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2004-07-21 (Queensbury ZBA Meeting 7/21/04) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JULY 21, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY PAUL HAYES ROY URRICO CHARLES ABBATE JAMES UNDERWOOD LEO RIGBY, ALTERNATE MEMBERS ABSENT ALLAN BRYANT CODE COMPLIANCE OFFICER-BRUCE FRANK STENOGRAPHER-SUSAN HEMINGWAY OLD BUSINESS: AREA VARIANCE NO. 88-2003 SEQRA TYPE: II ROBERT & JANIS STRASSER AGENT: JONATHAN C. LAPPER, STEFANIE DI LALLO BITTER, ESQ. OWNER: WILLIAM H. WALKER, III ZONING: WR-1A LOCATION: 157 PILOT KNOB ROAD, KATTSKILL BAY APPLICANT PROPOSES TO MODIFY THE EXISTING NONCONFORMING BOATHOUSE BY REMOVING THE EXISTING SHED ROOF AND RECONSTRUCTING IT TO A FLAT ROOF WHICH WILL CONTAIN A TOP DECK AND RAILING, WHICH WILL NOT EXCEED THE WIDTH AND OVERALL HEIGHT OF THE EXISTING DOCK/BOATHOUSE. RELIEF IS REQUESTED FROM THE MINIMUM ADJACENT PROPERTY LINE SETBACK REQUIREMENTS AND FROM THE CONTINUATION REQUIREMENTS. APPLICATION TABLED FROM THE ZBA MEETING ON WED., FEBRUARY 25, 2004 CROSS REFERENCE: BP 2003-142 INT. ALT. WARREN COUNTY PLANNING 12/10/93 LOT SIZE: 0.33 ACRES TAX MAP NO. 227.14-1-21.2 SECTION: 179- 5-050(A6), 179-13-010 E JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. STONE-Read the tabling and the new Staff notes. MR. MC NULTY-Okay. Tabling motion from February 25, 2004 “MOTION TO TABLE AREA VARIANCE NO. 88-2003 ROBERT & JANIS STRASSER, Introduced by Charles McNulty who moved for its adoption, seconded by Charles Abbate: 157 Pilot Knob Road, Kattskill Bay. Because there’s litigation pending, and we’ll table it until such time as the court has made a determination on this matter. Duly adopted this 25 day of February, 2004, by the following vote: th AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mrs. Hunt, Mr. Abbate, Mr. McNulty NOES: NONE ABSENT: Mr. Rigby” 1 (Queensbury ZBA Meeting 7/21/04) STAFF INPUT Notes from Staff, Area Variance No. 88-2003, Robert & Janis Strasser, Meeting Date: July 21, 2004 “Project Location: 157 Pilot Knob Road, Kattskill Bay Description of Proposed Project: Applicant proposes to modify the existing nonconforming boathouse by removing the existing shed roof and reconstructing it to a flat roof/sundeck, which will not exceed the width and overall height of the existing dock/boathouse. Relief Required: The applicant requests 20 feet of relief from the 20-foot minimum adjacent property line setback requirement, per §179-5-050(A6) (Docks and Moorings). Parcel History (construction/site plan/variance, etc.): Subject Property (William H. Walker): BP 2003-773: 09/26/03, residential alteration. BP 2003-142: 04/10/03, 70 sq. ft. residential interior alteration. SP 25-2000: 06/27/00, second story addition. AV 23-2000: 04/20/00, FAR, setback, and expansion of a nonconforming structure relief for a second story addition. BP 92-438: 07/30/92, repair existing dock. Strasser Property: AV 88-2003: tabled 12/17/03, until the Strasser/Walker litigation is resolved. Note: the court ruled in favor of Strasser on May 25, 2004. Staff comments: Note: the applicant claims the height of the existing boathouse (dock surface to peak of roof) is 12 feet, as depicted in the submitted elevation drawing. The drawing depicts the dock surface at 320.20 feet above sea level (the MHW mark). A field investigation on 06/30/04 revealed the average depth to the lake from the dock surface was 14 inches (varied from 13 to 15 inches), and the average depth to the MHW mark was 8.1 inches. The approximate height to the peak of the roof from the dock surface was 10.6 feet. Therefore the height of the boathouse from the MHW mark is approximately 11.3 feet. Should the applicant disagree with the existing height as determined by staff’s field measurements, proof of the actual height will need to be provided should the board approve the request to build a sundeck/boathouse at the same height as the existing boathouse.” MR. STONE-County? MR. MC NULTY-I don’t know. Yes, it looks like County was No County Impact. MR. STONE-That sounds normal. MR. STONE-Okay. Mr. Lapper. MR. LAPPER-Good evening. For the record, Jon Lapper. The very simplest description of this is to take off the shed roof, replace it with the flat sundeck and add railings. In terms of the impact on the neighborhood, the shed roof is something that you can’t see through, and the railings will be something that will have at least partial visibility. So I would argue that, if anything, this is a positive impact. It’s essentially the same, no impact, but there’ll be slightly more air and light through the railings than you have now through the solid roof. It was unfortunate that this was the subject of litigation which really had nothing to do, or it started out having to do with the neighbor building an apartment on top of a garage, and the covenant said you could only have a garage, and we had to go to court, and the court made them take the apartment down, and as a result of that, they counter-claimed against Mr. Strasser and said you 2 (Queensbury ZBA Meeting 7/21/04) can’t replace the roof of the boathouse, and we have a decision from the court saying that he can replace the roof of the boathouse exactly as we’ve applied for here, and we’ve submitted a copy of that. None of that really affects your determination, in terms of the variance, but it’s just was part of the record. There was the correspondence that related to that. So it’s just important that the story is completed, that we did win the litigation, and the court did say that what’s before you tonight is permissible under the covenants, for what that’s worth. In terms of the setback, it’s pre-existing right now, and we’re just asking to make it no higher, no bigger than what’s there, just replace it with a sundeck. MR. STONE-Okay. Any questions? MR. ABBATE-If I may. I guess there are two areas that I’m concerned with. The relief required is 100%. Am I correct, Counselor? MR. LAPPER-Well, there’s 11 feet between this structure and the boathouse next door, but in terms of the property line, it’s essentially on the property line, pre-existing. So that’s why we characterized it that way. Yes. MR. ABBATE-Twenty feet of relief from the twenty foot minimum adjacent property, that would be 100%. I place a lot of credibility in our Staff. They do a great job, and apparently there’s a little discrepancy here, 11.3 feet versus 12 feet. See that on the Staff comments? MR. LAPPER-Yes, and I should have mentioned that, and we will go with their measurements. I have a drawing that we submitted that was done by the fellow that’s going to build the docks, but I read the Staff notes and they felt pretty strong that it was 11.3. So we’ll stipulate to 11.3. MR. ABBATE-So you concede that it’s 11.3, no higher? For the record. MR. LAPPER-Yes, not worth arguing the point. MR. ABBATE-Thank you, Mr. Chairman. MR. STONE-Any other questions? Comment, if you will, before we do, last month, the immediately adjoining structure sought a variance, and this Board, in its wisdom, denied that variance. MR. LAPPER-I’m not aware of that. Which structure? MR. STONE-The one that you said it’s 11 feet from. MR. LAPPER-The one to the south. MR. STONE-Yes. MR. LAPPER-Okay. MR. STONE-And we denied it. MR. LAPPER-What type of variance were they looking for? MR. STONE-Bruce, do you want to say exactly? MR. FRANK-Well, technically they were asking for, to expand the pre-existing, nonconforming structure inland, by about 50%. Part of it would be above the water. So it technically would be expanding the boathouse, too, but they needed 100% of side setback relief because I believe they were right on the property line also, but it wasn’t just the boathouse. MR. STONE-But it was setback. 3 (Queensbury ZBA Meeting 7/21/04) MR. FRANK-And it was height relief also, because it was a two story boathouse. So it was a little bit more complicated, more relief being sought than the current application. MR. LAPPER-The difference here, it sounds like, is that this is a replacement in kind, but not an expansion, just taking the roof down and changing the roof. It’s a modification, but they’re not looking for anything, any greater relief than what they have now, and that’s a pretty big difference. MR. STONE-The project, last time, was a two story addition, and relief requested from shoreline and sideline setback requirements. So, in other words, we said you couldn’t be that close, even, with additional, you couldn’t build anything as close to the line as it was, and in a sense you’re saying the same thing. MR. HAYES-It’s not expanding the dock. MR. LAPPER-Yes, the other one was an expansion that they wanted to use the same setback and make it bigger, and I’m saying we’ve got something that’s there now. We just changed the roof, but it doesn’t get any bigger. I think that you granted a variance for me on Assembly Point earlier this year that was very similar to what we have here, for the same reason, that it was not going to go any farther. It was the Cavayero application. It wasn’t going to go any farther than the existing side rooflines, and that’s what we have here. MR. STONE-But the building that is nonconforming will have additional usage, compared to the building that is there right now, in the sense that it will have a deck. There will be activity on the deck, compared to a roof that has, contains no activity. Is that correct? MR. LAPPER-Yes, but I don’t think that that’s a. MR. STONE-Well, it’s kind of an expansion. MR. FRANK-Actually, that’s not correct, Mr. Chairman. Because then it would need a Use Variance, and this is not a need or a request for a Use Variance. MR. STONE-Well, use, I’m putting it a small use. It’s going to be used by more people. MR. FRANK-Well, I think you’re going to hear this argument from someone before this night is over, and the bottom line is the Zoning Administrator has determined that a boathouse use, regardless if it’s got a sundeck on top of it or not, and the change over from one without one to one is not an expansion of the use. MR. STONE-Okay. MR. FRANK-A boathouse is a boathouse, regardless of the roof and the activity that takes place. It’s all considered the same use. MR. STONE-Okay. MR. FRANK-I also will just read you a sentence from the decision of Judge Kroegmann from May, because he really addressed that issue as well. It is the court’s opinion there’s some ambiguity regarding the term bathing, referring to the covenants. Presumably it should be construed as an activity different from swimming, otherwise the inclusion of the term would be superfluous. Sunbathing seems consistent with the normal construction of the term of bathing, where bathing means an activity other than swimming. Moreover to the extent that there is presently no prohibition from the plaintiff’s use of the metal roof for sunbathing, the proposed roof really facilitates such use. So the court is saying that you could use the roof for sunbathing now. 4 (Queensbury ZBA Meeting 7/21/04) MR. STONE-That was pretty good gobbledygook, I thought. MR. LAPPER-You asked the question. There’s an answer. MR. STONE-Anybody else have any questions? MR. RIGBY-Yes, I have a question. The roof the way it exists right now, once that’s removed, is the deck going to be at the actual height of the roof? Or is the top of the railing going to be at the height of the roofs? MR. LAPPER-No, the top of the railing, yes, that’s what the drawings show. MR. RIGBY-Okay. MR. LAPPER-Because then it would be an expansion of the height. MR. STONE-So you’re going to lower, in the sense, the poles supporting the roof? MR. LAPPER-Why do you say that? MR. STONE-Well, from the eaves to the top of the roof, is that enough to include the floor and the railing? MR. LAPPER-I see what you’re saying. It could be that the support of the floor may have to come lower than what’s there now. If I’m looking at the drawing that was done by the dock builder, and he’s showing that the top of the railing is no higher than the existing peak of the roof. MR. STONE-Okay. How they get there is not for us to determine. MR. LAPPER-As long as it’s not any higher, and that’s. MR. STONE-You’re willing to stipulate to 11.3? MR. LAPPER-Absolutely. The application is no higher, no wider. MR. STONE-Okay. MR. MC NULTY-The stair access to the roof is going on the lakeside of the boathouse, I believe? MR. LAPPER-Yes. MR. MC NULTY-And is that going over an existing dock that’s there now or is that an extension of the boathouse? MR. LAPPER-Let me see if I can figure that out. It looks like, from the diagram, that they’re an extension. MR. STONE-There are no steps now? MR. LAPPER-There are no steps now. MR. STONE-And the steps are going to be, Bruce, it’s going to be close to the lake, aren’t they? MR. FRANK-Looking at the overhead view, the top view, part of your application, the steps are closest to the shoreline, but it looks like they are outside of the 22 foot length, and the existing dock is 22 feet long. 5 (Queensbury ZBA Meeting 7/21/04) MR. LAPPER-I’m sorry, you’re absolutely right. I was looking at it backwards. The steps are closer to the shoreline. Yes, that’s clear from this map. MR. STONE-But does that require a variance to put those steps there? MR. FRANK-Well, he’s not exceeding the size of dock. MR. STONE-Yes, but the steps aren’t currently there, and we’re putting steps in within 50 feet of the shoreline. MR. FRANK-Boathouses do not have to meet the 50 foot shoreline setback. MR. STONE-I understand that a boathouse doesn’t, yes. MR. FRANK-And if you’re confusing it with last week’s, that’s right. That’s part of. That’s integral to the boathouse. Again, you had mentioned earlier about the neighbor needing relief from the shoreline setback. That was because a portion of his expansion was to be upland from the mean high water mark. So that was the need for that relief. MR. STONE-Okay. Anybody else have any questions, comments? All right. Let me open the public hearing. Anybody wishing to speak on the application? PUBLIC HEARING OPENED STAN PRITZKER MR. PRITZKER-Stan Pritzker representing William Walker, III, in opposition to the variance. Before we get started, I’d appreciate it if I could give out some photos. MR. STONE-Sure, absolutely. MR. PRITZKER-I have made sets, and I’ll come up to the table, if that’s okay. I’ve marked the first set as Exhibit One, and there’s three each on Exhibit One. Exhibit Two is another photo, and I’ll give them out as well. There’s Exhibit Three, and we also have Exhibit Four. There’s a number of photos, but there’s four and they’re marked. So you won’t get confused, at least I hope. Okay. Just to set the context, rather than getting into technicalities, I’d like to ask everybody to take a look at them, and then put yourselves in Mr. Walker’s shoes for a minute, because I think that’s what you’re here to do, on some level, and say how would you like it if somebody put up a deck, right there, right underneath your porch, so they could stand up and sunbath and tan and drink and do whatever they want to do, and party, ten feet off your house. To me it looks like Coney Island or maybe an Anastasy colony of cliff dwellings. If you look from the lake, and it’s just, to me is unbelievable. To say it’s not a change in use is euphemistic to me. It doesn’t make any sense to me. MR. STONE-Can you put the boundaries, that lot line. MR. ABBATE-Yes, that’s what I was going to address. Yes. It would appear that it’s a rather awkward boundary line. It almost would appear, from these photographs, that there’s almost an intrusion. Am I correct? MR. PRITZKER-Let me be even clearer than that. It’s on our property. MR. ABBATE-That’s what it appears to be. MR. PRITZKER-Right. There’s two docks on the Walker property. That will, by the way, go back to your Staff notes. You read the Staff notes, the recent ones, but you didn’t read the last one, from February, and those Staff notes are different, and they’re probably in front of you. Those Staff notes say, in bold, by the way, it is the recommendation of Staff that the 6 (Queensbury ZBA Meeting 7/21/04) authorization from the property owner be submitted prior to any action other than tabling. We’re obviously not giving authorization. We own the property. The dock’s on our property. They have an easement to use it, and now they’re trying to make it into a sundeck. We have a boathouse on the other side, on the same property. That’s why there’s two types of relief being requested. There’s no setback at all here, since it’s on our property. So it’s 100% request, but on the top of that, they’re trying to continue having the illegal use, well, nonconforming use, pardon me, which is two docks on the same lot, not just two docks anymore. Now it’s a boathouse and a sundeck, which is right next to our porch. Right next to the boathouse of Mr. Phillips who tried to expand his boathouse last month and you denied that. MR. ABBATE-This is an easement, did you say? MR. PRITZKER-Yes. Absolutely. MR. ABBATE-How did it originate, the easement? I need a little bit of history, because I’ve got a question to ask. MR. PRITZKER-Okay. Well, a while ago Strasser’s lot was set up without approval in 1994, without getting subdivision approval. The Lake George Association I believe have a letter in this file protesting this “subdivision”, from years ago. Anyway, the subdivision map was recorded, I think by Walker’s father, who’s deceased, and the Strasser parcel is set back. I have a map, if it’ll help, of the parcel. It’s not a great map, but I could show it to you. Anyway, Strasser’s parcel’s set back, and he has lake access, but he doesn’t have lake front, which, in essence, is what he’s trying to do here. He’s trying to change a lot that just has lake access with an easement, and the use of a dock, to a lake front lot, so he can lay around and sunbath. To say it’s not a change in use, it just, to me, makes no sense, but to go back to your question, it was created, and in my letter to you folks, that I’ve submitted, Provision Three says that the subdivision was illegal. We believe it was, it was said it was, but it’s been continued until now. That’s why there’s no frontage. MR. ABBATE-See, this is my question, because I’m not sure I know the answer. Are we in a position to modify an easement? MR. PRITZKER-I don’t know. MR. ABBATE-Neither do I. MR. PRITZKER-I don’t think so. MR. ABBATE-See, that’s my problem. I don’t know, legally, whether we can modify an easement. MR. PRITZKER-But cutting through the technicalities for a second, I mean, just take a look at those pictures. If you go through, and I’d be glad to go through the analysis for what you need to show to get an Area Variance, even calling it an Area Variance is questionable, as noted by Staff. I was going to bring this up because I think it’s really a Use Variance, and I understand there’s an interpretation from your Administrator that changing something from a dock to a roof deck is not a change in use, but I don’t think that’s rational. I don’t think it makes sense. I don’t think a normal person thinking about it would say that, and I could guarantee you, if you lived where Walker lives, you wouldn’t be saying it, okay. It just, to me, is not right, but I would also like to make part of the record these Staff notes from February that weren’t read, but I think they’re very important. MR. STONE-Well, they’re part of the record. MR. PRITZKER-Okay. Great. 7 (Queensbury ZBA Meeting 7/21/04) MR. ABBATE-I have one other question. How high, if we look at Picture Number Four, Exhibit Four, okay, this is my question. If this is approved, how far up will this go? The same height? MR. PRITZKER-Yes, but then people stand. MR. ABBATE-Okay. What is the distance between here and here? MR. PRITZKER-Maybe 15 feet. MR. ABBATE-Fifteen feet from his deck to the top of the 11., whatever the devil it’s going to be? MR. PRITZKER-Yes. MR. ABBATE-Fifteen feet. Okay. Thank you very much. Maybe you should hold on to this. MR. HAYES-Bruce, there seems to be some question whether there actually is lakefront area on the lakefront. That map looks like there is a little strip. MR. PRITZKER-No. Instead of an easement, let me explain that. Instead of an easement, there’s a fee strip. There was an easement. They changed it to a fee strip, at some point, like a six foot strip, but not the dock. The dock is by easement, and the easements are set forth in the covenant and restrictions that were referred to by Jon. MR. ABBATE-Well, that’s why I raised that issue. MR. PRITZKER-Yes. It’s an easement, and I think Jon will concede that that’s an easement. That’s never been an issue here. In fact, it’s also in your Staff notes from before, that it’s on our property. MR. STONE-Okay. Let me ask a question. I’ll ask it of you and Mr. Lapper can be prepared to ask it. Who owns the dock? Who repairs the dock? Who pays the Lake George Park Commission fee? MR. PRITZKER-We do, and I have a letter, I think, to the Lake George Park Commission regarding that, because I think a permit was also applied. It is our dock. He has the right to use it, and his rights are defined in the covenants and restrictions which were the subject of the litigation. MR. STONE-But the Judge said the covenants are legal. The Judge said he could put this on. MR. PRITZKER-He said within the content of the covenants he believed it was permitted. That, by the way, I’ve already been retained to do the Appeal once we get the Order. Just so you know, the lower court’s litigation is over, but we are appealing that decision. MR. STONE-Okay. MR. PRITZKER-But I don’t really want to comment, except that it is an easement, and it says it. It’s called the Declaration of Covenants, Easements, and whatever else, and it said, this unit, our unit, okay, is subject to an easement by the now Strasser unit, and that’s what it is. MR. ABBATE-Counsel, surely there must be some precedence. Have you done any research on this? MR. PRITZKER-I’ve done research on it. The research, I do not have any precedent relative to that issue. Whether you have the authority to grant a variance on somebody that has a mere easement. I don’t have research on it. If I may just go on? Any other questions? Okay. So basically my first point is that the photos, from a very practical point of view, tell a story here, the ones you have in front of you. I tried to get them as accurate as I could. Also, as you note, 8 (Queensbury ZBA Meeting 7/21/04) it’s very close to the Phillips’ boathouse that was tried to be expanded last month. Just on the Phillips issue, for a second, I think Phillips was asking for far less than this, in terms of impact to us. I don’t even think it’s close. Phillips wanted to add some more space to his second floor, but this person wants to put a platform to hang out on in front of our house. I think that’s much more intensive, in terms of our property. I don’t think there’s authority to grant this variance, for another reason, and I’ll tell you why. I think it’s a change in use, and just going with that premise for a minute, just assuming for argument’s sake, I’m going to look at Section 179-13- 030, which is called Nonconforming Uses and Structures, Change in Use, and it says a nonconforming use, if a nonconforming use is replaced by another nonconforming use, such use shall conform to this Chapter. That’s what it says. Now, I don’t think that means, that means you just need to get a variance. I think it means something different. I think it’s an abatement of nonconforming uses, and I think what it means is that, if it’s changing, it has to be a conforming use. I think that’s the plain English reading of that provision. Now you could say that this isn’t a change in use, but, again, that’s my assumption, and we could argue about it, but that’s my position. As far as, I already addressed the subdivision issue. MR. STONE-I’m giving you latitude, you know. MR. PRITZKER-I’m going over? I’m sorry. MR. STONE-Yes. MR. PRITZKER-Just going really quickly to the analysis, the area analysis, Area Variance analysis, undesirable change, just take a look at the photos. Benefit by some other method, well, like I said, he bought a piece of property with lake access, not lake front. The requested variance is highly substantial. It seeks 100% on one. It seeks to continue, it seeks a variance which will allow an unauthorized use, which actually expands a nonconforming use on an illegal subdivision. To me that’s very substantial. There would be an adverse impact on the neighborhood, because as I said, if you’re boating and taking a look over there, you’re going to think you’re looking at Coney Island or something. The request expands a further illegal lake front use, and the hardship is totally self-created in this case. He just wants, he wants it because he wants it. He wants a roof deck up there, and again, finally, the only thing I would leave you with is this is on Mr. Walker’s property, and thank you very much. I appreciate the leeway. MR. STONE-Thank you. Anybody else wish to comment on this application? Any correspondence? MR. MC NULTY-No new correspondence. MR. STONE-Okay. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-And before you respond, Mr. Lapper, I have a question of Staff. Bruce, this is one of these issues, again, who has the right to seek a variance? The property owner, it would seem to me, since a variance goes with the property, to me, it should be the property owner, from a commonsense standpoint. MR. ABBATE-We’re talking about standing, right, Lew? MR. STONE-Yes. MR. ABBATE-Exactly. MR. FRANK-Good question. I brought it up to the Zoning Administrator. Normally, we require that the owner grant permission for an applicant to go ahead and to proceed to request relief. I did bring this up to the Zoning Administrator. He said, because of the litigation and 9 (Queensbury ZBA Meeting 7/21/04) special circumstances involved, that’s not an absolute. We would prefer, but the Board could rule without that. That’s his position. MR. STONE-Okay. MR. ABBATE-Can I follow up on that, Lew, for a second? MR. STONE-Yes, go ahead, Chuck. MR. ABBATE-Did I hear correctly, and I want somebody to respond, I don’t care who it is, did I hear correctly that this boathouse belongs to Walker, the boathouse is on Walker’s property, and Mr. Walker pays the dues and fees and what have you? Is that correct? MR. PRITZKER-That’s correct. MR. ABBATE-Who’s answering? MR. LAPPER-Yes, that’s correct. MR. STONE-Both attorneys say that’s correct. MR. LAPPER-I need to explain the history of the parcel. MR. STONE-Okay. Chuck, are you satisfied with that answer? MR. ABBATE-Yes, sure. Thanks. MR. STONE-Okay. Go ahead, Mr. Lapper. MR. LAPPER-I guess first of all I have the utmost respect for Stan Pritzker. I’ve work with him all the time. I just happen to disagree with him on this matter. The subject of the litigation involved whether or not Mr. Strasser had the right to replace the roof with the deck, and that was something that Stan argued for his client before the court, and the court specifically answered that, I read you part of the decision, I’ll read you the rest, but the decision that we submitted to the court said that he has the right to replace it, that under the covenants, he can do it, and what happened here, and that’s why it wasn’t necessary to seek to have his signature, because the Judge said it was okay, and this is the Supreme Court. What happened here was that Stan’s client, his dad, owned this as a compound, the whole piece of property with a number of houses, and before he died, he split it up into four lots so that each of his kids could have a house, a lot, and the reason why the two docks are on the Walker property is because those were pre-existing, and that’s how he split it up, so that his son could own the property that Mr. Strasser owns now. His other son, Bud Walker, could own the property that has the two docks. So this was a family piece of property. Everybody knew what it was. That’s how it was set up. The covenants and restrictions were very thorough. What they provided for was that the lot on the non lake side of Pilot Knob Road could have a maximum, a house of a maximum of three bedrooms, and that a garage could be built on the back of the Walker property, but that it could only be a maximum of a two car garage. What Stan’s client did was that he built a nine bedroom house across the street. MR. STONE-In Fort Ann. MR. LAPPER-In Fort Ann, yes, and also in Fort Ann, because the Town boundary cuts the property line, he built a two car garage, which was 12 feet high for the garage, so that he could build an apartment on top of it and look over the Walker house to see the lake, to increase his property value. We went to court, we sought an injunction, and we got an Order from the court, from the Supreme Court, saying that Mr. Walker had to take down the apartment on top of the garage, and if you drove up Pilot Knob Road, as I did, when that thing was there, it’s right at the road. It was just an absolute monstrosity. Our other client was Lois Clark, who is 10 (Queensbury ZBA Meeting 7/21/04) Mr. Walker’s sister. So this was a case where the sister had to retain us. She and Mr. Strasser retained us, to sue her brother to get him to take down this apartment that he built illegally on top of the garage, and this thing, you drive up Pilot Knob Road, it’s still a large garage, but when it had an apartment on top, it was unbelievable. So that’s the kind of relief that courts are very careful in giving, which requires somebody to take down a construction project, but they had built this apartment, and the court ordered it to be removed. Pretty serious relief. It was unfortunate that, I mean, he did this to his sister. Her house is 10 feet away. She was looking up at this two story garage with this apartment on top, and it was hopeful that it wouldn’t get to litigation, but this guy just bullied through. So, part and parcel of that case, he counter- claimed, we had already submitted to this Board for the variance. The covenant, which gives Mr. Strasser the right, said that he could use and maintain and rebuild this, the boathouse, and it’s that language that the court interpreted here, because Stan, on behalf of Walker, went to court and said, your Honor, we don’t want him to replace the shed roof with the flat roof, and the court, in this decision that we submitted to the court, specifically said that we have the right to do that, and that, I read you part of it. This is the decision and order and right in the first sentence, the Defendant, which is Walker, has filed a motion for Summary Judgment seeking three forms of relief. One, an order dismissing the Plaintiff’s three claims relating to a certain garage built by him. Two, an order declaring that the roof deck proposed by the Plaintiff, Strasser, is violative of certain restrictive covenants, and then when he goes down to discuss Number Two, the Plaintiffs, Strassers, have the right to use their dock for purposes of boating, bathing and swimming. They were permitted to perform the initial construction of the dock, and that any replacement of the dock will be of like quality to the existing dock, and he refers to the declarations. There’s no dispute that the proposed boathouse will utilize the same footprint, and that the sundeck will be the same dimensions as the metal roof that it replaces. It is the court’s opinion that there is some ambiguity regarding the term bathing, presumably should be construed as an activity differing from swimming, otherwise the inclusion of the term would be superfluous. Sunbathing seems consistent with normal construction of the term bathing, where bathing means an activity other than swimming the only other type of bathing of which the Court is aware would be for personal hygiene which, in the present circumstances, does not seem reasonable. Moreover, to the extent that there is presently no prohibition from the plaintiffs’ use of the metal roof for sunbathing, the proposed roof merely facilitates such use. Accordingly, as to this issue, the Court grants the plaintiffs’ cross motion. So the Court specifically looked at the issue in front of you, as to whether or not, when Walker took title to the property, the covenants allowed Mr. Strasser to use the roof for sunbathing, and the Court said yes. MR. ABBATE-Now, this is a question for both attorneys. I disagree with you. The Supreme Court did not address the issue of standing, not at all, and the person having standing is the only individual who can request a variance. The Court did not address that issue. Am I right or wrong, guys? MR. STONE-I agree. MR. ABBATE-Thank you. MR. PRITZKER-I would take it further. The Court, they didn’t address the issues before this Board. They addressed issues regarding a private document, covenants and restrictions. MR. LAPPER-If you take just a broader look at this, the Court said, does Strasser have the right to go in and replace the deck, and he said yes, under the covenants, he has the right to do that. So in terms of standing, Walker took the property subject to Strasser’s rights, and among Strasser’s rights, according to the Supreme Court, is the right to go in and replace the deck. MR. ABBATE-Providing there’s no relief required. MR. LAPPER-Well, we already have approval from the Lake George Park Commission that’s waiting. 11 (Queensbury ZBA Meeting 7/21/04) MR. ABBATE-I’m saying providing there’s no relief required, if the Supreme Court knew that relief was going to be required, that they would have to address the issue of standing. MR. LAPPER-No. They knew that relief was going to be required because Mr. Walker told the Court that there was an application pending before the ZBA for a variance. MR. ABBATE-And the Supreme Court said, well, that will be the ZBA decision. Correct? I know it’s correct. MR. STONE-The thing that gets me is Judge Kroegmann, and I disagree with your interpretation, because I interpreted it differently, but he falls afoul of something that I take very seriously, using the same word in more than one way in the same document. The covenant talks about bathing. He attempts to define bathing, and then he uses another term, sunbathing, without further explanation. You can’t do that, in my judgment, because all you do is confuse the issue. He said a longwinded thing about bathing, but I don’t think it’s very clear that he’s saying the covenant talks anything about sunbathing up on top of the roof. Anyway, anything else you want to say? MR. LAPPER-Yes. Plenty. My position is that this specific issue, as to whether or not Strasser has the right to do this, was addressed by the Supreme Court, which, of course, is the Court where somebody would appeal a determination of the ZBA if they had to. So this issue has already been heard by a Court that has a review power of the ZBA. So I don’t think that issue needs to be litigated again. MR. STONE-Of a decision by the ZBA, not by, they can’t tell us what to do until we do it. MR. LAPPER-Correct, but in terms of the standing issue, the Zoning Administrator has allowed us to move to the Zoning Board with this application, based upon the Court decision, in terms of standing. MR. STONE-Yes. MR. LAPPER-And the Court’s told us that Strasser has the right to replace the roof. MR. STONE-Okay. We accept applications based upon the Zoning Administrator’s putting it on the agenda, but that doesn’t stop us from questioning, to me, we always talk about variances going with the property. The property is Walker’s property, not Strasser’s property. MR. LAPPER-Strasser’s property has an easement for the perpetual use of that dock. So those are his property rights. MR. STONE-Okay. MR. LAPPER-Are by easement, and whoever buys Walker’s property, and I understand it’s for sale, whoever buys Walker’s property takes subject to these recorded rights. There are two docks, when you look at the property, looking at the lake, and the one on the left is for Strasser and the one on the right is for Walker. It’s unfortunate we’ve got neighbors litigating, but that’s what we have. MR. ABBATE-There’s a difference between easement and ownership. MR. LAPPER-Well, an easement are some of the ownership rights. MR. ABBATE-There’s a difference between easement and ownership. MR. LAPPER-Of course there’s a difference, but in law school they talk about, real property talk about the bundle of rights, and a fee ownership is the whole bundle, and an easement is some of 12 (Queensbury ZBA Meeting 7/21/04) the bundle. So, an easement is an ownership interest. It is a right to use and maintain and improve this dock, and the Court’s ruled on it. MR. ABBATE-And just as you have a lot of respect for the other attorney, Counselor, I have a lot of respect for you, but I don’t agree. MR. LAPPER-We don’t always agree. It’s unfortunate, but, you know, I wish we did. MR. STONE-Anything else? MR. LAPPER-Yes. I guess just a couple of things. Stan read you a Section from our Code that talks about a nonconforming use. This is not a nonconforming use. The use of a boathouse and a sundeck are conforming uses. You have to distinguish, and I know you know this as well as anyone. There is an Area nonconformity and a Use nonconformity. There’s nothing here that’s a Use nonconformity. So we’re not talking about a Use Variance. This is a permitted use. We’re talking about an Area Variance, and in my mind, having been before you so many times it’s impossible to count, I would characterize this as a very minor variance, because we’re taking what’s there, we’re taking the shed roof, replacing the shed roof with a flat roof with a railing, and that is not an expansion. It’s actually less dense than what’s there now, because you can see through it, and it’s just, yes, we have neighbors that are feuding, but this is no big deal, in terms of a variance, and you’ve granted this same variance on the lake before. MR. ABBATE-One hundred percent variance is not a huge variance? MR. LAPPER-The 100% is just what’s there now. This is on the property line. I mean, it’s on the neighbor’s property, but it’s there, regardless of what you do, it’s always there. They’re going to have the right to maintain the shed roof forever, and taking the shed roof out and putting a flat roof is not a significant change. It’s a boathouse with a roof, and this is just less of a roof. It’s a flat roof. MR. STONE-Okay. Comment on opposing Counsel’s comment about the detriment to the neighbor and community. MR. LAPPER-The whole property, that whole area is used for lake access. Walker has his boathouse on the north side of the property, and Strasser has it on the left side of the property. The whole point of being there is that they have the right to get their boats in the water and use the lake. That’s what it’s for. Strasser’s property has a view of the lake, but in order to use the lake, he has to be on the dock, and whether or not he’s on the dock or on the roof, they’re jumping off the dock, they’re lying on the roof, that’s what it’s for. That’s his lake access, and he already has it. MR. STONE-Thank you. MR. URRICO-I have a question for Mr. Lapper. Do they, the Strasser’s currently use that roof for sunbathing? MR. LAPPER-I don’t know. I mean, the Court, I read you what the Court said. I never asked that question. MR. URRICO-But you don’t know if they currently use that? MR. LAPPER-No. I just have no idea. MR. URRICO-Because he said that Kroegmann said it was consistent with, there is presently no prohibition from the Plaintiff’s use of the metal roof for sunbathing. I would imagine that’s not something they do quite often on that roof. MR. LAPPER-I don’t know. I’m sure you’d need a towel on it. 13 (Queensbury ZBA Meeting 7/21/04) MR. MC NULTY-I would think the temperature of that roof would dictate that. MR. LAPPER-Yes, but he was talking specifically about the nature of the use and he said it was permitted. MR. URRICO-The staircase that was mentioned earlier, would that be on the dock itself, or on the property behind it? MR. LAPPER-It’s attached to the dock. It’s not on the shore. It’s on the dock, on the picture. MR. STONE-All right. Anybody else, anything else? If not, let’s talk about it. Jim, let’s start with you. MR. UNDERWOOD-I think we have to use a standard of fairness here that reflects both property owners. It’s easy to understand why the Strassers would want to expand this boathouse per say with this new deck up on top of there, but I think that it would, in fact, alter the use of what’s there now. I mean, I can imagine that you probably would swim off that dock on occasion. I mean, certainly you have the right to do that, but I think that, if you built a deck on top of there, it would become the primary recreation focal point for the property. I can’t imagine that you wouldn’t eat dinner down there on a regular basis to watch the sunset, or whatever that would be. Certainly I think you need to balance that against Walker’s rights, and I think that in the February submissions that were made to us, at that point in time there was a picture that was taken from Walker’s deck, which is directly above where this new boathouse deck would be built, and I would think that, you know, if that were your primary focal point of your dwelling, certainly it would be a hindrance to have people down there every single day of the summertime, you know, having a party with a lot of other folks over there at the same time. I think that’s a burden on the actual owner of the property. I think it’s important for us to reflect upon the fact that, you know, Walker does have a boathouse to the northeast of there, you know, where he has his deck on there which he utilizes, too, but I don’t think, at that point in time, I don’t know what his impact is on his nearest impact, either, but it would seem to me that it would take a little more than Judge Kroegmann’s, you know, relating to us the fact that he thinks this is not an expansion but I would have to, you know, disagree with him on that point. I think that, you know, it would substantially alter the use of what’s there at the present time. The ingress and egress of a boat is one thing. Swimming occasionally down there, but, you know, if you’re going to spend the whole day down there, certainly that is going to have a negative impact on the owner of the property. So I would not be in favor of it. MR. STONE-Okay. Chuck? MR. ABBATE-Thank you. Jim said it pretty well. We have to have a balancing act. We have to have a standard of fairness. I can understand the Strasser family wanting what they want. I don’t have a problem with that, but then again, you know, doesn’t Mr. Walker have any rights either? I’m perplexed by this whole thing. I’m perplexed by the fact that Mr. Walker and family, whatever, actually own the boathouse, actually own the property and pay all the dues and all the taxes, etc., etc. I think to arbitrarily say, well, there’s been an easement, to me, that’s an infringement. I wouldn’t be in favor of the application, Mr. Chairman. MR. STONE-Okay. Mr. Rigby? MR. RIGBY-Yes. I agree with what my two fellow Board members said, too. I think there’s a use issue here, too, you know, whether we say it directly or indirectly. I think that, you know, when you replace that roof, and now you have a deck, you’ve really got a use that is going to be different than it is now. You’re not going to eat dinner on the roof of that boathouse right now. You’re not going to, you know, play cards. You’re not going to do, you’re not going to watch the sunset sitting up there. You’re going to have people there. You’re going to have people there. There’s no question about that. So I think that, you know, we’re really doing something here that’s more than just replacing a roof, and there’s a lot of things involved. There’s issues 14 (Queensbury ZBA Meeting 7/21/04) about the staircase. There’s issues about, you know, who owns the property, you know, we know who owns it, but is it correct to give the person who has the easement the variance? So there’s a lot of open things, until I’m certain that, you know, we’re doing the right thing, I would not be in favor of granting the variance. MR. STONE-Roy? MR. URRICO-Yes, any change to the status quo in an already crowded situation is only magnified. I think what we have here is that kind of situation. I really think, when you put the test to it, it really doesn’t come out in favor of the Strassers. I think, when you see the benefit can be achieved by any other means feasible, I think, you know, if they were just replacing the roof or just redoing the structure without changing what the roof does, I think that would be a feasible alternative. As far as an undesirable change in the neighborhood character, or to nearby properties, I think that’s the essence of the issue here is what nearby property, and in this case the property is more than nearby. It’s right there. It’s very close, and that brings me to the next test, which is whether the request is substantial, and obviously it is. Easement or not, it’s still a large request, and maybe if they were replacing things the way they are, I would see it in a more favorable light, but right now I don’t, and I don’t think it has any environment affects, or physical affects, but I definitely think this is self-created. I would not be in favor of it. MR. STONE-Jaime? MR. HAYES-Well, I guess I agree and disagree with some of the things I’ve heard so far. I’d probably disagree on the issue of standing, because I think that has been established. It’s been reviewed by the Supreme Court in this particular case. It is possible for somebody that has an easement right to essentially have a right on somebody else’s property, whether they like it or not, and have a right to enforce that and protect it or whatever you want to call that, in this particular case. I certainly agree with the rest of the Board in the sense, though, in that, in this particular case, I think the Strasser’s took this property with the full understanding of the size, the shape, the usability, the accessibility of that dock or boathouse when they took it. So they weren’t stuck with it this way. That’s how they bought it. That’s how they took it, in this particular case, so I think that, you know, opposing counsel has brought up the point, and the pictures make it a little bit self-evident that there’s going to be a negative effect on the immediate property owner. I mean, there’s no doubt that an increase in usage in whatever fashion on top of the deck, as my other Board members have pointed out very eloquently, is going to affect him in a negative fashion. I don’t think there really are any feasible alternatives for the applicant in this particular case, because that is their only access. That is the only site, but when I look at the rest of the test, I think the relief is substantial, and I think it is self- created. I mean, I can understand their desire to put this roof on and use it in that capacity, but, yet, that’s something that they want to do for themselves. So I think, in this particular case, you know, it hints of being self-created. So, as I look at the balancing test, I’m comfortable with, you know, the Strasser’s putting this thing forward and attempting to have it go on the merits of the test. I’m perfectly comfortable with that, but I don’t think it carries once it gets there. So I’ll be opposed to it. MR. STONE-Chuck? MR. MC NULTY-Several thoughts. I don’t like to get involved with definition of words, but we’ve talked about, is this a change in use or not, and, under the Zoning Code, no, it’s not a change in use. It’s a Waterfront use, whether it’s being used the way it is now or whether it’s being used for sunbathing. So it’s not a change in use, but it is a change in intensity of utilization, if you will, because obviously there’s going to be more activity there, if there’s a sundeck on top of this, than if there’s a metal roof there. With due respect to the Judge, I can’t conceive of somebody sunbathing on the top of a metal roof, and it’s, other members have already gone over most of the criteria for judging something like this. I think the other thing that strikes me, in this particular case, the neighborhood is relatively confined. You can’t see much of this from the road, and I think the neighborhood really is the applicant and Mr. Walker, essentially, here, and I think very clearly this would change the nature of the 15 (Queensbury ZBA Meeting 7/21/04) neighborhood, at least for Mr. Walker. Certainly, standing from his deck looking down, this thing’s right in your face, and it strikes me that it would be a definite change for Mr. Walker, and it would probably reduce the value of his property some. So I’m going to agree with the other members. I think it’s too big a change in this particular situation, and I’m going to be opposed. MR. STONE-Well, basically I concur with the rest of the Board. I did hear a couple of things of things that I do want to comment on. I certainly raise the question of the property owner and who has the right to seek the variance. I thought Mr. Hayes made a very cogent argument. That’s the fact the Judge said they could ask for it, but that’s all he said to me is that they could ask for the variance. We have talked about the word “use”, and obviously, as Mr. McNulty just said, we’re not talking “use” as in Use Variance. We’re talking about, I think you said utilization. I wrote down in my notes here, how used. It’s going to be used in a different way. It doesn’t require a Use Variance, but certainly by putting the deck up there, as Mr. Pritzker said, and some of the Board members have said, it’s certainly going to change how this particular piece of property is utilized, and when you put it all together, and doing the test that we have to do, and that has been ably commented on by some of the members, I would also vote to deny this application. I have seven noes. I need a motion to deny, if that’s what you’d like us to do. Okay. Who would like to make a motion to deny? Getting all that stuff in there. MOTION TO DENY AREA VARIANCE NO. 88-2003 ROBERT & JANIS STRASSER, Introduced by James Underwood who moved for its adoption, seconded by Charles Abbate: 157 Pilot Knob Road, Kattskill Bay. The applicant proposes to modify an existing nonconforming boathouse by removing the existing shed roof and reconstructing it to a flat roof sundeck which will not exceed the width and overall height of the existing dock and boathouse, and the relief requested was 20 feet of relief from the 20 foot minimum adjacent property line setback requirement per Section 179-5-050, Sub Section A6 under Docks and Moorings. It’s the opinion of the Board, I think in general, that the request is extraordinary from the viewpoint of the change in intensity of use of the site as presently defined by the owner, Walker. The building of a deck on top of this boathouse would ultimately result in a negative effect on Walker’s use of his property, since he owns it. By no means would this deck interfere with the boat usage or swimming on the site, but it would constitute a negative effect, based upon the fact that it would be an expansion of use for other purposes besides the present use. It would create an undesirable change in the neighborhood as a result of this, due to the fact it’s right on the property and located directly beneath Walker’s home and outside deck of his house. The benefit sought by the applicant, it is felt, could be achieved by some other method, and that would be the fact that they could continue the present use as it is used and not expand this usage as requested. I think the feeling of whether the requested Area Variance is substantial, it’s substantial in the fact that it would create an added usage of the property, compared to what it is used for at the present time, which is simply for swimming purposes, and for the use of boat storage, and whether the proposed Variance would have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district, it’s generally felt that it would have a negative effect on the owner of the property, Walker up above, and the difficulty would be self-created, because the boathouse could be built with a roof similar to what is there at the present time, but the deck being built instead would be, in our opinion, a self-created difficulty. Duly adopted this 21 day of July, 2004, by the following vote: st AYES: Mr. McNulty, Mr. Hayes, Mr. Urrico, Mr. Rigby, Mr. Underwood, Mr. Abbate, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-There you go. 16 (Queensbury ZBA Meeting 7/21/04) MR. LAPPER-I’ll see you later. AREA VARIANCE NO. 36-2004 SEQRA TYPE: II DORIS FARRAR AGENT: VAN DUSEN & STEVES OWNER: DORIS FARRAR, RACHAEL ALLEN ZONING: SR-1A LOCATION: 1070 RIDGE ROAD APPLICANT PROPOSES A 2-LOT RESIDENTIAL SUBDIVISION. RELIEF REQUESTED FROM THE LOT WIDTH REQUIREMENTS FOR LOT 1, AS IT DOES NOT HAVE TWICE THE MINIMUM LOT WIDTH, WHICH IS A REQUIREMENT FOR CREATION OF NEW LOTS ON REGIONAL ARTERIAL ROADS. CROSS REFERENCE: SUB. NO. 9-2004, AV 66-2002, SUB. NO. 1-2003 WARREN COUNTY PLANNING MAY 12, 2004 LOT SIZE: 3 ACRES, 1 ACRE TAX MAP NO. 290.06-1-70.1, 70.2 SECTION: 179-19-020 C 179-4-030 NANCY SUTTON, REPRESENTING APPLICANT, PRESENT MR. STONE-We tabled it. MR. MC NULTY-We tabled it. I can’t find a copy of that tabling motion anywhere, though, but we tabled it on the 19. This was tabled from May 19 meeting. I guess apparently because we thth didn’t have a full Board that night. STAFF INPUT Notes from Staff, Area Variance No. 36-2004, Doris Farrar, Meeting Date: July 21, 2004 “Project Location: 1070 Ridge Road Description of Proposed Project: Applicant proposes to subdivide a 4.03-acre parcel with a pre-existing single-family dwelling into two lots. Lot 1 is proposed to be 1 acre with an approximate average width of 154 feet, and Lot 2 is proposed to be 3.03 acres with an approximate average width of 441 feet. Relief Required: The applicant has not requested any specific amount of relief from the lot width requirement. Staff has determined approximately 146 feet of relief is required from the 300-foot minimum lot width requirement (twice the minimum lot width requirement of the SR- 1A Zone) for a newly created lot fronting on a regional arterial road, per §179-19-020 and §179- 4-030 for the SR-1A Zone. Parcel History (construction/site plan/variance, etc.): AV 66-2002: tabled 05/19/04, due to 3-3 poll of the board. AV 66-2002: 09/18/02, same as current application. Staff comments: The current application is the same as that of AV 66-2002. The relief granted in 2002 has now expired, as the applicant never applied for the subdivision within one year of the date of the approval. Even though the application is the same as that of AV 66-2002, the amount of relief required was misidentified in 2002 to be 100 feet (the 200-foot road frontage was incorrectly used in place of the average lot width of approximately 154 feet). Being the average lot width has been determined to be approximately 154 feet, 146 feet of relief is needed from the 300-foot minimum requirement.” MR. STONE-Okay. Ladies, identify yourselves. MS. FARRAR-Good evening. Doris Farrar, property owner. MRS. SUTTON-My name is Nancy Sutton. I am Doris’ attorney. MR. STONE-Okay. Anything you want to tell us? 17 (Queensbury ZBA Meeting 7/21/04) MRS. SUTTON-I’ve had conversations, over the last month or so, with Bruce Frank, and I believe in your file you have a letter from me, and from Stan Pritzker addressing an issue that was raised at a previous meeting of the ZBA, regarding any litigation between Ms. Allen and Ms. Farrar. That is really the only reason that we are here tonight. Matt Steves continues to be the agent for the applicant, and he is unable to be at the meeting tonight. So we are here, at Mr. Frank’s request, just to reiterate, along with Mr. Pritzker, that contrary to what the Board was told by a neighbor, I believe, there is no litigation pending between Ms. Allen and Ms. Farrar. MR. STONE-Okay. Thank you. MR. HAYES-Are you confirming that fact, Mr. Pritzker? STAN PRITZKER MR. PRITZKER-No litigation yet. There’s no litigation. MR. STONE-Would you comment, however, on how a mortgage got obtained on this property? MS. SUTTON-You know, Mr. Stone, that’s a very good question. MR. STONE-That’s why I asked it. MS. SUTTON-And it’s a question that Doris and I have been thinking about and trying to come up with a very good answer. This closing took place almost two years ago. The only answer that we, independently of each other, have come up with is we don’t know the answer. At the time, there were many people involved. Matt Steves was involved. The bank attorney, the title company, all the people, the standard players in a closing, and at the time, we thought we were doing the right thing. We thought everybody was on the same page. MR. STONE-Well, in a sense you were. You did have a variance that this Board had granted you. MS. SUTTON-Yes, we did. MR. STONE-You just didn’t have a subdivision. MS. SUTTON-Well, and, you know, all I can say is that we’re human, and we, obviously, there was a major disconnect, which we were not aware of until Mr. Brown brought it to our attention earlier this year, and since that time, Ms. Allen, thanks to Stan’s good offices, and Doris, have been trying to rectify this situation, and my client at this point is not interested in fixing the blame so much as fixing the problem. MR. STONE-Okay. I understand. MS. SUTTON-So that’s really the best answer I can give you. MR. STONE-That’s fine. I just wanted to get it on the record, that’s all, because it is, I mean, sometimes, and what’s happened in this case is that we approved a variance, and we promptly forget about them of course. It’s not our job to follow them, and then we find, a year and a half later, that you’re before us again because, one, it’s expired and you never applied for a subdivision. Anyway. Any questions anybody has on the subject? MR. ABBATE-I do, if I may. There is a larger issue here. It wasn’t addressed as yet. You indicated earlier that the only reason that you are here is because of whatever, the statement that you made. The basic problem is this, that some folks fail to obtain approval of a subdivision, prior to selling a portion of that subdivision, and that, in itself, creates somewhat of a legal mess, if you will. The issue, as far as I can see it, is that there is no approval for a subdivision, and I think that is a major, major issue. 18 (Queensbury ZBA Meeting 7/21/04) MS. SUTTON-It is a major issue. However, it is not an issue that we are prepared to address. That is Mr. Steves’ issue to address. He represents my client in terms of this application. MR. ABBATE-And you’re probably right, but, you see, it’s an issue for me. MS. SUTTON-I understand. MR. ABBATE-See, the fact, I mean, how could I, in good conscience, even address this issue without taking into consideration the fact, which is the truth, that there is no approval for a subdivision. MS. SUTTON-Well, I think that we all acknowledge the fact that there is no approval for a subdivision, and that’s why my client and Ms. Allen have re-applied. MR. ABBATE-Are you an attorney? MS. SUTTON-I am an attorney. MR. ABBATE-Okay, Counselor, I’m sorry about that. I beg your pardon. I’ll address you as Counselor. I beg your pardon, but anyway, Counselor, that’s my dilemma. Thank you, Mr. Chairman. MR. STONE-Okay. MR. MC NULTY-Just to comment on that, I think it’s a horse and cart issue. They probably are not going to be able to get a subdivision of this property unless they get a variance from us. So, I don’t think we can criticize them or judge them if they don’t have the subdivision yet, and who’s mistake it was, you’ve got a long list. The realtor should never have even marketed that property without a subdivision. There’s a piece of State law that I saw once, and I can’t find that says that a piece of property should not even be offered for sale until it has an approved subdivision, if it’s going to be subdivided. So, you know, realtors missed it. Lawyers missed it, Mr. Steves missed it, right down the line, and like you say, I think the thing now is to see if we can fix it. MS. SUTTON-We want to move forward. MR. STONE-At the previous meeting, when we granted the variance, you talked about stipulating two lots, no more, on the property as it exists on the tax rolls at the moment. The original lot. Two lots, one that would obviously be Ms. Allen’s lot, and the one that you would have with joint driveway and all the stuff we talked about. You’re still agreeable to that? MS. FARRAR-I think what the issue was with that, there would be a shared driveway on the remaining three acre lot, yes. MR. STONE-Shared with whom? MS. FARRAR-Shared with whoever is going to purchase the three acres, whether it’s one person or whatever. Rachael Allen already has her own driveway. MR. STONE-Okay, but you’re talking two lots on the existing. MS. FARRAR-I’m talking one lot and one driveway on the three acres. MR. STONE-Well, if you only had one house on it, you would only need one driveway. MS. FARRAR-That’s correct. 19 (Queensbury ZBA Meeting 7/21/04) MR. STONE-So shared with, I’m just concerned with, you used the word “share”, I don’t know what it means. It scares me. MR. FRANK-Mr. Chairman, if I can clear the matter up, I believe that Mr. Steves, at the last meeting, clearly stated that should you approve this application and it goes through the subdivision process and you create these two legal lots, lot labeled number two, on the application submittal, could be legally subdivided, without needing any relief, if they shared a driveway. That’s why Mr. Steves located the driveway dead center of the 3.03 acre lot being proposed. So that could be further subdivided and I believe he stated that they would condition it not to subdivide it any further than two lots, if the owner chose to do so. MR. STONE-Okay. MR. FRANK-I think that’s what they’re referring to. MR. STONE-I’m misreading the notes. Okay. MR. ABBATE-Mr. Chairman, can I raise another issue, if I may? MR. STONE-Sure. MR. ABBATE-The other issue, Counsel, that I have is this, that neither you, nor your applicant, has requested any specific amount of relief, and yet relief is definitely required. MS. SUTTON-Again, I am not here to speak to the application. That is Mr. Steves’ responsibility, and I’m sorry I can’t answer your question. MR. ABBATE-Let me be very blunt with you, okay. Mea cupla’s doesn’t work with me. You keep saying that it’s someone else’s responsibility. MS. SUTTON-No, excuse me. I’m saying that I was asked, and my client was asked to be here specifically to address one point. I am not here as the agent for the applicant. I am not familiar with this application. I am not familiar with your procedures. I don’t practice in front of ZBA’s or Planning Board’s or anything like that. So, without being argumentative, and staying away from mea culpa’s, I’m only trying to explain that I’m not in a position to answer any questions about the application itself. MR. STONE-Okay. So you’re saying questions should be directed to Ms. Farrar only? MS. SUTTON-If she can answer those question. MR. STONE-Well, she’s the applicant. MS. SUTTON-True, but she hasn’t appeared at any of the meetings. She’s left that to Mr. Steves. MR. STONE-I don’t see Mr. Steves in the room. MS. SUTTON-I indicated that Mr. Steves told us today that he was unable to come to the meeting tonight, that he was going to be out of town. MR. FRANK-Mr. Chairman, in fairness to Ms. Farrar and Ms. Sutton, we had this conversation on the phone today. She did not want to come before this Board and have these kind of questions addressed to her because she was not prepared. The Zoning Administrator and I requested she come here because we thought you could resolve this issue without having Matt Steves here, because something came up and he was not able to attend, and he was going to request a tabling. All the facts are before you, nothing’s changed. I mean, Matt very clearly laid out what they were proposing at the last meeting, and the meeting prior to that, when you did 20 (Queensbury ZBA Meeting 7/21/04) approve it. So that’s why we thought, well, the Board has the facts. They’ve got the application. They’ve got the site plan. So, again, they’re here because we requested they be before this Board because we thought you could probably resolve this. MR. STONE-I appreciate that. I appreciate the fact that Ms. Sutton has told us that there is no legal action going on. That was a question that’s resolved. There is no legal action going on. That was a question that was resolved. There is no legal action. Ms. Allen, who owns, at least according to Ms. Farrar who, in her mind, owns the smaller lot, and Ms. Farrar have no action going on. The question before us still is the original question, should we allow two lots, one of which is substandard. MR. HAYES-As far as road frontage. MR. STONE-As far as road frontage is concerned. That’s the only issue before us. MR. FRANK-And again it was addressed to you prior to this. MR. STONE-Yes, but we had a three/three vote, remember. We didn’t resolve it. MR. FRANK-That’s why they’re here again. MR. STONE-I know, but if Mr. Steves is the applicant, is the agent, then I’m not sure how we can proceed. MR. ABBATE-And that’s a good point. I have questions I want to ask, and Ms. Farrar is not here. The agent is not here. MR. FRANK-Ms. Farrar is here. She’s the owner. MR. ABBATE-Not Farrar, excuse me. I got confused. If Ms. Farrar can answer these questions, that’ll satisfy me. I don’t have a problem with that. MR. URRICO-Before we can proceed, don’t we have to, don’t they have to get approval for the two lot subdivision? MR. STONE-No. MR. ABBATE-Right. MR. STONE-Well, we’re really talking a two lot subdivision with a potential second subdivision of the other lot, of the larger lot, which was stated back in ’02. MR. FRANK-They didn’t have to offer that before. They did because they were willing to stipulate they would no further subdivide the larger parcel than once more in half, which they could do in three lots, if they shared a drive. MR. STONE-We understand. MR. FRANK-And the same for this application. They only requested relief because they didn’t want a shared drive because of the original configuration of the existing dwelling. They did not have to come before this Board. They could have created a shared drive, which now, it wouldn’t have looked right, according to what the applicant said in the past, to have a driveway going from the existing, across and parallel to the road, and I think that was his argument for asking for the relief. MR. STONE-I agree, I mean, but the issue before us is a two lot subdivision with substandard road frontage. 21 (Queensbury ZBA Meeting 7/21/04) MR. FRANK-That’s not correct. Substandard lot width, not road frontage. MR. STONE-I’m sorry, lot width. MR. ABBATE-Mr. Chairman, do we also have to address the relief required? MR. STONE-It’s there. MR. URRICO-That’s the relief. MR. STONE-The lot width is 146 feet of relief. MR. ABBATE-Yes, they need 146 feet of relief. MR. FRANK-Even though the applicant didn’t request any specific amount of relief, his application is part of the, I’m sorry, the site plan is part of his application speaks for itself. Do you see what I’m saying? MR. ABBATE-No, I don’t see what you’re saying. MR. FRANK-Well, if you look at this, this is what he’s requesting, to make this configuration. Staff just came up with the actual lot width. MR. ABBATE-Let me ask you a question, okay. Does this applicant require 146 feet of relief, yes or no? MR. FRANK-For Lot One it does, yes. MR. ABBATE-Thank you. So we also have to address that issue, too. MR. FRANK-That’s correct. MR. ABBATE-That was my question. MR. STONE-Well, it’s only for Lot One that we’re talking. MR. FRANK-That’s correct. That’s the only bit of relief they need for this application. MR. ABBATE-Right. MR. STONE-Anything else? Any other questions? MR. HAYES-We have a number of circumstances where we end up calculating the amount of relief that’s necessary, if it’s self-evident or if it’s not clear, as far as linear dimensions. MR. STONE-Yes. MR. FRANK-That’s correct. I mean, the applicant’s agent could very well have done a very simple Auto Cad function that would give them the actual lot width. He did not provide that in the original application. We stated this. He concurred, or he didn’t disagree with it at the previous meeting. MR. STONE-Okay. MR. FRANK-So in other words, if he didn’t agree with the relief we said that was needed, he would have argued the matter at the time, and he didn’t. So we’re assuming he concurred. 22 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Okay. So the only thing before us, until we possibly put some stipulations on, is relief for the, let’s call it the Allen lot, the smaller of the two lots. MR. FRANK-Labeled Lot Number One on your submittal, correct. MR. STONE-Lot Number One, right. We’re looking for lot width for that particular lot. The other one will be conforming. MR. FRANK-That’s correct. MR. STONE-Okay, and, however, when we discussed it, there were other suggestions made, and agreed to. We’ll get to those if we want to. Anybody else have any other questions? Not hearing any, I’ll open the public hearing. Anybody wishing to speak on this subject? PUBLIC HEARING OPENED STAN PRITZKER MR. PRITZKER-Hello, again. Stan Pritzker. This time I’m here just to speak very briefly for Rachael Allen. Rachael bought this lot a few years ago. We’re trying to support, let’s call her the developer, the seller. MR. STONE-You were not her attorney? MR. PRITZKER-I was not, no. MR. ABBATE-You didn’t do the title search, Counselor? MR. PRITZKER-I wasn’t at all related to the matter at all. I did not even know Ms. Allen at the time. Anyway, she’s living there now. She has a lovely house, and I’m just here to say that all she seeks, I believe, is 146 foot of lot width relief, and I believe you granted a variance once before, okay. We need the variance before we get the subdivision approval, and if there’s any questions I could answer, I’d be glad to. MR. STONE-Okay. MR. PRITZKER-That’s it. MR. STONE-You’ve certainly said there’s no litigation going on between Ms. Farrar and Ms. Allen. MR. PRITZKER-I have the papers in my computer in my office, but I haven’t filed them. No. Thanks a lot. MR. STONE-Okay. Anybody else wishing to speak on this subject? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-All right. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Hearing none, let’s talk about it, unless you have some further questions. Chuck, we’ll start with you. MR. ABBATE-Okay. Thank you. I guess there’s enough blame all the way around. So we can drop that issue. The Chairman said it right initially. Do we approve, after the fact, a subdivision? That’s the question, and, Mr. Chairman, in my mind, quite frankly, I don’t know. 23 (Queensbury ZBA Meeting 7/21/04) I’m going to base, probably, my decision on the facts that I hear from the remaining six members of the Board, because I simply don’t know. Thank you. MR. STONE-Okay. Leo? MR. RIGBY-Well, thanks. I’m in a dilemma here, too. One hundred and forty-six feet of relief seems like, forgetting about whether, after the fact or before the fact, or whenever it occurred, one hundred and forty-six feet of relief seems like a lot of relief to me. I’m just going to give some thoughts here, and I haven’t really formulated an opinion on how I’m going to vote on this either, and I, too, want to listen to other people, but on the outset it seems like a lot of relief. Again, forgetting about whether it’s before the fact or after the fact. Lot Two, we’re obviously going to subdivide that at some point in time. What’s going to happen there I don’t know. I have a lot of questions that I don’t quite have answers to. I really haven’t formulated an opinion, either, and I’m going to listen to the rest of the Board as well. MR. STONE-Okay. Roy? MR. URRICO-Well, I’m going to give an opinion. I was not here at the first time this came before us. So at that time I did not grant approval because I was not able to, but when this came before us in May, I felt then, and I feel now, that the crux of the matter here is that we have an arterial road, Ridge Road, and as an arterial road, we have double the lot width required for a reason, the reason is to limit the number of driveways that spill out onto that arterial road, and this is a pretty rough turn, and I really think, in this case, regardless of what’s happening, as far as the lots themselves and the subdivision, I think this is a bad idea to have a smaller than, a substandard driveway for this area, for this particular property, and I would be against it. MR. STONE-Jaime? MR. HAYES-Well, I was here on the previous application, and I voted for it. I intend to do so again, largely, and I’ll just summarize my remarks in this particular case is, is that in the end, this is still an Area Variance. This is a balancing test, the benefit to the applicant, essentially, to the detriment of the neighborhood. In this particular case, the parcel itself is going to be subdivided into, or the applicant is attempting to, once again, subdivide the property into two lots. According to the zoning that surrounds this property, using a shared driveway, the applicant could subdivide this to a greater extent than she’s attempting to now, and I thought that was a very large factor in my opinion. In this particular case, if there’s two lots there, by permission by the Board or by the Planning Board, at the end of the day, someone who drives by this parcel is not going to, the only people that are going to know where that property line is are the applicant and the person that they sell the property to, in this particular case, will have two lots on essentially four acres, which, in my mind, is a very generous piece of property. I don’t think that it’s going to create a traffic issue, in that we’re talking about two houses, and the trip generations from two residential houses will have no real impact on the traffic on Ridge Road, in my mind. I thought the biggest, you know, the relief is that substantial, 143 feet of moderate relief substantial? Again, I don’t think that it is. I think it’s severely mitigated by the truth, or not the truth, but the fact that in the end there’s only going to be two parcels here on this particular piece, and there’s still going to be a tremendous amount of land associated with the two lots, as we combine them, regardless of where you draw the line. Will the request have adverse physical effects on the environment? I don’t think that it will in this particular case, for the reasons that I’ve already said. Is the alleged difficulty self-created? I think it is, in the sense that the applicant wants to subdivide the property, is trying to subdivide the property, but, as I look at, on balance, where, I just don’t see where the detriment to the neighborhood is, in this particular case, creating two lots on four acres. I just don’t see where it is. I understand that the relief is meaningful, but the only real impact is going to be where that line is drawn on this subdivision, and my memory isn’t perfectly clear, but I think that Matt Steves had laid out to us the fact that, based on pre-existing house on the lot now, that this would be the most logical or the most practical way to subdivide this property, even though it didn’t necessarily exactly comply with some area requirements, as far as minimum lot width. So that was what my criteria was before, and I haven’t heard anything to change that. So I would be in favor. 24 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Okay. Chuck? MR. MC NULTY-I’m trying to jog my memory on this. I believe that originally when we looked at this, the idea was if we granted relief for this substandard lot width, that technically the applicant could then subdivide the remaining large lot into as many as three lots, and that they had agreed to a condition that they would only subdivide it into two. If they agree to subdivide it only into two, that means a total of three lots for that entire piece, and I believe they could accomplish the same thing by just moving the lot lines, in which case they would not need a variance. Given that we’re charged with granting the minimum relief required, it strikes me that if they moved the lot line, there would be no variance needed and that, to me, means minimum relief. So I’m going to be opposed. MR. STONE-Okay. Jim? MR. UNDERWOOD-I was not sitting because I was an alternate the last time that this came up, and in that vote it was a four to three vote. It was Mr. Abbate, Mr. Hayes, Mrs. Hunt, and Mr. Bryant voting for it, and Mr. Himes, Mr. McNulty and Mr. Stone voting against it. I think that there was some attempt on the part of the applicant at that time to ensure that, at the most, there were going to be two driveways accessing the properties, irregardless of what happened in the future, and I think that it was written in at the time when Jaime made the motion that the remaining large lot there could be no further subdivided except into two more possible lots that would share one of those driveways on there at the time. I think, due to the fact that we set the precedent the last time of okaying this, I mean, even though there was a little bit of screw up as far as the amount of relief requested, I think it’s going from 100 to 146 or 142, whatever it is, it’s probably going to be in our interest to allow this to go on as it was originally done, because I think that, you know, we gave the impression that we were favorable, and so I guess I will go along with the request. MR. STONE-Okay. I’m conflicted. Certainly my recollection, as I read the minutes, is that I voted no the last time, primarily because the two lot subdivision, which was what was on the table, could be achieved without a variance, and that was the question that was before us. It’s a four acre parcel. One acre zoning, but you could have divided it down the middle and you could have had the two lots that, ostensibly, you were seeking. As we discussed it in the evening that night, we did find out that, in fact we’re really talking about the potential of a three lot subdivision, and that was the thing that swayed me to say, since we really didn’t need a variance to get a two lot subdivision, why would I grant a variance that might lead to a three lot subdivision, and Mr. Steves did say at the time he was willing to stipulate that the remaining parcel, the three acre parcel, would be divided into no more than two lots with a shared driveway. That didn’t sway me at the time, but I think it does now. I’m willing to say that when you put those stipulations on, coupled with the fact that the existing parcel, the one acre is a well developed one acre conforming, except for the width. I’m willing to say that I would approve this variance based on a lot of the reasons that Mr. Hayes so carefully enunciated. Right now I have, and I’m not putting you guys on the spot, but I have two guys who have not committed one way or the other, and we’ve got three yeses, as I look at it. MR. ABBATE-I’ll be happy to commit, Mr. Chairman. MR. STONE-Okay. MR. ABBATE-I mentioned earlier about a standard of fairness, and taking into consideration a balancing. I was here last time, ladies, and I voted for it, and to be consistent, and based upon a standard of fairness, which I firmly believe in, I would find it very difficult now to change my position. Because it would reveal inconsistency, and so, Mr. Chairman, I believe that I’m going to support the application. MR. STONE-With a little philosophical comment. 25 (Queensbury ZBA Meeting 7/21/04) MR. ABBATE-Well, no, there’s nothing else that I’ve heard that would, it wouldn’t take much for me to change my mind, but there’s nothing else that I have heard that would cause me to do it, and based upon the fact that I’m unsure, I believe, under the standard of fairness, it would be best to go approve the application in favor of the applicant. MR. STONE-Okay. Having said that, I need a motion to approve this application. MR. RIGBY-Can I ask a question first, just so I make the right decision here as well? MR. STONE-Sure. MR. RIGBY-This is really, in my mind anyway, it’s about access to Ridge Road, and I just want to understand, how many driveways are we talking about that are going to have to Ridge Road? MR. STONE-A maximum of two. MR. RIGBY-A maximum of two? Can we make that part of the motion? MR. STONE-Yes, absolutely, yes. Do you want to do the motion? MR. RIGBY-No. MR. STONE-Well, I was going to say, the motion has to say what we’re granting, but with the understanding that the three acre portion would be subdivided once more into no more than two lots, and those lots would have a shared driveway. MR. UNDERWOOD-Can we not just read the old motion that Jaime made? MR. STONE-I was going to suggest that, Jim. MOTION TO APPROVE AREA VARIANCE NO. 36-2004 DORIS FARRAR, Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: 1070 Ridge Road. The applicant proposes to subdivide a 4.03 acre parcel, with a pre-existing single family dwelling into two lots. Lot One is proposed to be one acre, with an approximate average width of 154 feet, and Lot Two is proposed to be at 3.03 acre with an approximate average width of 441 feet. Specifically, the applicant requests 146 feet of relief from the 300 foot minimum lot width requirement, which is calculated as twice the minimum lot width requirement of the SR-1A zone, for a newly created lot, fronting on a regional arterial road, per Section 179-19-020 and Section 179-4-030 for the SR-1A zone. I move for this approval based on several factors. One, I believe that there will be no real negative impact on the greater neighborhood or community, in that this parcel is a 4.03 acre parcel which is being subdivided into two parcels in total. Evidence has been put forth by the applicant’s agent who was not here tonight, Mr. Steves, that the applicant has proposed the boundary line to be placed where it is, which is also creating the need for this variance, in this particular case, of not being the proper, or the required double width for the reason that the house is an existing structure, and that this particular subdivision will make the most sense, as far as the traffic delineation between the two lots. I also think there will be no impact on the neighborhood, negative impact on the neighborhood in this particular case, because as one travels down Ridge Road, past this four acre site, it will not appear, we’re not granting a variance that’s going to create a rapidly increased use or intensity of use of the property as depicted. It’s going to be two lots, two homes, with what the applicant has set forth to be the best delineation for the two driveways. Without belaboring the point, I guess, the amount of relief that’s being requested, 146 feet, I think is moderate in this particular case, but again, I think it’s mitigated substantially by the fact that it won’t even be discernible outside of somebody having a tax map or having this particular view as to where that property line exists. The motivation or the rationale behind the doubling of the lot width is to, as another Board member properly brought out, is to limit the number of 26 (Queensbury ZBA Meeting 7/21/04) driveways that are going to dump onto or enter onto busy arterials that increase in traffic, but in this particular case, we’re going to have only two driveways for four acres. I think that, in that particular sense, that part of the Code has been protected, to the extent that I’m comfortable with. So it has more to do with where we’re drawing this line, not increasing the number, we’re not changing this line to increase the number of driveways. We’re just changing because of the pre-existing configuration of the homes on the lot. So, on balance, I should say, the difficulty is certainly self-created, in that the applicant is requesting a subdivision, wants to sell the piece, or already has sold the piece, and I think that that certainly falls against the applicant in this particular case, but on balance, I think, as has been brought out by the rest of the Board, we have approved this in a prior meeting. I don’t think that it obliges us to do so, but I certainly think, in a matter of consistency and fairness, I think that that has to be part of the consideration of our test, at least it is for me, and on balance I think that it falls in favor of the applicant, and I’d move for its approval. That the applicant will stipulate on the record the fact that if this motion is carried, and a nonconforming piece is granted, that the applicant agrees to subdivide into no more than two with a shared driveway. Duly adopted this 21 day of July, 2004, by the following vote: st AYES: Mr. Underwood, Mr. Rigby, Mr. Abbate, Mr. Hayes, Mr. Stone NOES: Mr. McNulty, Mr. Urrico ABSENT: Mr. Bryant MR. STONE-There you go. MS. SUTTON-Thank you very much. SIGN VARIANCE NO. 40-2004 RAY SIGN FOR MOUNTAIN VIEW OUTLET STORES SEQRA TYPE: UNLISTED AGENT: RAY SIGN, INC. OWNER: GORDON DEVELOPMENT ZONING: HC-INT. LOCATION: 1476 STATE ROUTE 9 APPLICANT PROPOSES TO REMOVE THE EXISTING 48.5 SQ. FT., 15 FT. HIGH FACTORY STORES OF AMERICA FREESTANDING SIGN AND REPLACE IT WITH A NEW DOUBLE FACED- ELECTRIC 130 SQ. FT. FREESTANDING SIGN, 20 FT. HIGH SIGN (MOUNTAIN VIEW OUTLET STORES). RELIEF REQUESTED FROM THE MINIMUM SETBACK AND MAXIMUM SIZE REQUIREMENTS. CROSS REFERENCE: BP 94-1645 FREEST. SIGN WARREN COUNTY PLANNING: 5/12/2004 LOT SIZE: 4.51 ACRES TAX MAP NO. 288.12- 1-17 SECTION: 140-6 RUS HAZEN, REPRESENTING APPLICANT, PRESENT MR. MC NULTY-Okay. We’ve tabled this on May 26, 2004, and that was “MOTION TO TABLE SIGN VARIANCE NO. 40-2004 RAY SIGN, MOUNTAIN VIEW OUTLET STORES, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: 1476 State Route 9. For up to two months, 62 days, for the client and his agent to consider comments made by the Board in regard to his application and to submit possible alternatives which we can consider for granting a variance, or for the sign to come into conformance. We would suggest that you get it in by June 15 so that it could be on the July agenda. th Duly adopted this 26 day of May, 2004, by the following vote: th AYES: Mr. Rigby, Mr. Underwood, Mrs. Hunt, Mr. McNulty, Mr. Hayes, Mr. Bryant, Mr. Stone NOES: NONE” STAFF INPUT 27 (Queensbury ZBA Meeting 7/21/04) Notes from Staff, Sign Variance No. 40-2004, Ray Sign for Mountain View Outlet Stores, Meeting Date: July 21, 2004 “Project Location: 1476 State Route 9 Project Description: Applicant proposes to remove the existing 48.56 sq. ft., 15 ft. high, freestanding sign at a 14 ft. front setback and construct a 130 sq. ft., 20 ft. high, freestanding sign at a 6.5 ft. front setback. Relief Required: 1) 8.5 feet of relief from the 15-foot minimum front setback requirement for a 50 sq. ft. freestanding sign. 2) 80 sq. ft. of relief from the 50 sq. ft. maximum size requirement for a freestanding sign at a 15-foot setback. Parcel History (construction/site plan/variance, etc.): SV 40-2004: tabled 05/26/04, remove existing 48.56 sq. ft., 15 ft. high, freestanding sign at a 14 ft. front setback and construct a 192.37 sq. ft., 24.33 ft. high, freestanding sign at a 12 ft. front setback. BP 94-1645: 05/23/00, 48.56 sq. ft. freestanding sign (change of copy for Factory Stores of America). BP 94-1645: 05/31/94, 48.56 sq. ft. freestanding sign for Factory Stores of America Outlet Center. Numerous other building permits, sign permits, 3 sign variances, 1 area variance, and 2 site plan reviews for the business complex. Staff comments: The applicant proposes to replace the existing freestanding sign with an 81.44 sq. ft. larger, approximately 4 ft. wider and 5 ft. higher freestanding sign 7.5 ft. closer to the front property line. A review of the sewer line easement map revealed the existing sign is entirely within the easement area (see attached copy of map). However, being the proposed sign is wider than the existing sign, the new footing would be further away from the proposed sewer line, even though it would require additional setback relief. It appears the existing pylon location will be utilized for one of the proposed pylons. The existing pylon scales to approximately 5 feet away from the proposed sewer line placement.” MR. STONE-County? MR. MC NULTY-County we did before, but that was recommendation to Approve. MR. STONE-Okay. Gentlemen. MR. HAZEN-Good evening, Chairman and fellow Board members. My name is Russ Hazen. I’m with Ray Sign Company. I was here in late May looking to put up a proposed sign at 192 square feet, 25 foot high. At that time, we discussed the location itself, the fact that there’s a very high vacancy rate over there, and Mr. Gordon’s here tonight. He was unable to attend that meeting the last time. The Board had asked that we come back with something that was smaller, maybe less intrusive, which I hope we accomplished tonight. The relief here we’re seeking, I think at the last Board meeting there was, with the exception of one person, a consensus here that there’s a problem down there. The center doesn’t run parallel with Route 9. It runs more perpendicular, and if you’re not from the area and you’re driving Route 9, we really feel that this front sign is really the key to getting this property back on track. It’s very hard to identify what businesses are in there, and the basis here, to make this property even have the right value is to keep tenants in there that can stay in business, basically. The sign that’s there now, as you can see, it’s a very poorly designed sign, Number One, and Number Two, 50 square foot doesn’t really give this particular parcel an opportunity to identify those tenants that are alongside that building. Especially in the back. We did reduce the height from the original proposal from 25 to 20. We reduced the square footage down to, from 192 to 130, 110 being the tenant area of the sign, and I think everyone has a copy of the proposed sign. It’s a nice looking sign. Mr. Gordon’s willing to spend a considerably amount of money to put something nice out there to make the center work, and we really feel that there’s a hardship here, and I think it was obvious by even the selling price of the property. This center has been 28 (Queensbury ZBA Meeting 7/21/04) very difficult to rent, and I think this might be the very piece that gets businesses in there. The other thing is you are allowed 100 square feet on the building, and to put 100 square foot on one side of the building for each tenant, you wouldn’t see it. MR. STONE-A comment you made, I believe the Board of Assessment Review recognized the difficulty that the shopping center has, and I believe the assessment was lowered, if I’m not mistaken. Do you agree, Mr. Gordon? The assessment was lowered, in recognition of the argument? JEFF GORDON MR. GORDON-I think, yes. MR. STONE-Since I Chair that Committee, I know that. MR. GORDON-Yes. MR. STONE-Okay. I have a couple of questions. I assume you would be willing to take all of the signs off the wall, facing Route 9? MR. GORDON-Yes. MR. HAYES-You’re saying the ones up by the point there, essentially? MR. STONE-Yes, by the point, and well, above the roofline. The other ones, I’m not sure whether they’re technically legal or not anyway. MR. GORDON-I’d just like to add that if the Board’s kind enough to approve this sign, we were going to renovate the entire center to match this sign. I was going to put a new façade on the center. MR. STONE-Okay. MR. GORDON-Yes, to actually match the look of this sign with the crown molding and the columns. This sign was really the catalyst, I believe, to get the center back on track where I think it should be. Every tenant has said the same thing to me. Every tenant I’m talking to. I actually have tenants that are interested in coming in if the sign gets approved. They said without signage on the road, people don’t know I’m there. I’m not interested. If you can get visibility on the road, I’m willing to come in. MR. STONE-Well, I think we all agree with that. In fact, that was one of the comments we made just before, when you bought it, was what is the purpose of Factory Outlets. It didn’t say anything to anybody. MR. GORDON-Right. So to answer your question about getting the signs off the front, I think it would go with the look of the center. I think it would almost clutter it. MR. STONE-Just one question. You know your competitor is in the room. MR. GORDON-No. MR. STONE-He’s sitting back there with a grin on his face. MR. GORDON-This will help. I would think that this would just increase the property values for everybody. MR. STONE-I drove the road the other day, even with the current sign, and I need to be convinced that the sign has to be as close to the road as you would like it, because driving from 29 (Queensbury ZBA Meeting 7/21/04) the south, it would be very obvious if it were in a more conforming location, closer to the building. Driving from the north, because it’s still quite visible coming down from the north, if it were closer to the building. I’m concerned by the closeness to the road. MR. GORDON-I believe we’re putting the new signs exactly where that is, right? MR. HAZEN-Well, as close to the building as the existing signs. MR. MC NULTY-The application looks as though the pylon for the new sign that’s closest to the building will go where the support is for the current sign, and the sign will extend out from that, towards the road, and if that’s the case, I’ll agree with the Chairman. I think it’s got to move back in. I could go with the outer pylon being where that pylon is, but I think if the sign is any further out than that, with it being lower and filled in more, it’s going to be a hazard for somebody pulling out of the driveways on each side. MR. GORDON-And I noticed that there’s a variance needed for setback. Is that because, I think it was two or three years ago there was a taking of a strip of land for widening, I think they widened the sidewalk. MR. STONE-Well, the right of way of Route 9 has always been very large. MR. GORDON-But I remember, I think two or three years ago, they widened the road, or they widened the sidewalk. MR. MC NULTY-And they put the turn lane in, that’s visible in the lower right corner. MR. GORDON-And I think that’s the reason why there’s a setback relief needed, I think, for that. MR. STONE-Well, I’m not even talking about the numbers. I’m talking about where it is more than anything else. MR. MC NULTY-Yes, that’s where I’m coming down, too. MR. STONE-Because there’s a big gap in there, where, if you look, and this is coming from the north, and I think the sign would be quite visible, but that’s me. I’m only one person. MR. MC NULTY-Well, where your current sign is, it certainly is going to create a problem for you if you put the outer pylon where that current support is because the inner pylon then is going to be interfering with your flagpoles. So you’re looking at either moving your flagpoles or moving the sign either north or south to avoid the flagpoles, but nevertheless, I’m awfully afraid that if it goes from where that sign is out towards the road, it’s going to become a problem for people pulling out of the driveways on either side. MR. GORDON-I think we were going to put it right where it is now, and then back. MR. HAZEN-Starting with the back edge of that sign, moving towards Route 9. MR. STONE-Starting with the back edge, yes, that’s what we’re concerned about. Anybody else have any questions? MR. URRICO-Yes, I have a few. This is certainly a step in the right direction, I think. The height of the sign, this seems to be, well, it’s five feet higher than the previous sign, and you’re trying to get maximum, the maximum coverage. I would think that something that’s a little lower might be easier seen by the oncoming and the traffic in both directions. MR. GORDON-I think the maximum height, and again, you’d know this better than me, but I think the maximum height is 25 allowed. Is the Code 25 foot? I believe that’s the Code? 30 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Yes. MR. URRICO-Yes. MR. GORDON-And we’re going in for 20 foot. Right? MR. URRICO-But the current one is 15. Right? MR. HAZEN-Well, this is 15, but what we were trying to do here was to give each tenant identification, as opposed to the existing sign, which is as wide as this, not counting columns, but they have, I think there’s three tenants listed on that sign. MR. GORDON-Yes. I mean, that’s one of the reasons why we didn’t go 25 feet, which the Code allows, is because if we went 25 foot, and with 120 foot of panels, it just wouldn’t look, there would be, it wouldn’t look in proportion. There would be too much space below. That’s why we actually went five feet under what Code allows. MR. URRICO-What’s the difference in the, from the last panel to the ground, what is that measurement? MR. HAZEN-That would be. MR. FRANK-It scales to about five and a half feet. MR. STONE-Yes, about. MR. HAZEN-It’s approximately six feet or so. MR. GORDON-And we thought six foot would be, we could landscape it and it would be a nice height. Any higher than that, we thought it would just be too much space. MR. URRICO-So all of your tenants would be represented on this sign? MR. GORDON-Yes. MR. URRICO-In both directions? MR. GORDON-Yes. MR. STONE-It’s an attractive sign. Anybody else? Any other comments? Any questions? MR. ABBATE-Well, I have a comment. It holds true. It still amazes me. We come before these applications with somewhat a perceived position, if you will, subject to hearing, of course, and other facts, and I have to say that you gentlemen have moved by position, after hearing your comments this evening. You’ve convinced me, based upon your presentation, that it’s an absolute, it’s mandatory. It’s just not nice to have. I think it’s mandatory that these signs go up in order for those businesses to sustain life, if you will, and I think it’s extremely important that, if we can, that we should encourage the promotion of business, rather than discourage the darn thing, and I must say that, based upon what you had to say and some of my other Board members had to say, the relief required now doesn’t seem as large as I thought it was initially. So I’ve changed my position. So thank you very much. MR. RIGBY-Bruce, is there any impact with the sewer line going in through there? It says it’s five feet away from the proposed placement. MR. FRANK-Yes. I ran this by Mike Shaw, and he took a good look at it. I have his comment on my draft right here. He said, as proposed, it probably would not interfere with the 31 (Queensbury ZBA Meeting 7/21/04) placement of the sewer line. It’s all within the easement, but the pylon as is is probably going to be one of the same pylons, or the footings will be utilized for the new sign, and he said that’s approximately five feet away from where the line would be. He said he’d have no problem with it. MR. STONE-How about the flagpoles. They seem to straddle the property, or some line here from this. MR. FRANK-Well, the flagpoles, the line, as proposed, goes right through the flagpoles. The flagpoles, I mean, again, anything within the easement that’s in the way the Town has the right to move. So they could always put the flagpoles back in further back once the line was in. So I’m sure they’ll be hearing about this in the future sometime. The sign, as proposed, if it’s approved, he said probably would not have to be moved. He thinks there would be plenty of room. He says you can take a look at what’s proposed, and this, again, is a proposed easement. I mean, the proposed placement of the sewer line, it’ll be very close to where it’s proposed. MR. STONE-Is that the SMH? Is that, or what is that? MR. FRANK-The SMH is, it’s a manhole to access the sewer line. MR. STONE-Okay, but that is the sewer line that they’re sitting on? MR. FRANK-That’s the sewer line, which I highlighted in green. I think you all got a copy of this. MR. STONE-Right. Yes, and there’s going to be a lateral going out across the road. MR. FRANK-That’s correct. That’s why that manhole’s there. MR. MC NULTY-These guys that have done the sewer line so far have been very good about going under and around or replacing things that are in the way. So, you know, other than that, if they’re going to move the flagpoles, that might be an opportunity to move the sign further back, but otherwise, I wouldn’t worry about it, because there’s places where they’ve just tunneled under things, instead of digging it up. MR. STONE-I’m just wondering if, well, how far down do the footings go for this sign? MR. HAZEN-Well, you can bury them according to, there’s some wind load formulas where if you don’t go down as deep you can more or less balance them out and make them wider, but generally at a minimum 48 inches and then if that’s the minimum, then we’d have to figure out how wide. MR. STONE-How deep’s the sewer? MR. FRANK-I can’t answer that question for you. I don’t know. MR. MC NULTY-It’s got to be close to 10 feet or more. They go down quite a ways. They have been, at least in the section that’s, you know, further south. MR. STONE-Where you are. MR. MC NULTY-But like I say, they’ve been good and fast about going in, around, and under obstacles. MR. STONE-Bruce, do you know the timing for the construction at this particular point? MR. FRANK-I don’t. I’m not sure if they do, either. 32 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Okay. I’m just wondering, you know, obviously they would like to have a sign, and they would like it yesterday, and we understand that because they want to get people. I’m just curious how, if they put it up today, how long it’s going to be down when they start digging, or if they would put it up today. MR. GORDON-I don’t think it’ll be in the way, right? MR. STONE-Well, if they start putting equipment in there, it’ll be in the way, I’m sure. MR. FRANK-Well, the way they trench the lines out, I think Mr. McNulty said, I’ve watched them myself. They can maneuver their equipment around a lot of stuff. They’ve not had to move quite a bit of the existing. MR. MC NULTY-Some places they’ve zigged around things. Other places they’ve tunneled under it, and the things that they’ve had to remove, they’ve put back in perfect condition. They’ve been real good about putting stuff back. So if these guys put the sign in, and then three weeks later they come along and have to pop it out, they’ll put it back in the way it was. MR. FRANK-But again, Mike Shaw did indicate that if they placed it where it’s proposed. MR. STONE-Where they’re asking. MR. FRANK-It would not be any problem for the sewer line. MR. STONE-Okay. Any other questions? If not, I’m going to open the public hearing. Anybody wishing to speak on this subject? PUBLIC HEARING OPENED DAVID KENNY MR. KENNY-My name is David Kenny. I’m the adjacent property owner. I also own the Days Inn. I also own the Adirondack Factory Outlet Mall. Is there any Staff comments on the lighting district? MR. STONE-No, that would be under Site Plan. That’s not under our jurisdiction. MR. KENNY-No. The Town just went through a big expense, I believe, so I’m told, and just approved all the new decorative lights which I’ve been fighting for probably for 15, 20 years to go along that road. I don’t know where they’re being located. I understand it’s going to be let to bid fairly soon. I don’t know if it’s true, and they’re going to put decorative lights, I think 67 lights along that road to get us some light in there. Because the road is pitch black and it’s always been a concern. I don’t know, I have no problem with the application, but I just don’t want to see a lighting district that I’ve been fighting for for all these years, we’re in a lighting district, but there’s just no lights, and we went through the expense. The lights have been taken down, if you look, along that whole side of the road, and they’re supposed to be putting theme lighting in, 10, 12 feet up, to try to bring more business in, Christmas time, to brighten the place up. I don’t know this has any effect on it. I’d just hate to see, well, okay, you know, and it may not. That’s just the one issue. I can agree with him. Signage is an issue with the outlet people. I’ve negotiated with some big tenants, whether it be Nike, Liz, unless I can get them a sign out on the road, they’re not even interested. MR. STONE-I would imagine the lights would be right along probably. MR. FRANK-Remember, this is State Route 9. It’s a State right of way. I think it’s State lighting. I don’t think it’s the Town of Queensbury. MR. KENNY-It’s the Town of Queensbury doing it. 33 (Queensbury ZBA Meeting 7/21/04) MR. FRANK-Well, I don’t know that, then. MR. MC NULTY-Well, I think the paper, I think it was today, mentioned it, said that it was pedestrian lighting down through there, and it would go in after the sewer went through. MR. KENNY-All I’m saying is I think it’s, not to delay this application in any way, but it’s just something that I think the Town Planning Department, if they looked at it at all, if this sign is, if I understand, seven feet from the road, is it going to over, I don’t know. I will agree we need more signage. MR. STONE-It’s a valid question. MR. FRANK-This plan was reviewed by our Planning Staff, and even though this is a Zoning Board application, we have a plan review where all the Planning Staff look at this. I don’t remember that coming up as an issue, but you should refer to one of our Planning Staff to ask that specific question to get the answer you’re looking for. MR. KENNY-Well, you can go that route, but I’m just saying, I would have hoped they would have looked at it. MR. STONE-Okay. MR. KENNY-And if they haven’t reviewed it. Thank you. MR. FRANK-This has been reviewed by our professional Staff. MR. STONE-Thank you. Anybody else? Any correspondence? MR. MC NULTY-No correspondence. MR. STONE-Then I will close the public hearing. PUBLIC HEARING CLOSED MR. URRICO-Can I ask Mr. Frank to zoom in on that a little bit? Can you? MR. FRANK-I can attempt to do so, but this laptop computer is quite old, and it could take a little bit for it to generate. I will try if you’d like me to. MR. URRICO-No, that’s okay. MR. FRANK-That’s not a plug for a new, faster laptop which we desperately need, by the way. MR. URRICO-We’ve got to get new microphones first. MR. FRANK-We have the old ones that work just fine, by the way. MR. STONE-Okay. Let’s, hearing no further comments. Let’s talk about it. Let’s start with Leo. MR. RIGBY-I was here for the last time that you came before the Board, and I think what you’ve done is pretty much what we asked for. We asked you to come back with a visual for the signage, and that’s what you did, and it’s an impressive looking sign. You’ve reduced the request from 192 square feet to 130 square feet which is, you know, we asked for a reduction as well. I like what I see. I think that without question there’s signage required, from what I see, and I like the idea, and I think I’d be in favor of it. MR. STONE-Okay. Roy? 34 (Queensbury ZBA Meeting 7/21/04) MR. URRICO-Yes. As I said earlier, this is a great step in the right direction, I think. Whatever comes in the future, regarding the sewer or the lighting district, I think would just be enhanced by the sign, and I think that would just make this area better. I think, when you take the benefit that the applicant will gain from this and ask whether it could be achieved in any other method, I really don’t think there is another method. I think that sign is needed there, and it’s also consistent with other signs in that area. There’s, both sides of the road there are signs that are, I would say relatively close to the road. Both sides. In fact, one further down, the Dunham/Dominoes sign, is actually closer to the road than that is, and it’s right on that corner there where the right turn lane is. So I don’t think there’ll be an undesirable change in the neighborhood. I actually think there’ll be a desirable change in the neighborhood, because I think that, as you’ve said, that section of the outlets needs a shot in the arm, and this might give it to that. The request is substantial. I’ll grant that, and it’s also, I don’t think it will have any physical or environmental effects, and it is self-created, but self-created in a good way. I think it’s the kind of thing that we want people to do to improve their properties, and I’d be in favor of it. MR. STONE-Jaime? MR. HAYES-I essentially agree. I mean, as I look at it now, the sign stinks, and it’s hurt the plaza. I mean, that’s the essence. The present day sign is inadequate. Whether that’s contributed entirely to the current vacancy problem or not, that’s up to debate, but I think that everyone feels that it certainly could have contributed to part of it. So I think the applicant has set forth a legitimate interest and need in this particular case, because there’s empty stores there. He’s not asking us for a bigger sign just because he wants to make more profits. He wants to fill some stores. I mean, there’s a difference in my mind. So, when I examine the test, you know, balancing the applicant’s interest, in this particular case, versus the detriment to the neighborhood, I think that, One, there is a legitimate need in this particular case. I also agree with the rest of the Board members that we asked the applicant to come forward with a plan that we could see and made sense, and that accomplished what he put forth that he needed to accomplish without asking us to compromise, to an extent that was unacceptable, and I think that has been accomplished to this particular sign. The applicant has put forth that, in addition to that, he is, I’m not asking him to guarantee it, but I’ll certainly take him at his word at this particular point that he’s going to use this new sign, which is fairly attractive, as a lynchpin to re-design the mall, and that also demonstrates the need that he’s not asking us to totally turn around the plaza. He’s going to do it based on his own investment. I think that’s all good. So, in this particular case, I think there’s a lot that I would say falls in favor of the applicant. I don’t think, in this particular case, that the relief, while certainly moderate, is substantial enough that I think that that would outweigh a lot of what’s already been put forth by the other Board members in this particular case. I guess, you know, this is kind of a lucky week for you. You got an assessment reduction from Lew and a Sign Variance at one time. There’s not too many people that could make that claim. So I guess I’m in favor. MR. STONE-Chuck? MR. MC NULTY-Well, I’m still hung up a little bit on the location of the sign. Looking at changes made from May until now in their request, they’ve reduced the height of what they’re proposing by almost five feet, which is good. They’ve reduced the square footage on this sign a fair amount. The relief required now is 80 square feet versus 142 in May, and that’s good, but they’re also now asking for five and a half more feet of relief from the setback than what they asked for in May. In May they were asking for three feet of relief from the 15 foot minimum. Now they’re asking for 8.5 feet, and I think as Staff has indicated somewhere in their notes, it looks, from the pictures, like the inner pylon of the new sign is going to be exactly where the current support is for the existing sign, and so I’ll go back to what I said earlier. I think that’s going to be a problem. I think it’s going to be a problem with sight line. I’d like to see the sign further back. So, I certainly would like to support this, and I could, if the sign were moved back. If it’s going to be where it appears to be, I’m probably going to be opposed. 35 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Jim? MR. UNDERWOOD-I would have to agree with the majority of people that this is going to be an asset compared to what is there at the present time. I think that, you know, your new marquee sign is going to be a benefit to you guys, as far as advertising what businesses are going to come in there and be profitable, hopefully, and at the same time, I’m not concerned with the setbacks from the road. I think that it’s similar to what you have on the other signs on the other side of the road and further up and down that strip there, and when the new lighting district goes in, I think if you look at most street scape signage, I mean, street scape lighting, it’s usually done between the road, and even if it’s not, it’s going to be immediately adjacent to the sidewalk, and you’ve got probably eight or ten feet there to work with. So I don’t think it’s going to be any hindrance on that. So I’d be in favor of it. MR. STONE-Chuck? MR. ABBATE-Thank you. I agree with the majority of the members as well. I think, based on what I’ve heard, I believe the sign is absolutely crucial, critical, to the success of that mall, that center up there. It looks very attractive. You have come before us for a second time and made certain stipulations. You were willing to compromise, which I applaud you for, and quite frankly, if there is a stipulation, that you will also agree to remove some of the signs on the buildings and what have you in your renovation, I certainly would support the application, Mr. Chairman. MR. STONE-Okay. That was my only concern. I share Mr. McNulty’s concern a little bit about being too close, but we do have the sidewalk in there. We do have a fairly wide road, and I’m less concerned by where it is, certainly like the rest of the Board, I agree you have to have the sign. You have to have an attractive sign, but I would like to see the side of the building cleaned up, so that we’re dealing with the sign and not just the hodgepodge of things. So, I will ask for a motion to approve, with the stipulation that the wall signs on the, will go. Is that reasonable. Do you agree to that? MR. GORDON-The wall signs on the front of the center? MR. STONE-Yes, the Levi’s sign, for example, up on top there. I mean, obviously not until you get the sign up, but that would be an additional sign that we would have a problem with. MR. GORDON-I don’t have a problem with that. However, I don’t know what it says in the lease. Because I bought the center, and I bought the lease in place. MR. URRICO-Are we talking about the Levi’s sign in front, or the one on the side? MR. STONE-Facing Route 9. MR. URRICO-Okay. MR. STONE-The front, no I have no problem with. Well, that’s a directional sign. MR. GORDON-I don’t think I have a problem. My only hesitation is I just don’t want to be in violation of what the lease says. MR. STONE-I understand. So, with that in mind, we’ll, we can stipulate that way, that you will do it, unless you have a contractual problem, and we’ll ask you, for the next time you sign a contract with them, to see if you can get it out. That’s all. MOTION THAT A REVIEW OF THE SHORT ENVIRONMENTAL ASSESSMENT FORM SHOWS THAT THERE ARE NO NEGATIVE IMPACTS CAUSED BY THIS PROJECT, Introduced by Lewis Stone who moved for its adoption, seconded by Charles Abbate: 36 (Queensbury ZBA Meeting 7/21/04) Duly adopted this 21 day of July, 2004, by the following vote: st AYES: Mr. Rigby, Mr. Urrico, Mr. Underwood, Mr. McNulty, Mr. Hayes, Mr. Abbate, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-Now I need a motion to approve. MOTION TO APPROVE SIGN VARIANCE NO. 40-2004 RAY SIGN FOR MOUNTAIN VIEW OUTLET STORES, Introduced by Roy Urrico who moved for its adoption, seconded by Paul Hayes: 1476 State Route 9. The applicant is proposing to remove the existing 48.56 square foot 15 foot high freestanding sign at a 14 foot front setback and construct a 130 square foot, 20 foot high freestanding sign, at a 6.5 foot front setback. He’s asking for relief of 8.5 feet of relief from the 15 foot minimum front setback requirement for a 50 square foot freestanding sign, and an 80 square foot of relief from the 50 square foot maximum size requirement for a freestanding sign at a 15 foot setback. The applicant, in making this application, the five criteria that we’re asked to apply, the benefit to the applicant could be achieved by other feasible means to the applicant, and I don’t think they can be. I think this is a very feasible application. The benefit to the applicant, as has been documented, is something that is needed to give that plaza a shot in the arm. Actually, rather than an undesirable change in the neighborhood, there’ll probably be a positive change in the neighborhood, in that stores that are a part of that plaza will have a more visible appearance to cars in both directions, and to people that shop in that area. The request is substantial, but in comparing it to other signs along that road, it seems relatively in line with the other businesses that have also put up signs in that area. There are no physical or environmental affects, and the alleged difficulty is self-created, but I think it’s self-created in a good way, something positive that’s needed. As part of the application, I’d like to make it contingent upon wall signs being removed, pending review of the lease agreements with the landlord and the tenants, and if possible those signs would be removed. Specifically the one sign, the Levi sign facing Route 9. Duly adopted this 21 day of July, 2004, by the following vote: st MR. URRICO- I’d like to make it contingent upon wall signs being removed, pending review of the lease agreements with the landlord and the tenants, and if possible those signs would be removed. MR. FRANK-Mr. Chairman, were you referring to just the one sign on the west facing façade? MR. STONE-Yes, the Levi’s sign. MR. URRICO-Okay. Specifically the one sign, the Levi’s sign facing Route 9. MR. STONE-I mean, their other signs are allowed to go over the store. Are they not? MR. FRANK-They are allowed. Each tenant is allowed a sign, and they’re well below the maximum allowed. MR. STONE-Yes. So it’s just the big Levi’s facing the west side. Okay. AYES: Mr. Underwood, Mr. Urrico, Mr. Abbate, Mr. Rigby, Mr. Hayes, Mr. Stone NOES: Mr. McNulty ABSENT: Mr. Bryant 37 (Queensbury ZBA Meeting 7/21/04) MR. STONE-There you go, gentlemen. Good luck. MR. GORDON-Thank you very much. I appreciate it. Thank you. NEW BUSINESS: AREA VARIANCE NO. 53-2004 SEQRA TYPE: II RUBEN & DANA ELLSWORTH OWNER: RUBEN & DANA ELLSWORTH ZONING: RR-3A AND LC-10A LOCATION: NORTON HILL ROAD, OFF BAY ROAD APPLICANT PROPOSES CONSTRUCTION OF A SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM ROAD FRONTAGE REQUIREMENTS. PREVIOUS AREA VARIANCE NO. 2-2003 WAS APPROVED FOR THE ABOVE REQUEST ON JANUARY 15, 2003. THE APPROVAL EXPIRED AFTER ONE YEAR ON JANUARY 15, 2004. A BUILDING PERMIT HAS BEEN SUBMITTED WITHOUT A VALID AREA VARIANCE. APPLICANT SEEKS RE-APPROVAL. CROSS REFERENCE: AV 2-2003, BP 2004-386 ADIRONDACK PARK AGENCY LOT SIZE: 14.45 ACRES TAX MAP NO. 265.00-1-9 SECTION: 179-4-090A RUBEN & DANA ELLSWORTH, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 53-2004, Ruben & Dana Ellsworth, Meeting Date: July 21, 2004 “Project Location: Norton Hill Road, off Ellsworth Road Description of Proposed Project: Applicant proposes construction of a 2,872 sq. ft. single-family dwelling on a parcel without frontage on a town road. Relief Required: Applicant requests 40 feet of relief from the 40-foot minimum road frontage requirement, per §179-4-090(A). Parcel History (construction/site plan/variance, etc.): BP 2004-386: pending approval of AV 53-2004. AV 2-2003: 01/15/03, same as current application. Staff comments: AV 2-2003 expired on 01/15/04. The current application is the same as that of AV 2-2003. Should this application be approved, the proposed private drive will only cross other parcels of Robert Ellsworth, (previous owner of the parcel owned by Ruben and Dana Ellsworth). As conditioned in AV 2-2003, the proposed private drive (Norton Hill Road) must be at least 20 feet wide.” MR. MC NULTY-No County. MR. STONE-Okay. Ellsworth’s, go. Anything else you want to add? Just identify yourselves. MR. ELLSWORTH-I’m Ruben Ellsworth. This is my wife, Dana, and, no, I mean, just as we were approved before, we’re asking for no changes. MR. STONE-What happened? MRS. ELLSWORTH-We didn’t realize it ran out. MR. ELLSWORTH-Yes. That’s exactly, and I just didn’t, I didn’t have enough time to do the road and the variance ran out. I’ve just been very busy and I wasn’t able to start. 38 (Queensbury ZBA Meeting 7/21/04) MR. STONE-Well, you were busy doing other people’s work. MR. ELLSWORTH-Exactly. MRS. ELLSWORTH-Other people’s roads. MR. ELLSWORTH-I know, and I’ve heard enough of it. MR. STONE-Just as an aside, I mean, I know French Mountain, and what part of it is Norton Hill? Is there? MR. ELLSWORTH-Well, it’s always been called Norton Hill. There’s a ridge there, and it’s just always been called Norton Hill. MR. STONE-Okay. MR. ELLSWORTH-As we grew up, our name was brought. My wife’s maiden name is Norton. So, I mean, it just happened that it worked out that way, and we kept the Norton part of it. MR. STONE-Okay. MR. STONE-The 20 foot wide, we all agreed the 20 foot wide was okay by the fire department and rescue squads, right? MR. FRANK-That was per Dave Hatin. I believe the road that’s been built is 20 feet wide. MR. STONE-Well, I didn’t go all the way up. MR. FRANK-I don’t believe the road is finished yet, but the rough, in base, is 20 feet wide, I believe. MR. ELLSWORTH-Correct. MR. STONE-And, well, we can certainly stipulate that, just that it will be, because, and that was acceptable. Okay. So the only thing you’re working on right now is the road. MR. ELLSWORTH-Correct. MR. STONE-Okay. Anybody, any questions of the Ellsworths? If not hearing any, I will open the public hearing. Anybody wishing to speak on the subject? Any correspondence? MR. MC NULTY-No correspondence. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Any further questions? Hearing none, let’s talk about it quickly. We’ll start with Roy. MR. URRICO-Does it have to be quickly? MR. STONE-No. No, I want you to do your normal, thorough job. MR. URRICO-Okay. I have absolutely no objection to this application. 39 (Queensbury ZBA Meeting 7/21/04) MR. STONE-That was quick. Jaime? MR. HAYES-I feel the same way. I think that the application is, the balancing test is in favor. MR. ELLSWORTH-Thank you. MR. STONE-Chuck? MR. MC NULTY-Ditto. MR. STONE-Jim? MR. UNDERWOOD-Yes. We approved this unanimously last time, so, no problem. MR. ELLSWORTH-Thank you. MR. ABBATE-The application is reasonable. I have no problems with it. MR. STONE-Leo? MR. RIGBY-I’m in favor of the application. MR. STONE-As they say, we approved this. How high is this, how high up on the hill is it going to be? MR. ELLSWORTH-To be honest with you, that’s what I’ve got to do on my GPS. I haven’t done it yet. I’m not, I couldn’t tell you the answer because I don’t know. MR. STONE-It looks like it’s going to be a big house. MR. ELLSWORTH-It’s a decent sized house, almost 2900 square foot. MR. STONE-Okay. All right. I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 53-2004 ROBERT & DANA ELLSWORTH, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: Norton Hill Road, off Ellsworth Lane. The applicant proposes construction of a 2,872 square foot single family dwelling on a parcel without frontage on a Town road. Relief required. Applicant requests 40 feet of relief from the 40 foot minimum road frontage requirement per Section 179-4-090A. The benefit to the applicant outweighs the detriment to the health, safety and welfare of the neighborhood or community by granting the Area Variance. I think that it is a benefit not only to the applicant and his family, but I think it’s also going to benefit the area in itself. Is this an undesirable change? Not in my opinion. I don’t think it will produce any type of mischaracter, if you will, of the neighborhood, nor will it be any kind of a detriment to any of the properties nearby. Whether the benefit to the applicant can be achieved by some other method feasible for the applicant to pursue, other than a variance? Not really. I think the request is reasonable. Whether the requested Area Variance is substantial? Not in my opinion. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district? Not in my opinion, again. Is this difficulty self-created? Possibly, but I don’t have a problem with it, and based upon the balancing, Mr. Chairman and fellow Board members, I move that we approve Area Variance No. 53-2004. As part of the approval, I move that the stipulation be stated as follows: That the application be approved that the proposed private drive will only cross other parcels of Robert Ellsworth, and as a condition of Area Variance No. 2-2003, proposed private drive, Norton Hill Rd., must be at least 20 feet wide. Duly adopted this 21 day of July, 2004, by the following vote: st 40 (Queensbury ZBA Meeting 7/21/04) AYES: Mr. McNulty, Mr. Underwood, Mr. Rigby, Mr. Abbate, Mr. Hayes, Mr. Urrico, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. STONE-There you go. MR. ABBATE-There you go, guys. MRS. ELLSWORTH-Thank you. MR. ELLSWORTH-Thank you very much. MR. STONE-Now don’t let it lapse this time. AREA VARIANCE NO. 54-2004 SEQRA TYPE: II KENNY PROPERTIES, LTD. AGENT: JONATHAN LAPPER, ESQ. OWNER: KENNY PROPERTIES, LTD. ZONING: HC-INT. LOCATION: 1454 STATE ROUTE 9 APPLICANTS HAVE REPLACED A WOODEN DECK WITH AN ENCLOSED 100 SQ. FT. UTILITY ROOM ADDITION AND 32 SQ. FT. DECK TO HOUSE THE POOL PUMP AND FILTER AT THE DAYS INN. RELIEF REQUESTED FROM SIDE SETBACK REQUIREMENTS. CROSS REFERENCE: BP 2000-232 INT. ALT., 88-649 ADDITION RESTAURANT WARREN COUNTY PLANNING: 7/14/04 LOT SIZE: 3.40 ACRES TAX MAP NO. 288.12-1-21 SECTION: 179-4-030 JON LAPPER, REPRESENTING APPLICANT, PRESENT DAVID KENNY, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 54-2004, Kenny Properties, Ltd., Meeting Date: July 21, 2004 “Project Location: 1454 State Route 9 Description of Proposed Project: Applicant has replaced a wooden deck with an enclosed 100 sq. ft. utility room addition and a 32 sq. ft. deck to house the pool pump and filter at the Days Inn. Relief Required: Applicant requests 6.5 feet of relief from the 20-foot minimum side setback requirement for the utility room addition, per §179-4-030 for the HC-Int zone. However, the applicant has also constructed a new deck landing approximately 7 feet from the side property line. Therefore, the applicant needs 13 feet of relief from the 20-foot minimum side setback requirement. Parcel History (construction/site plan/variance, etc.): BP 96-095: 04/24/96, 800 sq. ft. addition to restaurant. SP 7-96: 03/26/96, 800 sq. ft. addition to restaurant. AV 8-1996: 03/20/96, density, setback and permeability relief for an 800 sq. ft. addition to the restaurant. BP 95-217: 06/06/95, 840 sq. ft. enclosed sunroom over existing deck. SP 28-95: 05/25/95, 840 sq. ft. enclosure of existing open deck. AV 18-1994: 04/27/94, setback relief for handicap access ramp to restaurant. Various other building permits. Staff comments: The applicant is requesting 6.5 feet of side setback relief for the new utility room that has already been built. However, the site plan submitted indicates a new deck landing 6.5 feet 41 (Queensbury ZBA Meeting 7/21/04) closer to the side property line. A site visit revealed the deck landing is new. Therefore, the relief required is for the closest portion of the deck to the side property line. Note: the adjoining property to the south is also owned by Dave Kenny.” MR. MC NULTY-“Warren County Planning Board Project Review and Referral Form July 14, 2004 Project Name: Kenny Properties, Ltd. Owner: Kenny Properties, Ltd. ID Number: QBY-04-AV-54 County Project#: Jul04-27 Current Zoning: HC-Int. Community: Queensbury Project Description: Applicants have replaced a wooden deck with an enclosed 100 sq. ft. utility room addition and 32 sq. ft. deck to house the pool pump and filter at the Days Inn. Relief requested from side setback requirements. Site Location: 1454 State Route 9 Tax Map Number(s): 288.12-1-21 Staff Notes: Area Variance: The applicant proposes to construct a 100 sq. ft. utility room with a new deck 6 ft. deck landing. The room will enclose the pool pump and filter. The shed is to be located 14.5 ft. from the side property line where 20 ft. is required. The existing indoor pool structure is non-conforming that received an area variance in 1990. The information submitted shows the location of the room and the existing pool . Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact. County Planning Board Recommendation: No County Impact.” Signed by Bennet F. Driscoll, Warren County Planning Board 7/19/04. MR. STONE-Go ahead. Technically, I just want to get technical, it’s not owned by Dave Kenny. There are two different corporations involved. MR. LAPPER-That is correct. MR. STONE-He happens to be the principal of both, I understand. MR. LAPPER-He controls both of them, but, for the record, Jon Lapper and Dave Kenny. The best argument for this variance is that the relief requested does not get, is less close to the property line than what is already there, in terms of the deck. Absolutely no impact on the neighborhood, other than a positive impact of just putting the mechanical equipment indoors. It never dawned on Dave, nor did he check with his land use counsel, it didn’t dawn on Dave that he would need an approval because the deck extends out farther than what he did here, just to clean up the area in the back. I’m sure that you all went to the site and took a look at it. The two sites function as one, essentially, in terms of the traffic movements, using the parking lot for both properties, and this was just part of a small project to clean up the back of this that really is not visible from off site from anybody. Obviously, we should have been here first, but beyond that, it’s a pretty minor project. MR. STONE-That’s the truest words you’ve ever spoken, Mr. Lapper. The one thing I did notice, and it has nothing to do with the application, as I was turning around, the rafters in the loading docks up above look pretty bad. Weren’t they? On your other building. The other building. Have you looked back there lately? MR. KENNY-Yes, they’ve got a lot of junk back there they store. No, the rafters are fine. MR. STONE-I’m talking about the paint up on the, the wood beams up on top look like they were unpainted. Nobody sees them. I understand that. MR. KENNY-Back there, that whole section has to be cleaned up, yes. I’ll agree with that. MR. STONE-Nothing to do with this. Well, who wants to at least chastise him? MR. ABBATE-I do. I’m going to do it. I’m going to chastise Counsel and also the applicant. This was done before you received a permit? Did you check with Counsel? Number One, I’m not done. Number Two, I’m very interested in what the adjacent property owner’s position would be over this. 42 (Queensbury ZBA Meeting 7/21/04) MR. KENNY-I can answer both of those questions, probably. One, I’m here tonight because I’m told now I need a variance. Back in 1987 when the building was built, I got approval to do it. I got approval for that setback. I gave up the property to the north of me to the Town for a road to go in. So, when I did it, I have an approval, but now the Town says, well that was in ’87, we can’t find it. I’d like somebody to get the records, because I gave that property to John McCormack, and it’s (lost words) David Kenny to John McCormack back then, for the road that was going through Courthouse Estates. I gave my rights to some 30 foot of property that I owned, I wouldn’t need this variance today. MR. STONE-This is the back road, you mean, that goes down to? MR. KENNY-It was supposed to go into Courthouse Estates, and at that time, I said, when I give that road up, I’ve got to shift the building this much. I’ve got to make these changes, well, no problem, that’s all okay. Now I find out, that’s why the pool was there. That’s why the deck is there. There was a pool back there. Now I’m making an existing change within the existing setback I was approved for, and they say I need another variance for it. Well, that’s possible, but they can’t find the records. MR. STONE-Never give Mr. Kenny an opportunity. MR. KENNY-I’d love to see the records, because some day they may come out, because there may be a court case. MR. ABBATE-That’s only the first question. What about the second question I had? I want to know exactly, is the adjacent property owner here this evening? Because I’d like to know what his position is. MR. KENNY-I’m the adjacent property owner. The truth of the matter is we remodeled the pool, because the pool had some problems. It’s an indoor pool. We put a whole new, moisture, to get the moisture out of the pool. We spent about $100,000 (lost words) the pool and everything else, and it got where the guy from Glens Falls Heating and Air came in and said, well, I want to put all this equipment inside, rather than have it outside. That’s one of the problems, and the one building was there, and the chlorinators and the chlorine was stored outside. All we’re doing, we’re going to enclose it all, but there were footings underneath it. It was like a deck out there, that everything was sitting on. We enclosed it. MR. STONE-Anybody else have any questions? Anybody have any other comments before I open the public hearing? MR. URRICO-Any chance that the Town of Queensbury will re-route that road that never went in around in that direction? MR. KENNY-Hopefully the Town of Queensbury looks at that property back there very seriously in the near future and rezones it and we get some businesses into this area. I would love to see that become a Tech Park. We’ve got all this stuff going on in Saratoga, and there’s 50 acres back there that will never become a housing development, and the problem is access. We’ve talked about it. MR. STONE-But isn’t there access from Courthouse Estates? MR. KENNY-No, there is not. There’s no access. Now Courthouse Estates could create access. Courthouse Estates people would never let access to a business park. MR. STONE-I thought you, can get pretty close there, can’t you, driving down? MR. KENNY-Up to the 50 acres of woods, but there’s no roadway going in. MR. STONE-Okay. Up to, okay. 43 (Queensbury ZBA Meeting 7/21/04) MR. KENNY-It is approved as a subdivision of Courthouse Estates, a continuation of Courthouse Estates for homes, which the people are against, but that was the whole purpose back in 1987 to transfer the property because the Town had a Code saying over so many lots needed another access point. That’s why my property was gifted to John McCormack, basically. I assumed the road would go through. My access point out of the hotel was going to be here. There was going to be a light here. After the transfer, it just. MR. URRICO-Was that an easement, by any chance? MR. KENNY-No. I had the easement. What happened was I gave the property to McCormack, because he was putting the roadway in. Then the Town denied the road because the property is only 30 feet wide. MR. STONE-Which one are we talking about, out of curiosity? MR. LAPPER-North of the. MR. STONE-North of the bottom yellow? MR. LAPPER-Yes. MR. KENNY-Yes. You can see the 82 foot, just north of the bottom yellow right, and it goes back, that’s that 50 acres behind me. MR. STONE-I see. The swale. MR. KENNY-Right there. That was all my property. MR. STONE-I was wondering why there wasn’t a road down, I drove back and then I had to come back out. MR. KENNY-I have the survey here. I bought it from Bray Oil, and I gave it to John McCormack in ’87, and there was no money exchanged. It was for a road, that never got in, and the road would have been the access for the hotel. MR. STONE-Okay. Anyway, let’s do the technical stuff here. Has anybody got any other comments? I’ll open the public hearing. Anybody wishing to speak on the subject? No correspondence? PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. STONE-Anybody have any questions? Let’s talk about it quickly. Let’s start with Jaime. MR. HAYES-Well, on balance, I mean, I think the applicant has set forth, presuming that it’s correct and I do that, I think he’s set forth a pretty cogent argument to the extent that this was approved historically, he was cooperating by granting property that essentially, at this time, made this a variance needing proposition. I would have approved it, in my opinion, without it, because I agree with Lew’s original comments that essentially what was done here, while it probably should have been applied for in advance, ultimately (lost words), I mean a lot of good things were accomplished here. I don’t think there’s really any detriment to the neighborhood. It’s a commercial area, and a very intensive commercial area, and the final factor, in my opinion, is that obviously the most impacted neighbor is Mr. Kenny himself, and he wants to be upset 44 (Queensbury ZBA Meeting 7/21/04) with himself, he can be, but that’s obviously not going to change my vote, in this particular case. So I think it’s a good project. I’m in favor. MR. STONE-Chuck? MR. MC NULTY-I’m going to be in favor, too, but one caveat first. Even though it’s currently the same owner, I think that should not come in to any consideration in this decision, because there’s no saying that it’s always going to be the same owner. It could be different owners at some point in the future here, but having said that, I think the position that this addition and construction is located certainly has no adverse impact on the neighboring property to the south. I see no problem with it. No conflict, and certainly there’s some definite benefit to the applicant. So I’ll be in favor. MR. STONE-Jim? MR. UNDERWOOD-Yes. I’m all for it, too. I think it’s just simply taking the place of something else that had previously been built there. So, it’s not any effect. MR. STONE-Chuck? MR. ABBATE-Yes. The applicant gave a pretty darn good argument for his position, and I don’t have a problem with it, and I’ll support the application. MR. STONE-Leo? MR. RIGBY-Yes, I would have approved it, too, had it been requested beforehand, and I have no objection to it, and on balance I think it’s a good improvement. I have no objection to it. MR. STONE-Roy? MR. URRICO-I’m in favor of it. MR. STONE-Okay. Just for the record, one of the things we always say, when something has been done, what would we have done if you’d come without having done it, and I think everybody has kind of said we would have approved it. I can’t say it’s innocuous. It’s very important for you to get this in and get the thing covered, but in terms of a variance, it’s very simple. So, having said that, I need a motion to approve. MOTION TO APPROVE AREA VARIANCE NO. 54-2004 KENNY PROPERTIES, LTD., Introduced by Paul Hayes who moved for its adoption, seconded by Charles Abbate: 1454 State Route 9. The applicant has replaced a wooden deck with an enclosed 100 square foot utility room addition, and a 32 square foot deck to house a pool pump and filter at the Days Inn. Specifically, the applicant requests 6.5 feet of relief from the 20 foot minimum side setback requirement, for the utility room addition, per Section 179-4-030 for the Highway Commercial Intensive zone. The applicant, in effect, needs 13 feet of relief from the 20 foot minimum side setback requirement. In proving that we approve this variance, I cite several factors. One, that I believe that the project itself has no negative impact on the neighborhood or greater community in this particular case. There may even be some benefit to the consolidation of this mechanical equipment on the site. Two, the most immediately impacted neighbor, in this particular case, as Chuck brought out, is not necessarily compelling, but in this case there is no objection from the neighbors on this matter. Mr. Kenny is the most immediately effected neighbor. The third factor is that the applicant has set forth to us, and the Staff has not specifically disagreed with the fact that Mr. Kenny, part of the reason that Mr. Kenny needs a variance, in this particular case, has to do with him conveying a parcel of land that was to be the subject of a road, when he did so, he was assured that this project that he did was approved at that time. That does not compel us to make that decision now, but I find it to be a factor in favor of the applicant, and finally, I don’t think that the relief is overly substantial in the intense commercial area, that 13 45 (Queensbury ZBA Meeting 7/21/04) feet of a 20 foot side setback, I don’t think that that overrides the reasons that have been set forth by the applicant, the benefit to the applicant, in this particular case. Therefore I move for its approval. Duly adopted this 21 day of July, 2004, by the following vote: st AYES: Mr. Underwood, Mr. Urrico, Mr. Rigby, Mr. McNulty, Mr. Abbate, Mr. Hayes, Mr. Stone NOES: NONE ABSENT: Mr. Bryant MR. LAPPER-Thank you. MR. KENNY-Thank you. MR. STONE-There you go, gentlemen. Okay. We will adjourn the meeting. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 46