a misunderstanding, then we have to chalk it up to that, and we’ve had some other cases tonight there were some misunderstandings, and we granted the applicant the benefit of the doubt there. So, on balance, I think I fall in favor of this, but I also agree that there has to be some concessions made, at the very least, the northern dock and maybe limiting the number of rentals that you use. MR. STONE-I don’t know what your scoreboard says, but I hear a great deal of, I’ll grant it if I get some concessions. I hear the northern dock. I hear no boat rentals. One of the things we haven’t addressed tonight, and it’s mentioned in the Staff notes, and we should have talked about it, was that we have a 100 foot frontage, and we are wall to wall dock. That is certainly not the intent of the docking Code as far as the Park Commission is concerned, and as far as Queensbury is concerned. Could we have done anything about it if a variance hadn’t been sought? No, but a variance has been sought, and that opens everything to us. I, personally, believe that the dock that has been constructed, based upon the variance that we granted, is a large improvement. I think it helps the entrance to Pilot Knob, and I think it certainly helps the Hoppers, and the benefit to them is very clear. I do think, however, that the deception that was performed on us must be remedied in some way, and I would like you, I would suggest, unless you feel you can do it now, that you go, Hoppers and their attorney, and come prepared to, it can even be next meeting, as far as, could it be next meeting if we, next week? MR. HIMES-We’ve got seven of them on there now. MR. STONE-Well, it would have to be next month, probably. MR. HAYES-Or they can do it now. MR. STONE-Or you can do it now. MR. FULLER-I think we’re inclined to do that. MR. STONE-Okay. Well, tell us what you’re willing to do. MR. FULLER-Well, and I don’t want this to come out as cold as it is. If you guys say no to this, I know they can’t use that boathouse. They can’t use the roof, and that’s out the window. The relief is not granted, and they go back to being what they were before, the grandfathered use, and, certainly, with regard to the northern dock, as we’ve discussed it already, and I certainly, we’ve discussed that at length, and I think there 45 (Queensbury ZBA Meeting 5/15/02) was a suggestion of removing it. That was addressed, I believe, in 1999, if not here, I’m trying to recall the minutes I reviewed, but at the Park Commission, and they wouldn’t allow that, removing the crib dock. I’m pretty sure it was the Park Commission. It was discussed, removing that northern dock, that northern crib, but the topography of the lake bottom and the siltation, I believe, was the major factor in not removing those. I don’t, obviously you can get a permit, but I’m not sure what the cost of that. I believe it was in the $40 to $50,000 range, don’t quote me on that number, to remove the cribs, because you’re dealing with the Army Corps of Engineers and the clean water effects of that siltation. That’s most likely a high quote, I think. Mr. Underwood may agree that I may have over quoted that, but it’s expensive, and in regard to giving the northern dock to the neighbor, on a different situation I’ve been working on for 10 months now, is how do you give docks to someone that doesn’t own the property, and the short answer is you can’t. There isn’t a way to do it, to give someone the dock without an interest in the property. So they would, to put that hypothetically even further, they would be required to grant an easement over the property, because if I’m, unless I’m mistaken, that. MR. STONE-Well, it’s on his property. MR. URRICO-Isn’t it on his property? MR. FULLER-I don’t believe it’s physically attached. Am I wrong? MR. STONE-I never looked at it. Well, you all own that strip of land. Is that correct? MR. HOPPER-The dock space that encroaches on Mr. Harris’ property is not physically attached to the land. It doesn’t become attached to the land until you go down the stairway adjacent to the boathouse. MR. HAYES-By that rail there you’re saying. MR. HOPPER-Yes, right by the stone, you see the, I can point to it. MR. FRANK-The tax map doesn’t really help any. MR. HOPPER-What Mr. Harris was saying is his land is about halfway in the middle of this slip here. Okay? MR. STONE-Yes. MR. HOPPER-Okay. Now for 44 years, this pier has existed, according to the Park Commission’s records. MR. STONE-Try to describe what you’re talking about. MR. HOPPER-Okay. Mr. Harris’ property line would come in about halfway in the middle of this slip, okay, but for 44 years now, this pier has existed, and the people that owned the land prior to us and two other owners prior to me, they built this pier over here and out and back in here, where you see the land, it doesn’t physically attach itself to the land, not until it connects onto the stairway here where you walk down onto the boathouse dock, and that’s where it connects. MR. HAYES-So it’s L-shaped, then. MR. HOPPER-It’s not physically attached to the land. MR. STONE-So that fence that we’re saying, that railing, is parallel to the shore? MR. HOPPER-It’s attached to the dock, but there’s still water between the back of that fence and the land, physically. MR. FRANK-And again, for the record, Mr. Hopper was referring to the dock north of the boathouse. MR. STONE-Right, the dock that is on Mr. Harris’ property. MR. FULLER-The point in going through those two things is not to, you know, instantly diminish a suggestion by the Board. We did consider it, and it was along with my initial review of what went on here. Let’s see what we can do to fix it, and I think what we’ve discussed, I don’t know, in giving up rentals entirely, I don’t know if they would do that, when they weigh the difference between giving up rentals entirely or not using the top of that boathouse. I don’t know, and if that’s what you guys want to do, then we would push it up and have to talk about it. I don’t know if they. MR. STONE-Well, it seems to me, and, again, jump in, gentlemen, because I don’t want to purport to speak for all of you, but the easy suggestion, and I’m not disputing what you’re saying, Mr. Fuller, the easiest suggestion would be to do something with that dock, either (lost word) tear it down, and you’re telling me there are problems. Okay. I’m not prepared to argue that point, but certainly that was the one I heard most 46 (Queensbury ZBA Meeting 5/15/02) often, from talking, listening to the gentlemen here. The other was rentals. Another suggestion I don’t think was offered, but it could be taking out one or two of those docks that are to the south, whether you rent the others is beside the point, but maybe taking, the feeling I got, and the comments I wrote down here, with six out of seven people wanted to see, including me, I really didn’t say it, but six out of seven want some concrete concession. MR. ABBATE-I’m ready to take a position now. MR. STONE-Well, go. MR. ABBATE-Yes, okay, six out of seven. It seems to me, and I don’t want to be cruel and hard, like you said you didn’t want to be cruel and hard, but it seems to me that if you want some of that pie, you’re going to have to make some concessions, and if you don’t make some concessions, I’m not going to support it. MR. FULLER-Absolutely, and I did not want to imply that when I said that. I just wanted to, I don’t want to see it get denied. MR. HAYES-We don’t want to get into crafting solutions. MR. FULLER-No. MR. HAYES-How about the possibility, since you are leasing those slips, I mean, a long term lease to him for a dollar, or something like that. That way you’re not changing property rights and all these things. You’re just diminishing the amount of rentals. MR. FULLER-Of that northern dock. Beyond, so, if I get the impression of the Board, that what was previously, in the ’99 variance, that they couldn’t, I believe, store anything bigger than a, like a sunfish sailboat or a rowboat, canoe, something in that, a kayak. MR. STONE-Yes. MR. HAYES-Right. MR. STONE-That was based upon the whole record. MR. FULLER-Certainly, and that’s certainly how, I’m not meaning to (lost words), but if what you’re saying is completely extinguish that use, don’t use it, and if possible, allow the neighbor, Mr. Harris to use it. MR. HAYES-Because I don’t think we should get into taking property away from the Hoppers, though. I don’t think that’s right. MR. ABBATE-No, I don’t think we should do that. MR. HAYES-There just has to be some solution. MR. HOPPER-With respect to concessions, I wouldn’t mind going back, if Mr. Harris will agree with me, that, you know, we had an agreement there for three years, and he basically decided that he didn’t want to continue that agreement, and I would either with his permission, let him share the rental of that dock with me, if he wants to do that, or if he states that I can’t use that dock at all because of his riparian rights, I’ll concede to that. I won’t use that dock, utilize it in any way, shape or form, to meet Mr. Harris’ complaints. MR. URRICO-Mr. Chairman, I think we’re heading nowhere here. MR. ABBATE-I agree. MR. URRICO-I think they need to come back with something. MR. STONE-I think you need to come back. I think you need to take some cool, considered thought. I mean, we don’t necessarily like to table, but I would prefer to table this and give you up to 62 days to come back with something that you think this Board, you heard it as well as I did, and I think we’re relatively sympathetic, but we just feel that maybe we have to extract a pound of flesh, but we think it would help, first of all, it would help the neighborhood if we reduce some of the congestion there, and we have that opportunity to do so. MR. FULLER-I’m going to put it out there. If there’s an opportunity, I’m still, I’ve heard the comment that I’m going to take them. MR. URRICO-I’m seeing Mr. Harris back there shaking his head to your proposal. So, I don’t think (lost words). 47 (Queensbury ZBA Meeting 5/15/02) MR. FULLER-If we do that, I want to have something to go back to work with. MR. ABBATE-I can give you something to go back to work with. Do you want something to go back to work with? Do away with all the rentals, period. Start with that. You do away with all the rentals, I’ll support the application. MR. FULLER-And I understand that position, Mr. Abbate. I don’t want to, I’m not trying to get the emotion into this. I understand exactly what happened last time. They should have corrected it, but from their standpoint, to take the other extreme of that, what I don’t want them to do and I’ve advised them not to do, is to withdraw that application and not use that boathouse, but I don’t want. MR. STONE-No. We’re not suggesting that you withdraw it at the moment. We’re suggesting that we table it so that you can listen to what we said, you can look at the record. I mean, it’ll be prepared. How quickly, Maria? MS. GAGLIARDI-Within a week. MR. STONE-Within a week. You can look at the comments. You can read them at your leisure, and come back to us next month. MR. FULLER-Can we be on for the next meeting this month, or are we off until next month? MR. STONE-No, you can’t be on, because we won’t have time to advertise it again. MR. MC NULTY-Bruce, you say Mr. Hopper owns 33 as well as 35 Hanneford? MR. STONE-No, 36. MR. MC NULTY-Okay. So 36 is on the other side of the road, then? MR. STONE-Yes, it’s that little house on the other side of the road on Hanneford. MR. HIMES-I’d like to mention one other thing to keep in mind, too, that I don’t think we had in the original approval, that we now have, the neighbor that objects to the variance, because of proximity of what everyone’s raving about is too close, and I also think it’s a nice job and so forth. It is, and he stated earlier, off the record, I think, Mr. Harris did, that it was nice, and I thought he kind of went along with, as a matter of fact, I think he said that he kind of went along with it, but he, it’s recorded here that he is against that, and that’s something I, and maybe the rest of us, have to also take into our consideration that wasn’t a problem before. MR. STONE-So, I’m going to take the liberty of, I’m going to table it for up to 62 days. Are you gentlemen okay with that? MR. FULLER-I’m trying to confirm that with my client. MR. STONE-Well, do you want to take a couple of minutes and go out and do it? MR. FULLER-That would be great. We’d appreciate it. MR. STONE-Why don’t you do that. MR. ABBATE-Yes, no problem. MR. HOPPER-Is there any way we can come to some kind of a concessionary agreement this evening, without tabling? MR. STONE-Yes. MR. ABBATE-Absolutely. Sure we can. We can put it to a vote. MR. STONE-We can put it to a vote, sure. MR. HOPPER-Okay. Basically what I’m saying is, of the docks there, two of them are associated with 36 Hanneford, we’ve established that, the southern two most docks, okay, southern two most slips, I should say, not to misconstrue slips with piers. MR. STONE-Okay. 48 (Queensbury ZBA Meeting 5/15/02) MR. HOPPER-I utilize the boathouse, and the slip north of the boathouse. So that takes care of four. I’m not going to use the north pier. I concede that to Mr. Harris’ riparian rights, and what I’m asking for is basically three rental strips. MR. URRICO-What is the road frontage on 36? MR. HOPPER-100 feet by 100 feet. MR. STONE-On Hanneford. MR. HOPPER-On Hanneford. MR. STONE-36 has no frontage on Pilot Knob Road. MR. HOPPER-36 has no frontage on Pilot Knob Road. 36 is, you know, attached to 35, and 35 has the. MR. STONE-All right. If I were to buy 36 from you, would the deed include two slips? MR. HOPPER-Yes, sir. MR. STONE-As it’s presently constituted? MR. HOPPER-I believe it is, yes, sir. MR. STONE-I’m not trying to put you on the spot. MR. HOPPER-I had Mr. Cooper, up in Warrensburg, draw up the easement, it was a year and a half ago. It was recorded. MR. STONE-Okay. So two of those docks are tied to 36. MR. HOPPER-Slips, not docks, slips. MR. STONE-Slips. MR. HOPPER-Because we went through that, I have two E-shaped docks, so not the entire E-shaped dock, but two of the slips of the southern most E-shaped dock is associated with 36. I have two slips myself, and I’ll concede the riparian rights to Mr. Harris. That would leave me with three rentals out of all of the docks. MR. STONE-How many docks are there? MR. HOPPER-Totally there’s eight slips. MR. STONE-Eight slips. Places for eight boats. MR. HOPPER-Places for eight boats. MR. STONE-Okay, and that would be nine if you could use that one? MR. HOPPER-No, sir, that’s including that dock. MR. FULLER-Nine if you could include the north one. MR. STONE-Yes. MR. ABBATE-Right. MR. HOPPER-No, there’s eight. There’s two E-shaped docks. There’s not nine slips, okay. MR. ABBATE-How many boats can he put there, nine or eight? MR. FULLER-Well, under the previous, the ’99, it was one less that north dock, whatever his. MR. HOPPER-Last year, Mr. Harris and I were renting this dock, and he asked me to rent this dock. I was leaving it vacant due to the riparian rights the Park Commission gave Mr. Harris. He came to me and said it’s foolish to leave that dock there. Why don’t you go ahead and rent it give me half the rental. So I did. For three years we split the rental on this dock. Then last year he decided he wanted the whole thing, and I said, no, I’m going to go and I’m going to do it by the numbers, and file an application with the Park Commission, 49 (Queensbury ZBA Meeting 5/15/02) and that’s why I say I’m not trying to deceive you. If I was trying to deceive you, I wouldn’t have come forward and said I’m filing an application for a marina license. MR. FULLER-I, as a side note, will concede that the facts about that rental of that dock, Mr. Harris, disputes. MR. HOPPER-So this is what brought everything to light in the first place was Mr. Harris’ problem with this. So I’m trying to eliminate Mr. Harris’ problem with this, and also, you know, be in obeyance with what the Park Commission said. You folks said I could put a rowboat there, and you folks said I could put a boat of minimal size in here. MR. STONE-We said only a rowboat on the outside of the northernmost pier, and that in the slip that’s between your dock and that pier, that a minimal size boat be used, not a cruiser. MR. HOPPER-Exactly, sir. MR. STONE-Okay. So we took the north side of that off the table. MR. HOPPER-I’m taking that off the table. MR. STONE-All right, and what else are you taking off the table? MR. HOPPER-Well, we’re taking the northern dock off the table. We took the lean-to off the table, and we improved the neighborhood by putting up a $43,000 cedar boathouse, compared to a piece of junk that pre- existed. MR. STONE-But you are not, it seems to me, and I’ll let other people talk if they want, it seems to me that you haven’t made a concession, a significant concession, as far as I’m concerned. I can’t speak for anybody else. Anybody wish to speak? MR. ABBATE-Yes, well, I agree with the Chairman. Look, you folks, there is, in my mind, a questionable history, okay, put that aside. MR. HARRIS-Why can’t you just get rid of the northern dock? MR. ABBATE-Wait a minute. There is a questionable history, in my mind, okay, whether intentional or not. Then you come before us asking 13 feet of relief. So I’m saying to myself, a questionable history, 13 feet of relief. I said, well, gee, what’s going on here, and it appears to me that you folks want it all or nothing. That’s my impression. That’s the impression you’re giving me. I don’t know about the other Board members. MR. STONE-Any other comments, gentlemen? I’ll tell you what. I’m going to take the prerogative that, I mean, I can give, on the basis of what you said, I can do two things. I can give the Board the right to vote on the application that was presented to us tonight, with the minimal concession that you’ve made. I want to be careful with my words. I don’t want to be prejudicial, or I can table it and have you do a couple of things for me. One, get me a statement about that northern dock from somebody, the Park Commission, the Corps of Engineers, that says you can’t take it out, because I, quite frankly, don’t understand why it can’t come out, but that’s, I may be acting from ignorance, but nevertheless, I would like to see that, because you’re saying it, and I know you’re an officer of the court, and all that, but I would like to see it, for one thing. So I have two choices that I’m going to present to you, that we either, we vote on the application, with the concession that was made, that would be no boat on the northern side, which is basically what we said you can have a rowboat there, and that we, I’m not sure what else you’ve conceded. Anybody else have anything? Did I get something wrong? MR. ABBATE-No. You said it right. It’s up to them to make a decision what they want to do. MR. FULLER-Against my advice, I have been advised by my clients to withdraw the application. They will discontinue the use of the deck and the stairs, and I just want everybody to understand that that takes all of the conditions that were in that 1999 permit also off the table, which re-opens them to the ability to rent that northern dock. MR. STONE-Use is not construction, sir. You have built a nonconforming structure. The Town still maintains control over that. Am I right, Bruce? MR. FRANK-I believe so. MR. STONE-You can’t just take it off the table. MR. FULLER-The nonconformity was the increase in the use of the deck, I understand. MR. STONE-It was any change to a nonconforming piece of property. 50 (Queensbury ZBA Meeting 5/15/02) MR. FULLER-But am I wrong that you can maintain a nonconforming property? MR. FRANK-You can expand a nonconforming property, and you were granted the relief to expand, and what you did. MR. HAYES-I know what you’re saying. I’m just wondering, though, based on the fact that it’s a complete new construction, that’s not, may be interpreted not maintenance anyway, do you know what I mean, of maintaining a nonconforming structure. MR. ABBATE-Mr. Chairman, I submit that we vote on this, settle it once and for all. It’s up to you, but I think we should vote. MR. HAYES-I think they have the right to withdraw their application. MR. ABBATE-If they want to withdraw, by all means. MR. STONE-But it doesn’t spare you from the action of the Zoning Administrator saying you now have an illegal building. MR. ABBATE-Right. MRS. HOPPER-What do we have to do? MR. FULLER-I think it comes back to the, and I’ll, I mean. MR. HAYES-That has to be interpreted. You’re right. MR. FULLER-This is what I discussed with Craig, and I still don’t want it to go this way. MR. STONE-I don’t want you to take it off the table. MR. FULLER-I think the Town has the ability to regulate this property, and I don’t want to diminish the fact that misleading statements were made in 1999. I’m not doing that, and I don’t mean to do that. MR. ABBATE-But that’s not what we’re talking about right now. MR. STONE-On the basis of the variance that we granted in 1999, the Zoning Board of Appeals, Town of Queensbury Zoning Board of Appeals, granted relief in order that the applicant could build the building that we see in front of us. Having done that, the Town maintains the right to manage, not manage, that’s not the word I want, but to have some control, regulate. MR. HAYES-You’re saying the premise of the approval has changed, and the Town maintains the right, obviously, since the premise of the approval’s changed. MR. FULLER-And that’s the, and I’ll just reiterate that, that with the nonconforming use, and I believe your Code says that you can make repairs to that nonconforming use. If I understand what you’re saying is that the repairs to the boathouse, and I think why they were here was not simply repairs to the boathouse, but the fact that they wanted to use the sundeck, that was the increase. MR. STONE-They changed the nonconforming structure. Once you change a nonconforming structure, the Town Code, the new Town Code, the Town Code applies. MR. FRANK-Once you tear it down, you’re starting from scratch, and that’s basically what you did. MR. STONE-That’s basically what you did. MR. FULLER-I know there’s an agreement to work out on this, and I don’t want them to withdraw this, because I think that there’s, the Town has the ability to regulate them. MR. STONE-Well, I think you’re right, because withdrawing it is not going to save it. It’s not going to save it. Because you can’t get a variance, have it rejected, now, by the Zoning Administrator, and say, well, we’ll just leave it the way it was. We got what we wanted. We can’t control use. Mr. Frank is not going to be out there every day saying, they’re up on the porch. They’re up on the deck. MR. FULLER-Well, at the same time, the rental of the slips is use. That’s why we’re here. MR. STONE-That’s a stipulation we can put on the granting of the variance. It comes under our purview, reasonable condition. I mean, first of all, you have a lot that is wall to wall docks, piers, slips, all of that stuff. 51 (Queensbury ZBA Meeting 5/15/02) You have more dock space than is called for by Code. It’s also nonconforming, and asking us for some relief. We have the right to impose conditions. I really suggest, and I hear you, but I really think that you would be better advised, from what I hear, to let me table it, come back in a month, and with, having read the record, having consulted with the Town Staff, anybody else, and I certainly would like to see something about that pier. I would like to see some evidence that that’s, in fact, the case. I think you would be better advised. MR. MC NULTY-And that doesn’t preclude you from, next week, deciding that you still want to withdraw. MR. STONE-Yes. MR. MC NULTY-But it gives you a chance, because one of the dangers is you withdraw and then you find the Town says, well, we still have control over it, and the remedy then is to tear the boathouse down, and you need to know that before you withdraw. MR. STONE-I mean, you, right now you’re in a position of having made an illegal construction. Is that a safe? I don’t want to get the word “illegal”, but unauthorized. MR. FRANK-Yes. I think the Town needs, I think the Town needs to be careful where we go with this. I think Craig needs to review this and talk with Town Counsel, because I’m not sure which direction this is going, and I don’t want the Board to make a ruling where they really didn’t have the right to, not in their best interest. MR. HAYES-I want to say, myself, okay, that I don’t think that the Hoppers should give up any property rights to this, as far as this dock. I think asking people to give up property rights, I’m not sure if that’s a reasonable condition. That’s an issue, but I think that they’ve asked for an increase in intensity of use of this structure by putting this sundeck on and also putting sides down, because it didn’t have sides down it. MRS. HOPPER-Yes, it did. MR. HAYES-Well, I mean to the same extent or whatever. I mean, what I’m saying is. MR. HOPPER-Can I ask several questions? MR. HAYES-They have asked to increase the intensity of use of this nonconforming structure. I think it’s reasonable for us, as a Board, to ask for some decrease in intensity in other area, that corresponds, and that is a reasonable condition. That’s what I’m saying on the record. MR. FRANK-I think that’s a fairer request. MR. HAYES-That’s all I’m saying. MR. FULLER-Agreed. MR. ABBATE-Yes, there are only two issues at this very moment, at 11:30 this evening. There are only two issues. Either the Board votes on it, or you can table it. Those are the only two issues at 11:30 this evening. MR. STONE-And I think I’m correct in saying that if we vote on it, it would be a motion to deny, and I think there would be at least four votes. MR. URRICO-I think Mr. Hopper would like to say something. MR. STONE-I’m sorry. MR. HOPPER-I can’t talk. MRS. HOPPER-I think the only thing I would ask the Board to consider, also, gentlemen, is we have a unique waterfront. When we purchased this property, we had eight docks, and they were garbage, and there’s nothing else you can do with this waterfront. Mr. Stone, if I could pull four docks out and have a beautiful beach and go swimming in it, I might even go with your suggestion. There’s nothing you can do with this waterfront. It is weeds. It is silt. You can’t sit in it, you can’t swim in it. There’s nothing you can do with it. There’s boats that go by our place to go underneath that little bridge that go over to that swamp. There’s water lilies in this thing. If you go along the swamp, the shore between my place and Mr. Hansens, you’re going to hit a couple of snakes. There’s nothing else you can do with this waterfront, and to believe that Dave and I would own eight boats is ridiculous. Nobody I know owns eight boats, and even for us to own five boats is not reasonable. You might have a piece of waterfront, Mr. Stone, that you can actually sit down, go swimming on and do other things. We don’t. I would ask any one of the Board members to get off on our property and try to go, jump off my dock. You’re going to be up to here in silt. That’s what you’re going to be up to. You can’t swim in this water. 52 (Queensbury ZBA Meeting 5/15/02) MR. ABBATE-But, see, your arguments, I appreciate it and I respect it, but that’s not the issue. That’s not the issue. We have to address ourselves to the issue, either we vote or they table it. Otherwise it’s going to be 1:30. MR. HOPPER-Okay. I agree, sir, but I’ve listened to the Board all night, and my attorney and everybody else, and I haven’t had a chance to speak, really. MR. STONE-Go ahead. MR. HOPPER-And I just, in order for me to either make a decision to withdraw the application or table the application, I need some information so I can make an intelligent decision. Now, my question is, back in ’99, did you folks put a stipulation on that I couldn’t rent those docks? MR. STONE-We didn’t because you said you weren’t. MR. HOPPER-Okay, and, you know, I bought that property, knowing there was eight docks there, and knowing they had a previous history of renting those docks, and, you know, that’s why I want to do it by the numbers now, and go to the Park Commission and get a Class A Marina license. I mean, that boathouse has existed there for over 44 years now. We didn’t increase the size of it in any way. It still sits on the exact same location the old boathouse did. The only thing we did was take a peaked, gabled roof and make it a flat sundeck. Is that correct? MR. STONE-I believe that’s what you did. MR. HOPPER-Okay. So if we take the sundeck down, take the rails off the sundeck, take the stairs leading to the sundeck off, detach them and throw them away, and then put another gabled roof on, are we in compliance? MR. STONE-I can’t answer that question, but certainly if you restore the property, certainly, we would have nothing to vote on. See, we can’t make you do that. The Town can make you do that. The courts can make you do that. We can’t make you do that. MR. HOPPER-Okay. I mean, if I voluntarily took the sundeck down and put a gabled roof back up there, then it would be essentially the same boathouse that was there, the same dimensions, height, width, length. MR. HAYES-I would vote the same way I did in ’99. MR. HOPPER-Okay. MR. HAYES-Obviously, at that point. Wouldn’t you? MR. STONE-Yes. MR. HOPPER-Because I just don’t, frankly, understand how a variance for a setback for a building that’s been there for 44 years, you know, how this Board can turn around and try to regulate rental, and we’re not looking for a Use Variance. We’re not looking for that. MR. HAYES-It’s the intensity issue, Mr. Hopper. That’s the question. I mean, you start using the roof and you weren’t using the roof before. I don’t think anybody around the lake wouldn’t say that that potentially isn’t an increase in use. MR. HOPPER-I’d be willing to concede that and put a gable roof back up there. MR. STONE-Well, see, to me, if you, at that particular point in time, I was very sensitive to boat rentals. I admit that. I mean, you know, that was one of the things that made me, me, at that particular point in time. That’s why I asked the question, it was something that I was sensitized to. You gave me an answer that I could live with, and therefore I said, you’ve made a couple of concessions. I think it’s going to be a nice project. Let’s go ahead and do it, but I don’t have, now I know that this thing is a marina, in a sense, because that’s what we’re forgetting, you see, we have lots of people on the lake renting lots, and without benefit of marina permitting, because they have the docks. We’ve got them on Assembly Point. We certainly have them the other side of the lake, and, quite frankly, I’m an advocate of the lake. MR. HOPPER-So am I. MR. STONE-I know you are. You make a living based upon the lake. I recognize that, but the point is, you assured me that you had a lot of family boats. You had relatives and I can’t argue with that. The Code calls for, that’s basically all right, but. 53 (Queensbury ZBA Meeting 5/15/02) MR. HOPPER-Like I said, I put $43,000 in that boathouse, another $5, $6,000 in the southern piers. They’re aesthetically pleasing. They’re all cedar, or Adirondack, okay. I want to live in your community, okay. I want to retire in Queensbury, okay, and I want to put this State of the Art septic system in that we’ve already got a permit for, and I want to take that house down and put up a new house, and your tax revenue is going to go up, and that’s all I’m trying to do is you’re going to have a much better house, a much better septic system. You’re going to have a much better docking complex, and all I get is no. MR. ABBATE-No, you’re not getting no. MR. URRICO-This map here shows seven numbers on it. Does that represent each of the slips? MR. HOPPER-Slips. MR. URRICO-All right. Now you’re saying number one is off the board. MR. HAYES-Number Zero is off. MR. FULLER-Yes, this is assuming that we don’t use that one. MR. HOPPER-That dock hadn’t been used prior, for 44 years. So it is a concession. MR. URRICO-Which one did you say was a canoe only? MR. HOPPER-The north dock (lost words) that was a rowboat only, and a boat of minimal size in the slip. MR. URRICO-And prior to this boathouse going up, you’re saying that there was seven? MR. HOPPER-There were eight docks, eight boats there. MR. URRICO-Which one came out? MR. HOPPER-The northern one. MR. URRICO-The northern one. Okay. MR. HOPPER-So, you know, there had been eight boats parked at this thing, historically, for 44 years, and then when we went to the Park Commission and Mr. Harris complained, we conceded that north dock, and we said we won’t take this. So there’s none less than what’s been there historically. MR. URRICO-Could I ask Mr. Harris, how do you feel about the dock coming out all together? MR. HARRIS-That would be my choice. MR. STONE-I really think we’re either going to vote, or I’m going to table it, and I would table it with the stipulation that you come back with a reasoned approach and information about taking out that northern pier, taking it out. MR. FULLER-There’s two issues about that, and Mr. Hayes raised it. Getting rid of that north dock doesn’t just affect the removal of that dock and the aesthetics for Mr. Harris. It’s a property issue. It’s ownership of property. MR. STONE-It’s Mr. Harris’ dock. MR. FULLER-No, it’s not, adverse possession. I mean, that’s way beyond here. I just don’t agree that there hasn’t been concessions. In one instance we’re going back to, you know, not having the ’99 permit, but then right after we’re coming back to, you’ve already conceded the northern dock. MR. STONE-Before I go too far, I just want to take a quick poll. If I ask for a motion to deny, who would say yes? Who else would say a motion to deny? How many would vote in favor of it? MR. ABBATE-Of the denial? MR. STONE-Yes. Five. I can do that right now, and then you’re going to be in a legal issue with the Town of Queensbury that I can’t tell you what’s going to happen. Because you are not, you’re going to have an illegally constructed building that does not have a variance. MR. MC NULTY-We could table it for at least a week. You and I, we’re looking at it and we’re saying, okay, you’ll take the top off, you’ll put a roof back and it’s all fixed. In the mean time, when you talk to the Zoning Administrator, he’s going to say, no, you’ve got an existing building there now and you need another permit, 54 (Queensbury ZBA Meeting 5/15/02) another variance to make that change back. Laws sometimes are screwy, the way they work. You want to find that out before we take an action to deny. MR. FULLER-If you revoke the permit which was done, I’m not going to give you legal counsel. That will go back to Hafner and those guys. MR. HAYES-It’s different because. MR. FULLER-It’s entirely different. MR. STONE-We’re not going to go there. MR. FULLER-I don’t want to. MR. STONE-We’re being asked to grant a variance. If we don’t grant the variance, that means you’re in violation for the Zoning Administrator. MR. FULLER-I understand, but that opens up a can of worms. What I’m saying, also, is I have looked at that. I wouldn’t come here unprepared like that. What I’m saying is, I just want to see some reasonable discussion about, what are we looking for here? MR. HAYES-I guess what people are saying to Mr. Hopper is, okay, that he’s essentially saying I’m going to go from a rowboat to nothing, and that, I don’t know, I’m saying, is that a major concession? Honestly? MR. FULLER-But we’re comparing the ’99 concession to now, and then in the next instance we’re comparing what was there before to now. MR. HAYES-Right. We can’t go back. I think we’re supposed to be measuring this on the balancing test, and if I’m being asked giving that up, is that enough? I don’t know. That’s a good question. MR. FULLER-I think with the three rentals, just the concessions, three rentals, if they are a Class A, I think there was some concessions. MR. STONE-Well, probably a Class B, according to our definition. MR. FULLER-They’re just barely. I think it’s three and three or more. MR. HAYES-Probably. MR. FULLER-I think it’s three or more. If they do two, they drop down and they don’t need a permit. Well, the permit is much less stringent. MR. STONE-Any dock, wharf or mooring made available for use by any person as a berthing place for one motorized vessel, or one non-motorized vessel, not registered to the owner of the property, regardless of remuneration or profit. That’s a Class B Marina. MR. FULLER-Right. MR. HAYES-So it’s at least that. MR. STONE-It’s at least that. MR. FULLER-Right. Exactly, but the three, I think, kicks them into an A, which you guys are aware the regulations are more stringent. MR. STONE-A is, I wouldn’t even ask them to think about A. Because that is the sale and lease, rental or charter, the operation of a boat launch. MR. HAYES-Which he’s not doing. MR. STONE-The offering of rides, the instruction, quick launch facility, the storage berthing and the mooring, and so on. MR. HOPPER-Mr. Chairman, may I ask a favor of you, then? We’ve been going through this since October. Maybe not with you people, but we hired the Town Counsel, not knowing that they were Town Counsel for the Town of Queensbury. MR. FULLER-Who advised them that it had no Town involvement. I think I included that in our application. That shocks me. 55 (Queensbury ZBA Meeting 5/15/02) MR. HAYES-That’s how you arrived. You said that when you started. MR. FULLER-I still don’t believe that. MR. HOPPER-I just want to go there, that we hired Mark Schachner, and then when things got involved with the Town and he said he couldn’t represent us. Then I went with Howard Krantz. Howard Krantz said he doesn’t do variances when we got there, and then I ended up with Matthew, and we’ve been trying to go through this, sir, since October and do it right and do it by the numbers. Would you please give me a concession? Would you allow my counsel and I to put together a proposal to come to you with, something that you would say you’d bring before your committee, and then get us on the next meeting, if possible? Time is of the essence for us. MR. STONE-Can we be on the next meeting? Can we just extend this, table it until the next meeting? MR. FRANK-I’m not 100% sure. I thought we could because, you can leave the public hearing open. MR. STONE-I can re-open the public hearing. MR. FRANK-And re-advertising is the key. MR. HAYES-That is the key, because it’s not a legal thing without it. MR. FULLER-If you don’t table, but if you leave it open, without closing public comment, I think you can adjourn it. MR. STONE-We can probably adjourn it. MR. ABBATE-Until the next meeting. I think that’s an out. MR. STONE-Let’s try, because that’s what I would like you to do MR. FULLER-I would not want to see a procedural flaw, and if there is one, I will look tomorrow morning. If there is one, I will make a contact, and we’ll deal with it that way. MR. HAYES-That’s fair. MR. STONE-That’s fair. Let me move to adjourn this meeting, having left the public hearing open to next week’s meeting, at which time the applicant will bring new thought to the application, and some documentation of the, what can be done to that northern pier. MR. HOPPER-Right. We can bring in what you requested, the minutes of the Park Commission where we discussed that. MR. STONE-That would be helpful. MR. HOPPER-Okay, and then the counsel and I will get together and if he may call you prior to that meeting, so that you and him. MR. STONE-I’m only one person. MR. HOPPER-I know, but you’re the Chairman, run it through you, so to speak, so that you can say, you know, I’ll bring it before my committee or something to that effect. MR. FRANK-I think you should call Craig about that. I’ll let him know, first thing in the morning, what’s going on. MR. STONE-I can’t guarantee that you’re going to have the minutes. Can we schedule this for 6:30, for a special? MR. HAYES-How many cases do we have next week? MR. HIMES-Seven. MR. FRANK-That’s the only concern. You have seven on the agenda already. MR. STONE-We’ve got one that’s even going to put all these to shame. MR. ABBATE-Yes. 56 (Queensbury ZBA Meeting 5/15/02) MR. FULLER-I don’t want to throw a monkey wrench in this. If you guys want something, I’ll get it to you. MR. STONE-Let us try, and you talk with the Zoning Administrator, talk with the Community Development person tomorrow, to Chris Round, and see, and talk to Mark, if necessary, to see, if, in fact, I’m going to adjourn it. Which means we’re going to take no action, and we’re going to leave the public hearing open. If we can bring it out of adjournment at the next meeting, we will. I mean, it’s not a tabling. We’re not going through the (lost words). I’m going to say, good night, it’s time to go home. We’ll adjourn it to the next meeting. MR. HAYES-You understand that if we can’t, it’ll be a procedural flaw in your application and that’ll be worthless. MR. STONE-Yes. MR. FULLER-Then we’ll have to come back for the next month. I think we can remedy it that way. MR. STONE-Yes. MR. FULLER-Just so, when I’m coming back to you, I don’t want to give you something that’s just worthless to you. Does everyone understand that that southern slip, the two slips there, you can’t really see them there, go with 36? I don’t know what we can concede on those, because they’re already. Well, he does own them. MR. STONE-He owns both pieces of property, and could change the easement at any time. MR. HOPPER-Right. MR. STONE-He could give them back to himself. MR. UNDERWOOD-I want to see it in the deed that they go to 36, too, permanently in the deed. MR. STONE-So, you know what we want. You’ve heard everything. I’m going to adjourn the meeting, leave the meeting open, in a sense, to next week. MR. FRANK-And then you can re-open the hearing, because you did close. MR. STONE-Well, I just opened it again, as part of this adjournment. I’m going to re-open the public hearing. PUBLIC HEARING RE-OPENED MR. STONE-And leave it open. MR. FULLER-So we’re going to try to explore getting rid of that northern. MR. STONE-You’re going to explore whatever you want to explore, but certainly the thing that seems to be most consistent is if you could, if that would go away, Mr. Harris would be happy, and he has an objection on file, and I think there would be favorable reception, but I don’t speak for these seven, six people. Everybody’s nodding heads, because they’re too tired. They’d fall asleep if they weren’t nodding heads. When I say the meeting is over, the meeting is closed, we’re done. I will make a statement. MOTION THAT IF WE CANNOT ADJOURN TO THE NEXT MEETING WHEN THE ADJOURNING WILL TURN INTO A MOTION TO TABLE THIS APPLICATION FOR UP TO 62 DAYS IN ORDER TO GIVE THE APPLICANT TIME TO RESPOND TO BOARD’S CONCERNS, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: Duly adopted this 15 day of May, 2002, by the following vote: th AYES: Mr. Abbate, Mr. Urrico, Mr. Underwood, Mr. Himes, Mr. McNulty, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-So, in other words, so you understand, we adjourned it, but if we can’t, it’s a tabling. Okay. all right, gentlemen, the meeting is over. Thanks for your patience. MR. ABBATE-Fair enough. 57 (Queensbury ZBA Meeting 5/15/02) On motion meeting was adjourned, RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 58