2004-04-28
(Queensbury ZBA Meeting 4/28/04)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
APRIL 28, 2004
7:00 P.M.
MEMBERS PRESENT
LEWIS STONE, CHAIRMAN
JAMES UNDERWOOD, ACTING SECRETARY
CHARLES ABBATE
ROY URRICO
PAUL HAYES
JOYCE HUNT, ALTERNATE
LEO RIGBY, ALTERNATE
MEMBERS ABSENT
CHARLES MC NULTY
ALAN BRYANT
ZONING ADMINISTRATOR-CRAIG BROWN
STENOGRAPHER-SUE HEMINGWAY
MR. STONE-Before we get started on our agenda tonight, we missed a SEQRA determination
last week on an Unlisted Action. This has to do with Meineke, the Sign Variance that we
granted.
MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM,
IN THE CASE OF SIGN VARIANCE NO. 25-2004 SHOWS THAT THERE ARE NO
NEGATIVE IMPACTS CAUSED BY THIS PROJECT, Introduced by Lewis Stone who moved
for its adoption, seconded by Paul Hayes:
Duly adopted this 28 day of April, 2004, by the following vote:
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AYES: Mr. Underwood, Mr. Abbate, Mrs. Hunt, Mr. Urrico, Mr. Rigby, Mr. Hayes, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-Okay. Now moving on, under Old Business, we have Area Variance No. 38-2003,
Wal-Mart Stores, Inc.
OLD BUSINESS:
AREA VARIANCE NO. 38-2003 SEQRA TYPE: TYPE I COORDINATED REVIEW WAL-
MART STORES, INC. OWNER: NATIONAL REALTY ZONING: HC-INT. LOCATION:
891 ROUTE 9 APPLICANT PROPOSES DEMOLITION OF THE FORMER AMES STORE
AND A 95,217 SQ. FT. EXPANSION OF THE EXISTING WAL-MART. SEEKS RELIEF
FROM THE PERMEABILITY AND MINIMUM PARKING REQUIREMENTS. CROSS
REFERENCE: SPR 25-2003, SV 71-2003 WARREN CO. PLANNING 7/9/03 AND 2/11/04
LOT SIZE: 11.29 ACRES; 6.46 ACRES TAX MAP NO. 296.17-1-36; 296.17-1-37 SECTION:
179-4-030, 179-4-040C
PETER HENTSCHKE, REPRESENTING APPLICANT, PRESENT
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MR. STONE-Before I turn to the secretary, I just want to read a statement that I’ve shared with
fellow members of the Board. It’s just a statement of fact. The Zoning Board of Appeals is very
cognizant of the negotiations re: parking and permeability that went on with Wal-Mart and the
Queensbury Planning Board. We congratulate the Planning Board on getting an agreement on
reduced parking and increased permeability. However, the ZBA operates on a different set of
standards, and thus has seen fit to conduct our hearing in our own way. Thus, last month’s
discussion and your subsequent return to answer our questions, that we appreciate your
coming back. We appreciate your willingness to participate in the process. Okay. Read the
tabling motion.
MR. UNDERWOOD-“MOTION TO TABLE AREA VARIANCE NO. 38-2003 WAL-MART
STORES, INC., Introduced by Lewis Stone who moved for its adoption, seconded by Paul
Hayes:
Until the second meeting in April, April 28, at which time the applicant will have prepared
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written answers to the questions raised about the effect of the 763 parking spaces on the overall
neighborhood.
Duly adopted this 24 day of March, 2004, by the following vote:
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AYES: Mr. Underwood, Mr. Abbate, Mrs. Hunt, Mr. Urrico, Mr. McNulty, Mr. Hayes, Mr.
Stone
NOES: NONE” We’re in receipt of some information from Wal-Mart, and I’m sure that they’re
going to address that in their public comment.
STAFF INPUT
Notes from Staff, Area Variance No. 38-2003, Wal-Mart, Meeting Date: April 28, 2004 “Project
Location: 891 Route 9 Description of Proposed Project: Applicant proposes demolition of the
former Ames store to be replaced with the construction of a 95,217 sq. ft. addition to the existing
Wal-Mart facility.
Relief Required:
Applicant requests relief from the parking space requirements, 274 spaces
less than the 1,037 required (this use would be required to provide 4.5 spaces per 1000 sq. ft.
GLA) per the Parking and Loading regulations; §179-4-040(C). The existing site conditions offer
971 spaces, while the proposed reconfiguration presents 763 spaces. Additionally, the applicant
seeks relief from the 30% minimum permeability requirement of the HC-Int Zone, §179-4-030, in
order to develop the site to a 16.2% permeable condition (13.8% relief needed).
Parcel History (construction/site plan/variance, etc.):
See previous notes
Staff comments:
Even though the applicant proposes a 16.2% permeability for the site, the current permeability
is 14% (a proposed net increase of 2.2%). Additionally, the applicant has reduced their initially
proposed parking to create additional landscaping and green space in response to the Planning
Board’s concerns about too much parking.
The new information submitted by the applicant offers additional arguments to the merits of
the proposal; however, the supporting information relative to the proposed number of parking
spaces is sparse. According to the applicant, the supporting information requested by the
Board, namely the Wal-Mart parking ratio information, is “very sensitive proprietary
information” that is “vigorously” protected. A general mention of the study of demographics
during the design stage is noted; however, no evidence of such a study for this current design is
offered. While the argument that parking space codes used by certain other municipalities offer
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discounts for warehouse space, the same is not found in our code. However, when considering
the number of spaces needed, the intent appears to be for the parking spaces to be sufficient to
accommodate the patrons and the number of patrons is tied more closely to the retail areas and
not the storage or warehouse areas. Relief is still necessary based on our code; however,
consideration might be given to a lesser need for the warehousing areas.”
MR. STONE-Gentlemen, people.
MR. HENTSCHKE-Good evening, Board. My name is Peter Hentschke, again, and I want to
introduce a few people here tonight. Most importantly, right next me is Cassandra Bozeman.
She’s the Wal-Mart Real Estate Manager for New York, who’s here tonight to answer some
questions that you might have. Additionally, there’s Neal Madden from my office as well, who
you may not have seen before, and I think two gentlemen over here you probably remember
from last time, Girard Fitamant and B.J. Phillips, architect. I just wanted to say a few things,
too. There was a number of questions that came out of the last meeting, and we took a lot of
time trying to get information on a lot of different topics, and we tried to answer as many
questions as we could. So I hope that you guys got a chance to read through this all. I don’t
want to go through everything again, because it’s a lot of stuff, but I do want to hit on a couple
of important ones to the Board. First of all, going to the factors, whether the variance is
substantial. The Staff notes recognize that, in some codes warehouses, stockrooms, storage
rooms wouldn’t be considered in determining how much parking you need for a site, and we
wanted to point out, and we do in this letter, that there’s quite a bit of stockroom space in the
proposed Super Center, about 30,000 square feet. If that was taken into consideration, the
variance that we’d be seeking for the parking would actually be a lot smaller variance than the
27%. We’re seeking 27% of relief from the parking variance. With the warehouse areas being
taken out, this would be a 16% variance. So, a lot of it comes down to, we would stress that it’s
important for the Board not to just grab on to parking ratio numbers, because these numbers are
calculated in different ways, depending on where you are, different codes take into account
different things. Most important thing we have is that, you know, Wal-Mart has proposed this
store because they know it can work in this community. The parking ratio has been studied
quite a bit before we would even be allowed to present this to you. Not only are the project
engineers responsible for proposing it, but then there’s Wal-Mart engineers that have to
approve that and that’s happened here. I wanted to talk a little bit about the neighborhood
character. You asked for examples of similar parking ratios of other stores, and as you correctly
pointed out, we can’t give out that kind of information. However, we did note a couple of cases
that we found, just a general Internet search, where we did find parking ratios which are similar
to the ones proposed here, but in terms of using parking ratios from other stores, I just wanted
to stress again that you really can’t compare one store to another, in terms of parking ratios. For
one thing they tend to start off with different ratios. Like some places require five. Some places
require four, four point five, and what really determines the parking is the market, the
demographics, the road transportation system, location of the store, that type of thing. All of
that stuff’s been taken into account, but in terms of the neighborhood character, one specific
question the Board had a concern about was potential parking on Weeks Road, and we wanted
to explain sort of the practice reason why this is not going to be a concern, or shouldn’t be a
concern. The site plan shows that the access driveways from Weeks Road to the Super Center
parking lot, right now there’s three access roads from the parking lot to Weeks Road. Our
proposal is to get rid of the two front access roads, so that there would just be the one access
road all the way by the loading docks. It might be easier if I show you this on the board. Right
now we’ve got access roads here and here, roughly. As well as the one down here. So there’s
three access roads. A concern was raised that perhaps people are going to park along here and
just walk over there, if the parking lot fills up too much, but we don’t think it’s realistic that
that’s going to happen because to do that, if someone was going to park along Weeks Road,
they would have to cross this landscaped area, roughly a 25 foot landscaped area, crossing a
sidewalk and getting in to the parking lot or they would have to walk all the way to the corner
of the site, down here where the trucks are docking, the truck docks, to get into the parking
area, and the most important time for parking for the site is going to be the holiday season,
which is the, you know, the peak time. We think it’s just not realistic that people in the winter,
colder months are going to park and either, you know, cross a snow or dangerous condition in a
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landscaped area and try to make it all the way to here and somehow get their, whatever they
purchase, all the way back. So we thought that that was probably not going to be a realistic
concern, BUT, we are also going to make sure that that doesn’t happen. We’re going to propose
to post the No Parking signs along that road, to ensure that that doesn’t happen, that’s not a
concern. Also, there’s a couple of other if parking, our engineers tell us that parking’s not going
to be a problem, and the experience that we’ve had, if a customer comes to the store, the lot is
full, it’s more likely that the customer is going to go to another store or perhaps come back at a
different time. We think that those two options are more likely than somebody parking on
Weeks Road, but in case there are parking problems that come up, we’ve got a couple of
different ways of addressing those. One is the land banked area that we have. We’ve got 39
extra spots that are waiting there, that the Planning Board recommended we turn into green
space, which we can come back to the Planning Board and back to you for a variance to convert
that back, if the need arises. If there are parking concerns, traffic concerns along Weeks Road,
which we do not foresee, then we’ve got that avenue. Additionally, at the store level, the
manager has got a couple of different options that he can take to address concerns to increase
the effective parking area. One of those that we mention is removing snow from the site during
the winter months, during the higher traffic season, and that’s another thing that can be done, if
the need arises. It’s a store level decision that’s made at that level. One other question the
Board had for us was whether there’s feasible alternatives, whether we’ve considered those, and
we have spent a lot of time doing that. We’ve explored possible alternative, acquiring more
property. That was explored quite a bit at the beginning of the project, and it was determined
that it wasn’t feasible. Additionally, there was the suggestion that perhaps Wal-Mart could try
to build a smaller store there, and that just is not feasible for Wal-Mart. When you’re starting
out with an existing store, and you’re expanding it by a certain amount, there’s not a lot that
they can really play with here, and the size store that they propose is the sizes store that they
need for this market to make it a successful store in this market. So, with that, I wanted to turn
it over to Cassandra Bozeman, or perhaps you’d like to ask her any questions you might have.
She might be able to address that better.
MR. STONE-Yes, well, the first question that comes to me, and I’m sure the Board has a lot
more, is you’re telling us 3.3 will work, and what we really is how do you know it will work,
not how do you think it will work.
CASSANDRA BOZEMAN
MS. BOZEMAN-I can tell you exactly how we know it will work. One, we don’t want to
operate stores where customers come into the parking lot and they’re full and they leave.
That’s not good for our business, and that’s not something we ever want to see at a store. What
we’ve done, at a company with our 3,000 stores, we’ve taken the best performing stores in the
country and what we’ve done is we’ve sent traffic engineers out to count cars to see what
percentage of the parking lot is used at the most optimal time of business for those stores, and
what we’ve found is that at the busiest times of the year, for those particular stores that are
doing much more volume than we predict that this store will ever do because of the
demographics. Three point two seven percent of that parking lot was used. In times where
business was less in warmer months, actually 2.65 percent of that parking space was used. Our
parking lots are built, because of regulations, we’re required to build them bigger. You won’t
go to a busy Super Center and see 5.0% parking per thousand parking ratio being used, one,
because 30 to 50,000 square feet of that store is going to be storage space, and, two, because
we’re required to build so much more than we necessarily need, but we’ve found in the optimal
times where we have stores doing in excess of $150 million a project, 3.2% of that parking lot is
used, actually 3.27.
MR. STONE-Thank you.
MS. BOZEMAN-Okay, you’re welcome.
MR. STONE-That’s concrete information.
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MS. BOZEMAN-And I’ll share with you the reason why we can’t tell you what those stores are,
because I’ve given you a number, and I’ve given you a ratio, and now I don’t want the
community or the public to be able to put a store number and a location with that sales figure
and that parking ratio. So that’s why we can’t tell you which stores they are in particular, but
we can tell you our best performing stores, during the peak season of our business, use 3.27% of
their parking ratio.
MR. STONE-I’m sorry. Clarify that number for me. You’re using a percent, and we’re talking
parking spaces.
MS. BOWMAN-No, 3.27 per thousand.
MR. STONE-Per thousand. I heard a percent in there. I’m sorry.
MS. BOZEMAN-Yes, per thousand.
MR. STONE-Okay.
MS. BOZEMAN-We hope they’re using more than three percent of their parking.
MR. STONE-Yes, I was going to say.
MR. ABBATE-Well, that’s the problem with words, you know. Sometime, we all say things,
and we think the next morning, my golly, maybe I should have said something differently, but
even worse, sometimes we put things in writing, and the next morning we regret the things we
put in writing and say, that’s not what I really meant. So, to get to the point, the Chairman
stated correctly that the Zoning Board of Appeals operates very different than a Planning
Board. We operate on a different set of standards. When we last met, this Board asked for
specific information regarding parking spaces at the Wal-Mart Super Centers, and you all
agreed you would provide that information, justifying why you were seeking, I believe, 274 less
parking spaces than the 1,037 required. However, in the latest documents you submitted, you
stated, in response to our request, quote, “Wal-Mart parking ratio information is very sensitive,
proprietary information that is vigorous protected” unquote. Now, this community will be
impacted by your request, and this Board, as well as the public, have a right to know all the
facts supporting your request. Wal-Mart, in any case, is seeking from this Board, who represent
not only the Town, but the populous, a release from a zoning code. Now, ladies and gentlemen,
I am very sensitive to the duties charged me as a ZBA member. Just as you are sensitive to
proprietary information, I will vigorously safeguard the integrity of the Zoning Ordinances.
Thank you.
MR. STONE-Anybody else?
MR. URRICO-That 3.7 per one thousand, does that include employees?
MS. BOZEMAN-Three point two seven, that includes every car parked in our lot. Fortunately
for us, our Associates are also our customers, so that includes every car parked in the lot.
MR. URRICO-And the 30,000 square feet of storage space, how many people do you figure
would be working back there at a given time?
MS. BOZEMAN-How many people will be working in the storage space? We include number
of Associates that are working in the store with the same number of people that are working
back there, because those people actually dual task. Where they work in the store and also
work in the stockroom.
MR. URRICO-Okay. Then more specifically, how many employees do you anticipate during
peak times?
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MS. BOZEMAN-During peak time in the store at any given time, probably 125, and that would
be several months during the holidays.
MR. STONE-Okay. Just another question that comes to mind. You talked about snow removal,
and we appreciate and applaud the willingness of Wal-Mart to get rid of snow if it’s really
necessary and impacting on parking to a large degree, but you said it to the discretion of the
local store manager. Will his bottom line be negatively effected and will he be reluctant?
MS. BOZEMAN-Let me share with you. When we present a project to our Executive
Committee, we evaluate the return on investment of that project over a 15 year period, and we
evaluate it based on the demographics over there, where that store is located. We know that
we’re going to have to have snow removal in Queensbury, New York. When I build a variable
operating expense number, I know that it’s very likely that we will have to remove store. His
bottom line will not be, his bottom line will be impacted, but he will not be he will not
personally be impacted by a difference in his salary because he has to remove snow. As a
matter of fact, he will be commended for doing so if it makes a customer more accessible to the
store.
MR. STONE-Thank you.
MS. BOZEMAN-You’re welcome.
MR. STONE-Any other questions, gentlemen, lady?
MR. UNDERWOOD-Just as a point of information, at the last meeting, I was concerned about
the build out with such a major addition to what you have there. So I did go back just to see,
you know, what had been done and what allowances have been made in the past for Wal-Mart,
and, you know, prior to the building of your store there, the Sysco store and the dental office
that was there, that amounted to a whopping 28,000 square feet, 28,712 square feet of building,
and at the present time, you know, via your notes, you’re just under 126,000 square feet.
Basically about twice the size of what the Ames store is at the present time, and the Ames store,
you know, originally was 63,000 square feet. It’s presently at 70,000 square feet. So I think
that’s where the 25,000 more is coming from, and I realize, you know, having bought the diner
parcel out front, that that added a little bit into your quotient, as far as, you know, keeping a
little bit of green space out there, you know, in its conversion to that, but at the same time, I
think that we have to reflect upon, you know, this is a residential neighborhood here. It’s not
like most plazas, you know, where you plunk them down out in the middle of nowhere, and,
you know, you can build until the sky’s the limit, but I think that that’s maybe a little bit more
of our concern is over the size and the permeability that’s requested, and I still don’t
understand why, I mean, I can understand why you would want as large a store as you could
possibly build, but I still think it would be within reason to accommodate the area by building
something within kind of what you have there for square footage at the present time.
MS. BOZEMAN-It’s not as large a store as we could possibly build. We do have prototypes that
are larger. We decide the size of the store, based on the demographics of the market, and
amazingly, what is probably the greatest fallacy about us building a Super Center is that when
we build a Super Center, our gross profit margins drop, and it’s simply because the profit
margins on selling grocery is substantially less than selling general merchandise. So what we’re
doing is increasing the number of trips in the sales of the store, and by the number of trips in
greater sales, then we increase the profitability of the store, the bottom line profitability of the
store, but the profit margins do drop. If we are building a smaller store, we’re shrinking the
size of the grocery box, as we normally build in this prototype Super Center, and the
profitability of the store will not be the same, and we don’t believe that that would be successful
in this market, based on the existing store.
MR. UNDERWOOD-Yes, my main concern is I think, because we’re, you know, we are a
summer resort, per se, I think that’s really our peak times, rather than Christmas time being the
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peak time that people shop at Wal-Mart. I would think that, you know, we’re really facing our
largest numbers in the summer time.
MS. BOZEMAN-We’re not facing your largest numbers in the summertime. I actually had this
discussion with one of our attorneys, because he believed that when we were coming up here as
well, and I will tell you, Wal-Mart is not facing your largest numbers during the summertime,
simply because when your summer vacationers come to this area, they have, primarily, the
things that we sell already, and we’re hoping to increase those summer numbers by actually
opening a Super Center and drawing some of that grocery business, but we’re not facing our
largest numbers, in our store in Queensbury, during the summer months.
MR. UNDERWOOD-Okay.
MR. STONE-Anything else? Any other questions?
MR. RIGBY-Yes. I just wanted to make sure I understand the numbers. The expansion is going
to be 95,000 square feet. Is that correct?
MS. BOZEMAN-Yes.
MR. RIGBY-And what’s the size of the existing store? What’s the total size of the Super Center
going to be?
MR. UNDERWOOD-126.
MR. HENTSCHKE-If you count the canopy area, I think we’re talking, in fact, we’re in that
50,000 square foot for the canopy, and I think we’re talking about 230,000 square feet.
MR. RIGBY-So 230,000, and we’re saying we need 3.27 spots per thousand square feet.
MS. BOZEMAN-No, that’s not.
MR. STONE-Yes, the building, the store is going to be 216,000, approximately.
MR. RIGBY-So 216,000, and then you were saying 3.27 parking spots per thousand square feet.
Is that correct?
MS. BOZEMAN-No, I was saying our busiest store, that’s the percent of the parking that we
use. We use 3.27 per thousand in our busiest stores that we have in the country.
MR. RIGBY-Okay. So I’m just doing rough numbers here. I’m saying, let’s say three spots per
thousand square feet. We’re talking about 600 spots. Is that correct?
MS. BOZEMAN-Right. Exactly.
MR. RIGBY-Okay. Thanks.
MR. STONE-Chuck?
MR. ABBATE-Yes. My other Board members chose to approach this project using statistics,
which is admirable. I chose to approach this project from perhaps what might be phrased as or
considered or viewed as a philosophical. You see, this is what I’m hearing. I’m hearing from
Wal-Mart maximum profitability against a community that is sought after as a very desirable
place to reside, but I see something else as troubling. It seems to me that Wal-Mart wants all of
the pie, or nothing, and that bothers me.
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MS. BOZEMAN-I don’t think you’re hearing maximum profitability at all. You’re hearing
profitability that can support us buying the Ames box, acquiring it, and support the store. It’s
not maximum profitability.
MR. ABBATE-Well, then a feasible alternative would be to reduce the size of the store and
reduce parking spots as well.
MS. BOZEMAN-But we can’t reduce the profitability.
MR. ABBATE-Then we talk about maximum profitability, don’t we?
MS. BOZEMAN-No. Not maximum at all.
MR. ABBATE-Well, we’re both using the English language, you know.
MS. BOZEMAN-Right. I think it’s profitability that can support the project, and the acquisition
of the building, and the acquisition of the diner.
MR. ABBATE-Well, we’re concerned with profitability, too. The profitability as a desirable
place to reside, with no adverse impact.
MS. BOZEMAN-Absolutely.
MR. ABBATE-Thank you.
MR. HENTSCHKE-I guess another thing is you’ve got to count the increased jobs that are going
to be there, too, if you’re going to think about the community.
MR. ABBATE-Well, how many from the community are going to be employed? Could you give
me some statistics? You opened the door. Now my question to you is this. I would like to
know right now, the number of new jobs that will be created, and the number of jobs that will
be offered to the members of this community.
MS. BOZEMAN-Actually, the number of new jobs that will created will be between 200 and
225.
MR. ABBATE-Two twenty five.
MS. BOZEMAN-The number that will be offered to people in this community, all of them. All
of them.
MR. ABBATE-You’re on the record. Thank you.
MR. STONE-Never ask a question to which you do not know the answer, Mr. Abbate.
MR. ABBATE-That’s the answer I wanted to hear.
MS. BOZEMAN-There is no one that would be eliminated from being a Wal-Mart Associate,
based on the community that they live in. So those jobs would absolutely be offered to people
in this community.
MR. URRICO-I do have a question about the green space. If that were converted, how many
spaces are we talking about?
MS. BOZEMAN-Thirty-nine.
MR. URRICO-Thirty-nine.
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MS. BOZEMAN-Which would, taking the green space into account and the storage area, we
would then be seeking an eleven percent variance, if we were able to park that green space and
also not include the storage area. We would be seeking an eleven percent variance.
MR. STONE-Okay. Any other questions? If not, I will open the public hearing, or I guess we
continued it open, I believe. I will entertain comments from the public. Anybody in favor?
Anybody opposed?
PUBLIC HEARING OPEN
GEORGE GOETZ
MR. GOETZ-I’ll give you some handouts. Ladies and gentlemen, I’m George Goetz, Ray
Supply, and I’m going to read this word for word, because it’s for the record. I’m George
Goetz, President of Ray Supply, also the owner of the Ray Supply building. I appreciate the
opportunity to spell out our position on the proposed Wal-Mart expansion project. From the
very beginning, we have been in favor of this project. It will be nice to see the old diner torn
down and some green space added to that location. It will be nice to see a spruced up and busy
Wal-Mart. However, we do have some concerns about the project, that I would like to review
now. Their southern entrance is within 50 feet of our northern entrance, or exit, whatever you
want to call it. During the months of June through December, it is very difficult and dangerous
to enter and use our northern exits. There is a continuous flow of cars that exit their southern
lot without stopping at the stop sign, plus a continuous line of fast moving cars in a race to beat
the traffic light at the Wal-Mart north entrance. There’s also an additional problem caused by
the fact that more Wal-Mart customers enter and leave their southern entrance, than the one
with the light. The last time they ran a study, there was 793 cars that entered and left the
southern entrance in a one hour period. During that same hour, it was 455 cars that entered and
left their entrance with the light. We are concerned about the ability of their parking lot to
handle the additional traffic that you would expect from the world’s largest supermarket.
There are times, now, when the lot can barely handle the traffic going to the existing store.
What will happen when you add the normal number of cars you see at Price Chopper or
Hannaford market to the cars that are there now? Will there be so much traffic that customers
will be parking along the road or in any parking lot they can find, including ours? If this is true,
how will our customers be able to get in or out of our store? Well, there’d be a safety issue for
all concerned. At the last Planning Board meeting, Wal-Mart agreed to grant us a one way
easement, from the back of our parking lot to the back of their parking lot. The purpose was to
enable our employees and customers to leave our parking lot safely. Particularly if they need to
go north. Wal-Mart also agreed to pay for the cost of construction. While we don’t view this as
a complete fix to the total problem, it could be helpful. Because of the cooperation of Wal-Mart
to build the interconnection, we urge the Zoning Board to approve their application. However,
we ask you to include a provision to cover the potential traffic and parking problems that may
occur in the future. What can be done if people are parking all over the place, or if there are
continuous traffic jams. What will happen if safety becomes an issue. What can be done if our
customers can’t even get into our parking lot, and our business is affected? Do these
possibilities have to be taken care of now, before the fact, or can they be taken care of after it
happens? Thank you for listening. Does anybody have any questions?
MR. ABBATE-You raised some very important issues that I didn’t even think of, quite frankly.
You mentioned the possible congestion and safety. Issue concerning traffic. Could you expand
on that a little bit? Because I’m really interested if you have any real details. Because I have,
personally, not checked that out myself. Tell me your concerns about traffic congestion and
safety.
MR. GOETZ-Okay. What happens, the light is on their northern entrance, which is supposed to
be their main entrance. When a lot of cars, not even counting their traffic, are headed south,
and they see the lights have already changed, they speed up, and if you remember, that’s on a
hill. So they get going down the hill at a pretty rapid rate of speed. Meanwhile, where the
majority of cars are leaving, is out of their southern, and those cars just go straight out, without
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stopping at the stop sign. It’s not their fault, but that’s what happens, and so you have a
dangerous situation going on. Because you have faster cars coming down the hill, plus the cars
coming out of that other exit, cars cannot get in or out of our northern exit. This time of year, no
problem. June through December, particularly December, and August, it’s a nightmare. So if
it’s bad now, what’s going to happen if you ever go up to Price Chopper, you look, there might
be six seven hundred cars in their parking lot. Wal-Mart, you think logically if they’re the
world’s largest shopping food market, they’re going to have at least six hundred to seven
hundred cars more. So if you add that to what’s already there, it could be a major problem.
Now, their engineers say no. Maybe they’re right. Based on what I see, and what I’m afraid of,
is maybe they’re wrong. The State says they’re right, at least as far as the spacing off the traffic
and the timing of the traffic. However, there were two independent companies who did the
research for the Planning Board, one that we hired, one that we did not hire, who said, it’s not
good. So that gives us a little reason of concern.
MR. STONE-Okay. I don’t want to go much further this way. This is more of a Planning Board
issue, and I don’t want to, I assume it has been discussed.
MR. GOETZ-Yes, it has.
MR. STONE-And the Planning Board has made its recommendation, and all we’re talking about
is the number of parking spaces, and actually, if we go with the 3.3, that means less cars are
going to be coming out of the parking lot at any particular time, but nevertheless, it is not a
zoning issue, and we appreciate your thoughts, because any thoughts like this should be in the
record, and I appreciate your giving them.
MR. GOETZ-And I would like to commend the Planning Board, because I think they did a great
job for everybody.
MR. STONE-And that was my opening statement, I think they did. Thank you.
MR. GOETZ-You’re welcome.
MR. STONE-Anybody else wishing to speak on this subject?
STEPHANIE BITTER
MRS. BITTER-Good evening. I’m Stephanie Bitter, for the record. As you’re aware, Jon Lapper
spoke and identified on the record how the parking is a real issue with this project. The amount
that Wal-Mart is proposing, we just don’t feel is enough for the populations of Queensbury as
well as the customers that will be pursuing the Super Wal-Mart. It’s our understanding that
other Super Wal-Mart’s have much more parking, although we realize it’s a sensitive issue to
release the numbers that are at these stores. We just are aware that that does exist. We feel that
the number that they’re proposing could actually have a negative impact on the neighborhood,
even though they’ve presented ideas such as eliminating the two access roads from Weeks and
the idea that individuals won’t cross the landscaping. We still feel that because of the low
number of spaces, it could result in having individuals park at Weeks for the reason that, if the
parking lot’s full, somebody might just possibly think that crossing over that landscaping
barrier is a lot easier than walking the length of the parking lot from the back entrance.
Desperate times call for desperate measure. That’s just a thought. A possible suggestion
reducing the size of the building. Again, I understand that they said size essentially equals a
success in the market, but they also said that if the lot’s full, somebody’s going to just not go to
their store. So I would think if you’re going to reduce the size of the store, you’re going to have
additional parking spaces closer to the store, which then, I would think, in turn, would allow
for more customers going to your store. That’s just my thought.
MR. STONE-Are you suggesting that if there’s an empty space, and the closest space is next to
Glen Street, that somebody might not want to use it, and might want to park on Weeks Road?
Is that?
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MRS. BITTER-It’s just food for thought, but.
MR. STONE-Okay.
MRS. BITTER-If the whole parking lot is full up, of course our position is you’re going to over
parking on the additional roads, but just a concern.
MR. STONE-Okay.
MR. URRICO-Who are you representing?
MRS. BITTER-Whispering Pines.
MR. URRICO-Only Whispering Pines.
MRS. BITTER-Yes.
MR. URRICO-Okay, and their concern is about parking on Weeks Road?
MRS. BITTER-That’s correct.
MR. URRICO-That’s their only concern?
MRS. BITTER-That’s their primary concern.
MR. URRICO-Thank you.
MR. STONE-Anybody else wishing to speak?
CRAIG MAC EWAN
MR. MAC EWAN-Good evening, Chairman Stone and members of the ZBA. For the record,
I’m Craig MacEwan, Chairman of the Town Planning Board.
MR. STONE-Are you speaking for the Board?
MR. MAC EWAN-I am speaking on behalf of the Board.
MR. STONE-Thank you.
MR. MAC EWAN-I think what I’d like to do is maybe just give you a brief history of where we
are in our scheme of our review process of this project. It’s been a very long review. It’ll
probably go down in the annals of history as one of the longest in Queensbury. Two things I
did want to speak to you about tonight, relative to your review here, is parking, and the request
for a variance on the number of spaces that they were seeking originally, or are seeking. When
we reviewed this project, and during the course of our review, we recognized through previous
projects that have been approved in this Town, the vast sea of asphalt and parking areas that
are never utilized to the maximum, based on previous applications, we recognized that, in an
effort to try to scale down the number of blank parking spots that are never fully utilized and
retail spaces, this was a great opportunity to enact some sort of plan to reduce that sea of
parking. By them giving us the green space in the former restaurant area, gives them a balance,
should they ever require to have additional parking, and gives them a bank to use in the future,
which would require them to come back in front of the Planning Board to seek a modification to
achieve that extra parking. I think the Planning Board feels very comfortable with the fact that
what we have in front of us now is a parking plan that will work. It’s a parking plan that’s not
only in the best interest of the community, but also serves the needs of Wal-Mart as well. I will
say that the concerns that seem to have come up during our review of this project over these
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several past months have been issues relative to noise, the Ray Supply issue about getting the
interconnect, which we were able to achieve on their behalf, which was very important for the
Planning Board to get that. That certainly took away a lot of concerns we had as far as traffic
movement throughout the parking fields, and the other issue that a lot of the neighbors had,
adjacent to the property, was the truck traffic deliveries that were coming to the site. Through
the redesign of the site, all the truck traffic has now gone through a different portion of it and it
does not come around the back portion of the building, and it does come up and so they’re
docking, where they’re coming through now, as you can see now, the truck route comes to the
north side of the whole complex. The other issue, the neighbors who are to the rear of the
complex in the Whispering Pines apartment area, their issue was obviously noise and buffering,
which we were able to achieve that as well by having a good sized berm built, sound walls, and
sound deadening material incorporated into the project. So I think that what we’ve done here,
during this course, is we’ve been able to satisfy all the concerns that we seem to have heard
during our review. It should also be noted that, relative to making our SEQRA determination,
we based the fact on the design standards of this proposed project. We also took into
consideration DOT’s analysis of the traffic corridor there, and given the fact that the traffic was
not going to be a significant increase in DOT’s mind, it didn’t warrant having to have extra
large parking fields or extra traffic to accommodate extra parking fields. So we felt what we
have here in front of us tonight is probably a very good application and it meets the best of
everyone’s needs, and we feel that it’s going to be a good project and work, and in the outside
case that it doesn’t, which I really don’t believe it will, we have the bank of the green space to
fall back on should we need it, and one more point to note for you folks is that the questions
evolved tonight around snow removal. I will tell you that that will be a condition of our
approval that snow removal will be regularly done on this site.
MR. STONE-And ours, too, of course. All right. Thank you for that summary, Mr. MacEwan.
Question. Did you identify any trigger points or, as Mr. Goetz talked about, if something
happens, then something must happen. Did you ever get into, if traffic, too many cars are
coming out of one end, versus another, was there any remedial actions?
MR. MAC EWAN-Well, I think one of the things that we took into consideration is the fact that
the Ames store is an existing building, which isn’t being utilized and is parking to the max,
because that area of the parking lot hasn’t been utilized since the Ames building has closed.
Given the fact that this is a destination that serves two purposes, for both retail and groceries
type services, we felt that, given what they had provided us and the numbers for the parking,
and our desire to cut down on parking lot, we feel that we have a good project here that not
only meets, like I said, the needs of the Town, which is in our best interest, but also meets the
needs of the retailer. I mean, if Wal-Mart felt, I think that the parking wasn’t going to be
suitable for them, what we have in front of you now, they’d be fighting tooth and nail to want
more, and that wasn’t, the case is that I think this would be a very worthwhile project.
MR. STONE-Okay. I mean, one of the reasons I talked at the beginning about that we,
everything that comes before us is an appeal, we are charged with defending the Town Zoning
Ordinance. I mean, that’s what we do, and we just wanted to be sure, I don’t know where we
stand yet, but we wanted to be sure that, in fact, the 3.3, that reduction of 3.3 was a justified
number. We certainly applaud the Planning Board’s work at getting the amount of asphalt
down. We’ve all seen a couple of other places in Town where there’s a lot of unused asphalt,
but we just wanted to be sure, because our job is to grant minimum relief, and consider the
benefits to the applicant and the detriment to the community, and that’s what we’re trying to
do.
MR. ABBATE-For the record, since Mr. MacEwan has indicated his he’s acting on behalf of the
Planning Board, then the Planning Board, on the record, is acting as an advocate for the
application. Is that correct?
MR. MAC EWAN-No, what I’m saying here tonight is I’m just giving you background
information, Mr. Abbate, that I don’t think you felt you had tonight, to make an informed
decision, and that’s all I’m providing this for, is for you to make an informed decision.
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MR. ABBATE-So you’re not acting as an advocate for the applicant?
MR. MAC EWAN-I’m acting on behalf of the Town Planning Board. That’s what I’m here for.
MR. ABBATE-I have serious concerns about that, but anyway.
MR. MAC EWAN-That’s my job, Mr. Abbate,
MR. ABBATE-Well, we’ll let the Town Attorney take a look at it.
MR. MAC EWAN-Very good. Any other questions?
MR. STONE-Thank you. Anybody else wishing to speak on the subject? Any correspondence,
additional correspondence?
MR. UNDERWOOD-Just the letters from them.
MR. STONE-Okay. Well, then I will close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Do you want to come back up? You can bring whoever you want. You can
respond to what you heard.
MR. HENTSCHKE-I just want to, since everybody’s talking about traffic, I know we don’t want
to go there, but I just want, one thing that you might be thinking is some comments were made
that you would be adding the number of cars that you see at a supermarket to what’s already
existing, and that’s not what’s going to happen. The traffic studies that we did, which the DOT
approved, show that they’re going to be combined trips, largely these trips are going to be
combined. People aren’t going to drive in, do general merchandise, go back out, come back, use
the Super Center grocery stuff. That’s why the numbers are very minimal in terms of traffic,
and additionally also the concerns about Ray Supply traffic, separate traffic counts were done,
after our initial traffic study was done, just to make sure that there wouldn’t be an issue with
the Ray Supply access and egress from their site. So we went in, took traffic counts, just from
his site, to make sure that that wouldn’t be a concern, and that was supplied to DOT, and they
also signed off on that, and found that that was acceptable.
MR. STONE-Just a question that occurs to me. If I go in the store, and I go in the left side, which
is whatever, the general retail store, and I pick out a shopping cart, and I do whatever shopping
I’m going to do, and then I head north to the grocery, what’s in that cart can be checked out
anywhere in the store, at any checkout?
MS. BOZEMAN-Absolutely.
MR. STONE-I knew that, but I wanted you to say it. In other words, as far as the public is
concerned, it’s one store with items all over the place. Okay.
MR. URRICO-As long as you brought up the traffic issue, it’s not something that we normally
would get into, but Mr. Goetz made some good points. Because a lot of the traffic does come,
from south comes off the Northway and heads north on Route 9, and there is a problem at that
entrance. At one point last year, during the height of the holiday season, you couldn’t get, it
was actually gridlocked up to Ray Supply. So there is a problem there that we can’t address
here, but as long as you’re bringing it up, you should be aware of.
MR. HENTSCHKE-Yes. One thing that we’ve done to address that to some extent is to direct
the truck traffic. The vast majority of truck traffic, now, is instead of using that southern access,
it’s going to be going to the signalized access, which should help.
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MR. URRICO-Good.
MR. STONE-Anybody have any other comments? Well, let’s talk about it. Jaime, let’s start
with you.
MR. HAYES-Thanks. Well, I certainly was at least slightly disappointed, in the sense that we
asked you for some kind of crucial numbers to justify the 3.3, and I got your documentation
back that said it’s highly protected and very sensitive, and I imagine that it is, but that still was
a disappointment in the sense that we’re still being asked, as a Board, to make a relatively close
decision, and sometimes when you want something, you’ve got to give something, too, and I
guess I would have to say that I was disappointed in that, but as I’ve reviewed this, and
continue to think about this application going forward, one of the things that one of the Board
members brought up at the prior meeting, and I thought it certainly impacted my decision
making process, was that what’s going to happen with this Ames store. What’s going to
happen to that community, if we reject this project, or don’t give the relief that you’re
requesting, what’s going to happen to that area, and I think it is a concern to the neighborhood.
It’s not necessarily being represented here outside of your initial presentation last month, but
that is kind of a big cavity in an important part of Town, and I do have some concerns that if
that becomes uneconomically viable to Wal-Mart, I mean, who is it economically viable to?
And that is part of that neighborhood. That’s part of the greater aesthetic view of that town,
and that is going to be a large part of what direction I go on this, but in general, I also think that
we have to be fair to the applicant. I think everyone involved has pointed out that the Planning
Board did an exhaustive amount of work on this, and I think they did, too. I think, in the end,
that work resulted in a good plan. I think that everything that should have been considered
was considered, and at the end of that long process, with studies and DOT information, and the
experience of the Planning Board, which is pretty extensive, really, they determined that
balancing the interest of the retailer, balancing the interests of the community, that this was
going to be enough parking spots, and that by eliminating some pavement and obtaining some
green space, that was the best possible project that could be determined in the end. I think it’s
dangerous for us to have them steer the applicant to that process and that direction, and then
take a criteria that does not take that into account. I know that’s not exactly part of our test, but
it does, if we don’t do that, I think it’s possibly sending the applicant to this black hole of, this
space between the two Boards. So I think we have to take it into consideration. I just traveled
to Myrtle Beach and I examined a lot of the Wal-Mart’s, which there’s Wal-Marts wherever you
go. I guess that’s good, that’s bad. There’s a brand new Wal-Mart in Myrtle Beach, and I was
there, getting all the toys for vacation stuff, unfortunately, but, I looked at the parking lot. I
watched the traffic, and tried to overlay the amount of parking spaces that were used for what
is a Super Center there as well, and I think, as the Planning Board kind of arrived at, that I think
in this particular case, I think there’s going to be enough parking spaces. I know before I
thought maybe not, but as I really looked, I think that the parking will work, and I think there
really has to be some benefit, in this particular case, to providing that green space out in front of
the store. I mean, I think, you know, the Planning Board has allotted for that to be land banked,
and if there’s a problem, that that land can be used, and I think that’s a good thing. They
certainly would have to come back to the Planning Board, and probably to us as well, for
permeability relief to recapture that space, for parking, but, you know, it’s 39 more spots that
are on the table. I feel there’s a little insurance there for a relatively tight decision in this
particular case, and at the end of the day, the project is ending up with more permeability than
it had now, and a vastly improved site, in my opinion, by taking into account Ames, putting in
basically a new storefront and the amenities that are associated with it. I think at the end of the
day the neighborhood will be improved. I really do. I know this parking thing is a big issue,
and I’m certainly interested in, you know, what can be done about the traffic, but I think the
bottom line there is that’s really not what we’re here for. That’s not our charge in this particular
case. I like the fact that Wal-Mart cooperated with Ray Supply also was big in my mind. It
shows me that they’re not, they are taking into account what their neighbors need, or what they
might need, and making some concessions. To me that showed good faith. So, on balance,
while it’s a relatively close decision, and we don’t really have any total support, numbers wise,
I’m going to be in favor of the project, largely because I think, in an overall sense, this project
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has been well considered, from a number of perspectives, and I think it is the best result at this
time. The neighborhood will benefit from that.
MR. STONE-Jim?
MR. UNDERWOOD-I would somewhat disagree with what Jaime has said, and I’ll go into that
now. I think that, you know, when Wal-Mart first came to Town, the Town was very generous
in allowing them to build such a grand store that they have up there. It’s approximately twice
the size of what’s there at the Ames store, and I think my concerns have more to do with the
actual retail center that you’re hoping to create up there. I think that you’re really trying to put
too much into too small of an area, and I do think that while the parking being reduced is a
great idea, I fully agree that that’s a grand idea, I fully agree that what you’re trying to
accomplish is too much for the area. In a sense, you know, if you build it, they will come, and
there will be more cars coming, I’m sure. Having lived here for a decade now, in the
summertime, I can understand why Ray Supply is concerned about traffic traveling north and
trying to turn into their store. It’s just not going to happen over much of the busy months of the
summertime, right on through until the season ends in September. I think that it’s a concern for
traffic flow in the area, and I think that, you know, it would be better suited on another site
somewhere else in Town.
MR. STONE-So you’re saying no. How about the permeability?
MR. UNDERWOOD-That’s the thing I’m most concerned with. I think that I would be against
the expansion of the buildings.
MR. STONE-Okay. Leo?
MR. RIGBY-I think it was a very good presentation, thank you. Just working through the
numbers, and hopefully from what I hear it’s correct. The 3.27 number is correct. Because
we’re basing our whole decision, really, pretty much on that number that none of us are really
sure of, and we have no proof that that number’s correct. I’m assuming it is correct, and given
that it’s correct, given the situation that we have right now, at that site, with Ames being vacant,
I see this as a great solution. My only concern at this point is Whispering Pines’ concerns on
possible traffic flow and parking. I’d like to see that addressed in some way, if it could be. I
know we’ve got something in the plan here, but that’s really no assurance, I don’t think. So I’d
like to get a little more comfortable with that, if possible. I’m not sure how we do that. I’m
excited about the additional green space area, that restaurant being removed and that becoming
green space. I like the idea that, for that green space to be reclaimed for parking, it’s got to go
through the approval process again. So, overall, not to talk too much about it, I think I’d be in
favor of it.
MR. STONE-So you’re okay with it?
MR. RIGBY-Yes.
MR. STONE-Okay. Chuck?
MR. ABBATE-Okay. Thank you. I agree with what both Jaime and Jim have to say. However,
we do take into consideration benefit to the Town as well as the applicant. There has been an
issue raised concerning the residents at Whispering Pines. There has been several issues raised
by Ray Supply, and there has been, in my opinion, a little disappointment, in terms of Wal-Mart
stating to us that the proprietary information is very sensitive and vigorously protected. When
I take all of this into consideration, I am uneasy, and, Mr. Chairman, I would not vote in favor
of the application.
MR. STONE-Okay. Joyce?
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MRS. HUNT-Yes, thank you. I have a question about, it seemed to me there was a mention
that, if the parking got tight, that you might have the workers park somewhere else, and they
may be transported in, or is that? That was mentioned at one point. I don’t know whether.
MR. HENTSCHKE-I think that was sort of an idea that was kind of tossed up. I’m not sure if
Wal-Mart does that really. I don’t know, but I know that the store manager has options at his
disposal, and if it makes sense, if customers are going away and there’s problems, the store
manager, at the store level, is going to do what it takes to address those.
MRS. HUNT-Because you could have 100 or more parking spaces taken up just by the
employees.
MR. HENTSCHKE-Yes.
MRS. HUNT-But I must say I do agree that I like the green space.
MS. BOZEMAN-I do want to add that my 3.27 per thousand number being used does include
Associate parking as well. We counted every car parked in the lot, and that does include
Associates that are parked there as well. So that number does take into account.
MRS. HUNT-That was 3.27?
MS. BOZEMAN-3.27 per thousand of our best performing stores, and I will tell you that those
stores, this store does not come close to the sales projections that those stores are actually doing.
MRS. HUNT-Well, I do want to congratulate you on the green space. I think that’s a plus, and I
think, on balance, when I think of the pluses and minuses, I would be in favor.
MR. STONE-Okay. Roy?
MR. URRICO-Yes. I’ve had some time to look over the comments from last time, and also
seeing the presentation today, and I’m satisfied, in terms of where this stands, as far as the
parking issue. I think, I never understand parking anyway, because, you know, how do you
figure four people per 1,000 square feet of storefront, and 640 spaces is a lot of spaces, and if you
fill up that parking lot, I don’t want to be there, but my stand is also Wal-Mart’s resources are
enormous, and your place, as a retail giant, is well documented, and if you say 3.27 is going to
cover it, I really have to believe that it’s going to cover it. I don’t think that would be harmful to
the Town. I think, with the work that the Planning Board did in laying the groundwork for this,
and the extra green space, I think the spaces will be enough, hopefully, you have some wiggle
room there, but I really think that’ll be enough. My one concern, which was brought up
tonight, at the last meeting you made the comment that you would truck out the snow, and
tonight you said it would be at the manager’s discretion. Well, the past record has shown that it
has not happened there, and that has been a problem, especially with some of the horrific
winters we’ve had here recently. So I would make that a condition of approval, that snow be
trucked out of there. I’d be in favor of it otherwise.
MR. STONE-Okay. Well, I think we’ve done justice to the subject. I think that’s one of the
things, and I will toot our own horn. I think that’s what the Zoning Board does very well.
We’ve asked a lot of questions. We are guided by, as I said earlier, we are guided by the Zoning
Code. For whatever reason, the Town has said 4.5. I think that was the number. The Planning
Board, who has recognized some of the things that have happened in the past, and some of our
other big parking areas, has worked with the applicant, and decided that they can live with 3.3.
I think we can live with 3.3. I’ve got concerns, and I think Mr. Goetz, from Ray Supply,
certainly echoed some. I kind of think that we have to, and I don’t know how to put it in, but
we need to ensure scrutiny, certainly by the State, as far as traffic is concerned, and by the Town
and the Sheriff’s Department and anybody else who is involved with traffic. We have to be sure
that people are not going where they shouldn’t go. We know they do. I was particularly struck
by Mr. Goetz’s comments about people coming out of the lot without stopping. One of my
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favorite subjects. I can’t stand the disregard for stop signs and right turns on red, and I will
take this soap box to complain bitterly to the State of New York and anybody else who wants to
listen, that we have a dangerous situation, and it’s getting worse. This corner over here for one.
People make that right turn onto Blind Rock Road as if there’s nothing there, nothing. Cut
across the white line and everything else. Anyway, as I say, there were concerns. I, too, was a
little disappointed in their reply, but I think it’s been helped by your two digit number, your
two place number, 3.27. I hope you can’t make that up. I’m sure you can’t. That gives me some
comfort that we’re going in the right direction, and certainly this Town has never failed to
notice problems with anything that’s going on, and I think, in the future, we will continue to
notice. I think the other thing, the permeability one, as we haven’t talked very much about, but
is an improvement. Obviously, this site is never going to get to the 30%. It’s impossible, unless
we tear down half the store. We’re not going to get there, but we have improved it. You have
improved it, and that’s good. So, on balance, I think I can vote yes on this thing, and, having
said that, I need a motion to approve Area Variance No. 38-2003. Does somebody want to take
it?
MR. HAYES-Sure.
MR. STONE-Go ahead.
MOTION TO APPROVE AREA VARIANCE NO. 38-2004 WAL-MART STORES, INC.,
Introduced by Paul Hayes who moved for its adoption, seconded by Roy Urrico:
Route 9 and Weeks Road. The applicant proposes demolition of the former Ames store to
replace with a construction of a 95,217 square foot addition to the existing Wal-Mart facility.
The relief that the applicant is requesting specifically is 763 parking spots that we’re going to
have to look at. The applicant requests relief from the parking space requirements, exactly 274
spaces less than the 1,037 required, which is determined by 4.5 spaces per 1,000 square feet, per
Parking and Loading Regulations, Section 179-4-040 C. So they are proposing 763 parking
spaces. Additionally, the applicant requests relief from the 30% minimum permeability
requirement of the Highway Commercial Intensive Zone, Section 179-4-030, in order to develop
this site to a 16.2 permeable condition, which means that they need relief of 13.8%. I move for
its approval based on the following considerations. First, whether an undesirable change will
be produced in the character of the neighborhood or a detriment to the nearby properties. I
believe that no such condition will occur, based on the approval of the parking and the
permeability. I think that, in general, the plan has been changed and improved several different
times, to the extent that, when considered, that the existing vacant and a little bit dilapidated
Ames store will be incorporated or totally redone to a new Wal-Mart facility. I think that the
area will actually benefit in some fashion. Whether the benefit sought by the applicant can be
achieved through some other method. I don’t believe that it can, in this particular case. The
applicant was asked by the Planning Board to come up with a plan to increase permeability, to
decrease the number of parking spots that were on the site, to change traffic flows, to change
delivery patterns, all the things that go into Planning Board consideration, and I think that those
things were done, and that, in a sense, is the feasible alternative that was arrived at, or that was
what was arrived at, which kind of eliminates a feasible alternative. They were put through a
number of tests and standards by the Planning Board and this Board, and I think that, in this
particular case, this probably is the best plan. Whether the requested Area Variance is
substantial? I don’t believe that it is. I don’t believe that the parking variance is substantial, in
that there has been a desire expressed by a number of people in the community and the
Planning Board to reduce, in certain controlled circumstances, the number of parking spaces
below the 4.5. In my mind, that mitigates the percentage of the variance that we’re being asked
to consider in this particular case, because the applicant was steered in that direction initially,
and as far as the permeability, I don’t think that it’s substantial, again, particularly in the sense
that the permeability on the site is actually going to go up. 13.8 is a meaningful number, but
through planning, the applicant has actually increased permeable space. So I’m not troubled by
the nature or size of the variance that’s being requested in this particular case. Whether the
proposed variance will have an adverse effect on the physical or environmental conditions.
Again, I just don’t see that it will. I think that the recycling of the property has a benefit to the
17
(Queensbury ZBA Meeting 4/28/04)
immediate area, and is the difficulty self-created. It certainly is self-created in some sense, that
they want to have a Super Center, and they desire to, based on the economics that have been
put forward, it’s obviously in their interest in some way that they’ve determined to have a
Super Center here and to do this project, but we are talking about an existing site with a limited
amount of space. I’m not sure where else Wal-Mart would go in Queensbury. I mean, we
certainly wouldn’t want it to leave this site and have that be a bigger problem. So I don’t find
that it’s self-created, to the point that it would change the test in my mind. Looking at those
conditions, cumulatively or all together, I think that the benefit to the applicant and the
neighborhood outweighs any possible negative impact on the neighborhood, and I would move
for its approval. I would like to make the approval conditional on an agreement by Wal-Mart,
to truck away the snow in the wintertime, and I do that, based on the fact that, even by your
own internal numbers, the percentage at which you say you can operate, which is 3.27 and
we’re at 3.3, obviously is not a large margin of error there, and there have been neighbors that
have expressed concern about how this is all going to work out, justifiably in my opinion. So
that’s a condition that I would insist upon, and other Board members have indicated that they
think is a necessity as well. We certainly don’t want to see the effected number of parking spots
go below the 763, because we do have some pretty aggressive winters here. So, based on that
criteria, I would move for the approval of the application. As has been pointed out by Staff, this
approval would also be conditional on the applicant agreeing to combine the parcels into one,
therefore no seeking no dimensional relief.
Duly adopted this 28 day of April, 2004, by the following vote:
th
MR. BROWN-This is just a bookkeeping thing. I think we may have overlooked it. Basically all
the permeable numbers and parking numbers here are based on the concept of consolidating
the two parcels. Right now there’s two parcels that make up this project. So we just want to
make sure that, you know, there’s no Area Variances requested for sideline setbacks. That’s
why we haven’t pursued them, because the thought is that the parcel would be consolidated,
and, just for bookkeeping, if it’s just a condition.
MR. STONE-Put a condition on it.
AYES: Mr. Rigby, Mrs. Hunt, Mr. Urrico, Mr. Hayes, Mr. Stone
NOES: Mr. Abbate, Mr. Underwood
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-Go build your building. Now we’ll talk about signs, and that is our purview
totally.
SIGN VARIANCE NO. 71-2003 WAL-MART STORES, INC. AGENT: PERRY L.
BUTCHER & ASSOC., ARCH. OWNER: NATIONAL REALTY ZONING: HC-INT.
LOCATION: 891 ROUTE 9 APPLICANT PROPOSES AN OVERSIZED FREESTANDING
SIGN AND NUMEROUS ADDITIONAL WALL SIGNS AND SEEKS RELIEF FROM THE
REQUIREMENTS OF THE SIGN ORDINANCE. CROSS REFERENCE: SPR 25-2003 AV
38-2003 WARREN COUNTY PLANNING 7/9/03 AND 2/11/04 LOT SIZE: 11.29 ACRES;
6.46 ACRES TAX MAP NO. 296.17-1-36; 296.17-1-37 SECTION: 140-6(B)
PETER HENTSCHKE, REPRESENTING APPLICANT, PRESENT
MR. UNDERWOOD-This dates back to our meeting of Wednesday, February 18. “MOTION
th
TO TABLE AREA VARIANCE NO. 38-2003 & SIGN VARIANCE NO. 71-2003 WAL-MART
STORES, INC., Introduced by Charles McNulty who moved for its adoption, seconded by
Charles Abbate:
For up to 60 days, pending completion of Planning Board action on their applications.
18
(Queensbury ZBA Meeting 4/28/04)
Duly adopted this 18 day of February, 2004, by the following vote:
th
AYES: Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. Abbate, Mr. McNulty
NOES: NONE”
MR. UNDERWOOD-Do you want me to read this as their thing tonight? Because we’ve
already read everything else in?
MR. STONE-Yes, why don’t you do that.
MR. UNDERWOOD-I’ll do that. This is a letter dated April 19, 2004, to Mr. Lewis Stone,
Chairman of the Town of Queensbury Zoning Board of Appeals, re: The Wal-Mart Expansion
project, specifically the Signage Variance, “Dear Chairman Stone: Since the last Zoning Board
meeting on the 24 of March, we have had a chance to reflect upon the Board’s comments and
th
concerns. Some Board members made it clear that they wanted to see us significantly reduce
the number of signs on the front of the building to reduce the visual impacts. Others thought
that the signage we were proposing was a reasonable amount given the scale of the front
elevation of the building and number of services offered. Seeing that the members of the Board
were split on this matter we have included two separate modification options for your
consideration, both of which further reduces the visual impact of the proposed signage and are
in keeping with the signage of other retail stores in the Town of Queensbury. The submission
includes a picture of the signage on the existing front of the building for your reference. The
front elevation of the existing building currently has 5 signs with a total of approximately 328
square feet. Our first option requests a total of 12 signs on the front of the store with
approximately 492 square feet. Our second option also requests a total of 12 signs on the front,
however the total is reduced to approximately 415 square feet. We believe the proposed
signage options are in scale with the size of the store, have minimal visual impacts, and are an
improvement compared with the signage of many of the other retail stores in the area. Option
1. The first and preferable option for Wal-Mart is to remove the “We Sell For Less” sign and
move the small ancillary signs from the beige background of the wall to the green background
of the stripe. We would also change the color of these signs from red to white. This approach
reduces the number of signs requested by one and the total square footage by approximately 68.
This option may be preferable to the Board because it creates a more uniform and coordinated
appearance in that all of the signs other than the Tire and Lube Express are now white on a
green background. Option 2. Our second approach is to keep the changes proposed in Option
1 and further reduce the ancillaries from 18 inches tall to 12 inches tall and reduce the Tire and
Lube Express sign from 2’-6” tall to 2’-0” tall. These reductions equal approximately 70 more
square feet off of our total and allow Wal-Mart to keep the signs that express to the customer
the services provided within the building. They also indicate to the customer which side of the
building they will find those services on. We believe these signs will remain helpful to the
customers in our parking lot while not detracting from the aesthetics of the store or the local
community. Once again, we know that we haven’t significantly reduced the number of signs on
the front of the elevation of our building, but we have tried to create a solution that will be
acceptable to the Board, the Community and to Wal-Mart. Thank you, BJ Phillips, Intern Perry
Butcher and Assoc., Architects”
STAFF INPUT
Notes from Staff, Sign Variance No. 71-2003, Wal-Mart Stores, Inc., Meeting Date: April 28,
2004 “Project Location: 891 State Route 9 Description of Proposed Project: Applicant
proposes a 116 sq. ft. freestanding sign at a 25-foot setback, and 23 wall signs totaling 669.07 sq.
ft.
Relief Required:
For the freestanding sign, the relief required is the same as the previous submittal; 52 sq. ft. of
relief from the 64 sq. ft. maximum size requirement at a 25-foot setback, per §140-6(B2a).
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(Queensbury ZBA Meeting 4/28/04)
For the wall signage, the relief required is for 17 additional wall signs, with a total areas as
shown in the attached chart. The 248.5 sq. ft. “Wal-Mart Supercenter” sign is the allowed sign
by code.
Staff Comments Revised Proposal
The revised information contains two proposed options:
We Sell For Less
Option 1 The number of proposed wall signs decreases by 1 (). The overall
square footage is shown to be reduced by approximately only 68 sq. ft. from the original plan.
Sign color and location changes are offered.
Option 2 Further reductions are offered for the smallest signs in the proposal.
The Bakery, Deli, Meat Produce, 1 Hr. Photo, Pharmacy and Optical signs are proposed to be 6
inches shorter and proportionately less in length to reduce the total square footage by
approximately 80 sq. ft. further. The color and location changes from Option 1 are proposed to
remain the same.
The revised proposal does not address any changes to the freestanding sign.”
MR. STONE-The County had no?
MR. UNDERWOOD-I don’t think so.
MR. STONE-Just a quick question. Craig, the sign is at 25 feet, that’s the maximum height?
MR. BROWN-The overall height? That’s correct.
MR. STONE-Yes. Okay. Go.
MR. PHILLIPS-Okay. Again, my name is BJ Phillips with Perry Butcher Architects. Like I said
in the letter that you read in, we do know that we haven’t significantly reduced the number of,
but we are trying to keep the signage that Wal-Mart prefers to put on the Super Center that
illustrates to the customers which services are offered within the building. We have tried to
create a cohesive sign package that’ll be all white on a green background, which, you know,
visually, it’s of less impact than a bright red sign on a beige background, and we’ve also given
you an option of reducing those signs even further, but trying to keep them for Wal-Mart’s
benefit.
MR. STONE-You know very well, if you give us less, we will never give you more.
CASSANDRA BOZEMAN
MS. BOZEMAN-Absolutely, and that’s my question. We’re willing to take whatever you want
us to have. We want a right to build and operate a Super Center in this market, and we want to
be able to inform our customers what choices are offered in the store, but of course we’re not
going to let (lost words) as far as signage is concerned, hinder us from building our store.
MR. STONE-Okay. Let me ask a couple of questions. The soda machines that sit on the outside
wall. There are five of them, and in addition to the machines themselves, above each one is a
white placard, telling the price. To me, they’re glaring, and while they could be considered
temporary signs, they’ve been up there as long as I can remember, every time I’ve gone on the
property.
MS. BOZEMAN-Tell me you don’t want them there, and they’ll be gone by next week.
MR. STONE-Well, I don’t want them there.
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(Queensbury ZBA Meeting 4/28/04)
MR. URRICO-I had it in my notes to bring it up.
MR. STONE-The other question, and this is one we haven’t discussed, I drove up to the
property today, from a direction, I’m lying when I said I didn’t know where I was going, but I
drove in from Weeks Road, and I see the signs for the various corrals, and they are visible off
property. I mean, I know the argument sometimes can be made that corral signs, if they’re on
property and can’t be seen, but these can be, I don’t know, I assume everybody has seen these
signs. They’re pretty garish, as you park over by Weeks Road and look over towards the
property, and they don’t even say put your cart here. They say eyeglasses from $48 dollars.
They say We Sell For Less, Please Return Your Carts Here. You’ve got to look pretty hard to
see, you’ve got to return the carts here. To me they’re offensive. I don’t know what the rest of
the guys think, but I’m just putting it on the table. Questions from anybody?
MR. ABBATE-I hate to be the bad guy this evening. I hope you’re not taking this personal.
MS. BOZEMAN-Absolutely not.
MR. ABBATE-Obviously I objected to the first one. I’m going under the premise that Wal-Mart
wants it all or nothing. As an example, you folks are requesting 80% of relief . You’re entitled
to one sign and you’re requesting 18. Now, my question would be this. If another applicant,
other than Wal-Mart, in the future, comes before us and we were to consider that application,
how would I respond? My God, I would respond the same way, and the answer is basically no.
Now, I understand the need to advertise your wares. I have no problems with that at all, but,
you have two entrances. Am I correct, entrance and exit, correct? Okay. Now, how about this
as a compromise. Instead of having 18 signs outside, why not have those 17 signs inside the
building, so that when your customers enter, you could put an arrow, bakery this way, or the
machinery this way. The men’s room this way, etc., etc. Why not use that as a compromise?
Instead of having, asking and requesting 80% of relief.
MR. PHILLIPS-Can I address the 80% of relief? I know that there’s no stipulation in your
Ordinance for the grandfathering of signage that’s already existing, but if you look at what’s on
the existing store, what we’re really asking for is six signs and approximately 200 square feet,
and what is on the existing Ames would nearly cover that 200 square feet. So we’re not, you
say 80% because we’re asking for 16 more than what your Ordinance allows, but what’s on the
existing building is quite a bit more significant than what your Ordinance allows also.
MR. HAYES-That was another day, though.
MR. PHILLIPS-Yes, I understand that, but.
MR. URRICO-But that doesn’t count the five signs over the soda machine, or the eight signs in
the carousels.
MR. ABBATE-Correct. Right. So we could take those and now we’re talking about 22 signs.
See, to me, and if I’m reading you folks wrong, please let me know. You’re not willing to
compromise. You want it all or nothing.
MS. BOZEMAN-I think you’re totally reading us wrong.
MR. ABBATE-Then show me the compromise on the signs.
MS. BOZEMAN-For (lost words) the Planning Board, we’ve absolutely compromised.
MR. ABBATE-This is not the Planning Board. This is the Zoning Board of Appeals. We’ve
heard enough about the Planning Board, as far as I’m concerned.
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(Queensbury ZBA Meeting 4/28/04)
MS. BOZEMAN-And we’re willing to compromise tonight. As I told Mr. Stone, if he doesn’t
want to see the signs over the soda machines, they won’t be there, and they won’t be there long
before we open this Super Center. I think the signs over the cart corrals, while we use them as
advertisement, we found when we don’t sign them, we have a significant number of carts in the
parking lot, and they bump up against cars, and they cause damage to cars. The more visible
we make them, the more customers are apt to return their cars to the cart corrals.
MR. STONE-Well, I think there’s no doubt that that latter statement is true, but Eyeglasses From
$48, Vision Center, doesn’t even say anything about a cart.
MS. BOZEMAN-It just displays where they are. It allows you to see that there’s a structure in
the parking lot, that’s where I return my cart, and in situations where we’ve been denied to
have them, we’ve gone back in and put them in later, at the Town’s request, because of damage
to cars in the parking lots.
MR. STONE-Okay, but there are ways to have signs and ways to have signs. We haven’t gotten
there yet.
MR. ABBATE-I would like, my position would be this. How would I react if X, Y, Z in the
Town of Queensbury wanted to start a new business, came before this Board and proposed the
same thing that you are proposing, how would I react? I would react the same way.
MS. BOZEMAN-I would hope that you would react the same way.
MR. ABBATE-Trust me.
MS. BOZEMAN-We’re not inflexible at all. We want to be flexible, but we also know, based on
the 3,000 stores that we have, absolutely what it takes to run our business, and we want to be
able to run our business in this community. We have five signs, and we’re asking for additional
signs because we’re adding additional businesses to the site, but we’re asking for what we need
in order to advertise those businesses.
MR. ABBATE-Again, as a feasible alternative, these signs can be included as the customers and
to your store.
MS. BOZEMAN-I believe you see that as a feasible alternative and we don’t.
MR. ABBATE-Well, therein lies the problem, then.
MR. STONE-Anybody else have any comments? Any questions?
MR. URRICO-Yes. I do have one question. Is there going to still be a McDonald’s inside the
building?
MS. BOZEMAN-McDonald’s is a lease tenant, and I’m not sure when their lease runs out, but if
they have term left on their lease, they will continue to exist.
MR. URRICO-And will they have a sign on the exterior as well?
MS. BOZEMAN-No.
MR. URRICO-They will not?
MS. BOZEMAN-They don’t have any sign on the exterior.
MR. URRICO-They do. There’s a big “M”.
22
(Queensbury ZBA Meeting 4/28/04)
MS. BOZEMAN-Well, they don’t have to have a sign on the exterior. Do you not want them to
have a sign on the exterior?
MR. URRICO-Well, I’m just asking, because we’re going to negotiate, here. We’re going to do
some rolling back, I think.
MS. BOZEMAN-But to show you we’re flexible, I’m looking for suggestions of what we can’t
absolutely run our store and live without.
MR. STONE-Okay. Well, I, for one, appreciate Option 2. One, you have reduced the size to
what you certainly probably consider a minimum. I mean, you didn’t offer any more, a smaller.
So I’m going to consider that’s your minimum at the moment. The number of signs, because of
their placement on the green, and we have to thank the Planning Board, I think, for the green,
correct, the Adirondack Green, which is very good. I think we could certainly minimize the
impact, and it looks like they belong, to me. The soda signs don’t look like they belong. I’m
going to put up a sign because I’m selling soda for a buck, and that’s good, but know it’s going
to take me a buck to buy the soda or somewhere approximating that, and so, I appreciate the
willingness of Wal-Mart to come down from their, what I would consider fairly dramatic
request. I am not really troubled by the increase of the freestanding sign, the fact that it’s still
going to be 25 feet. It’s a big sign, but it’s a big piece of property, and I think the property is
kind of worthy of a little larger sign, but that’s my thoughts. Anybody else have anything
before I open the public hearing?
MR. URRICO-Yes, I was sort of getting to my thoughts earlier, but not all of your stores have
this amount of signage. Not all of your Super Centers have this amount of signage. I seem to
recall your Myrtle Beach store not having anything, other that Wal-Mart Super Center, or
something.
MR. HAYES-True.
MS. BOZEMAN-Obviously, there will be stores that have less and there will be stores that have
more.
MR. URRICO-Okay, and that depends on the community, right? Okay, and the only means I
have to compare this to is K-Mart, and K-Mart had an exceptional amount, a number of signs.
They came to us for some additions a few years ago, we asked them to cut it back, and they did.
They have six signs in front of their building, and it seems to, well, maybe that explains why
they’re doing what they’re doing and you’re doing what you are, but I really would like to see
you cut back. We’ve asked you to cut back the number of signs. You came back with a
reduction of one, and to me, that doesn’t seem to be a great compromise in this instance.
MR. STONE-We also added 13 that we recognize as signs.
MR. URRICO-So I would like to see at least two signs from the front of the building go, if not
more.
MS. BOZEMAN-Why don’t you decide which two you would like to go.
MR. URRICO-That I’ll leave up to your discretion. You know your business.
MR. HAYES-I could say something along those lines, too. The Myrtle Beach store, I guess it
helped your case the last time, but in this particular case, they did not have, well, they had the
sign over the grocery store. They did not have like meat, deli…those little signs over there to
the right.
MS. BOZEMAN-They also don’t offer some of those services. I mean, there isn’t a floral
department in the Myrtle Beach store.
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(Queensbury ZBA Meeting 4/28/04)
MR. HAYES-Right, but they have a deli, they have all those things that are part of those signs,
and I thought the original logic that was presented to me, as far as the signage, which I accepted
and still do, is that those are largely, we have the Super Center, and we want people going to
where they should go. Nobody wants to park and then decide that they’re 80 yards away from
the entrance that they want to go into. So, as far as those signs that have to do with the grocery
store, those are the ones that I would oppose, but the optical, the pharmacy, the one hour photo,
if I was coming up to Wal-Mart, I would exactly know where those, what department those
were in, and that would do that for me, also the fact that they’re on that side of the.
MS. BOZEMAN-Do you think that the site would look somewhat unbalanced if there was (lost
words)?
MR. HAYES-I don’t, because of the size that you’ve reduced them to. I think it would look, just
what they’re meant to be is purposeful and directional, and I accept that logic, particularly on
the, you know, the lube and the tires. I mean, those are on the other side of the building, you
know, you wouldn’t know which side they were, and those are really just telling you where to
go if you want tires, I guess. That makes sense to me, but as far as the food center, those other
items, in the end, once I went to Myrtle Beach, I knew that’s where that stuff was going to be.
So I think that maybe that’s a compromise that you guys could offer. I could live with that.
MS. BOZEMAN-Could you live without having one of those four or something there? Just for
the aesthetics of the building and the balance on the sides. I think if you saw the entire site.
MR. STONE-We’ve got the pictures here.
MS. BOZEMAN-So if you were to have either two of the four or one of the, something there, so
there’s a building that’s balancing the white and the green.
MR. HAYES-I guess I could be okay with one sign on that for aesthetic balancing. I guess it
doesn’t matter which one, but that to me would be eliminating the We Sell For Less, because
that should be self-evident at this point for Wal-Mart.
MR. STONE-Well, that’s gone.
MS. BOZEMAN-It’s gone.
MR. HAYES-And then one of those other signs.
MR. URRICO-As long as it doesn’t say bakery/deli/.
MR. STONE-Well, the other question that I would have, from a marketing standpoint, the two
major signs, in addition to the Wal-Mart Super Center, the food center, which is self-
explanatory, that’s where you buy food. I know you guys, in your jargon, and you’re being too
close to the forest or the trees, think that low prices tell you something. I’m not sure that it tells
me that there’s hardware and clothes.
MR. HAYES-That balances, though, the.
MR. STONE-Well, I don’t mind, something should be there, but the others are all talking about
product. It just seems to me out of place. Low prices doesn’t tell me anything, but that’s a
marketing thing. I mean, certainly on balance, you’re right, there should be a sign on either side
of the Wal-Mart sign.
MR. HAYES-There has to be something there.
MS. BOZEMAN-It tells our customers so much.
MR. STONE-Does it?
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(Queensbury ZBA Meeting 4/28/04)
MS. BOZEMAN-And it’s told our customers in 3,000 stores so much.
MR. STONE-Okay, and I will just get in, since I have you before me. In my forte, before I
became a Zoning Board Chairman, was truth in advertising. Do you have documentation for
each one of those reduced prices, in the advertising?
MS. BOZEMAN-I have documentation that we have low prices.
MR. STONE-But this bing from $1.99 to $1.49. That requires, from my standpoint, that you
have those facts.
MS. BOZEMAN-You mean when we roll prices back?
MR. STONE-Yes.
MS. BOZEMAN-Absolutely.
MR. STONE-Okay.
MS. BOZEMAN-Absolutely. We don’t advertise a rollback unless we’ve actually sold the
product at that price. Absolutely.
MR. STONE-That’s what you’re supposed to do. Good. I feel better.
MS. BOZEMAN-I can actually assure you that that is the case.
MR. STONE-Okay. Any other comments anybody wants to make before we listen to the
public? I don’t know if we left the public hearing open on this or not. Okay. Well, since we left
the public hearing open, does anybody wish to speak in favor of this application? In favor of?
Anybody opposed to this application? Opposed? Any correspondence?
PUBLIC HEARING OPEN
MR. UNDERWOOD-We have one new letter. It’s dated 3/13/04, to the Board of Zoning
Appeals, re: Sign Variance No. 71 Wal-Mart Stores, from Robert L. Eddy, 17 Owen Avenue, in
Queensbury, “Please deny this variance for an oversized freestanding sign and numerous
additional wall signs. There is no need for this additional signage. This will be such a large
building it will speak for itself, and everyone will know what they will have to offer when they
go there. Other applicants for variances will use this approval of this variance as an example.
Sincerely, Robert L. Eddy”
MR. STONE-Any other letters?
MR. UNDERWOOD-That’s it.
MR. STONE-Let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Do you wish to comment on, since that’s the only public input?
MS. BOZEMAN-I’d just like to try and understand what I’ve heard the concerns of the Board.
On the signs to the right of the food center, do you want us to include one sign there instead of
the four that we’ve proposed?
MR. HAYES-Yes.
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(Queensbury ZBA Meeting 4/28/04)
MS. BOZEMAN-Are you comfortable with that sign not being something advertising product
and being something other than product?
MR. HAYES-No, I mean, I guess if that’s the logic for having a sign, I think it should somehow
indicate that, right.
MS. BOZEMAN-Okay.
MR. STONE-Your thought is, Jaime, that the four over there to the, not the extreme right, but to
the right, be consolidated into one sign of their choosing?
MR. HAYES-Right, but it would obviously have to be the same size or approximate the same
size as one of those signs, like bakery or produce, not a sign that somehow incorporates them in
a stream. I’m not indicating that I think that that’s what you’re trying to do. It’s just that I want
to be clear. So if the signs are truly directional, as your counsel pointed out, and I think it’s a
point well taken, then I think now having visited newer stores, the one in Myrtle Beach, that the
food center lets me know, like where the bakery is, or the deli.
MS. BOZEMAN-Okay. Are you comfortable with that, eliminating the two signs that you
propose, as well?
MR. URRICO-I’m comfortable with that.
MS. BOZEMAN-Okay. I would offer that as, we’d be definitely willing to do, and the signs
from the soda machines will be gone.
MR. STONE-I’ll be there tomorrow.
MS. BOZEMAN-I’ll say by next week.
MR. STONE-Well, that’s okay. I’m going to Cincinnati in the morning.
MR. HAYES-So the soda machine’s going to stay, though? I’m sure Coke and Pepsi.
MR. STONE-The soda machine, well, it’s Wal-Mart soda.
MS. BOZEMAN-It’s branded soda in those machines.
MR. STONE-All right. I’m just trying to understand, before we ask everybody where they
stand, what you’re offering is Option Two, with one sign where there are four on the right of
that same sign?
MS. BOZEMAN-Yes, sir.
MR. STONE-And what were you talking about, Roy?
MR. URRICO-Actually, it works out, what they offered, in my mind, yes.
MR. STONE-Okay.
MR. BROWN-Mr. Chairman, could I just ask one question? Again, a bookkeeping thing here.
MR. STONE-Yes.
MR. BROWN-If we picked the biggest of the small signs, I think by this chart it looks like it’s the
one hour photo sign, which is like 16 and a half square feet. Is that the sign you want to have
balanced on either side of the building? I’m just looking for a size.
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(Queensbury ZBA Meeting 4/28/04)
MR. HAYES-That’s the maximum size of the sign, the one sign to the right, the 16 and a half.
MS. BOZEMAN-Is that the same size as the produce sign?
MR. HAYES-It’s actually a little bigger than that.
MR. BROWN-Produce is 11.88, one hour is 16.5. That’s the biggest of the small signs.
MS. BOZEMAN-Okay. Great.
MR. HAYES-Okay. I agree, there should be a number there.
MR. STONE-Now we’re talking three on the left and one on the right. Is that it?
MR. BROWN-You’re talking one and one?
MS. BOZEMAN-No, we’re talking three and one.
MR. HAYES-I thought the signs on the right were the ones that were unnecessary. That when it
comes to optical, pharmacy and one hour photo, if I drove in, I’m really not sure where those
would be. That’s just my opinion.
MR. BROWN-So the one on the right we want to have no more than 16.5.
MR. HAYES-Right.
MR. STONE-Right. The three on the left, at the Option Two size.
MR. HAYES-Okay.
MR. STONE-Okay.
MR. URRICO-I do have one question about the freestanding sign, because we didn’t really
discuss that.
MR. STONE-Go ahead.
MR. URRICO-We are eliminating, basically, one, they have two signs there now, Ames and
Wal-Mart, and we’re eliminating the Ames sign and just having one Wal-Mart sign.
MR. HAYES-Currently, right.
MR. URRICO-Okay. That’s it.
MR. RIGBY-I have a question, too. The new freestanding sign in square footage, how does that
compare to what’s there now? Is it larger, smaller?
MR. PHILLIPS-It’s a little bit larger.
MR. HAYES-It’s green, that sign’s green?
MR. PHILLIPS-It’s blue.
MR. HAYES-No, I mean the one they’re going to put.
MR. RIGBY-Yes, the new one.
MR. PHILLIPS-It’ll remain blue.
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(Queensbury ZBA Meeting 4/28/04)
MR. RIGBY-Is it possible to make that green?
MR. PHILLIPS-I’d have to check with our sign shop. I don’t.
MR. STONE-It’s going to be Wal-Mart blue rather than Adirondack green?
MR. PHILLIPS-Yes.
MR. STONE-Okay.
MR. RIGBY-The other question I had, too, you know, we’re talking about the signs in front, just
looking at the diagram from the front, there’s 11 signs I see on the diagram, but we’ve got a
request for 23 signs. Where are the other 12 signs?
MR. PHILLIPS-Those are on the side of the building, on the Tire Lube and Express. They’re
over the individual bays, which tell you it’s a tire or a lube, and then it’s also got the Wal-Mart
Tire Lube and Express on it.
MR. STONE-They face the woods behind Ray Supply.
MR. PHILLIPS-The left side of the building.
MR. RIGBY-So there’s one tire sign for each one of the bays?
MR. PHILLIPS-Yes. There’s four tires, and then there’s two of the Lube Express.
MR. RIGBY-And then the Low Prices and the We Sell For Less signs, where are they, or where
were they?
MS. BOZEMAN-They were actually under the Wal-Mart Super Center sign.
MR. RIGBY-Okay. So they’re gone now?
MR. STONE-They’re gone.
MR. RIGBY-You’re not requesting them at all?
MS. BOZEMAN-No.
MR. RIGBY-Okay.
MR. STONE-All right, before we talk about it, is there anything you can do to the corrals to
make them more, put your carts here and don’t buy glasses here?
MS. BOZEMAN-I can’t offer that, because I don’t know what the operator is (lost words)
ancillary businesses in the store are. I can only offer what I can assure you we will absolutely
do.
MR. STONE-Okay.
MS. BOZEMAN-I can assure you that I will look at it and find out if that option is available, but
I don’t want to offer you something that I can’t make sure.
MR. STONE-I appreciate that.
MR. BROWN-I guess just for the peace of mind of the Zoning Board, the signs on the cart
corrals are not anything that the Town’s issued a sign permit for. If, in fact, they are determined
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(Queensbury ZBA Meeting 4/28/04)
to be signs and are visible from off site and contain more than a business name and on-site
directional information, the applicant will be informed that these signs are in violation and they
have to be removed, or come back and apply for a variance, or pursue a violation.
MR. STONE-Okay. So in our motion we will ask the Zoning Department to review those and
make a determination.
MR. BROWN-Well, I don’t necessarily think you have to do it in your motion for this
application. You can do that any time you want. I mean, you’ve done it right now. I know you
want me to look at them now.
MR. STONE-Okay.
MR. BROWN-They can be handled separately. I just wanted to make sure that you knew they
weren’t signs that are permitted. So they haven’t really given anything up they’ve been
permitted to do.
MR. STONE-We understand.
MR. BROWN-They’re doing them, they’re just doing them.
MR. STONE-So the determination has to be made, whether or not they, in fact, need permits,
and whether therefore need variances, and that’s something you will do?
MR. BROWN-Correct.
MR. STONE-Okay. All right. Let’s start talking about it. Jim?
MR. UNDERWOOD-Yes. As far as the sign out by the road, I think that, you know, in the past
year, I think we’ve granted a few larger signs. I know the Ford Dealership we just gave one to
Saturn also. So I think that, you know, given the fact that the sign’s going to be increased
somewhat, I’d be willing to go along with that. As far as the wall signs go, I think the Option
Two, you know, with the modifications that were suggested, makes sense. I don’t think it’s
necessary to have so many wall signs, and I think the food center ones were the ones, obviously,
that could be accomplished with internal signage. The, you know, give back of maybe having
one sign over there is fine with me, as long as it stays within that 16 square feet, or wherever it
was. On the other end of the building, the south end of the building, the Tire and Lube Express,
obviously, they need signage for that to know where it is, since it’s around the back end of the
building there, and I think it was suggested that those other signs, because they’re going to be
reduced in size, are going to be less noticeable. So I’d be willing to go along with those, too.
MR. STONE-Okay. Leo?
MR. RIGBY-Yes. Roy just gave me some information on the freestanding sign. I was just
reading it over, and I’m okay with that. I don’t have a problem with that. Again, my question
on the color, maybe it would blend better with the color of the building if it were green rather
than blue. I don’t know. That’s something for you guys probably to figure out, what blends
best, what looks best. I think you’ve taken significant steps in reducing and doing what we’ve
asked for. I agree with Jaime that, you know, less signage on the food center side would be
good. I’m a little concerned with the balancing of how it’s going to look balanced. I mean, right
now it looks balanced to me, with one sign there and three on the other side. I don’t know, but I
assume you guys can make that work in some way, that’ll be visually acceptable. I like what I
see. I don’t have any objections to what I see right now.
MR. STONE-You’re saying yes?
MR. RIGBY-Yes.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Chuck?
MR. ABBATE-Okay. Thank you. Well, they have agreed to compromise, which is what I was
asking for initially, and, you know, there’s always the standard of fairness. I don’t have any
problem with that. I think, if all the Coke signs were removed, the McDonalds signs were
removed, and Option Two were implemented, with modifications as stated by other Board
members, in the interest of fairness, I wouldn’t have any problems at all with that.
MR. STONE-Joyce?
MRS. HUNT-I agree, but I’m really not sure I’m clear on which signs are going to stay and
which are going to go. If we look at the Queensbury as Sign Number One would stay, (lost
words) and the food center sign would stay, at 50.42. Now what about Low Prices and We Sell
For Less, are they both out or, in?
MR. STONE-No. We Sell For Less is gone.
MRS. HUNT-Yes.
MS. BOZEMAN-You’re looking at Option Two.
MRS. HUNT-Right, Option Two.
MS. BOZEMAN-If you look at the center of the Wal-Mart sign, everything to the left would
stay. If you’re looking at Option Two, everything to the left of the Wal-Mart Super Center sign
would stay. To the right of the Wal-Mart sign, there are four signs that are on the right end of
the building, that would become one sign.
MRS. HUNT-One sign. Okay.
MS. BOZEMAN-Not exceeding 16.5.
MRS. HUNT-Okay. I’ve got that. I would be in favor of it. I certainly like the coloring, more
Adirondack.
MR. STONE-Roy?
MR. URRICO-Yes. The application as it exists now, with the changes, would be satisfactory to
me. So I’d be in favor of it.
MR. STONE-Jaime?
MR. HAYES-I feel the same way.
MR. STONE-Well, I think you have obviously satisfied all of us by your willingness to
compromise, and so what we’re talking about, I’m going to need a motion for Option Two with
one sign to the right of the food center sign, on that wall.
MR. HAYES-No larger than 16.5?
MR. STONE-No larger than 16.5 square feet.
MR. HAYES-Correct.
MR. STONE-And we will put in the motion a willingness to remove the soda machine signs.
MS. BOZEMAN-The soda machine signs.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-I mean, I certainly think, in the spirit of compromise, I think you have done a good
job. I think, I’m very pleased with the whole thing, because I know I was one who looked at
this thing, and I can’t speak for the Board individually, but I looked at the first request and I
said, you’ve got to be kidding, and I think you have listened, and I applaud that. You have
made a good compromise, and we’re pleased, and you seem to be pleased, and that’s all you
really want out of a compromise. That’s how it works. Okay. I need a motion to approve what
we just talked about. I am reminded that this was an Unlisted Action. The Planning Board, as
Lead Agency, issued a negative declaration under SEQRA on March 16, well, it will be issued
th
to the State on May 5, 2004, and we will use that as a negative declaration of impact of the Sign
Variance.
MOTION TO APPROVE SIGN VARIANCE NO. 71-2003 WAL-MART STORES, INC.,
Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt:
Route 9 and Weeks Road. The applicant proposes a 116 square foot freestanding sign of the 25
foot setback, this will be Option Two, minus the Bakery, Deli, Meat, and Produce signs, and
they will be replaced with another sign, not exceeding 16 and a half square feet, the wording to
be determined. In addition, the applicant has agreed to remove the soda machine signs. In
making this application, the applicant has met the test that we’re required to have them pass in
order to achieve this, and that is whether the benefit to the applicant outweighs the detriment to
the health, safety and welfare of the neighborhood or community. In Question One, whether an
undesirable change will be produced in the character of the neighborhood or detriment to the
nearby properties. It’s been determined that it really won’t have an overriding negative impact
on that. Whether the benefit sought by the applicant can be achieved by some other feasible
manner, well, the nature of the store requires is to probably put in extra signage than would be
typical of a store that doesn’t carry the lines that it does. So in this case, we think the benefits
can’t be really achieved by anything more feasible than we’ve already determined. The Area
Variance is substantial, to a degree, compared to our Code, but that also is mitigated by the fact
that this is a large store. The proposed variance will not have an adverse effect on the physical
or environmental conditions in the neighborhood or district, and in a sense this difficulty is self-
created. We recognize that as well. Mr. Chairman, I submit this for approval.
Duly adopted this 28 day of April, 2004, by the following vote:
th
AYES: Mr. Rigby, Mr. Abbate, Mr. Hayes, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-A better trip, gentlemen and lady, back to Rochester and down State and wherever
else everybody is from.
MR. PHILLIPS-Thank you.
MR. BROWN-Mr. Chairman, could I just ask one question? Mr. Hentschke brought up a good
point, and I think it’s worth addressing. If you wouldn’t mind just considering the resolution
you did for the parking and permeability variance, maybe just include some acknowledgement
to the SEQRA finding that you just did for the sign. I mean, it just is on the record that you
were cognizant of the SEQRA finding when you made your decision for the parking and
permeability.
MR. STONE-Okay. Let me just return to Area Variance No. 38-2003, Wal-Mart Stores, and
recognize that the Planning Board, as Lead Agency, issued a negative declaration on behalf of
SEQRA. Okay.
MR. BROWN-That’s fine. Thank you.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Thank you all.
NEW BUSINESS:
AREA VARIANCE NO. 24-2004 SEQRA TYPE: II CHARLOTTE & MITCHELL POTVIN;
MIKE STEVENS PROPERTY OWNER: POTVIN AND STEVENS ZONING: SR-1A
LOCATION: 986 RIDGE ROAD APPLICANT PROPOSES CONSTRUCTION OF A
SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM THE MINIMUM ROAD
FRONTAGE REQUIREMENTS. CROSS REFERENCE: AV 34-1996, AV 87-2001 WARREN
COUNTY PLANNING: 4/14/04 LOT SIZE: 4.70 ACRES TAX MAP NO. 290.10-1-29
SECTION: 179-4-090(A)
MR. UNDERWOOD-Okay. This letter will explain why we’re hearing this one again. This is
from Charlotte Potvin, 24 Linden Road, Queensbury, NY, to the Town of Queensbury,
addressed on March 9, 2004, “Dear Mr. Stone: I am submitting my application requesting a
variance for the vacant land we own on Ridge Road. The previously issued approval has
expired, and we would like to begin construction this spring. We have 25 ft. of road frontage
and the Town requires 40. We are seeking 15 ft. of relief. This variance has been granted twice
before: May 23, 1996 to Sara and Mark Mannix (Variance No. 34-1996) and again to Diane
Coughlin in November 2001 (Variance No. 87-2001). Everything about this application is the
same as in the past. We respectfully request your approval. Thank you, Charlotte E. Potvin”
STAFF INPUT
Notes from Staff, Area Variance No. 24-2004, Charlotte & Mitchell Potvin; Mike Stevens,
Meeting Date: April 28, 2004 “Project Location: 986 Ridge Road Description of Proposed
Project: Applicant proposes construction of a 2,200 sq. ft. single-family dwelling.
Relief Required:
Applicant requests 15 feet of relief from the 40-foot minimum road frontage
requirement, per §179-4-090.
Parcel History (construction/site plan/variance, etc.):
AV 87-2001: 11/28/01, 15 feet of relief
from the 40-foot minimum road frontage requirement for the construction of a single-family
dwelling.
AV 34-1996: 05/23/96, 15 feet of relief from the 40-foot minimum road frontage requirement for
the construction of a single-family dwelling.
Staff comments:
The relief requested is the same as requested and approved in November of 2001 and May of
1996. The 25-foot wide portion of the parcel appears to be more than adequate to provide for
access by emergency vehicles.”
MR. STONE-Any County?
MR. UNDERWOOD-Yes. The County was No Impact.
MR. STONE-Okay. Who’s speaking for this?
MR. HAYES-Mr. Potvin.
MR. STONE-I hope.
MR. POTVIN-Hi. I’m Mitchell Potvin, one of the owners of the property. We’re just seeking a
variance which was granted previously.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Any questions?
MR. URRICO-The only question I have is, has the property line been surveyed? Because there’s
been some question as to exactly where the property lines are on Ridge Road.
MR. POTVIN-Not recently it has not.
MR. URRICO-Because I know there’s been some question of not necessarily this one, but other
properties along Ridge Road.
MR. POTVIN-Right.
MR. STONE-Would you explain that plot map, Mr. Brown? I’m having.
MR. BROWN-Yes. I’m sorry. I had the streets turned on here. This is Lake Sunnyside. This is
Oneida Corners right here.
MR. HAYES-Haviland Road is right at the bottom.
MR. BROWN-Haviland Road is further down to the bottom of this. Actually probably right
about here is Haviland Road.
MR. STONE-So where did the property go? I thought I saw.
MR. BROWN-You did. This thing is pretty sensitive right there. So that little sliver that comes
out to Ridge Road is the need for the variance. It’s only 25 feet wide. Well, it’s represented at
25 feet wide, but without a survey.
MR. STONE-Where is the 25 foot? I don’t see it.
MR. HAYES-There’s a little thing, you can’t, right.
MR. STONE-There it is. Thank you. It looks like just somebody heavy handed on the, okay.
Any questions of the applicant? I wasn’t here the last time. So I’m going to be very quiet.
MR. ABBATE-Yes, this is the, in the Staff notes it indicates that this relief requested is the same
as requested and approved in November 2001 and May 1996. Is this accurate?
MR. POTVIN-Yes.
MR. ABBATE-Okay.
MR. STONE-It’s exactly the same. If you notice the spacing on the Parcel History is exactly the
same. The two of them the same wording. Okay. Hearing no further questions, let me open
the public hearing. Anybody wishing to speak in favor of the application? In favor of?
Anybody opposed to the application? Opposed?
PUBLIC HEARING OPENED
VINCENT SPERO
MR. SPERO-My name is Vinnie Spero. I live at the tail end of the property in question.
MR. STONE-Which is the tail end?
MR. SPERO-Well, 972 Ridge Road, the southern end of.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-The southern end. Okay.
MR. SPERO-My property borders that along with my neighbors. It is a fairly narrow strip of
land, woods that separates us from Stonehurst, pretty much, and to quote Mr. Abbate,
Queensbury’s a very desirable place to reside. That’s why I bought a home here. That’s why I
moved my family up from the city here in 1980, and that’s why I bought that property.
MR. ABBATE-That’s the nicest thing that’s been said to me in five weeks.
MR. SPERO-Okay. Well, we’ll try to stay on that track then. As you can see in Queensbury, all
the building that’s been going on, I mean, places where they wouldn’t allow building before,
they’re building now, and not just single family dwellings, developments, as you yourself
probably know. Not only would this make the property less desirable, it would lower our
property value. It will destroy wildlife and wildlife habitat, back there, that we have now. It is
a wetland back there, and that’s why the three previous applicants applied for a variance and
didn’t build. Because they found that it was way too expensive and troublesome to build back
there, put in a septic, to put a house in, to do anything back there. It’s very wet back there, very
wet, and basically, you know, variances were put there for a reason, like you said, Mr. Stone,
the Board is here to defend the Town Zoning Code, and that’s all we’re asking you to do is
defend the Town Zoning Code and not allow people to just build on every little patch of land
we’ve got. I mean, once the variance is given, and one home is put there, I can guarantee that,
down the road, you’re going to get a variance for more homes back there. That’s all I wanted to
say.
MR. STONE-Yes, thank you. A question of Staff. Is it flagged as a wetland?
MR. BROWN-I don’t know that. That’s a determination to be made by the, either the DEC or
the Park Agency.
MR. SPERO-I was told by the realtor when I bought my home that it was, but I was also told
that the land, that the development they put on at the end of Haviland Road and Ridge was a
wetland, too, and they built a whole development there, not just single family dwellings.
MR. HAYES-I’d looked at that piece of property. There is some wetlands on it, but there’s room
to build a permissible dwelling. I mean, obviously, that’s a building permit issue anyway.
MR. BROWN-Absolutely.
MR. STONE-Okay. Thank you. Anybody else wishing to speak on the issue, on the
application? Any correspondence?
MR. UNDERWOOD-None.
MR. STONE-All right. Let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Come back up, sir. Do you wish to comment on what you just heard from the
public?
MR. POTVIN-Yes, I do. It is not considered wetlands. We checked with the Army Corps of
Engineers. It is not. It’s a five acre parcel. They only deal with 11 acres or more.
MR. STONE-Okay, but there are other agencies. You’re not in the Adirondack Park. So we
don’t have to worry about that.
MR. POTVIN-Right, but there is a.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-But we do have DEC.
MR. UNDERWOOD-They’ve got to be 10.
MR. POTVIN-The land back there, for one single family dwelling, there’s ample dry land back
there. There is probably two acres of dry land that’s buildable back there.
MR. STONE-Would you comment on any knowledge that you have on Mr. Spero’s, why other
people didn’t build. Do you know?
MR. POTVIN-Well, I heard that the last young lady who wanted to build back there was talked
to by the gentleman, the neighbors, and convinced, somehow, that it would be too costly to
build back there.
MR. SPERO-Yes, after she saw the property and saw how wet it was.
MR. STONE-Okay. Any questions based upon what you heard, Mr. Abbate?
MR. ABBATE-I think we have to, I’m not so sure I object to the application, but I think some
valid questions have been raised concerning the possibility of wetlands. I know what Jaime
said, and I have all the confidence in the world in Jaime, but a bell has been rung, and a flag has
been tossed up the flagpole, so to speak, and I’m not so sure that we have, at this point, based
upon the question that was raised by the person who objected, all of the information, and that’s
the only thing that’s bothering me.
MR. STONE-Jaime?
MR. HAYES-Yes, well, at this particular time, you know, we have a test for the Area Variance
that has to be with the 40 feet, or the 25 feet that you have, versus the 40 feet that you’re
required. Outside of that fact, you understand that if you buy this property, and you can’t get a
building permit, that’s your problem?
MR. POTVIN-Correct.
MR. HAYES-And I guess that’s really, I think that’s where this Board kind of ends is that
essentially.
MR. POTVIN-Right. We’re just looking at this variance, the 25 feet that we have, as opposed to
the 40 feet.
MR. HAYES-Right.
MR. STONE-Right now it’s an established lot.
MR. HAYES-If it turns out that you can’t, then that would have been your mistake and you
understand that.
MR. POTVIN-Right.
MR. ABBATE-Okay. I’m happy with that. That’s a reasonable explanation.
MR. BROWN-Yes. I guess in the future if we find that the stream that’s running through the
property that’s shown on the map is also associated with some wetlands, and there’s a setback
that can’t be met, you’re going to see Mr. Potvin back here before you, if he needs some relief.
MR. ABBATE-Right. Okay. Fair enough.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-One of the, and I will make a comment directly to your comment. We’ve had a
number over the years that I’ve been on the Board of people coming in and saying, this is a nice
lot. This piece of property behind me is, I hope it’s going to stay forever, but since it’s a
buildable lot, and they don’t own it, it doesn’t necessarily stay forever.
MR. POTVIN-He had the opportunity to purchase the lot, just like me.
MR. STONE-I don’t want to go there. I’m just saying that there are a lot of people who feel that
since it’s been there for 20 years, it’s going to stay forever, and that’s not always the case. I
mean, obviously people are looking for lots. It’s for sale. You’re buying it, or you have bought
it, or you want to buy it, and it’s on the market, and you’re looking for relief. Having said that,
any other questions?
MR. RIGBY-I have a question. The relief that you’re requesting is basically for a driveway. Is
that correct?
MR. POTVIN-Yes.
MR. RIGBY-And so the driveway is going to be about 25 feet wide?
MR. POTVIN-Correct.
MR. HAYES-Well, actually, it’s for lack of frontage on a public road. That’s the relief he’s
requesting. He’s supposed to have 40 feet on a public road, and he doesn’t have it.
MR. POTVIN-Right.
MR. HAYES-So it doesn’t really have to do with the size of the driveway as much as he doesn’t
have the 40 feet on the road.
MR. STONE-And that’s just the requirement. I mean, obviously you have to be able to get a
driveway in there to get back there, but 25 feet is more than sufficient to drive a vehicle back
there.
MR. HAYES-Right, but I guess what I’m saying, Leo, is that isn’t determining what his
driveway will actually end up being.
MR. RIGBY-Okay, and my only thought was do we have Codes and regulations that provide
for a buffer, if it is a driveway, Craig? In this case, we’re talking about access off of Ridge Road
to get back into the property. On either side of that, basically what’s going to be a driveway, is
going to be people’s property.
MR. BROWN-Right.
MR. RIGBY-Is there Code or regulation that says there has to be some type of a buffer for the
lot?
MR. BROWN-There’s no requirement for a setback for a driveway in the Town Code. It can go
right on the property line if you choose to.
MR. RIGBY-Okay. Thanks. That’s all I have.
MR. UNDERWOOD-The last time that this variance was granted, the language was written
down, Norman Himes wrote that language in, and it was also written in that there would be no
further subdivision of this property, upon the building of this single home on there, which I
think might alleviate some of your concerns about that land being affected or cut, you know.
MR. SPERO-Can I respond to that?
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(Queensbury ZBA Meeting 4/28/04)
MR. UNDERWOOD-Can he respond to that, Lew?
MR. STONE-No. I don’t think it’s, I mean, we had a motion to approve Area Variance No. 87-
2001, which is very similar to the one that was before that, and I mean, this is the new
application, and you have made comment.
MR. SPERO-But it’s in reference to what you just said about them not subdividing it after they
get the variance. What’s to stop them from applying for another variance?
MR. STONE-Well, that’s one of the things that we can do.
MR. HAYES-We can make it a condition.
MR. UNDERWOOD-We can condition that.
MR. STONE-We can make that a condition.
MR. SPERO-I mean, he’s already cut a trail through there and had four-wheelers back there,
and that’s not allowed. So what’s to stop him from doing it again?
MR. ABBATE-Yes, Mr. Chairman, Jim, do me a favor, please. Would you please repeat what
you said for me, please?
MR. UNDERWOOD-The specific language that was used the last time, and Norm Himes was
the one who wrote it down, the lot, therefore, is a pre-existing, nonconforming lot. I move that
we approve the application as submitted with a contingency or condition that the applicant
agree that this variance is granted with the understanding that there will be no subdivision of
the land, the four and a half acres which you are purchasing.
MR. STONE-Would you accept that condition?
MR. POTVIN-Yes.
MR. STONE-So the applicant has said he would accept that. Okay. Let’s quickly talk about it.
Let’s start with Leo.
MR. RIGBY-I have no objection to it. I’m fine with it.
MR. STONE-Chuck?
MR. ABBATE-Yes. I think that Jaime said it right. Here’s an individual. We are focusing in on
the fact that he’s requesting 15 feet of relief from the 40 foot minimum road frontage, and we
addressed that particular question, and since Staff notes feels that the 25 feet wide portion of the
parcel is adequate, well then I’m in favor of the application.
MR. STONE-Joyce?
MRS. HUNT-I have no objection, but I would like to see the condition that the applicant agree
that there would be no further subdivision of the land.
MR. STONE-Roy?
MR. URRICO-Yes. I’m basically in favor of it, as I was in 2001 with the same stipulation that no
subdivision be made. I want to point out that this is a pre-existing, nonconforming lot, and
that’s why it’s in the situation it’s in. So I’d be in favor of it.
MR. STONE-Jaime?
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(Queensbury ZBA Meeting 4/28/04)
MR. HAYES-I agree. I think that Roy’s correct. I think that the Number One thing here is this is
a pre-existing lot. It’s nonconforming, but it’s pre-existing, which means it’s a legal building lot.
The only question is whether 25 feet provides the access for emergency vehicles and other
things that the Code envisioned with a 40 foot setback, and I think that 25 feet is enough. So I’m
in favor.
MR. STONE-Jim?
MR. UNDERWOOD-Yes. I basically would be in favor, too, but I would like to also add a
stipulation that if it’s determined upon site plan review for this project that there is a Critical
Environmental Area back there, that it is a wetland part of the year, or something that it would
be inappropriate for, you know, four-wheeler use and things like that, I mean, you have your
neighbors to deal with there. You’re going to have to live with your neighbors and get by with
them, and I think that that would be a concern on a narrow lot like that, where you do impact
the people who already have homes in the area surrounding you there. So I think that might be
a concern of yours, you know, in neighborliness to consider that.
MR. STONE-Is your intention to build a home?
MR. POTVIN-Not for myself, at this point. No. We just want to continue the variance so we
have, if we want to, we can build, yes.
MR. STONE-And you’re using it as a recreational piece of land?
MR. POTVIN-No. We went back there. I made, we cleared it out because you couldn’t even
walk the property. I did have a four-wheel back there twice maybe, and I haven’t actually been
on the property for about a year.
MR. STONE-Do you own it, or are you still?
MR. POTVIN-Yes, I own it.
MR. STONE-You own it.
MR. URRICO-Mr. Stone, can I ask a question? The letter that was submitted says we would like
to begin construction this spring.
MR. POTVIN-That’s a potential. That’s a potential, yes. We still may.
MR. STONE-Building is not a problem. Okay. Jim, do you want to give us a motion, you can
build on the one in front of you.
MR. UNDERWOOD-Sure.
MOTION TO APPROVE AREA VARIANCE NO. 24-2004 CHARLOTTE & MITCHELL
POTVIN; MIKE STEVENS, Introduced by James Underwood who moved for its adoption,
seconded by Charles Abbate:
986 Ridge Road. The applicant proposes construction of a single family dwelling, and they’re
requesting 15 feet of relief from the 40-foot minimum required road frontage per Section 179-
70A. The benefit to the applicant, the applicant would be permitted to buy the, well, owns the
parcel and build a home there, with the driveway access to Ridge Road across the land reserved
for this area some years ago. Feasible alternatives. About the only thing possible might be the
acquisition of land on either side, but this has been determined to not be possible at this time.
Fifteen feet of relief from the forty-foot minimum required road frontage might be interpreted
as moderate. However, we feel that 25 feet that is available is okay for emergency vehicles. The
effects on the neighborhood or community, the proposed driveway will have minimal effects on
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(Queensbury ZBA Meeting 4/28/04)
the neighborhood, and it might be noted that this same relief was granted in ’96, and again in
2001. Is the difficulty self-created? The lot is landlocked, except for the 25 feet to Ridge Road.
The applicant really had no influence on that at all. The lot, therefore, is a pre-existing,
nonconforming lot. I move that we approve the application as submitted with the contingency
or condition that the applicant agree that this variance is granted with the understanding that
there will be no further subdivision of the land, the four and a half acres which you own.
Duly adopted this 28 day of April, 2004, by the following vote:
th
AYES: Mrs. Hunt, Mr. Urrico, Mr. Hayes, Mr. Rigby, Mr. Underwood, Mr. Abbate, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-There you go, sir.
MR. POTVIN-Thank you very much.
SIGN VARIANCE NO. 28-2004 SEQRA TYPE: UNLISTED USA GAS, YALCIN OZBAY
AGENT: SAXTON SIGN CORP. PROPERTY OWNER: YALCIN OZBAY ZONE: HC-INT.
LOCATION: 658 GLEN STREET APPLICANT PROPOSES CONSTRUCTION OF A 48.5
SQ. FT. FREESTANDING SIGN. RELIEF REQUESTED FROM THE FRONT SETBACK
REQUIREMENT. CROSS REFERENCE: SPR 37-2003, AV 93-2003 WARREN COUNTY
PLANNING: 4/14/04 LOT SIZE: 0.50 ACRES TAX MAP NO. 302.7-1-32 SECTION: 140-
6(B1)
PAT BONDI, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Sign Variance No. 28-2004, USA Gas, Yalcin Ozbay, Meeting Date: April 28,
2004 “Project Location: 658 Glen Street Description of Proposed Project: Applicant proposes
to construct 48.5 sq. ft., 15-foot high freestanding sign. The proposal includes utilizing the same
footing as previously used for the former Sunoco freestanding sign.
Relief Required:
The applicant requests 12 feet of relief from the 15-foot minimum front
setback requirement, per §140-6(B1).
Parcel History (construction/site plan/variance, etc.):
SP 37-2003: 12/23/03, conversion of
existing gas station w/repair bays to a self-service gas station/convenient mart with new gas
islands and canopies.
AV 93-2003: 12/17/03, front setback relief and relief from the travel corridor overlay setback
requirements for the construction of a new gas island canopy.
SV 58-2002: tabled 07/17/02, front setback relief for a new 49.56 sq. ft. freestanding sign, relief for
two additional wall signs, and relief for the placement of one of the wall signs (the application
submitted by Sandri Reality, Inc. for Sunoco, was voided due to a lack of activity).
Staff comments:
The applicant proposes to locate the new freestanding sign utilizing the same footing
previously used for the Sunoco freestanding sign. The sign proposed would encroach less on
the front setback than the old Sunoco sign due to the different style. The proposed setback to
the curb of State Route 9 is approximately 31 feet.”
MR. UNDERWOOD-And there was a County on that, and it was No County Impact.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Okay. Your turn.
MR. BONDI-Hi. I’m Pat Bondi with Saxton Signs. I just want to go over a few things. First of
all, even though the sign’s only three feet back from the property line, it is 31 feet from the road
and appears to have the same setback as the other signs, if you see the Enterprise sign in the
photo, and if we did move, the reason we want to leave it where it is is, Number One, visibility,
and Number Two if we did move it back, we would have to dig up two more parking spots,
and we also want to use the existing base, and the note that the Sunoco sign that was there was
on the center pole. So it was a lot closer to the road than this sign, because this sign is flagging
in from where the Sunoco sign was.
MR. STONE-Okay. The existing pole is going?
MR. BONDI-Yes. The pole’s going, but we’re using the same base.
MR. STONE-Yes, I understand. Okay.
MR. HAYES-Did they send you in for all these Sign Variances, unmanned?
MR. BONDI-Yes.
MR. URRICO-I have a question for Staff. Is there any relief needed the wetland, for the
Halfway Brook next to it?
MR. BROWN-Our setback requirements for, from wetlands are for structures, and I don’t think
we’d call, this sign wouldn’t fit into there. Good question.
MR. URRICO-Okay.
MR. STONE-And you’re going to use the footing that’s there, correct?
MR. BONDI-Yes.
MR. STONE-Just going to put a new pole on it.
MR. HAYES-What size, as far as the actual sign itself, would be legal, Craig, from this distance?
I mean, is 48 feet, is that legal?
MR. BROWN-Well, at a 15 foot setback from the front property line, 50 square feet is allowable.
MR. HAYES-Okay.
MR. BROWN-So they’re under the allowable size, but it’s the setback that’s.
MR. STONE-We’ve had this before. The 50 feet is supposed to be at 15 feet. If we grant relief,
we don’t make the sign smaller.
MR. HAYES-Right.
MR. BROWN-So I guess to answer your question, what’s allowable at this setback, nothing.
MR. HAYES-No, I understood that part of it, but I mean, if it was 15 feet back, it’s 50 feet?
MR. BROWN-Exactly.
MR. ABBATE-And, Mr. Brown, the sign proposed would encroach less on the front setback
than the old Sunoco sign? Is that an accurate statement?
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(Queensbury ZBA Meeting 4/28/04)
MR. BROWN-That appears to be correct.
MR. ABBATE-Thank you.
MR. URRICO-I have one more question. The angle of the sign, is it facing the way it’s depicted
here, or is it, will you be able to see it coming from the other direction on Route 9?
MR. BONDI-No. It’s going to be perpendicular to the angle before the turn.
MR. URRICO-Okay, because I see the turn there. So it’s sort of facing, it’s going to be hard to
see way down at the other end of the road.
MR. STONE-They’ll clock it to their best advantage, but it’ll be in some kind of narrow angle, I
would imagine.
MR. URRICO-I know you can’t depict it exactly on this depiction here, but I was just curious.
Okay.
MR. HAYES-The point of relief is going to be to the, essentially, to the pole then, because if they
moved it around, it would be towards the outside of the sign.
MR. BROWN-Correct. We measure to the sign, not the pole.
MR. HAYES-Right.
MR. BROWN-In this case it’s to the pole, because the sign’s behind the.
MR. HAYES-Okay.
MR. BONDI-If you can see in the background, you can see where the Sunoco pole was, where
the pole itself is further out.
MR. STONE-Where it still is.
MR. BONDI-Plus there was a center mount. So the sign came way past where the pole is.
MR. STONE-Okay. Anybody got anything else before we open the public hearing? All right.
Let me open the public hearing. Anybody wishing to speak in favor of this application? In
favor of? Anybody opposed to this application?
MR. UNDERWOOD-We have one letter.
MR. STONE-Okay.
MR. UNDERWOOD-This is a note from William Gates, who’s at 1 Glenwood Avenue. I believe
that’s the house right on the corner there. “To Whom It May Concern: Due to the angle of the
building and the fact it is on an open corner – a sign across the front of the building should
suffice. However, if a sign is needed, I feel it belongs in the same northwest corner of the
property where the Sunoco sign once stood. I’d hate to see a sign located out on the front
corner of the lot where Glen Street meets Glenwood Avenue! Please keep in mind that my
home, and my neighbors homes across Glenwood Avenue, are zoned Residential – and I (we)
feel that commercial encroachment by signs, or any other commercial structure, should not
encroach on us any more than is necessary. Sincerely, William Gates 1 Glenwood Avenue”
MR. STONE-That’s it.
MR. UNDERWOOD-That’s it.
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-Let me just ask a question. You feel that you are putting the sign where he
indicates he would like to see it?
MR. BONDI-Yes, I do.
MR. STONE-If you have to have a sign.
MR. BONDI-Right.
MR. STONE-Okay. All right. Any other comments? Any other questions? Well, having said
that, let’s talk about it. Let’s start with Chuck Abbate.
MR. ABBATE-Okay. Thank you. The business obviously requires some sort of advertisement.
If we could grant advertisement to Wal-Mart, we can certainly grant advertisement to USA.
Staff comments, they have enforced the fact that the sign proposed will be, would encroach less
on the front setback than the old Sunoco sign. That’s a plus. You’re proposing to construct a
48.5 square foot 15 foot high freestanding sign using the same footing as it previously used for
the former Sunoco freestanding sign. That’s a plus. I don’t see anything, unless some of my
other Board members raise issues, where I would not be in favor of the application.
MR. STONE-Joyce?
MRS. HUNT-I agree with Mr. Abbate. I don’t have any objections at all.
MR. STONE-Roy?
MR. URRICO-Yes, this does appear to be the most logical location for a sign, and I appreciate
the fact that it’s lessened the relief needed because of it. So I’d be in favor of it.
MR. STONE-Jaime?
MR. HAYES-I essentially agree with the other Board members, and the letter that was written. I
think if this sign had been proposed out on the corner, I would think it would be misplaced and
I would not have been in favor, but in this particular case, it seems like the most logical place to
place the sign, and as I look at the picture that was provided by the applicant’s agent, it looks
like this sign will be entirely consistent with Enterprise, Friendly’s, Glens Falls National Bank,
right down there. So I don’t think it’s going to change the character of the neighborhood, you
know, in this particular case. So most of the time you leave here empty handed, but tonight
things look good.
MR. STONE-Jim?
MR. UNDERWOOD-Yes. I have no problem with the request.
MR. STONE-Leo?
MR. RIGBY-I agree with the rest of the Board, too. I think it’s really the only answer for a sign
on that property. So I’m in favor of it, too.
MR. STONE-I agree with the rest of the Board. I think it’s the logical place to put a sign. We
had a sign there. We’re going to put a sign which is less intrusive, as far as the setback is
concerned, and therefore I think it’s a reasonable placement. We have addressed, in a sense, the
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(Queensbury ZBA Meeting 4/28/04)
neighbor’s one comment, and I think we’re in good shape. Having said that, however, this is an
Unlisted Action.
MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM
SHOWS THERE ARE NO NEGATIVE IMPACTS CAUSED BY THIS PROJECT,
SPECIFICALLY SIGN VARIANCE 28-2004 USA GAS, YALCIN OZBAY, Introduced by
Lewis Stone who moved for its adoption, seconded by Paul Hayes:
Duly adopted this 28 day of April, 2004, by the following vote:
th
AYES: Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. Rigby, Mr. Underwood, Mr. Hayes, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MOTION TO APPROVE SIGN VARIANCE NO. 28-2004 USA GAS, YALCIN OZBAY,
Introduced by Joyce Hunt who moved for its adoption, seconded by Charles Abbate:
658 State Route 9. The applicant proposes to construct a 48.5 square foot 15 foot high
freestanding sign. The proposal includes utilizing the same footing as previously used for the
former Sunoco freestanding sign. The applicant requests 12 feet of relief from the 15-foot
minimum front setback requirement, per Section 140-6B(1). Would an undesirable change be
produced in the character of the neighborhood or a detriment to nearby properties be created? I
don’t think so. The benefit sought by the applicant could really not be achieved by some other
method. Is the request of the Sign Variance substantial? Could be, but I don’t really think
there’s any other solution. Whether the proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or district. I think it sort of
goes right along with the other signs there, and whether the difficulty is self-created? I guess it
is, since he wants to advertise his business. So I make a motion that we pass this Sign Variance.
Duly adopted this 28 day of April, 2004, by the following vote:
th
AYES: Mr. Rigby, Mr. Urrico, Mr. Hayes, Mr. Underwood, Mr. Abbate, Mrs. Hunt, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-There you go, sir. You win one.
MR. BONDI-Thank you very much.
AREA VARIANCE NO. 29-2004 SEQRA TYPE: II JOSEPH RIITANO AGENT: ANDREW
BRICK, ESQ. OWNER: JOSEPH RIITANO ZONING: WR-1A, CEA LOCATION: 16
SUNSET LANE APPLICANT HAS CONSTRUCTED PORCH AND DECK ADDITIONS
AND SEEKS RELIEF FROM THE MINIMUM FRONT AND SIDE SETBACK
REQUIREMENTS. ALSO, RELIEF IS REQUESTED FROM THE PERMEABILITY
REQUIREMENTS AND CONTINUATION REQUIREMENTS. CROSS REFERENCE: BP
2002-866, AV 89-2003, AV 56-2002 WARREN COUNTY PLANNING: 4/14/04 LOT SIZE: 0.17
ACRES TAX MAP NO. 226.19-1-9 SECTION: 179-4-030 179-13-010
ANDREW BRICK, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 29-2004, Joseph Riitano, Meeting Date: April 28, 2004
“Project Location: 16 Sunset Lane Description of Proposed Project: Applicant has constructed
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(Queensbury ZBA Meeting 4/28/04)
porch and deck additions, and has constructed 570 sq. ft. of basement garage space. The
applicant proposes to reduce the current Floor Area Ratio (FAR) by converting 273 sq. ft. of
basement garage space to storage space.
Relief Required:
1) 5.4 feet of relief from the 30-foot minimum front setback requirement.
2) 10.4 feet of relief from the 20-foot minimum side setback requirement (east side).
3) 7.4 feet of relief from the 20-foot minimum side setback requirement (west side).
4) 7% of relief from the 22% maximum Floor Area Ratio (FAR) requirement (Note: the
applicant has not requested any FAR relief).
5) 16.4% of relief from the 65% minimum permeability requirement (Note: the
application lists a proposed permeability of 60%, which would require 5% of relief
from the minimum requirement).
Relief 1-5 per §179-4-030 for the WR-1A Zone.
6) Relief from the requirements of the Continuation section of the code, per §179-13-010
(A1 and E).
Parcel History (construction/site plan/variance, etc.):
AV 89-2003: denied 12/17/03, same as
this application, except for additional FAR relief requested.
BP 2002-866: 10/25/02, construction of a 319 sq. ft. residential addition.
AV 56-2002: withdrawn 07/24/02, front and side setback relief, relief from the FAR
requirements, and for the expansion of a nonconforming structure for the construction of a 1293
sq. ft. second story addition.
BP 2002-442: 06/11/02, septic alteration.
Staff comments:
The dwelling currently existing on the site differs significantly from the original plans
submitted for BP 2002-866. Specifically, the entire roof system, front porch and back patio area
were not envisioned in the original plans. Revised plans were submitted to this office only after
the building changes had been constructed. While not identical, the constructed home appears
to require similar relief to that relief requested in AV 56-2002, which was presented to the
Board, and withdrawn by the applicant (even though the relief appears to be similar, the
proposed expansion in AV 56-2002 included a second story addition, which was not built or
currently proposed).
The current application appears to be the same as that of AV 89-2003, with the exception of the
amount of FAR relief required (currently 7% and previously 10.6%). Due to the relief requested
by the applicant being different enough from the previously denied AV 89-2003, the Zoning
Administrator determined the new relief requested should be reviewed as a new application.
Upon review of the new application, some of the relief requested appears to be different from
the actual relief required (permeability and FAR). The Zoning Administrator has determined
the board can still review the application, being the amount of relief required is different from
that of AV 89-2003. The new FAR proposed was thought to be at a compliant percentage;
however, the proposal to convert the 273 sq. ft. of basement garage to storage was incorrectly
subtracted from the 1,868 sq. ft. total existing floor area referenced on the VanDusen and Steves
survey submitted. The 1,868 sq. ft. of floor area only includes the main floor of the dwelling
and the covered porch. The applicant claims he thought the 1,868 sq. ft. also included the 570
sq. ft. of basement garage space. The 29% FAR determined by staff does include that portion of
the basement proposed to remain as garage space (297 sq. ft.). Even if the applicant proposed to
convert all of the basement to storage only (no living space or garage), the applicant would still
need 3% of relief from the 22% maximum FAR requirement. The 3% would include the covered
porch. If the covered porch were to be removed, the dwelling would be at a compliant FAR
(1632 / 7463 = 21.87%).”
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(Queensbury ZBA Meeting 4/28/04)
MR. STONE-Instead of saying “storage” space, non-livable space.
MR. BROWN-Yes, that’s fine.
MR. STONE-We don’t define storage space. Okay. Go.
MR. BRICK-Good evening. Hi. My name’s Andy Brick. I’m an attorney for Joe Riitano. First,
Mr. Chair, I have received a courtesy copy of a request by the attorney for a neighbor to have a
hearing prior to me speaking to you this evening. I don’t know whether or not you’re going to
rule on that, prior to me speaking, but I just wanted.
MR. STONE-I know nothing of which you speak.
MR. BRICK-That being said, I’m here, I’m representing Joe Riitano. I have two goals here with
you this evening, and I know it’s late, and I will do my best to get through this quickly, but the
two goals are this. First of all, I have been directed by my client, and I need to do this, as an
attorney and as an advocate, I need to correct the record to make you people know that my
client is not what he’s being accused to be in the correspondence you have been receiving.
MR. STONE-That has not been entered into the record yet. So, we’re not going to discuss it
until it is.
MR. BRICK-Well, in the record in December, Mr. Chair, someone said that my client was before
you with unclean hands, and, you know what, he was. He made a mistake. He’s not before
you requesting variances to construct something. It’s been constructed. So, therefore, unclean
hands, I agree, but it’s important to differentiate between unclean hands that are intentionally
dirty, versus mistakes. My client, if I can briefly go through the history, and I know, you have
more of a history of this than I. My client appeared before you, asked for a second story, and
was told he could not have a second story, or, well not told, but he withdrew his application.
He then put forth building permit plans that were approved, that did not include a second
story. During the course of construction, his engineer and his contractor did come to him and
say, you know what, we can get you more space if we increase the pitch. The building footprint
allows for a higher pitch of roof, and we can get you an (lost word). My client approved that
change from the building permit plans, while the building was open. While the roof was gone,
and then that occurred. So now you have a building that does not meet the plans. Mr. Hatin, I
believe his name is, came by and said, hey, I approved the plans, and that doesn’t match it.
You’ve got to amend your plans. You’ve got to come back to me, and you’ve got to get
approval from the Town. Joe did that. Joe had his engineer and his architect amend the plans,
come to Mr. Hatin, come in to the Town, and get approval. He got approval for what exists
there right now, in terms of the roof, in terms of the scope of the roof, in terms of the pitch of the
roof. That is not an issue before this Board. Despite the fact that people want to make that an
issue, despite the fact that attorneys call it an illegal second floor when your building inspector
has, in fact, stated that it’s attic space and has issued a permit for its construction, and that’s an
issue that I don’t think that needs to cloud the issues that are here. We do need a lot of
variances. We need a number of variances, but I would submit to you this evening, and that’s
the issue. That’s where we are tonight, and of course, in December, Mr. Riitano appeared here.
He thought he was here just for the porch. He thought he was here just to legalize the covering
over the porch. In reading the transcript, I think that the Board really gave their best effort to
explain to my client that perhaps he needed someone like me or an engineer or an architect here
to present his case, and on behalf of my client, I do appreciate that. I read the transcript, and I
know exactly what was being said, and I do appreciate that. That being said, my client still, Mr.
Riitano, he needs variances. The variances that he needs, in terms of the Staff notes, first let me
say that I agree with, I’ve been working, for the last three and a half weeks, with Bruce Frank, I
believe his name is, Code Enforcement Officer, and he apparently had this, but now Craig has
this.
MR. STONE-Well, Craig is Bruce’s boss.
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(Queensbury ZBA Meeting 4/28/04)
MR. BRICK-Okay. Well, then, let me say, in Bruce’s defense, I completely agree with his
numbers, and I’ll tell it right to his boss. He contacted me.
MR. STONE-You’re saying you agree with the numbers that are in Staff notes?
MR. BRICK-No, I agree with some of them. I agree with the Floor Area Ratio request is indeed
seven percent. It was my mistake on the application, and Bruce and, I believe in consultation
with Dave Hatin and Craig Brown, brought it to my attention that indeed there was a certain
amount of square footage that wasn’t included in the application. We thought that we were
coming before you this evening and we had eliminated the floor area ratio request. We thought
we had gotten around that, but we didn’t, and they brought, and I agree with them. We are
requesting, we’re requesting that the Board accept our proposal to amend our application to
include a seven percent floor area ratio request, and again, that’s based upon.
MR. STONE-What was advertised, Craig?
MR. BROWN-Generic Floor Area Ratio. There’s no.
MR. STONE-Just a generic Floor Area Ratio. Okay.
MR. BRICK-And again, that’s deferring to the numbers that were provided by Staff, which were
correct, an I do also have to point out that the mistake in the application was mine, not my
client’s. It was not a scam. It was not another attempt to circumvent the law. It was not
another attempt to outfox you as a Board. It was my mistake. I went to law school because I
was bad at math. The other problem with, not problem, but the issue with the Staff notes is, in
consultation with, I believe it’s Code Enforcement Officer Frank, I suggested to him that I
thought our permeability numbers were wrong. He, frankly, told me, that’s my problem. I
need to work that out with my surveyor. I have done that. It’s a busy time of year. I really
haven’t had a chance to touch base with Matt Steves until actually yesterday. I called him last
week. He was working on it. I touched base with him yesterday and he did confirm that the
numbers on the plan before you are off, and he has corrected them. I have new plot plans that
show a new permeability number, which I have provided, just so you know, as a courtesy copy
to an applicant, or a neighbor’s attorney who has an attorney here, I provided him, prior to this
meeting, a copy of the new map. I would request at this time that the Staff notes, or that this
application be amended to include a request for a seven percent Floor Area Ratio, as well as an
8.3% permeability, which is reduced from the 16. something that we had originally requested.
MR. STONE-16.4.
MR. BRICK-May I submit that?
MR. STONE-You certainly may, but recognize that we haven’t had a chance to go over it and
look at it in any detail, and we sometimes frown on getting materials of a pertinent nature at a
meeting.
MR. BRICK-Mr. Chairman, I don’t like surprises either. I understand that. I did contact Mr.
Brown yesterday.
MR. STONE-He’s right here.
MR. BRICK-I know, and he will confirm that I did ask him, not being here before, I didn’t know
what would be appropriate. Would it be appropriate for us to request an adjournment? Would
it be appropriate for us to request that you table this until you have a chance to review the
plans?
MR. STONE-Well, certainly that’s a possibility, but when we announce a public hearing, and we
have people, I assume you people want to speak on this subject, somebody does, I know you
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do, and I realize you’re from out of town, not Mr. Caffry, I know that. So what I would do, I
would like you to at least, to revise the thing, so that we know what you’re looking for, and I
would open the public hearing, and then I would certainly encourage a tabling, so that we get a
chance to look at every number. Because you’ve given us okay on one and a different number
on another, and I, for one, would like to think about it, but we would listen to the neighbor.
MR. BRICK-And just let me be clear. I am not trying to confuse. I’m not trying to confiscate.
I’m not trying to say the ball’s over here, when it’s down here.
MR. STONE-I understand.
MR. BRICK-I’m trying to get everybody on the same page in terms of what numbers are being
requested.
MR. STONE-And that’s where we want to go, because we need to know that before we do any
consideration. Continue that way.
MR. BRICK-And I do believe that at this juncture, the numbers that are being requested are all
those in the Staff notes, except the permeability is now a request of 8.4.
MR. STONE-And, Mr. Brown, have you had a chance to even look at that? Okay. So that’s,
you’re suggesting, you’re asking for 8.4. We haven’t confirmed whether that’s correct or not.
Okay. Keep going.
MR. BRICK-That is correct. He has not seen that.
MR. STONE-Okay. So what you’re saying, number one, 5.4, number two, 10.4, three, 7.4, four is
now 7 percent, and you’re saying that five is 8.4. Everything else being?
MR. BRICK-Correct.
MR. STONE-Okay.
MR. HAYES-So the dimensional relief is all the same. We’re just talking about a permeability
change?
MR. BRICK-Right. It’s a permeability change. There has been no dimensional change, except
for the fact that Code Enforcement Officer Frank said a seven percent Floor Area Ratio is
required, and we are amending our application to request that because he’s right, quite frankly.
He’s right.
MR. STONE-Okay. So you’re saying that the building has a Floor Area Ratio of 29%.
MR. BRICK-Correct.
MR. STONE-Okay. Because sometimes seven percent of a number is different than seven
percent added to a number.
MR. BRICK-Right.
MR. STONE-Okay.
MR. BRICK-Let me state for the record that I would defer to the numbers provided by the Town
Staff, because they were right. They did the math and they were correct.
MR. STONE-Okay, but we don’t know whether 8.4 is right, because Town Staff has not had a
chance to comment on it, nor have we.
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MR. BRICK-But I do have a surveyor who stamped it. So I’m going to rely upon that.
MR. STONE-Sometimes we send him away unhappy, too. Not because of the surveying.
MR. BROWN-If I could take a look at that, I may be able to review it and be prepared in case
you have some questions.
MR. STONE-Okay. You can give us all copies of it. We’ll take it. Are you finished with your
presentation?
MR. BRICK-No, unfortunately I’m not.
MR. STONE-Okay.
MR. BRICK-And again, I will be brief, because I know it’s getting late, and I know there are
people here that want to speak on behalf of this application, but what’s important for you to
know, and I will go through the test, and I’ll go through the test very quickly, but what’s
important for you to know is that the information that has been provided to you in the past has,
in my opinion, confused the issue. Here’s what happened. My client got a building permit to
build something. In the middle of construction, his guys came to him, and said, you know, we
can build a better pitch, and we can get you more attic space, and he said, all right, go do it, and
that was his mistake, and in terms of unclean hands, yes, that was a mistake right there. Now
that pitch has been alleged to create an illegal second floor. There is no second floor. He has a
building permit for what was constructed, but in the course of raising the roof, the roof came
out over the porch. Once it came out over the porch, that triggered the need for a Floor Area
Ratio variance, and once that was triggered, he needed a variance for everything. Of the
variances before you this evening, the only one that is different than what has existed is the
Floor Area, and it’s a direct result of the porch, if we can go through them briefly. I take that
back, the front yard is different.
MR. STONE-Let me ask you a question before you go there. You provided something here, S-1,
Sheet One of Two, dated January 25, 2002. I see no updates. Maybe I’m wrong, but I don’t see
any.
MR. BRICK-Do you have one dated 4/27/04?
MR. STONE-No.
MR. BROWN-That’s the one you just gave him?
MR. BRICK-Right. 4/27/04.
MR. BROWN-That’s the new map that he just gave you, that 4/27/04.
MR. STONE-I’m sorry. I missed it. My fault. I’m in error. It’s getting late. Go ahead. I’m
sorry.
MR. BRICK-Okay. In terms of the variances being requested, I would like to take each one
individually, and again, not to belabor the point, but the side yard variances, there is nothing,
nothing has happened at that property that has increased encroachment into the side yards.
The side yard variances are requested because once the porch got covered, and you need a
variance, you have to come into compliance, as you know, the whole property has to come into
compliance. There is nothing that has changed, in terms of the footprint of the building, that
encroached into the east or west side yard, greater than what has existed since the building was
constructed. They’re being requested because there has been alteration on the property.
MR. ABBATE-Mr. Chairman, you want the record to be accurate, do you not, Counselor?
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MR. BRICK-Yes, I do.
MR. ABBATE-Okay. You’re indicating there’s nothing that encroaches. Your applicant
indicates that there is. He has it encroaches only minimally, nonetheless, it encroaches, now
you’re saying it doesn’t. So let’s get the record straight. Either it does or it doesn’t.
MR. BRICK-It encroaches to the extent that it has since it was built in the early 1960’s. What has
occurred is, once Joe put the roof over the porch, and that triggered the Floor Area Ratio
variance, he has to bring the whole property into compliance. So now he has to get side yard
variances for the space that has existed since the early 1960’s when the building was
constructed. So it does minimally encroach. For example, on the west it’s, I believe it’s 7.
something. It’s 7., I can’t do the math, but there’s an encroachment, but that is not an
encroachment that the new construction has created. That’s where the building always has
been, but now that, in his mind, I’m sure he made the mistake of putting a cover over the porch,
because had he not covered the porch, we wouldn’t be here. He had his building permit. Had
he not covered the porch, he wouldn’t have needed any variances. What happened is, once he
covered the porch, it triggered a need for a Floor Area Ratio variance, which triggered the need,
once you need one variance, you need all the variances. It triggered the need for the side yard
variances. He hasn’t encroached on any of the side yards. It’s the same thing, but now he has
to legalize what has been there for 40 years, because of the roof over the porch.
MR. STONE-Are you buying this, Craig?
MR. BROWN-Well, if I could just jump in for a second.
MR. STONE-Sure.
MR. BROWN-Am I buying it? Probably not too much of it, and on behalf of the benefit of the
applicant, once you perform some new construction, that’s the part that needs to meet the
setbacks. You don’t have to bring the site into compliance once you create a violation. You
only have to ensure that any new construction meets the setbacks. If any new construction, the
concrete porch in the back, or the porch in the front, that new construction doesn’t meet the
setbacks, that’s what you need the variance for, that new construction, not for the existing
structure. I buy the argument that the encroachments aren’t any more than what was there
before, to the point where it is, because it’s new construction. It’s outside the footprint of the
original structure. So that’s what the variance is for.
MR. BRICK-But, Craig, then you would agree with me that the concrete deck on the west side is
not encroaching more than the existing structure. It’s in the building line. The building line has
been there since the early 1960’s.
MR. BROWN-I don’t disagree with that, but it is new construction that has to meet the setbacks.
So that’s what the need for the variance is.
MR. BRICK-Okay, and I’m sorry, then I stand corrected. The side yard variance on the west
side is necessary because it’s new construction. However, it is not, in any way, more
encroaching upon that side yard than what has existed there for 40 years.
MR. BROWN-That sounds fair. That’s an argument, but.
MR. STONE-That’s all right. We’ll accept it for the moment.
MR. BRICK-In terms of the east side, again, the same argument. There is nothing that has been
constructed that goes further into the side yard than what has existed since the early 1960’s.
There is nothing there. In terms of the porch, and I have a copy of the plot plan that was
provided, I believe, by a, someone who spoke at the hearing in 2002, which shows that there is
nothing on either side yard that is more encroaching. As a matter of fact, it’s in conformity with
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what existed prior to what was constructed, and again, I’m not trying to hide the ball here. I’m
just trying to.
MR. STONE-Okay. Just keep going.
MR. BRICK-Okay. In terms of front yard, there is a change. The new construction has resulted
in a change. The new dimensions in the front yard are 24.66, and again, to refer to the plot plan,
I don’t have an actual copy of it, but I do have a copy from Town records that were submitted
from someone in opposition. It was 25., and I don’t have the exact number, but the net result is,
the new porch encroaches into the front yard 1.08 feet further than the porch that existed at the
time, and I can document that for the Board. So, although we’re requesting a variance in the
front yard, that seems substantial, it really is only 1.08 feet further encroaching into the front
yard than what existed prior to the construction. Second of all, I’m sure you’ve all been in that
neighborhood. Some of you may live there. There are, you’d be hard pressed to find a property
or a structure in that neighborhood that meets current zoning. The fact that there is a 1.08 foot
encroachment into the front yard is still less than a lot of other front yards, and a lot of
encroachments that exist in that neighborhood. In terms of the permeability, I think this Board
may themselves very clear on December 17. I read the transcript. I wasn’t here. I read the
th
transcript. My client was here. I read what was said. I got the message. What was proposed
was unacceptable, and I can appreciate that. We have come back with a new proposal. What
we have done, if you remember in December there was a wraparound driveway. That has been
eliminated. There was a permeability concern. The original request for permeability was huge.
We’ve drastically reduced it. In terms of Floor Area Ratio, that appeared to be unacceptable to
the Board at that time. We went back and we recalculated and what we did is we eliminated
one of the garages. Under your Code, garages count towards Floor Area Ratio. So in effect
what we did is eliminate something as garage and made it storage area. That has reduced the
Floor Area Ratio down to seven percent. We came in in December at 10% Floor Area Ratio, and
now we’re at 7%. Came in at a 16. something percent permeability. We’ve reduced that to 8
percent. We’ve cut it in half. If you’ve been to the site, and I encourage you to go there, the
property is in keeping with the neighborhood. There are concerns about, people keep talking
about a second floor. There is no second floor. Dave Hatin has been there. There’s an attic, but
even, no matter what you call it, it’s underneath. There is no height variance being requested.
This building is underneath the height requirements of your Code, and at the same time, if look
in that neighborhood, you will see, it is by far not the tallest building. There are numerous two
story structures on the street. You can sit on the porch, which is the subject of this application,
and look at two story structures that dominate over this property. The second story isn’t an
issue because it’s not a second story. Dave Hatin has been. He has approved the plans. He has
inspected the attic, and he has no problem with it. He is your Building Inspector. The fact that
a neighbor dislikes it, the fact that a neighbor has characterized it as an illegal second floor
doesn’t make it.
MR. STONE-Right now, you are before us with an Area Variance. We don’t know what the
neighbor thinks. We have gotten correspondence, but that’s individual correspondence. I want
to move this along. I mean, I don’t want to cut you off if you have something to say, but I don’t
want to go there yet. We may get there, but I don’t want to go there yet.
MR. BRICK-I understand, and I agree with you. I’m sorry. I can be longwinded. My client
made a mistake. My client approved a change in design during construction that altered the
building permit he had been issued. He immediately went and got a new building permit that
conforms to what he built, and that permit was issued. He didn’t count on the zoning. The
zoning kicked in and said, hey, that’s fine you have a building permit, but what you did now
requires a Floor Area Ratio, and that’s why we’re here. It’s an honest mistake, and one thing, if
you take away from anything tonight, it was an honest mistake. We’re doing our best to correct
it. Does the benefit to the applicant outweigh the detriment to the health, safety and welfare of
the neighborhood or the community by granting the Area Variance? The benefit to the
applicant, at this juncture, is we’re trying to save that covered porch. We’re trying to seek
approval from you for those variances necessary to save the covered porch. Whether or not that
outweighs the detriment to the community, I don’t know. In my experience, I grew up in a
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seasonal beach community, and the Floor Area Ratio for covered porches, and Craig could
correct me if I’m wrong, but when it comes to seasonal beach communities, the reason they
include covered porches in Floor Area Ratio is because they’re concerned that the covered
porch, once you get a building permit, would be converted to living space, and traditionally, in
my experience, I’ve been doing zoning and planning for 10 years, and again, I grew up in a
seasonal community where I saw this, that the idea of keeping the covered porches in the Floor
Area Ratio is to prevent it from becoming a bedroom. I can state for the record here this
evening, that the porch that has been constructed, that has been covered, will always remain a
porch. There’s no two ways about it. It will never be enclosed. It is a porch, and if you look at
the numbers, and I know there’s a lot of numbers flying around, but the bottom line is the seven
percent requested is to save the covering of the porch. That’s what’s being requested. Let my
client keep the roof over the porch. If he went in with a chainsaw and cut that covering off the
porch, he wouldn’t need a Floor Area Ratio variance, and arguably, he wouldn’t even need to
be before you, but if he did that, frankly, the house would look stupid. Now, I know what
you’re going to say to me, well, he built it that way, now he’s got to pay the price. Right, but
you have to look at it. We can cut that roof off and walk away from this whole thing. The
house is going to look stupid, and in terms of the benefit to the community as a whole, or the
detriment to the community, his neighbors are going to be known as the people that live next to
the house that looks goofy, you know, and if that’s the decision you’re going to make, then
that’s fine. So that actually, you know, answers Number Two, whether the benefit can be
sought by some other means. Yes, we can go in there with chainsaws and we can cut the thing
straight up, and I don’t think anybody’s going to be happy. I think it’s going to look bizarre,
and those of you that have been there, and I know you’ve seen pictures, it would look very
bizarre. Can it be done? Yes. Is it feasible? Yes, it can be done. It’s going to cost my client
money, but it can be done. The Area Variance, whether it’s substantial. Yes. The side yards are
very substantial, but, keeping in mind that that’s what existed. He hasn’t extended beyond the
footprint. He’s only requesting what was there anyway. So I would argue that, although
substantial, they’re not really detrimental. Adverse impact, I think the adverse impact would
be denying his ability to keep what has been constructed, because, like I said, and, you know,
I’ll probably go down in history as the guy that showed up in Queensbury and made the
argument about, you don’t want goofy houses, but this, if you deny the variance, you’re going
to require my client to cut that roof off, and the roof is going to stay. The roof, he has a building
permit for the attic. It’s not, despite his neighbors protestations, that’s not coming down. We
could cut the roof off above the porch at this juncture, but I just don’t think it’s in anyone’s
benefit to do that, at that point, and, lastly, Number Five, is the difficulty self-created? Yes. I
started off with that. The difficult is completely self-created.
MR. STONE-You’re done now? I’m not trying to cut you off. I just want to be sure you’re done
before I open it to questions.
MR. BRICK-Yes.
MR. STONE-Okay. Mr. Abbate, you look like you’re eager.
MR. ABBATE-Yes. If you don’t mind. Mr. Riitano, you are a very fortunate man and have a
very competent attorney. He has a very persuasive opening statement, which I totally disagree
with. So I would like to address a number of comments that Counsel has stated this evening.
What’s confusing, basically, are some of the answers that your client provided. Your client
answered the following questions on the form submitted for a variance request as how would
you benefit from the granting of this Area Variance. Your client responds, quote, allow for an
aesthetically pleasing covered front porch which only minimally encroaches. There is an
acknowledgement of an encroachment, into front yard setback. Allows for an existing concrete
pad to remain east side which only minimally encroaches, there is an acknowledgement of
encroachment, from a prior nonconforming setback, unquote. Now your client also states that
the front covered porch encroaches into the front yard setback. Another acknowledgement of
an encroachment. Two, how would you benefit? Your client states, quote, the variances, if
allowed, would increase property values, unquote. This Board does not function on the
premise that approval would be increasing the property value. Question Three. Are there
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feasible alternatives to this variance? Your client acknowledges, as you, that there is, in fact, at
least one feasible alternative as it relates to the porch. He states, quote, alternative would be to
remove the roof over the porch, unquote. Question Four. Is the amount of relief substantial
relief relative to the Ordinance? Your client states, quote, the relief requested is not substantial
when one views other properties in the area, unquote. The observation of your client on the
condition of other structures in the area as justification is not relevant. Number Five. Question,
Will the variance have an adverse effect or impact on the physical or environmental conditions
in the neighborhood or district? Your client states, quote, this variance request will not have an
adverse impact on the condition of the neighborhood, unquote, and I submit that at last meeting
that neighbors have testified rather vigorously challenging your client’s cooperation. Now, and
this is where I become perplexed. At the 12/17/03 ZBA meeting, your client requested a
number of things. At the 4/28/04 ZBA meeting, basically, most of the majority of those were
identical requests from 12/17/03. Now, perception. You’re not good at math, so I’m not going
to, neither am I. You approached the mathematical probabilities in terms of what has to be
done and what has not been done. I’m going to take this from a philosophical point of view.
Your client’s applications, each and every time, exhibits nothing but what appears to be
cosmetic attempts to circumvent the actual facts of this case. He, indeed, was not
straightforward in each and every application and pleaded ignorance to Zoning Ordinances.
This I say, again, raises a red flag as to the intent of your client. Specifically, the construction of
an unauthorized entire roof system as unauthorized and an unauthorized front porch and a
back patio area, and negatively modified the permeability of a section of his property, all of
which were not included in the original plans submitted to this Town. Each of us has a duty, in
areas outside of our expertise, to seek advice. Your client, until now, chose to block his eyes to
the Town, to the Zoning Ordinances, and to the experts in the Zoning Office and not the least, to
his neighbors, and finally it is my assertion, based on these facts, and you admitted this, that
your client’s actions, as a result of his agenda, is indisputably self-created. Thank you.
MR. STONE-I’ll let you answer, but did you do permeability, if you have been able to?
MR. BROWN-Yes, I have been able to.
MR. STONE-Do you have an answer?
MR. BROWN-Yes. Basically what it looks like, if you have the plan in front of you, the
driveway area to the left, front of the house, that is proposed to be converted from gravel,
remove it, to green space, which accounts for the change in eightish, eight percent in the
number of permeability request.
MR. BRICK-8.4.
MR. BROWN-8.4, yes.
MRS. HUNT-So you’re saying the crushed stone area is not considered permeable?
MR. HAYES-No.
MR. BROWN-That’s correct.
MR. STONE-That’s correct.
MR. BROWN-And they’re proposing to remove that, convert it to green space which lowers the
impermeable number, and I agree with what they’ve done.
MR. STONE-So you’re saying if they move that.
MR. HAYES-The math of it.
MR. STONE-You agree with the math.
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MR. BROWN-I agree with the math.
MR. STONE-If in fact that area, that rectangle from the road back, that’s crushed stone.
MR. BROWN-I think it’s labeled 371 square feet. Just on the west side.
MR. STONE-You mean up on the 317, on the west side?
MR. BROWN-317.
MR. STONE-Okay.
MR. BROWN-All the crushed stone on the east side is proposed to stay, in my understanding,
as the driveway. The only crushed stone to be removed is to the west, or the front and west of
the house.
MR. STONE-Okay.
MR. BRICK-And, Mr. Chairman, if I may, the number on the plot plan that was submitted to
this Board with this application, the total non-permeable number was not correct. So, that has
been corrected, along with the southwest corner being included as being removed, and that, I
think one thing we have here this evening is we all have numbers that everyone agrees on.
MR. STONE-Okay. Any other questions?
MRS. HUNT-Yes, I do. Craig, would you show us the side view of the house? Now, Area
Variance 56-2002 requested a second story addition, and that was withdrawn, and then the
building plans did not include that, but that sure looks like a second story addition to me. That
they’re not just pumping up the roof a bit.
MR. BRICK-Ms. Hunt, in response to your question, the Building Inspector of the Town of
Queensbury reviewed the plans that included that roof. He has actually inspected the area that
you’re calling a second story, but in fact is an attic. He’s inspected it. He has made a
determination, and has issued a building permit that it’s not a second story. It is storage space.
MRS. HUNT-No, but by putting it that way, you made the porch. You created a porch.
MR. BRICK-Correct, however, if, and again, picture the guys with the chainsaws going straight
up from the porch. Straight up. Cutting that off. That can be done, and then there’s no other
Town approval required. That area stays, as long as the engineering can support the fact that
it’s no longer a covered porch.
MR. STONE-Okay, but the area upstairs right now is non-living space.
MR. BRICK-It’s non-living space.
MR. STONE-But it could be finished.
MR. HAYES-He’d still need dimensional relief for the new construction of the porch. Right?
MR. BRICK-I don’t think so. I don’t think it could.
MRS. HUNT-What is the height of the?
MR. BRICK-The window, just so you know, the window with that half moon is on the floor. If
that was living space, you’d actually be looking at the bottom of someone’s bed. The floor is
where the, at the bottom of the window. It’s not something, and again, Dave Hatin has
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confirmed this, and he said, you’ve got to put in certain R-19 insulation or something, but he
said, no, it’s an attic. It is an attic. It’s going to remain an attic. Regardless of what happens
here, and despite what some neighbors may want, that area is going to stay. We have a
building permit for that. That was built properly. The only issue is, once they brought it over
to cover the porch, that triggered the need for you guys.
MR. STONE-Correct, but you also, that concrete pad needs relief.
MR. BRICK-The concrete pad encroaches one foot, 1.08 feet more into the front yard than what
existed prior. There was a.
MR. STONE-Okay. I understand, you said that, but it doesn’t, from the side setback?
MR. BRICK-No, it’s in the building line.
MR. STONE-That’s within the building line.
MR. BRICK-It’s absolutely.
MR. HAYES-That doesn’t make it right, though.
MR. ABBATE-There’s some confusion here.
MR. BROWN-Yes. I agree, it’s definitely within the building line. However, it’s new
construction, and any new construction needs to meet the setback. So if you want to put a front
porch on here, on the front of t his house, it would have to step in to the setback line. You could
certainly do that. By keeping it in line with the house doesn’t automatically give that setback.
MR. STONE-Okay. Well, I’m going to propose that we hold questions. That we open the public
hearing. That we listen to the neighbor or his attorney or anybody else, and then we hold the
public hearing open, and we adjourn for a future meeting, unless you guys don’t agree.
MR. ABBATE-No. I want to do the thing that’s fair to all concerned.
MR. STONE-I understand.
MR. ABBATE-Whatever’s equitable to all parties, that’s fine with me.
MR. URRICO-I just want to follow up on Joyce’s question, because it’s one that enters my mind
as well. Mr. Riitano made an application, back in 2002, for a second floor, and withdrew it
basically because, I was on the Board then, basically because it wasn’t going to be approved.
Okay. So my question is, how do you okay additional construction for which you have a
building permit without thinking there might be a problem? You’ve already been through the
process. You know there’s a problem there. I would think it would make sense to step back
and make sure, and that’s what, Ms. Hunt was asking that, and I’m asking that, too.
MR. BRICK-Mr. Urrico, my answer to that would be that when you’re engaged in construction,
when you have a roof over a structure, and you’re getting the roof back on before it rains, and
you don’t know what the weather forecast is, and you have no idea, you have to make decisions
very quickly. When a building is open, and again, I’m not a contractor, but when a building is
open, you have to make your decisions pretty quickly, and the question was asked and the
decision was made quickly. Was it a mistake, yes. Was it wrong? Yes. Does my client regret
it? Yes. He doesn’t want to be here again, you know, this is the second time he’s been here.
Had he, if we had done it differently, he would have never approved that, and we wouldn’t be
bothering you. We wouldn’t be bothering Craig and Bruce and, you know.
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MR. URRICO-That’s where the comment with clean hands comes from. Just so you understand
that. That’s where it comes from. You didn’t come before us first, and ask for it. You came to
us after the construction was done. Okay.
MR. BRICK-My only answer would be, though, it’s tough to wait for a ZBA meeting when your
house has no roof on it.
MR. ABBATE-Okay, and I had another comment, too, that I wanted cleared up, and to follow
up what Joyce and what Roy said, at the 12/17/03 meeting of the ZBA, the Zoning
Administrator stated this, quote, what’s happened since then is some pretty significant changes
to the plan. The roofs, the pitches have changed, floor area ratios have changed, total size of the
building is different than that first plan. Almost to the extent where it is very similar reliefs that
were sought in the original Area Variance application that was withdrawn. The concrete patio
area to the northwest portion of the back of the house wasn’t there. It wasn’t part of the original
construction, and likewise, the actual back porch addition is larger. If you compare the original
site plan, the original survey that was submitted, compared to the current site plan, that
addition on the back of the house is larger with the new building, unquote. Now these are not
my words.
MR. BRICK-Again, the porch on that side, if you look at, the plot plan I have was something
that was submitted by an interested party in ’02, and there is a porch back there. It didn’t reach
the building line. The porch that exists now does reach the building line. It doesn’t encroach
any further out into the side yard, but it does, it has extended, but it’s still within the building
line. So is it different than what existed? Yes. Does it make sense from a practical perspective?
Well, the old one had steps that actually went out into the side yard, whereas this one has steps
that go, they go back into the back yard. So it’s more in conformity with avoiding an
encroachment into the side yard.
MR. STONE-Okay. Any other comments? Let me open the public hearing, and I will remind
Mr. Caffry who is coming up here that we have a five minute limit for the public.
PUBLIC HEARING OPENED
JOHN CAFFRY
MR. CAFFRY-I’d like to ask you to consider waiving the five minute rule, because the applicant
has said so much that bear’s responding to, but we’ll see how I do.
MR. STONE-Okay, and who are you, again?
MR. CAFFRY-I’m John Caffry, from Caffry and Flower, from Glens Falls. I’m representing
Michael Kelly, the adjoining owner, again. Mr. Brick has claimed this was all an honest mistake
by his client. So I feel that we need to address that issue. There’s, in your files, comment letters
from Thomas Lewis, who’s an adjoining property owner. They were faxed from the New York
State Police. I assume he has some connection with the State Police, so I assume he knows that
you’re not supposed to file false instruments. So I’m going to assume he’s got some credibility
here. This is from December, referring to Mr. Riitano. After construction was actually started,
Mr. Riitano seemed very pleased to advise his neighbors that he planned to construct his new
residence as described in his original denied request anyway, since nothing would ever be done
about it. In Mr. Lewis’ letter of this month, the applicant made it arrogantly clear to any
interested party in the Assembly Point area that he intended to construct his residence
according to the original plans which had been denied. Some of the Board members have
wondered if that’s what he was doing. Mr. Lewis says he was going around the neighborhood
saying that. I think this presents a very important question for the Board, whether you’re going
to enforce your Ordinance, after twice denying this variance application, and whether these
rules mean anything, or whether you’re going to let Mr. Riitano flout it and show that your
Ordinance means nothing, and that everybody who comes before you and tries to comply is
wasting their time. I don’t think you intend that everybody who comes before you is wasting
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their time, and you need to enforce the Ordinance very strictly in this case. I think, and Mr.
Brick referred to this earlier, I think there’s an issue here that could cut the whole debate short.
I filed a letter Monday. I’m surprised that Mr. Stone didn’t get it. I faxed it in and mailed it. So
far as I know, it was received here at the Town Hall.
MR. STONE-I’m sorry. I didn’t understand what he was saying. I have to admit.
MR. CAFFRY-Yes. He’s referring to my letter of April 26.
th
MR. STONE-I have to admit. I decided that it was a new application. It was deemed to be a
new application, by the Town. We are hearing it as a new application that may or may not
color our own thinking, in terms of all of the stuff that’s transpiring, but it was, I thought, easier
to listen because it was deemed a new application.
MR. CAFFRY-Well, I understand that it’s a new application. I agree with that. My point, as set
forth in the letter, is that you can’t file a new application when you’ve already been denied
when it’s basically the same as the prior application, and the Board doesn’t even have to hear it.
MR. STONE-Our Counsel does not agree with that, from my understanding.
MR. CAFFRY-But if I could continue with my point, regardless, with all due respect to your
Counsel, with whom I’ve litigated many zoning cases, and we have a very good professional
relationship, at the last meeting, Mr. McNulty, who is not here tonight, and Mr. Hayes both
said, if this comes back on a different application, it’s going to have to be substantially different,
and this is basically the same application. All the setback variances are exactly the same, and
they were all denied very specifically. The Board made very specific findings that these were
substantial setback variances and denied them. There’s no change in those facts, and it’s my
position that the Board basically is bound by those same findings, and should make the same
decision again. It’s the same building. All they’ve really proposed to do is change a door.
Otherwise, it’s the same building. It’s the same application. With regard to the permeability
variance, what Mr. Brick forgot to mention, and what Mr. Steves didn’t take into account on his
new map is, and this was discussed at great length at the last meeting, there is a lot of gravel
that was placed in the yard. Essentially at one point the entire yard was covered with gravel,
and there were photographs in the record the last time to show that. They put a little bit of dirt
and sod on the top. That does not change the permeability. That’s not shown on Mr. Steves’
map. If you have this table here and you put some dirt on top of it, it’s still an impermeable
table, and that’s what the entire property is basically like. So before anyone believes that this is
now only a 43% impermeable or whatever, you have to go out, I think, and investigate, and see
if all that gravel is all there, and if they want to dig up all the gravel that’s been placed there and
buried with an inch of dirt, then maybe they can get their impermeable area down towards,
somewhere towards the 35% level, but the map that’s presented by Mr. Steves I will say is
incomplete, in that it doesn’t show those areas of buried gravel that were documented at the last
hearing. So we think there’s no significant change here. They’re proposing to pick up about
300 square feet of gravel, compared to almost the entire lot having gravel, or other hard
surfaces. It’s not a significant change. We think it’s the same application. With regard to Floor
Area Ratio, I think the entire basement counts as floor area. There’s no, it’s a full basement. It’s
not a crawl space. It’s not a storage area. It’s not a sub basement or something. Whether you
call it a storage area or not, your Code does not exclude storage areas from the definition of
floor area. They are included we believe. You’ve got garages included. You’ve got all kinds of
areas that technically people don’t live in. How are you ever going to police this? How are you
ever going to monitor it? It’s livable, you know, it’s not a crawl space, and the intent of your
Floor Area rule is to control the bulk of buildings. The other issue with Floor Area Ratio is the
second floor. As someone mentioned, it sure looks like a second floor. It’s got a full walkup
staircase. It could easily have furniture in it, and be livable. He kept referring to Mr. Hatin
issuing a building permit or something for it. I’m not sure if that was issued. Mr. Hatin has
never been before the Board on this. His records are not before the Board, but my
understanding from the last hearing this was clarified by the Staff that Mr. Hatin does building
code. He doesn’t do zoning. It may meet the code, in terms of insulation and how thick the two
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by fours are or whatever the code addresses, but that isn’t a determination of whether or not it
counts towards Floor Area Ratio, and even if there is some interpretation that it has to be
considered living space to be counted, that only applies, as far as I can tell, in basement areas. It
says all floors of the primary structure and covered porches as measured from the outside walls
are part of building floor area, including the basement when at least three feet in height, and the
space meets the requirement for living space. So, with basements you look at some obscure
definition of living space from the State Building Code, which has since been amended and that
definition no longer exists anymore, but if you’re looking at the second floor, you don’t exclude
something just because they claim it’s storage. Again, if it looks like a duck and it quacks like a
duck and it walks like a duck, it’s a duck, and it’s a second floor, and it’s just like what he
applied for in 2002, and was shot down on. Again, the setback variances haven’t changed a bit.
Those were denied. There’s no basis to change them again, and one of the rules with regard to a
second application is you can’t come back and say it’s a new application because we dreamed
up some better arguments, and these arguments about, well, it doesn’t encroach any more than
the old one, you know, he should have thought of that last time. He was offered the chance to
get an attorney. He proceeded. He should have thought of it last time. As far as alternatives.
He had an alternative. He had a building permit to build a single story residence that didn’t
need any variances for Floor Area Ratio or any of that. That’s what he should have built. If this
gets denied again, that’s what he should do. He should remove the illegal portions of this
building and go back to what was in the 2002 building permit that was issued to him. What
he’s done instead is essentially double the size of the building. In terms of effects on the
neighborhood, they still haven’t addressed the flooding problem that effects Mr. Kelly’s
property, that he identified on the record the last time he was here. Obviously the whole
problem is self-created. I’d like to just respond to a few other things that Mr. Brick said. I think
this is not just about the porch roof, and the Staff’s memo outlines that. Even if you got out the
proverbial chainsaws and took off that porch roof, you would still need a Floor Area Ratio
variance, even under their own terms, because there’s still, even on the Staff’s terms, they’re still
counting part of the basement area, because it’s still at least one garage door there, and that
indisputably counts. So it’s not just about the porch. That’s all I have to say. I would agree
that it’s appropriate to table this. I haven’t actually asked my client whether he wants to come
back up again, but just speaking for myself, I think there’s a lot of new information that’s been
dumped on you by this applicant that needs to be investigated, including the permeability
issue, and some of these other things, and I think these things need to be figured out by the Staff
so you’ve got all the facts before you make a decision, but I still believe that we don’t even
belong here. This application’s been decided, it’s been rejected, and there’s no grounds to re-
hear it because it hasn’t changed. Thank you.
MR. STONE-Okay. Thank you.
MICHAEL KELLY
MR. KELLY-My name is Michael Kelly, and you might think that this is a neighbor versus
neighbor thing, and it really is not. I don’t like or dislike the applicant. I really don’t like what
he has done. I spent a lot of money on my property, and it’s appreciated since I bought it with
Diane Nagengast, and I’m trying to protect the value of my property, and I’m trying to protect
my ability to enjoy it. Right now I look out every back window of my house, and this thing is,
just fills every window because the sheer size of this house, too close to the property line, is too
big, and according to my interpretation of the Ordinance, even if you took that chainsaw and
cut off that front porch roof, you would still have expansion of a nonconforming structure
because the height is higher than it was on a setback that was nonconforming. So I think you
need to take the chainsaw and remove the entire roof structure and that’s what I want. That’s
what was envisioned in the original building permit was to have a roof structure which was
consistent with the original roof structure. I would like to add that what I’ve observed in the
meetings that I’ve been at here and what I have discerned from the multitude of meeting
minutes that I have read, is that almost everyone else comes to the Board and asks for relief,
perhaps in increasing amounts over time for something that they propose. The applicant has
cut to the chase and is now trying to back pedal, and what disturbs me almost as much as the
violations themselves is the complete lack of any enforcement after almost a year that this
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structure has been in all these violations, and we’re here again, four months after everything
was denied. As John said, it raises all kinds of serious questions about the validity of the
Ordinance, and, frankly, I don’t want to table this. I want this over and done with. I put in
some correspondence, how many times do I have to fight this? I’m not fighting him. I’m
fighting this, and I want it over and done with. Thank you.
MR. STONE-Thank you. All right. Anybody else wishing to speak on this issue? Any
correspondence?
MR. UNDERWOOD-We’ve got a lot of correspondence. Mr. Kelly, I assume you don’t want
your letters read in, since we’ve read them?
MR. KELLY-You don’t have to. Thank you.
MR. STONE-Why don’t you just note them, for the record, with the dates.
MR. UNDERWOOD-Yes. There are letters from Mr. Kelly on April 5, April 12, April 14. I
ththth
do have some other letters from other people which I will read in. Okay. I have a letter from a
Mr. Thomas W. Lewis, and it doesn’t have his address on there. He was the one that referred to
as being with BCI and the New York State Police. The letter is addressed to Mr. Charles A.
McNulty, Secretary of the Zoning Board of Appeals, etc., in reference to Joseph Riitano, location
16 Sunset Lane. “I have responded to a similar notice of hearing that was conducted on this
matter last winter. As a result of that hearing, all of the applicant’s variance requests were
summarily denied. Since the initial hearing took place I am not aware of any meaningful
attempt by the applicant to correct the many violations to the Town of Queensbury building
requirements that were incorporated into the applicant’s structure, as completed. In the interest
of brevity I will list the following observations relative to this relief application. 1. The
applicant’s initial request for a building permit was denied due to numerous violations of the
building code. 2. The applicant’s second request for a building permit addressed the initial
violations and a permit was issued. 3. The applicant made it arrogantly clear to any interested
party in the Assembly Point area that he intended to construct his residence according to the
original plans which had been denied. 4. The applicant personally completed construction of
his residence according to his original plans and in violation of building requirements. 5. The
applicant later applied for several variances which were all denied after a hearing had been
conducted. During this hearing the Zoning Board of Appeals made it clear that the violations
were significant and deliberate. 6. I am again troubled that such a hearing would be scheduled
(now for a second time) during a time of the year when almost all interested parties, due to the
seasonal nature of this area, are geographically unable to attend. 7. If the Town is going to
have building codes on its books, it must either enforce them, especially in cases of
premeditated blatant arrogance, or dispense with such regulations and requirements altogether
since they become virtually useless. 8. In conclusion I would repeat our original position, that
the applicant’s requests for variances be denied until all issues are in total compliance. Thank
you for your attention to this matter. Sincerely, Thomas and Kristen Louis 17 Chestnut Lane
Assembly Point Lake George, New York” There’s another letter. This is the April 26 letter
th
from Caffry and Flower, representing Mr. Kelly.
MR. CAFFRY-That’s a long letter. Has the Board all seen it?
MR. UNDERWOOD-We’ve all received it.
MR. CAFFRY-If you’ve all seen it, I’ll waive the reading into the record. The point is, I think
you can just deny it outright without further ado, because it’s the same application, and I don’t
see reading it if you all got copies.
MR. STONE-Okay.
MR. UNDERWOOD-All right. I have a letter from a Frank J. Dillon, Attorney at Law, Palm
Desert California. It’s dated April 25, 2004. To the Zoning Board of Appeals, Town of
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Queensbury “Dear Sirs: Regarding public hearing notice on applicant Joseph Riitano I am
making these comments in support of Mr. and Mrs. Joseph Riitano at the hearing on April 28,
2004. As background I was the first buyer and builder in Shore Colony in 1957. I have
observed the building of each and every home in Shore Colony. The building built by Mr.
Riitano is, by a long shot, the best built home in Shore Colony. Mr. Riitano has personally
worked hard during the past summer to construct a long lasting home. The money spent on the
home was used to make every part of the home outstanding. The home was built with the best
material and with fine workmanship. The problems you are addressing seems to be minor. The
front porch was there in the old house and the new house is on the same footprint. It would be
a grave error to order the porch to be torn down. Last Summer I saw the building plan that was
approved by the Town of Queensbury and it appeared to me that the building was built to the
standards outlined in the building permit. If there are a few small errors measured in inches
and not affecting his neighbors the Town of Queensbury should overlook any such minor errors
and consider the beauty of the new building and the work put into it. There also appears to be
a permeability problem as well. The building is on the same land as before. No one made an
issue of it before until the building was finished. How does one make the property more
Permeable? Perhaps the routing of the water below the property through a drain pipe through
two other parcels may have caused a problem. I trust that this Board of Zoning Appeals will
allow all the variances requested by the Riitanos. Sincerely, Francis J. Dillon, Jr.” And this is a
letter from a Carole and Scott Hunt, on Sunset Lane, To Charles McNulty, Secretary of Zoning
Board of Appeals, “Dear Mr. McNulty: With regard to Joseph Riitano’s appeal on December 17,
2003, I have two major concerns. Joe and Debbie and their family have been good neighbors of
ours for two decades and I share their interest in home improvement. However, it concerns me
that Joe has constructed a dwelling with disregard to the plan that was approved by the Zoning
Board. We renovated our house in 2002 and spent considerable time, money and effort to
ensure compliance with the strict ordinances. Now I am very concerned that anyone can build
out of compliance with no adverse consequences. Also of great concern is the request for “relief
from permeability requirements”. The drainage ditch runs from our south side of the road to
Joe’s north side of the road. Since my father built our house in 1960 we have lived with the
overflow from the draining ditch into the swamp. Again, we have spent a lot of money and
energy on our property to allow this natural flow of water to take its course. If the Riitanos
exceed the permeability requirements, the four homes that border the ditch will be adversely
affected simply because the water will have less area to seep into. We hope the Zoning Board of
Appeals will seriously consider its role and take the necessary action to ensure two things: that
the zoning laws are taken seriously and that the Riitano’s neighbors do not have to pay the
price for less permeable land. Sincerely, Carole and Scott Hunt” And I guess that’s it.
MR. STONE-Okay. Let me close the public hearing.
PUBLIC HEARING CLOSED
MR. STONE-But I want to ask the Zoning Administrator for his comments on some of the
things that he heard.
MR. BROWN-Do you have a specific question?
MR. STONE-Well, a specific question in terms of, I think Mr. Kelly asked what have we done, or
why haven’t we done anything in the enforcement area?
MR. HAYES-Well, the Certificate of Occupancy was withheld, right?
MR. BROWN-Yes. I don’t know how that has to do with the outcome of this application, but
the enforcement that was done is Mr. Riitano was informed that his most recent variance was
denied, and you either need to remedy the situation by either removing the offending portions
of the home and make the construction compliant, or present an alternate plan to the Zoning
Board and seek some more relief. I don’t disagree that Mr. Riitano or his agent wasn’t as timely
as they could have been in getting this application before this Board, but we did afford him the
time to do that.
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MR. STONE-Okay, but they don’t have a CO?
MR. BROWN-No, they’ve not been issued a CO.
MR. STONE-Okay.
MR. BRICK-If I can add to that, Mr. Chair, a letter was issued, I believe by Mr. Brown, to the
Riitanos, stating that your permit has been denied. You need to contact his office to figure out
how to resolve this situation. That’s when I, at that juncture that’s when I was retained. I
contacted Mr. Brown. Mr. Riitano, myself, Mr. Brown had a meeting in February. We were
directed by Mr. Brown to have our submission ready for your March meeting. In working with
Mr. Steves, we didn’t get the maps on time. We weren’t prepared. I requested, I personally
requested, that we put it over to April. It bears no reflection upon my client that I requested
more time to get myself ready, but in terms of enforcement, the Town of Queensbury has been
consistent and timely in terms of the denial happened. The letter went out. I contacted Mr.
Brown. We had a meeting. He said, well, here’s two things you can do. You can ignore us, and
end up in court, or you can come back with a new application. Any delay that was involved
was my delay in getting that application before you this evening.
MR. STONE-Okay. Anybody have any questions? Any comments?
MR. ABBATE-One other thing. Could you go back to a picture? I’m going to try and address
that top floor, about someone indicating it was unhabitable. Did I not see a skylight up there?
Or was that my imagination? I thought I saw a skylight up there?
MR. URRICO-It might have been the one right before that.
MR. BROWN-I think that what you saw is a skylight on the back porch addition.
MR. ABBATE-I just wanted to make sure.
MR. BROWN-That’s my guess, but let me find the one I think you’re looking for.
MR. ABBATE-That’s not a skylight?
MR. RITTANO-It’s not even an attic. The roof is just like that.
MR. BROWN-This is kind of a cathedral ceiling, open area.
MR. ABBATE-Okay. Well, I wasn’t sure. Thank you. That’s fine.
MR. BRICK-And again, just to clarify, it is not a second floor. The Building Inspector has been
there. It is an attic. Under the New York State Building Code, under the Town of Queensbury
Code, it is an attic. Despite the fact that Mr. Kelly and his attorney don’t like it, it’s still an attic.
If they have a problem with it existing, they need to talk to the Town Board, your elected
officials, to change your Code. It is an attic. Your Building Inspector has confirmed that. Your
Building Inspector has been in it.
MR. ABBATE-Okay. Let me ask you a question. I’ll that it’s an attic. Is it unhabitable?
MRS. RIITANO-Not for a mouse.
MR. BRICK-I’m not qualified to answer that, because I’ve lived in some real dumps in my life,
but it is, under the New York State Building Code, the Uniform Fire Prevention and Building
Code, it is uninhabitable, non-livable space. It’s not an attic. It’s not livable space, and when a
Building Inspector goes in, a Building Inspector looks at, is it livable or is it not livable, and
there are certain criteria that make it livable space. Your Building Inspector has determined that
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it does not meet that criteria. It’s not livable space. Is it convertible? Well, you know
anything’s convertible, but if someone wanted to live with their bed halfway up the window,
yes, technically someone could live there, but someone could live in your attic or my attic. I
mean, it’s possible. Can a Zoning Board make their decision based upon speculative fear of
someone moving up into an attic? I don’t think it’s fair for you to do that. That’s the best
answer I can give you.
MR. ABBATE-Yes. That’s fair enough. Thank you.
MR. STONE-Okay, but there is a question of the lower space, whether it can be living space,
even if you close the garage door. There’s a sizeable question, and there’s a question in terms of
what the total area of the house is, considering that living space, but what I would propose to
do, I would like to discuss it, as we always do, and hear where each one of us is coming, and
we’ve heard a lot of material this evening, both from the applicant, obviously, and the neighbor,
and other neighbors, from everything that’s been written.
MR. URRICO-Can I ask one more question?
MR. STONE-Sure.
MR. URRICO-The question was raised about the permeability, about how there’s crushed stone
underneath that dirt out in front. Can you address that, please?
MR. BRICK-Sure, I can address that. The idea that topsoil and sod, squares of sod, put down as
at least a foot, or two feet of topsoil was put down. What they did is, remember when they first
came in December it had a wraparound driveway, it was all stone. They scraped it. They put
the topsoil down, and they’re going to sod it. That’s what it is. I, personally, I have a problem
with people complaining about permeability that has a tremendous amount of topsoil and sod
above it, when we are in an area that sits on bedrock. If you went to Mr. Kelly’s property and
dug down, you’d probably hit rock just as quick as you’d probably hit.
MR. STONE-Okay. Now we’re getting into conjecture, and I don’t want to go there. I don’t
want to go to conjecture.
MR. CAFFRY-I can give you fact.
MR. BRICK-Well, I can give you fact, too.
MR. CAFFRY-He’s conjecturing.
MR. STONE-I know he’s conjecturing.
MR. BRICK-I also must add that I really question Mr. Caffry’s judgment. I interviewed for a job
with him in 1997, and he did not hire me. So I really do question his judgment.
MR. STONE-Well, I hope that was a facetious comment. Because I really don’t like it.
MR. BRICK-No. I was trying to make a joke, sir.
MR. ABBATE-Both attorneys obliquely alluded to this. One of the basic things they taught you
folks in law school is that fact equals truth. Would you not agree? Fact equals truth. That’s one
of the principles. Don’t deny it.
MR. BRICK-Fact is fact.
MR. ABBATE-Yes, fact is truth.
MR. BRICK-Well, truth was what I learned in Philosophy.
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MR. ABBATE-Fact is truth. Now, based upon that, when one takes into consideration the
complete history of this application, it raises a lot of issues as to intent. The other thing, act of
intent, both of which most occur simultaneously. You remember that. Okay. Am I right,
Counselor?
MR. STONE-Okay. What I would like to do, I would like to start with Joyce, and get your
feelings on this thing, so that we can come to some resolution.
MR. BRICK-And again, before you do that, I would request that all variance applications be
tabled until your May meeting, so that I may present you with the final numbers that we agree
with, the Town agrees with my numbers and we can make an informed decision in May, and
that’s my request at this time.
MR. HAYES-I mean, the only number that was in question was the permeable number, right?
MR. BROWN-That’s correct.
MR. HAYES-And that’s been stipulated by the Town that you’re agreeing with the number they
presented?
MR. BROWN-I agree with the math that was done.
MR. CAFFRY-We’d just like to say, Mr. Kelly says there’s not a foot or two of soil on top of the
crushed stone. He’s inspected it.
MR. STONE-Okay. Let’s start with Joyce. Let’s just go through this thing. I mean, I hear your
request, but I have to know where my Board stands. We do not pre-discuss, obviously, so I
want to know where they stand. Joyce, where do you stand?
MRS. HUNT-All right. Well, I listened to Mr. Brick’s explanation that when the house was
being constructed, that the contractor had the roof off and suggested that they make changes. I
find it very difficult to think that any reputable contractor would deviate so far from the
building plan that was approved, without the consent, the informed consent of the person
having the house built. I would not vote for this Area Variance.
MR. STONE-Okay. So, in other words, you’re ready to vote no?
MRS. HUNT-Yes.
MR. STONE-Okay. Go ahead. Roy?
MR. URRICO-Yes. I don’t know why we’re here. I think we pretty much covered this back in
December, and in my opinion this hasn’t changed very much, or at least enough to warrant this
to be re-heard, and I may have been the one that referred to the unclean hands, and if that was
me, and it could have been, what I was referring to was that if this project had come to us
without anything being done to it, this was a brand new application, I would still not accept it,
at least it would not be acceptable to me, and that’s what I said back in December, and that’s
what I’m saying today.
MR. STONE-So, okay. Jaime?
MR. HAYES-Well, I think, even though he wasn’t hired by Mr. Caffry, Mr. Brick did at least a
decent job of pointing out the fact that some of the dimensional relief is historical, or at least
close to historical, in that, when you consider that it does tick off some of the relief, or mitigate
some of the relief that’s required, and that’s important to do, because, as it stands now, with five
pieces of relief, that’s usually fatal, in this particular circumstance. So maybe that’s an
important thing to point out. I guess where I’m still stuck, remain stuck, is the Floor Area Ratio.
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I have to agree with the Chairman that the idea that we take off a garage door and put on
another kind of door and that changes the whole calculation, to me is troubling, to the extent
that, you know, even after that fact, there’s still Floor Area Ratio that needs to be accounted for.
To me, that’s a problem that I just can’t get over. Obviously, the application process, how this
whole project has arrived to us, on numerous occasions, it’s hard to say exactly what happened,
but, you know, I think it certainly adds to whether the difficulty was self created, you know,
and to me it exemplifies that portion of it for sure. So, not enough has changed, in my opinion.
Certainly changing the permeability by eight percent by picking up the crushed stone is nice,
but it’s not the controlling issue here for me. Do you know what I mean? And I think the Floor
Area Ratio has to be dealt with. I think that something much more aggressive was done here
than really would have been approved by this Board, had it come before us in the initial major,
and nothing I’ve seen so far has changed my mind, and in that light, I guess I’m in favor of
deciding what to do tonight. I’m not sure what tabling, I just wanted to comment on that.
MR. STONE-Well, you would say no, if we voted?
MR. HAYES-Yes.
MR. STONE-Okay. Jim?
MR. UNDERWOOD-Yes. I’ll have to go along with everybody else. I don’t know why we’re
here either. We heard this. We ran things through the ringer once before, and I think there’s
been a minimal attempt to change some of the numbers, but, you know, the original intent of
this project was to build a one story building, and, you know, for whatever reasons it was
decided by the applicant that he wanted to do this, it was basically deceitful what was done. I
think that the concerns about the permeability are very important in this neighborhood, and the
original Shore Colony and the whole idea of a Shore Colony, we basically spelled that out the
last time in our minutes, and I think that it’s greatly exceeded anything else that’s been
attempted up there, and I think that, at the same time, you know, you can keep making these
little tiny tweaks to the numbers, but the bottom line is that, you know, we’re all in this
together. If neighbors just go ahead and do what they want to do, irregardless, and you know,
we don’t enforce the rules and regulations, then the whole system falls apart, and, you know,
where does it all end. I mean, everybody talks about the society or whatever else it is included,
but at the same time, you know, we’re focused on this project here, and there would have to be
some significant changes, is what we basically say, and I don’t see that any significant changes
have been done. I think it would be very difficult to say that you can’t have a covered porch,
but I think the fact that you changed the pitch of the roof and you added the space upstairs,
even though if it’s not considered living space, it’s not, you deviated greatly from what was
originally proposed in the plan, and I think that the, you know, you may have started the
process by picking up some of the crushed stone and putting down some soil and putting down
some grass out in front of there, but you still haven’t dealt with the problem. There’s more to be
done, and I don’t see that, until something major is accomplished, that we should even hear
this.
MR. STONE-Leo?
MR. RIGBY-Yes. I think, I mean, just generally looking at where we are, again, I said this last
time. I really don’t know how we got where we are. I mean, if you came before the Board and
you asked for the amount of variances that have already taken place, there’s no doubt in my
mind that it would have been denied. Looking at it from a balancing standpoint, you know,
when you look at overall, you know, what the applicant’s developed, and how it balances with
the neighborhood and the community, I mean, from the correspondence from the people in the
neighborhood, people are obviously dissatisfied. There’s health and safety issues, I believe,
with the drainage and permeability. I’m in favor of voting tonight, too, and I’m going to remain
where I was last time we talked about this.
MR. STONE-Okay. Chuck?
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MR. ABBATE-Thank you. Well, I can concur, in the interest of time, I concur with my fellow
Board members. I am in favor of voting this evening, and I would not support the application,
Mr. Chairman.
MR. STONE-Okay. Well, I’m going to make it unanimous, and I’m going to call, when I get
done, for a vote to deny. I’m one who sees it every day. Okay. I drive by it. I’d love to be
driving by it right now, because I have to drive to Albany when we get all done, but I really
think, I recall, when this thing started, and I remember the plans they brought before us were
for a one story building, and all of a sudden it became two stories, I mean physically, and I just
think, when I listen to the neighbors and I do the balancing test, we have, we heard, what, from
three neighbors, I think, plus obviously the most immediate neighbor. I’m not putting you, but
I mean by mail, two of the people, one right next door and one across the street, I believe, no
another third person. There were three, actually. All of them say no. The only one who said
yes doesn’t really have the cleanest hands. I mean, Frank Dillion is a nice gentleman, but he’s
still trying to sell property in Shore Colony, and I know that, and therefore I’m introducing that.
So I look at what he’s saying with a little bit of a jaundiced eye, but, having said that, I think we
have shown, as a Board, that we’re not being arbitrary and capricious. We have bent over
backwards. Staff has bent over backwards to let this be re-heard. I mean, in fact Mr. Caffry’s
proposal was not unreasonable in the first place, but I think, going along with Staff and going
along with the advice that I got, we’ve heard it, and right now, having heard it, I need a motion
to deny.
MR. ABBATE-Okay. Mr. Chairman, I’ll take it. I initially stated that you were very fortunate in
having a very competent attorney, and I stand by that statement. You do have a very
competent attorney, and he did provide somewhat of a persuasive statement. In my motion to
deny, I believe I have a number of obligations, one, to make it crystal clear, in specific detail for
the applicant, as well as the public at large, why I am moving a motion to deny. So while this is
a little longer than normal motion to deny, I think we owe it to everyone concerned.
MOTION TO DENY AREA VARIANCE NO. 29-2004 JOSEPH RIITANO, Introduced by
Charles Abbate who moved for its adoption, seconded by Joyce Hunt:
16 Sunset Lane. The motion to deny is based on findings of fact and principle, based on
documentation submitted to this Board, as well as verbal testimony given before this Board. A
review of the information contained in the 12/17/03 and 4/28/04 ZBA meeting as well as the
testimony today supports my motion to disapprove. A chronicle of that information is critical:
1. Mr. Riitano acknowledged that his building permit for the constructed porch was for 319
square feet and however he constructed a porch 345 square feet; a clear misrepresentation of
Mr. Riitano’s intent. 2. Mr. Riitano acknowledged he removed crushed stone, and put sod, and
topsoil thereby decreasing the permeability. At the 12/17/03 meeting of the ZBA, the Zoning
Administrator states and I Quote “What has happened since then is some pretty significant
changes to the plan. The roof pitches have changed, floor ratio areas have changed, the total
size of the building is different than that first plan almost to the extent where it’s very similar
reliefs that were sought in that original Area Variance application that was withdrawn If you
compare the original site plan, he states, the original survey that was submitted, compared to
the current site plan, that addition on the back of the house is larger with the new building.” 3.
Mr. Riitano acknowledged that he constructed an entire roof system that was not included in
the original plans. Page 43. 12/17/03 ZBA meeting. 4. Mr. Riitano acknowledged that the roof
plan was not included in the original plans, page 43 again, of the same meeting. 5. Mr. Riitano
acknowledged that the front porch and deck addition was not submitted in the original plans,
Page 43 of the same meeting. 6. Mr. Riitano acknowledged that this is a nonconforming
structure. 7. Mr. Riitano acknowledged that he failed to read Section 179-030 Town of
Queensbury Zoning Ordinance, page 43. 8. Mr. Riitano further agreed that he did not comply
with the provisions of Section 179-030 Town Code. 9. Area Variance No. 89-2003 was denied
for Joseph Riitano. 10. Area Variance No. 29-2004, heard this evening, is not notably dissimilar
from his request of 12/17/03. Together with the fact that Mr. Riitano’s problems are
incontrovertibly self-created, punctuated with stiff opposition from Mr. Riitano’s neighbors,
and the fact that the structure is indeed non-conforming; and when a reasonable person reviews
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the balancing formula and bears in mind the following criteria for granting a variance as
follows: does the benefit to the applicant outweigh the detriment to the health, safety and
welfare of the neighborhood or community by granting the area variance, and in making the
determination, 1. Whether an undesirable change will be produced in the character of the
neighborhood or will a detriment to nearby properties will be created. It is my opinion that an
undesirable change will occur as well as a possible environmental detriment to the health,
safety, and general welfare of the neighborhood. 2. Whether the benefit sought by the
applicant can be achieved by some other method, feasible for the applicant to pursue, other than
a variance, in my opinion, yes the applicant by his own admission acknowledges one
alternative to this self-induced quagmire which is to remove the entire porch roof. Further, to
revise all existing construction to conform with the zoning restrictions. 3. Whether the
requested area variance is substantial, the following information is critical in my assessment to
deny the variance: A. Mr. Riitano has acknowledged he exceeded the permitted size of the
porch from 319 square feet to 345 square feet. B. Mr. Riitano has acknowledged he constructed
an entire roof system that was not included in the original plans. C. Mr. Riitano has
acknowledged that the front porch and front addition were not included in the original plans.
D. Mr. Riitano has acknowledged that he did not comply with Section 179-030 of the Town’s
Zoning Ordinance. E. Mr. Riitano failed to honor the constraints of the original building
permit. F. Permeability is still in question. G. Glaring opposition of Mr. Riitano’s activities,
from his neighbors are in evidence. And when you take into consideration the aforementioned
facts, I move that Area Variance Number 29-2004, without prejudice, be denied.
Duly adopted this 28 day of April, 2004, by the following vote:
th
AYES: Mr. Urrico, Mr. Hayes, Mr. Underwood, Mr. Rigby, Mr. Abbate, Mrs. Hunt, Mr. Stone
NOES: NONE
ABSENT: Mr. Bryant, Mr. McNulty
MR. STONE-Mr. Brown, as Chairman of the Zoning Board, I ask that you take immediate action
to enforce this denial, in any way that is possible.
MR. BROWN-Okay.
MR. STONE-The meeting is adjourned.
MR. BRICK-Thank you all.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Lewis Stone, Chairman
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