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2004-05-12 (Queensbury ZBA Meeting 5/12/04) QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING MAY 12, 2004 7:00 P.M. MEMBERS PRESENT LEWIS STONE, CHAIRMAN CHARLES MC NULTY, SECRETARY PAUL HAYES ROY URRICO ALLAN BRYANT CHARLES ABBATE JAMES UNDERWOOD EXECUTIVE DIRECTOR-CHRIS ROUND ZONING ADMINISTRATOR-CRAIG BROWN TOWN ATTORNEY-MILLER, MANNIX,SCHACHNER, AND HAFNER-MARK SCHACHNER STENOGRAPHER-SUE HEMINGWAY NEW BUSINESS: NOTICE OF APPEAL NO. 1-2004 APPELLANTS: ARMANDO, ROSECRANS, AND OTHER NEIGHBORS AGENT: CAFFRY & FLOWER, ATTORNEYS AT LAW OWNER: EAST SLOPE MANAGEMENT, L.P. LOCATION: WEST MOUNTAIN SKI AREA, NORTHWEST RD. TAX MAP NO. 308.17-1-38 AND 307.00-1-29 ZONING: RC-3A LOT SIZE: 2.55 ACRES, 365.43 ACRES SECTION: 179-16-050 CROSS REFERENCE: SITE PLAN REVIEW FILE NO. 16-2004 APPELLANTS ARE APPEALING A DECISION MADE BY THE ZONING ADMINISTRATOR THAT A PAINTBALL OPERATION IS AN ALLOWED USE WITH SITE PLAN REVIEW IN AN RC-3A ZONE AND SPECIFICALLY THAT THE PROPOSED ROCK-IT PAINTBALL FACILITY IS PERMITTED AT THE WEST MOUNTAIN SKI AREA. THE ZONING BOARD WILL ALSO ADDRESS THE TIMELINESS OF THE FILING OF THE APPEAL, AS REQUESTED BY ROCK-IT PAINTBALL. MR. STONE-We have a very limited agenda tonight, and as we start, I am going to call upon the Town Attorney to explain why we are here, what we are going to do, so that everybody hears it at the same time. Mr. Schachner. MR. SCHACHNER-Thank you, Mr. Chairman. I guess all I wanted to do was, as much as saying why we are here, I think it’s important for the Zoning Board of Appeals and the public to know why we’re not here. By that I mean, obviously we’re here with one proposed project, and on two issues that have come from that proposed project. The first issue, and I think you, as a Zoning Board, are faced with two issues. The first issue is whether a group that I will very loosely label as the neighbors, understanding that this is not to suggest all neighbors, but there is a group of neighbors of the proposed project that has appealed our Zoning Administrator’s March, I believe it’s 12, is my date correct? A determination made. th MR. STONE-November 12. th MR. SCHACHNER-No, I’m talking about the March determination. MR. MC NULTY-March 12. th 1 (Queensbury ZBA Meeting 5/12/04) MR. STONE-March 12. th MR. SCHACHNER-Thank you. There’s a group of, I’m going to say neighbors, represented by Attorney John Caffry, who have appealed the March 12 determination of our Zoning th Administrator, and they’ve appealed the portion of that determination that indicates that the proposed project would be an allowed use, or allowable use, in the zone in which the property is located. The applicant contends that that appeal is not timely, because there was an earlier determination made in November of last year by our Zoning Administrator to the effect that the proposed project would be an allowable use in this zone. The revised determination in March went further than the allowable use issue, and found that that, while the use is allowable, it is subject to site plan review by the Planning Board. Nobody, to my knowledge, is appealing that determination, but you have two issues before you as a Zoning Board of Appeals. The first is whether the appeal of the March determination, let me rephrase that, whether the appeal of the determination that the proposed use is an allowable use was made timely, and one of the rules that governs that issue is part of State Town law, as well as the Queensbury Town Code, indicates that an appeal of a Zoning Administrator determination must be made within 60 days of when it’s issued. If we look at the November determination of our Zoning Administrator as the definitive determination on the allowable use issue, the neighbor’s appeal was not made within 60 days of the November determination. If we look at the March 12 revised th determination as applying to the allowable use issue, the neighbor’s appeal was filed within 60 days of the March revised determination. If we look at the March determination, or revised determination, as applying only to the allowable use issue, no, let me rephrase that, if we look at the March determination as only applying to the site plan review issue, and not to the allowable use issue, then one could argue that the appeal is not timely because that determination was made back in November, and the appeal was not made within 60 days. I’m going to say a few more things, but are you understanding me so far, Zoning Board of Appeals? Okay. I said at the beginning of my remarks that I think the most important thing I can say is what’s not before you this evening, and I do think that’s the most important part of my remarks. What’s not before you this evening, and what should not play any role in your determination, and what, frankly, should not really be the subject of public comment, what I’m about to say will be enormously unpopular, is whether paintball is a good thing or a bad thing. Whether paintball is a beneficial activity or a harmful activity. Whether this is a good place for paintball, or a bad place paintball. Those are issues that may be taken up some time in the future, by the Planning Board, and possibly even by this Board in different context, but the issues before you, unlike most of your business, which is variance business, where you sometimes have to balance benefits to the applicant, detriments to the community, and weigh different things like that, your role this evening is not judging a variance. It’s not a popularity contest. You should not rule based on how many people speak or raise their hands in support of the proposed facility or project. You should not rule based on how many people raise their hands or speak against the proposed project. Your role is not balancing interests, as it often is. Your role is to decide, first, whether Mr. Caffry’s client’s appeal is timely, on the issue of this being an allowable use in the zone, and if you decide it is timely, then you have to face the issue of whether you agree that it’s an allowable use, agree with our Zoning Administrator’s determination that it’s an allowable use. That does not involve balancing of interests. It does not involve whether you are pro paintball or anti paintball. It has nothing to do with whether you like the neighbors, don’t like the neighbors, like the applicant, don’t like the applicant, like West Mountain, don’t like West Mountain, or any of those things which are completely unrelated. Is that second part of my remarks reasonably clear, I hope? And to that extent, Mr. Chairman, you rule, obviously, in terms of public comments. The public has to be allowed to comment on the proposed issues, but I would suggest you might want to try to have the public comments confined to, I assume you’ll do this in order, first issue, second issue, if you reach the second issue. So on the first issue, I would suggest it would be appropriate for you to have the public comment, if they wish to, only as to the issue of the timeliness of the appeal, and if you decide that the appeal is timely, I would suggest that when public is invited to comment on the issue of whether the proposed use is an allowable use, you try to confine the public comments to that narrow issue, whether the proposed use is an allowable use, not whether it’s good to have paintball at West Mountain or it’s bad to have paintball at West Mountain, not whether it’s dangerous or safe, not whether the applicant is good or evil, not whether the neighbors are good or evil. 2 (Queensbury ZBA Meeting 5/12/04) MR. STONE-Would you comment, one more thing, Mr. Schachner, if the November 12 th decision had been made, and no further request was made of the Zoning Department, and the 60 days had gone by, there is no need, there is no reason, there’s no call for announcing that this determination had been made. MR. SCHACHNER-If I understand your question properly, Mr. Chairman, if you’re asking whether there is any legal requirement for publishing or publicizing or announcing Zoning Administrator determinations, the answer is clearly no, meaning there is no such requirement. MR. STONE-Okay. I would have said it as well as you did, but I think it’s important that the people know that if no other changes had been made, no other requests, those 60 days would have gone, and nobody would have none, yes or no, that it had been granted, and there’s no requirement that that be done. MR. SCHACHNER-Well, let me say two things. First off, let me say that I want to be sure that it’s clear that I’m not saying that that is good or bad either. MR. STONE-I understand. MR. SCHACHNER-I’m just saying that there’s no legal requirement, but I wouldn’t, I think you might have taken a little bit of liberty with what I said, Mr. Chairman, in terms of something would have been approved and no one would have known. I don’t know that that’s the case, nor do I believe that’s necessarily relevant to your consideration. There are some people who believe that people knew of the November determination well before March. There are some people who believe that that’s not the case, and I don’t think that’s relevant. I don’t think that’s important. MR. STONE-I didn’t mean that there was, might have been knowledge, only that the Town was not required to publicize it. MR. SCHACHNER-That is absolutely correct. MR. ABBATE-I want to address both those issues. I think in order to have a fair and balanced hearing, we may have to take into consideration mitigating circumstances. Thank you. MR. STONE-Okay. What we’re going to do, to start these proceedings, is that we are going to read three things. We are going to read the Staff notes, as prepared by the Zoning Administrator. First of all, we’re going to read the two letters that he wrote, one dated November 12, 2003, to Scott Brandi, on the subject of Paintball facility at West Mountain ski area, then a second letter written on March 12, 2004, again to Mr. Brandi, on the same subject, Paintball facility, West Mountain ski area. After we read these two, we will then read the Staff notes. Go ahead, Mr. McNulty. MR. MC NULTY-Okay. This first is the November 12, 2003 letter from Craig Brown, Zoning Administrator, to Scott Brandi, it says, “Thank you for your November 3, 2003 letter of inquiry regarding the above-referenced use and property. This letter will serve to document items we discussed during a telephone conversation of today as well as provide you information relative to the “allowability” of your proposal. It does not appear as though your proposal will require Site Plan Review prior to commencement. As I understand your project, you propose to lease lands associated with the West Mountain Ski Area, on a seasonal basis, for the operation of a paintball field facility. With the exception of the southwesterly portion of the area highlighted on your map, the property in question lies within a Recreation Commercial, RC-3A zoning district within the Town of Queensbury. Your proposed use would be defined as an Amusement Center. An Amusement Center is an allowable use in the RC zone. The southeasterly portion of highlighted area on your map is zoned Suburban Residential, SR-1A which does not allow such Amusement Uses and therefore your proposal would need to be modified to exclude this area. Further, I understand that your proposal does not include any 3 (Queensbury ZBA Meeting 5/12/04) new structures, new parking or new land clearing. My determination is based on these assessments of your proposal. Should you have any additional information or if any of my assessments are inaccurate, please forward the same to me, as such changes may alter my determination.” And the March 12, 2004 letter from Craig Brown, Zoning Administrator, to Scott Brandi, “This letter will serve to document items we discussed earlier today and to inform you of my position regarding your proposed project. As discussed, my November 12, 2003 letter to you was based on the facts that had been presented to me at that time. Further, I understand your position is that your proposal is consistent with my previous determination. However, new information, relating to the scope of facility improvements and requirements, which has been presented to me including, but not limited to; safety features, parking accommodations and new structures, results in me making a new determination regarding your project. While my determination that an Amusement Center use is an allowable use for the Recreation Commercial (RC) zone has not changed, my position relative to the need for the Planning Board to conduct a Site Plan Review has. Your proposal for the establishment of an Amusement Center, specifically a paintball facility will require Site Plan Review approval prior to commencement. I am willing to extend the deadline for the submittal of a Site Plan Review application until March 19 to help alleviate any inconveniences. Should you have any questions or comments, please do not hesitate to contact me.” STAFF INPUT Notes from Staff, Notice of Appeal No. 1-2004, Armando, Rosecrans, and other neighbors, Meeting Date: May 12, 2004 “Project Location: West Mountain Ski Area, Northwest Road Description of Proposed Project: The appellant is appealing the determination rendered by the Zoning Administrator regarding the Rock-It Paintball and the allowable uses within the Recreation Commercial (RC) district. Information requested: Appellant is appealing to the Zoning Board of Appeals to determine whether or not the decision made by the Zoning Administrator that a Paintball Facility is an allowable use, as an Amusement Center Use, is a correct interpretation/application of the Town Code. The appellant offers the argument that a Paintball Facility must be classified as a firing range and as such, is not allowable in the RC zone. Also, a request has been submitted from a Rock-It Paintball representative asking that the Zoning Board of Appeals first consider the timeliness of the appeal. Staff comments: Timeliness: 179-16-050, Appeals For your reference: per §: An appeal from an action, decision or rule by the Zoning Administrator regarding a requirement of this chapter may be made only to the Zoning Board of Appeals within 60 days of such decision or action. An action, decision or ruling of the Planning Board or Zoning Board of Appeals pursuant to this chapter may be reviewed at the instance of any aggrieved person in accordance with Article 78 of the Civil Practice Law and Rules, but application for such review must be made not later than 30 days from the effective date of the decision or ruling or the date when the action or omission occurred, whichever comes later. A determination was originally issued to Brandi (Rock-It Paintball) on November 12, 2003 regarding this matter. A subsequent March 12, 2004 letter served only to require that Rock-It Paintball apply for a Site Plan Review of the project. The March 12, 2004 letter offered no new determination relative to the “allowability” of the use. It appears as though the request from Rock-It to determine timeliness is a reasonable request that can be addressed prior to hearing the merits of the appeal. In response to the Appellants Summary Grounds for Appeal: (pg 2, item A) 4 (Queensbury ZBA Meeting 5/12/04) 1. Firing Range. The town has not rendered an opinion that the Paintball Use is a firing range. 2. Allowable use. As stated in our November 2003 determination, we determined the paintball facility to be an Amusement Center use, allowable in the RC zone. 3. Second Commercial Use. The Amusement Center definition states, in relevant parts; “…where there are various devices for entertainment…” and “…includes amusement uses, but is not limited to…” If the “one use only” reasoning were applied, Amusement Centers would be restricted to one use rather than various uses. Such an interpretation does not appear to be the intent of the Code. General The Town Code allows for the establishment of an Amusement Center Use in the RC district. In making the decision that a Paintball Facility is an allowable use in the RC zone, the intensity of other allowable amusement center uses was considered and the proposed paintball use was found to be consistent with the Town Code definition and further found to be a potentially less intensive use than other uses that could be established (i.e. “riding areas for dirt bikes or ATVs”). Further, the definition for a Recreation Center, also an allowable use in the RC zone, offers substantiation as to the purpose and intent of the RC zoning which is to “encourage the expansion of the recreation industry.” The arguments offered by the appellant calling for the paintball facility to be classified as a firing range by following the logic of: paintball gun equals firearm equals firing range is not supported by the Zoning Ordinance. The appellants reference to the firearm definition ( Exhibit I) is taken from §124, Parks and Recreation, of the Town Code, not the zoning code. The Zoning Board of Appeals is not authorized to interpret this section of the Town Code. Reference materials: (attached) Definition from Websters Abridged Dictionary (per 179-2-010, B); Firearm Copy of a portion of the Town of Queensbury Zoning Ordinance, 179-3-40 Copy of the NYS Consolidated Laws, Penal Law, Article 265, Firearms and other Dangerous Weapons.” MR. STONE-Thank you. That latter material is not germane at the moment. We have one issue to discuss first. If we decide, on the basis of what we hear from the public, talking only to the timeliness issue, we will make a determination as to whether or not this appeal is timely. If we decide that it isn’t, then we all go home. If we decide that it is, we will then consider the arguments in the appeal that this is not an allowable use, and that’s the only two issues before us, an allowable use, timeliness first, and then an allowable use, not whether, as Mr. Schachner very clearly put it, not that it’s good, not that it’s bad. We are the arbiters of the Zoning Code, as far as decisions are concerned. We decide whether variances are to be granted, or whether appeals are to be agreed to. So, having said that, I think the best way, since this particular part is not technically an appeal, because the party who is asking that we do this, saying that it’s not timely, is not the aggrieved party in this particular case, but nevertheless, I will call upon the applicant who is the basis of the appeal to state why they think it is not timely, why the appeal is not timely. Do I have someone? Thank you, sir. BILL FITZGERALD MR. FITZGERALD-Mr. Stone, gentlemen, my name is Bill Fitzgerald. With me is Patricia Susan Brandi who is the principal. I’m here representing Rock-It Paint Ball. Before you, as you’ve already read, it’s in John’s appeal, it’s in our response of the two letters involved. I think they’re 5 (Queensbury ZBA Meeting 5/12/04) very explicit. I think that the Department has, in its response, indicated to you specifically that they have not changed that determination. That this is an allowable use. What they did do, I think, is cover themselves, because originally I think they made a mistake in not requiring site plan review when they issued their letter of November 12, but be that as it may, our client took th that letter, based on that letter, they have, Number One, entered into a lease agreement, formed an LLC, expended quite a bit of money. None of this was in secret. During the course of the winter they advertised at West Mountain that this facility would be opened in the summer. They’re listed on the West Mountain website. Nothing here was done in secret. Nothing was done to try to go behind anyone’s back, but basically, as you can see from Craig Brown’s letters, specifically, his second letter states, in full, that, in fact, this is not a change in the determination that it is an allowable use. We still have to go in front of the Planning Board, who’s job is then to take allowable uses within the district and make sure that the proposal fits within the Code. That we plan to do, and we’ve already filed that application with the Planning Board. John has indicated, in his documents. MR. STONE-By John, you mean Mr. Caffry? MR. FITZGERALD-Mr. Caffry. MR. STONE-Thank you. MR. FITZGERALD-That this Board heard something similar in a matter of Paul Schuerlein. I am not familiar with that case, but he was kind enough to put part of the transcript there. I’m not sure, in reading what was submitted to the Board, you fellows are a lot more familiar with that case than I am. Number One, it seemed like the Board was very troubled in how to deal with that matter, but it also appears that that was quite different. That was a re-application by someone, seeking either a modification or a change in a Use Variance that had already been issued by the Board. The cases that he has outlined, only one case is actually a zoning case. The rest of them are Article 78’s, which deal with determinations made by different departments of the government, State Liquor Authority, New York Transit Authority, based on hearings. The one case that he did reference that deals with zoning in fact said that in that particular instance they could not apply again, that the Board did not, in right, or did not have to listen to an application that was the same, and I think that’s what we have here. We have a determination that was made in November. Mr. Brown, both in his letter of March 12, and the information th that he has given to the Board tonight, has indicated that he has not changed that determination. The only thing that he did is add the conditional requirement of Site Plan Review, which we are pursuing. That’s it, sir. MR. STONE-Thank you. I think before we ask questions, I will let Mr. Caffry speak for the untimeliness, if you will, and then we’ll ask questions. MR. SCHACHNER-Remember that anyone else who wishes to speak on the timeliness issue has to be afforded the opportunity as well, not just the two attorneys. MR. STONE-Absolutely. No. I will open a public hearing, at some point. I’m just saying right now we’ll get both positions on the table. JOHN CAFFRY MR. CAFFRY-Good evening. My name’s John Caffry, from the firm of Caffry & Flower in Glens Falls. Representing what Mr. Schachner has called the neighbors, and since I’m not aware that they’ve created a name, as such groups sometimes do, we’ll use that one for now. With me is Lynn Underhill, one of the neighbors who signed the appeal form so I gave her the honor of sitting up here at the head table. We think that the appeal was timely filed. There’s no doubt it was filed within 60 days of the March letter. We’re just asking for our day in court, and to let the Board decide this case on the merits. The November decision was made without any notice to anyone. As has been said, it’s not required under the law for things like that. It would have been nice if it had happened. We’re not faulting anybody. It’s just what happened. So at 6 (Queensbury ZBA Meeting 5/12/04) that point, when that letter was written, the neighbors had no idea. When people found out, I don’t know exactly. It was some time in the winter. When they did find out, so far as I know the original 60 days has already expired. So they couldn’t have appealed in time. What they did do when they found out was they acted promptly. They acted responsibly. They wrote, I believe two letters to Mr. Brown, and other Town Officials, asking them to reconsider and rescind the November decision. There was one letter on behalf of, it stated a group of people, and there was another one from one individual. Mr. Brown then apparently did some more investigation. There was a public meeting of sorts held, and then on March 12, he wrote a th letter where he, in effect, partly granted their request, by saying it had to go to Site Plan Review. He didn’t completely grant their request. He did say, however, that he was making a new determination. So this was a new ruling, and it was based on new information. So it wasn’t that he just stuck to his old decision across the Board. He looked at the issues, stuck to part of his decision, and granted part of it, and so we’re here appealing the part that he didn’t change, and that only makes sense. If he changed all of it, we wouldn’t be here. Maybe the Brandi’s would have appealed, but we wouldn’t be the appellants. We think that the precedents do support this position. You had the Schuerlein case in 2003. I attached what I think are the entire minutes of the meeting where that was decided. In that one, there was a decision, written by the Zoning Administrator, it wasn’t an appeal or asking for rehearing. I looked at all the minutes of Schuerlein for several months. Apparently he kept coming back here on various theories. Jon Lapper just tried every trick in the book and, apparently in the end didn’t get anywhere, but they did later come back and ask you to rehear, but that’s not the one that I’m referring to. I’m referring to Mr. Brown had written a letter, the 60 days past. The attorney for Mr. Schuerlein wrote back and said we’d like you to change your mind. He wrote back and said, I’m not making a new determination, and they appealed that, and this Board, after some debate, decided to hear that appeal on the merits. At a subsequent meeting it was turned down, but it was procedurally the same type of decision being appealed, and this Board decided to hear it. They decided it was timely. We think we have an even better argument than Mr. Schuerlein had. First of all, since he was the party, he was the applicant there, he knew about the first decision and he did not appeal it within the 60 days. Also, here, or in that case, the second letter from Mr. Brown said I’m not making a new determination. So, in theory there was nothing to appeal at all. He just refused to reopen the case. Here, we did get a new look at it, a fresh look by Mr. Brown, and that was a re-determination. Unfortunately it just wasn’t successful. The courts have said, repeatedly, and there’s the cases I attached, and there’s a lot of others, that where there is a reconsideration, based on new evidence, then the clock starts again for lawsuits, and even though it mostly has to do with lawsuits, it’s the same principle of law that applies, and they’re mostly reviewing decisions of various agencies. A lot of administrative law rules apply to Boards like this, just as much as to State agencies and any other, and it’s all really the same principle that applies. So we think the law is really clear. Once the Board, or once the official in charge, Mr. Brown in this case, decides to reopen the case, and he looks at new evidence, if he doesn’t change his mind, that the new decision is appealable. Again, otherwise, it makes no sense, there’d be, if you could only appeal the part that he did change. To respond to a few of Mr. Fitzgerald’s points that he made, he mentioned how they entered into a lease and they formed a company and all that, and I don’t think that’s relevant to the decision this Board has to make. If they did spend money on these things, it is unfortunate. If they did it based on what may turn out to be an improper decision by Mr. Brown in November, but I don’t think that’s of relevant consideration in these circumstances, and so, in conclusion, again, we’d just like our day in court. We’d like a chance to present the merits of the appeal to the Board, and so we’d like you to rule on the 60 days that we are timely, and move on to addressing the merits. MR. STONE-Thank you. MR. CAFFRY-Does anybody have any questions? MR. STONE-Well, I’m going to ask. What I’m going to suggest that, well, Mr. McPhillips is over here, any questions to either side be addressed by the Board to both and answered. 7 (Queensbury ZBA Meeting 5/12/04) MR. HAYES-Well, Mr. Caffry, what’s the new information that Mr. Brown had, didn’t have in November? I mean, that seems to be kind of the linchpin of part of your argument here. MR. CAFFRY-As cited in his letter, which was just read, and if you’ll give me a second, I’ll pull it out and look, and he doesn’t appear to be here, so he can’t tell us for sure, but, okay, new information relating to the scope of the facility and improvements and requirements including but not limited to safety features, parking accommodations, new structures, results in me making a new determination regarding your project. There’s also a description in my client’s letter of. MR. HAYES-Those are all site plan issues, though. I mean, what’s the new information in regards to the allowable use MR. CAFFRY-Correct. Well, I don’t know that you necessarily have to parse it that closely, but my client, I can make that argument, though, that the, we’re saying, now, that this was not allowed because it really should have been considered to be a firing range, and I know that’s the next issue, but I have to go there to answer your question. The definition of firing range talks about a facility built or constructed to facilitate the firing of fire arms. Originally Mr. Brown was under the impression, in his first letter, that there was no new construction, no facilities, no nothing new, and that’s why he said they need site plan review. So I think the two questions dovetailed. Once he found out there was going to be new stuff added, new stuff built, such as the safety netting and other things that would be constructed on the site, then he said it needs site plan. We think with that knowledge he should have looked at the definition of firing range and said, well, you know, it could be a firing range and examine that question closer, and so I don’t think you need to parse it that closely. Once my client said we don’t think it’s allowed, and there was new evidence as to what’s there, it’s ultimately up to him to look at the Code, and make a ruling in the first instance subject to appeal by you, but there was the opportunity for him, based on the evidence of new facilities, new information. The issues that my client’s raised in their letters, to look back at it and say, I don’t think it’s allowed at all. So I think the two issues do dovetail. I don’t think you have to go there, but if you want to, the two issues do dovetail. MR. STONE-Okay. The only comment I would make, at this point, you’re using a phrase, parse closely, and yet you did the same thing in talking about the word determination. I just want that out there. You said a new determination versus a determination, and we’re slicing it pretty thin there, too, I think. MR. CAFFRY-Right, but my point is once you reopen the case, I think it’s all reopened. I think that’s what the courts said, and that’s what you did with Mr. Schuerlein. MR. HAYES-I’d like to continue that, then, if you don’t mind. MR. STONE-Sure, go ahead. MR. HAYES-I mean, Mr. Brown, I just asked him what, he, pardon Mr. Caffry’s argument that this should be, that the clock didn’t expire, if you will, that there was new information as to your determination that it was or wasn’t an allowable use. I mean, that’s what’s on appeal here. MR. BROWN-Okay. MR. HAYES-And I asked him what was that new information that would have played a role in your decision, or ongoing decision, whether it was an allowable use. I guess, could you tell me what the new information was? MR. BROWN-Yes. I guess there wasn’t any new information that goes to the allowability of it. The new information that came in went to, does the use, or should the use be required to go through the Site Plan Review process or not. So the information that was gathered, basically, by I think, Chris, you were at the informational meeting that was held, revealed that, you know, 8 (Queensbury ZBA Meeting 5/12/04) due to the scope of the activity, you know, the actual construction, not so much construction, but the layout of the paintball fields and the actual operation of it was something that’s going to trigger a site plan review. So it’s always been an allowable use. It’s just whether it goes to Site Plan Review or not. MR. HAYES-So you’re saying there was no new information as to the allowability issue? MR. BROWN-Not to the allowability issue. It’s always been, it’s been my opinion that it was allowed. MR. STONE-Any other questions, gentlemen? MR. ABBATE-Mr. Brown, yes, would you consider that new information evidence, new evidence, that you received? MR. SCHACHNER-I have to ask as your Counsel, but I’m also his Counsel, what do you mean by that? In the technical sense of federal? MR. ABBATE-I’ll be specific. Let me be specific. MR. SCHACHNER-Okay. That’s a confusing question, because to lawyers it sounds like, are you asking is it something that’s subject to, for example, Federal Rules of Evidence, and I’ll bet that’s not what you’re asking. MR. ABBATE-Okay. Let’s try this. Counsel, Mr. Caffry indicated, he cited a case that indicated that new evidence stops the clock, and my question then is, when Mr. Brown made the second determination, was it based upon new evidence? MR. SCHACHNER-He can answer for himself, but it’s based upon new information, and he’s just told you what that new information was, and if you’re trying to draw some significance to the use of the word “information” versus use of the word “evidence”, I’m going to tell you, as your Counsel, I think that’s not a significant distinction. He’s told you he got new information. He, Mr. Brown, has told you, he received new information, or he was made aware of new information. Mr. Caffry has alleged he was made aware of new information. I think Mr. Brown agrees he was made aware of new information, and what I’m telling you as your Counsel is trying to decide whether to label that information as “evidence” or not, in my legal opinion, is irrelevant, and, by the way, I suspect both attorneys would agree with my opinion in that regard, but whether they do or not, that’s my opinion. MR. ABBATE-Do you agree, Mr. Caffry? Because it’s important to me. MR. CAFFRY-I would agree that whatever label you put on it, new information, new facts, new evidence, once there’s new stuff, of any sort, before the deciding official, in this case Mr. Brown, the case, and the cases use these different words. Some of them say information. Some say facts. Some say evidence. So I think that those words are interchangeable. So once there’s something new there, that, I think, is again what reopens the inquiry. MR. SCHACHNER-So, to put that in context, I think he’s agreeing, the label is not significant. His contention is not because it’s evidence versus information. That’s what opens it, and I agree that, if he’s right, it doesn’t matter how it’s labeled. MR. CAFFRY-Could I just respond to something else, or does the Board want to? MR. STONE-Well, are there any other questions? Mr. Fitzgerald, I incorrectly identified you earlier, and I apologize. Any questions of either Mr. Fitzgerald or Mr. Caffry? MR. ABBATE-I have a number of questions, Mr. Chairman. In your brief, your exhibits to the Caffry & Flower May 10, 2004 letter regarding Rock-It Paintball, you obviously used a huge 9 (Queensbury ZBA Meeting 5/12/04) asterisk on Page, okay, this is from the Town? This is not from the Town. This is from the Town. So, was this your asterisk? MR. CAFFRY-Yes. MR. SCHACHNER-It’s from Mr. Caffry. MR. ABBATE-Well, that’s what I said. Well, why am I getting such a hassle here, if I’m correct then? Everybody should stand up and applaud. I really would like this cleared up, please, because this, to me, is critical. There is a huge asterisk on Page 34 on a 5/28/03 meeting, and apparently Mr. Brown, it was a quote, I happened to be there, by the way, for this hearing. I was the individual who moved that it not be heard, and it says, quote, which I guess leads to the September 10, 2002 letter. Now this is what I’d like you to clear up for me, why you felt it was so important. Obviously, a lot longer than 60 days has past since this letter was presented. Now, why was there an asterisk there? MR. CAFFRY-I was just trying to highlight. These are long minutes, and I didn’t want to exclude anything. I didn’t want people to think I left something out, but on the other hand a lot of it wasn’t really germane, I didn’t think. So I just tried to highlight what I thought were the most important parts. Those are my marks on there. They obviously didn’t come off of the Town website, when the minutes were printed off of there. Why that’s important is that’s what says that first there was a letter and no appeal was filed within 60 days. Then there was a second letter from Mr. Brown that was appealed within 60 days, and that was a letter that said I’m not making a new determination. Unlike our letter where he did reopen and re-examine, and so that’s why I highlighted that, because I felt it was germane that, in that case I think there was even less argument for rehearing. You thought so, certainly, but most of the rest of the Board didn’t agree. MR. ABBATE-No, they voted five to two against me. One other thing here now, on Page 40, you obviously had a 2-5, which obviously was the vote, but what’s important you started your bracketing with a statement by Mr. Stone. I was wondering if you could explain why you felt that statement was important. He basically says, quote, strictly procedural to say that, under certain conditions we will entertain this appeal, but I will put the conditions on it when we get done. Why do you feel that’s important? MR. CAFFRY-I just was bracketing there. That’s where the vote took place, because the way these minutes are done, I’ve seen it in other ones, at some point, two, three pages earlier, it says a motion was made and it was voted, but then you guys always talk after that point. So I wanted to find the place where the vote took place. MR. ABBATE-Okay. Guilty. Thank you very much. MR. STONE-Okay. Any other questions of the two attorneys, because what I propose to do is. MR. CAFFRY-Can I just respond to something that Mr. Brown said? MR. STONE-Surely. MR. CAFFRY-He said that the new information did not relate to the issue of allowability, and again, in response to Mr. Hayes’ question, I think I said it does relate to that question. He didn’t feel that it should, and that’s why we’re appealing it, okay, but it was information that legally, could have, and should have been used to readdress and change his opinion on that issue. He chose not to change his opinion. That’s his right, and that’s why we’re appealing it, but I think that evidence, the new evidence, does relate to, and I think I’ve said this somewhere in the papers. If you just have people running around their backyard, well, you’re not supposed to shoot them within 500 feet of a house, but if you have someone that owns 100 acres of woods and they’re just running around with their friends playing paintball, that’s not an organized paintball facility, you wouldn’t have the same discussion of how it fits under your Zoning 10 (Queensbury ZBA Meeting 5/12/04) Code. Once you start building things and putting up fences and all that, then that changes the dynamic. That’s what we think makes it fit within, in part, the definition. MR. STONE-Okay. Well, right now we’re talking timeliness. Okay. What I’m going to do is I’m going to open a public hearing. I want only comments as to whether you agree the appeal is timely or not timely. If you have any new arguments that the two attorneys, in their infinite wisdom, haven’t made, say so, but I would appreciate if you’d come up, put your name in the book, and tell us what you think, very quickly, whether you think this appeal is timely or not. PUBLIC HEARING OPENED LYNN UNDERHILL MS. UNDERHILL-Since I’m sitting here. Lynn Underhill. I do live in the neighborhood and I do agree that we did file in time. We were not aware of the decision in November. If we had, we would have written letters and made phone calls, as we did when we were aware of it after the really informational meeting that Mr. Brandi was kind enough to have for us and we were kind enough to attend. We did everything we could possibly do to get information to you, to us to understand what was going to be put there, and we do not feel it is zoned, and we do feel that we did file in time, as of the second letter, and that the information does, is relevant. MR. STONE-We’ll get to the information. MS. UNDERHILL-Right. I wasn’t going to go on to the information, and lastly, that if, for some reason, you do decide, for some reason, that it was not timely, that, again, as Mr. Caffry had pointed out, there have been other cases that you did listen to, even though you did decide it was not filed in time, and that’s what we are requesting, if you make that decision, and we appreciate your time here tonight. Thank you. MR. STONE-Thank you. Next? GABE ARMANDO MR. ARMANDO-My name is Gabe Armando. I’m one of the “neighbors”. As far as the timeliness, we’re not skiers anymore. We understand this paintball thing was advertised at the ski area with fliers and whatever. We never saw these. We never knew this was happening. It was brought to our attention sometime around the end of February, which we immediately contacted the Town and started discussing, and from there the meeting was held, and we’ve started our action, and we feel that the timeliness, or the timing should go to the March 12 th date. Thank you. MR. STONE-Thank you. SCOTT JONES MR. JONES-Good evening. My name is Scott Jones, and I guess I’d be a neighbor, and I just wanted to state that I guess, I’m new to this, so you’ll forgive me if I’m not up with the dates and everything, but I believe inherent in the determination is that there’s some degree of finality to it. The original November decision does not appear to have all the facts and circumstances to make a final decision. I think that’s implicit in that we have a second decision dated in March, and that changes its position. I believe that would be the correct day to run any 60 day period for an appeal, from a final determination of the proper authority for the determination, I guess. MR. STONE-Good. Thank you. MR. JONES-Thank you. MR. STONE-Next? 11 (Queensbury ZBA Meeting 5/12/04) MIKE BRANDT MR. BRANDT-Hi. My name is Mike Brandt, and I think there’s some information that has not been presented that bears on this. MR. STONE-On the timeliness? MR. BRANDT-On the timeliness. MR. STONE-Okay. MR. BRANDT-The case has been made that people weren’t notified, and I know that a poster was put in our lodge, in December, announcing all of this, and some of the people who are here before you tonight, ski, and have been in that lodge many, many times. In fact, it was already there for a fall ski sale, and it was there through the whole winter, and we held many races, and many of these people have their children in the racing program, and certainly have full use of the lodge. What really happened, in truth, is that all hell was raised about this project, when Mr. Brandi called Warren County Economic Development Corporation to ask for their help, under the Empire Zone law, where this piece of property is an Empire Zone. That’s when everything got organized and all of this ruckus started. Not when the information, it isn’t that the information wasn’t there. It was there. The other point that was made about the people just want their day in court. They’re going to hear it. They have everything to say and comment on the process that everyone has agreed to, which is the application process has to go to site plan review. They’ll get a chance to see that. I think we’re twisting the law as hard as we know how to twist it, with the verbal expertise of law school. Thank you. MR. BRYANT-Just a question. Mr. Brandt, can I ask a question? What does the Empire Zone have to do with why the neighbors, I’m not following that? MR. BRANDT-Well, what happened was the head of one of the neighbors is the Chairman of the, or the Administrative Officer of the Warren County Economic Development, and when Mr. Brandi called him, he immediately said, on that phone call, I’m against this, and I’m going after him, and that’s when all hell broke loose. MR. STONE-Thank you. MR. BRYANT-Thank you. MR. STONE-Next, sir. ARTHUR HULL MR. HULL-My name is Arthur Hull, and I want to address Mr. Brandt and you about information. First of all, I fail to see how if we’re not notified on something how we can address it in 60 days. That’s beyond me. Secondly, Mr. Brandt, I own the property north of his ski center, and on several occasions he’s come to our house to inform us as to what he’s doing, and before the paintball, Mr. Brandt came and spent a matter of an hour, maybe two hours, explaining and showing me maps of a tubing center that he was putting in that place, and so we looked over these things. We felt that it was consistent with a ski center, and then when he began doing the clearing, which in that note is not supposed to happen, but when he started doing the clearing, we assumed it was for a tubing center, and he never came back to me on a personal basis and said, hey, we’ve changed this to a paintball center. So I really think that not only were we not informed, but I think that we were misinformed, because I was fully expecting to see a tubing center, and when one of our neighbors. MR. STONE-You’re going off a little bit. You think the appeal is timely. 12 (Queensbury ZBA Meeting 5/12/04) MR. HULL-I think the appeal is timely based on what we found out, that this is going to happen, and we’ve been mislead so that we couldn’t possibly have known, in a 60 day period, what was going on. MR. STONE-Okay. Thank you. Next? MR. BRANDT-He quoted me, and I’d like to respond to that. MR. STONE-Okay. Let me get this young woman here. I don’t want to get into an arguing match here. KIM GRAY MS. GRAY-My name is Kim Gray, and I agree. I do feel that we turned it in on a timely basis. I was present when the maps where shown for the water park, and we were not informed of anything that had to do with paintball. So when we heard what was going on with the clearing, we never questioned that it could be anything else, and I don’t ski. So we didn’t see any of the fliers. So when he came around our house and talked about the water park, we agreed that that was, we thought it was a reasonable thing to have, and we had no idea that there was anything to do with paintball at any time, and so I agree. I just don’t think that we knew about it. We just didn’t know about it, and we were misinformed because if we had thought there was going to be paintball, we would have said something. We thought it was a water park. We thought things were being cleared for a completely different reason, and if we thought it had to do with anything else, we would have asked questions, and we didn’t because we were misinformed of something else. MR. STONE-Thank you. Mr. Brandt, do you want to just, I’m not going to allow this very often, but since he did quote you. MR. BRANDT-Yes, I do speak to my neighbors, and I was going for a site plan review process on a tubing park, and that requires public hearings, and I knew that was the case, and I went to all my neighbors so they would be informed prior to that. That’s almost, I don’t know, six months before any of this started. Before any of the information was in front of me that this could be a possibility. The clearing that has been done has been done primarily for one thing, the pipeline that’s part of feeding water to the tubing park pump house. No other clearing has been done. No clearing has been done for, or will be done, for this facility that’s being discussed now. Thank you. MR. STONE-Thank you. MR. URRICO-Just for the record, the water park and the paintball park are two different items? MR. BRANDT-Totally different items. MR. CAFFRY-I think it’s a tubing park, not a water park. MR. BRANDT-Tubing park. MS. GRAY-I’m sorry, I meant tubing. MR. STONE-We have water parks and tubing parks on our mind for other reasons. Please come forward. MARY MC NALLY MS. MC NALLY-Hi. My name is Mary McNally. As far as the timeliness of this appeal, it’s my understanding that initially the Town of Queensbury decided that no action was necessary. 13 (Queensbury ZBA Meeting 5/12/04) Then action became necessary. That’s when you have to start looking at what your actions are. We didn’t have any options when you people decided it was a go. Once you decided. MR. STONE-This is the Zoning Board of Appeals. We are not classified as ”we”. MS. MC NALLY-When the Town of Queensbury. MR. STONE-Thank you. MS. MC NALLY-Which you’re part of the Town of Queensbury, decided that there was an action to be taken and a review to be done, that’s when you have to start counting the time. MR. STONE-Okay. MS. MC NALLY-Thank you. MR. STONE-Thank you. Next? NATE WILLIAMS MR. WILLIAMS-Hi. My name is Nate Williams, and I live right directly across the street from this proposed venture. MR. STONE-By across the street, you mean West Mountain? MR. WILLIAMS-Right directly across the street. MR. STONE-On West Mountain Road? MR. WILLIAMS-On West Mountain Road, yes. MR. STONE-Okay. MR. WILLIAMS-I believe that we did file in a timely basis. I don’t ski, and I don’t tend to surf the Net looking for paintball parks, and what happens in paintball facilities and what have you until all of this came up. I seriously doubt that there would have been a public meeting in February had not some publicity come up along the way that prompted them to have this open forum. That was the first that I had heard about it, and I believe that we reacted very timely, as a result of the information we were given, and I think that the clock should be started over again, as a result of that second determination. MR. STONE-Thank you. Next? SUZANNE BLOOD MS. BLOOD-Hi. My name is Suzanne Blood, and I live in Northwest Village, and I’m a neighbor. I sent you all a note regarding the timeliness. You should have it in your package. I just want to reiterate. I am a skier, but I ski at Garnet Hill, and there was no publicity up there, or elsewhere, that I, where I usually go, there’s nothing in the newspaper regarding this proposed venture. So, again, when I did finally hear about this in February, I took appropriate action and called a variety of people within the Town to express my concern. So I, too, feel that once the matter was addressed by the Town once again, that we did act in a timely manner, and I think our appeal should be heard. MR. STONE-Good. Thank you. Next? SUE BEADLE 14 (Queensbury ZBA Meeting 5/12/04) MS. BEADLE-Hi. My name is Sue Beadle, and I, too, live in Northwest Village, although I live at the top of the mountain, so I’m a distance from the proposed paintball park. I have two issues. I think Mr. Brown has done a really good thing, in the sense that he’s reopened an issue when new information came in. I mean, he could have, you know, just turned his head. He brought the two parties together. He tried to mediate a meeting, and, you know, I think he’s to be commended for that. The unfortunate part of it is in his letter, in his initial letter, he’s talking about a phone conversation, you know, this deal was done over the telephone. Now, I don’t know about you, but when I have a telephone conversation, it’s not necessarily explicit in everything that’s got to be addressed, and to have simply a phone conversation determine this magnitude of an issue, it would be an injustice. So I think we’re very timely, you know, I think Mr. Brown did the right thing in re-addressing the issue, and, you know, I ask that you follow his lead. Thank you. MR. STONE-Thank you. Next? DAN STEWART MR. STEWART-Thank you. Dan Stewart, over in Bedford Close. It seems to me that this issue really is one of fundamental fairness, within the confines of what you have to do, what your requirements are. Initially, there was a determination made that there was no site plan review. That, upon later reflection, was determined to be an error, based upon new information. Had that been done correctly initially, it would have given the neighbors notice such that they could have appealed in a timely manner. They didn’t have that opportunity. With regard to Mr. Brown’s second letter, he makes a point of saying that there’s no new decision with regard to the zoning, whether it’s an appropriate issue for zoning, but I don’t think he should be allowed to insulate himself from review by this body, by simply making that determination. There was new information. He made the determination again. He agreed with himself the first time, but nevertheless, that issue should be available for review, so a second mistake is not made. MR. STONE-Thank you. Anybody else? Timeliness. CONNIE LANGFORD MRS. LANGFORD-My name is Connie Langford. I live on Assembly Point, and my daughter and her family live in Bedford Close. I’m concerned because I think that it’s a zoning issue that can affect everywhere in Town because of the procedures. First of all, my contention is that paintball, as such, is nowhere in the Town Code. MR. STONE-We’re not talking that. MRS. LANGFORD-Just a minute. So, timeliness, it is, going back to what Dan Stewart said. You said, Mr. Stone, earlier, that if the first letter had been upheld, then the 60 days would have been over. Mr. Fitzgerald said that the Town probably should have required a site plan review initially, and so then you have to go to the point that if a site plan review had been required initially, then we would not be here, we would have been fighting a site plan review or discussing it or whatever, way back several months ago, and that, of course, would have shown a necessity for variances, notification of neighbors, SEQRA review and public notice. So, it seems to me that the fact that 60 days started on November 12 is very weak. The other thing is th that allowing this to go forward on the basis of the information that the Brandi’s gave the Town in the very beginning, that’s when Mr. Brown made his determination. Then, as more information came forward, things had to change, because, in all fairness, this whole thing is affecting neighborhoods. So, I think timeliness is certainly very germane here, and it should start from when Mr. Caffry said. Thank you. MR. STONE-Thank you. Mr. Salvador? JOHN SALVADOR 15 (Queensbury ZBA Meeting 5/12/04) MR. SALVADOR-Good evening. My name is John Salvador. I think it’s well understood in the Zoning Ordinance that when a Zoning Administrator makes a determination, he makes it on behalf of an applicant. Not the neighbors, not the public, no one else, only the applicant. No one else is privy to what’s going on. There’s no question that his determination in November was not the final determination. New evidence, new information, whatever you call it, came forth, and so the final determination was made in March. If you don’t hear this appeal, we run into what happened as people reference other cases. You remember, Mr. Stone, the Mooring Post incident. The Zoning Administrator made a determination and the building permit was issued, and that project got stopped because the neighbors were concerned. Thank you. MR. STONE-Next. JOHN OBST MR. OBST-My name is John Obst. I live in Bedford Close also, one of the neighbors. I’ve got a couple of comments and a question, a question for Mr. Brown. In your letter in November, I seem to remember hearing, as you fellows read it, that you gave an opinion stating something about it appears. I don’t remember anything in your letter saying this is approved. You said somewhere it appears to be. MR. STONE-It appears site plan review, it appears it does not need site plan review. That’s the appear line in there. MR. OBST-Well, appear doesn’t sound like a decision to me, but that’s one thing. The second thing is Mr. Brandt stated that we shouldn’t have even bothered with this here, because this Board doesn’t matter. We go to the next one and that’s the one that matters, but I think it matters each step of the way. I don’t see that we should eliminate this Board just because there’s another Board, and, secondly, posting something in a ski lodge that is a commercial place, not a public Town office or something, but a lot of people don’t go there. A lot of people don’t ski. I don’t think that’s sufficient notification, but then again you say you don’t need notification. So, thank you. MR. STONE-Thank you. Anyone else wishing to speak? I understand there’s one letter? MR. MC NULTY-There’s the one letter that Suzanne Blood mentioned that she’d sent in. I think most of the others, scanning them quickly, deal more with the issue rather than the timeliness. MR. STONE-Ms. Blood, do you want that read, or did you state enough on the timeliness? MS. BLOOD-I think it doesn’t need to be read. You all read it, right? MR. STONE-Before I close the public hearing, I have one question of Mr. Brown. Jaime asked the question of you, what new information. I thought I heard you say at one point that they provided you information on new buildings which were not in the original application? MR. BROWN-No, there were no new buildings that were proposed at any time there were buildings proposed. MR. STONE-So, again, reiterating what Mr. Hayes said, what caused you to say you needed site plan review? MR. BROWN-Well, again, it’s in the second determination letter, the second letter that I issued to the Brandi’s. It talks about, you know, the scope of the operation of the facility that they weren’t made clear to me for the initial determination. MR. STONE-And how were they made clear the second time? 16 (Queensbury ZBA Meeting 5/12/04) MR. BROWN-Well, it was the information that was presented to me after that public meeting that the Brandi’s had with the neighborhood regarding the paintball facility. MR. STONE-Okay. So the Brandi’s came to you with new information? MR. BROWN-No, the information was provided to me, I guess you’d call it meeting notes, that Mr. Round had taken at that meeting, provided it to me the following day, or subsequent to the meeting. MR. UNDERWOOD-At what point in time was the actual layout made available to you, as to what the facility was going to be designed as? Including the netting and things like that, I assume that wasn’t something you got back in November. MR. BROWN-And it was a generic plan provided some time prior to the November 12 date. I th don’t have the date exactly, but it was prior to that determination. It was a, I don’t want to say that it was a generic site plan, but it was a map that encompassed the majority of the properties in the area, kind of balloon drawings around the areas where the actual activities were planned to take place. A map to some degree of detail was provided initially. MR. URRICO-Craig, what was the trigger, in terms of issuing a second letter, the March 12 th determination? MR. BROWN-Again, it’s that information that came out of that informational meeting. MR. URRICO-And that was information you weren’t privy to before that. MR. BROWN-Right. I think, yes. MR. URRICO-Thank you. MR. BROWN-Sure. MR. STONE-Everybody else spoken on this timeliness issue? Okay. The one thing I do want to just say, I heard someone say, and I didn’t get the note, that the November 12 responded to a th telephone call. It was in reference to a letter, I believe, in first line of Mr. Brown’s note. So there was a letter written. So it wasn’t a telephone call. Okay. Let me close the public hearing. PUBLIC HEARING CLOSED MR. STONE-Mr. Caffry, if you would like to respond to anything you heard. MR. CAFFRY-Just briefly. What I wanted to respond to was your question. MR. STONE-Okay. MR. CAFFRY-You asked whether there were new buildings, and I’m not sure anybody would say there’s new buildings associated with this facility, but there are new structures and they’re differently defined in your Code, as I’m sure you know. MR. STONE-Okay. MR. CAFFRY-And structures alone, even if they’re aren’t technically buildings with four walls and a roof, are enough to trigger site plan review, and in this case we think enough to make this into what it is, which we think is a firing range. So I don’t want to get lost on the distinction between those two terms. MR. STONE-Okay. Again, we’ve had hang-ups on structures before, in our Code, it’s one of the things that we’re still working with. Okay. Any other questions? I didn’t mean to slight you. 17 (Queensbury ZBA Meeting 5/12/04) MR. FITZGERALD-Gentlemen, just a couple of comments from what I heard from the audience I just want to clarify. Number One, the applicants did not create the law, and they don’t create the procedure. That was created by the Town of Queensbury after much determination, much public hearing, and enactment by the Town Board. There’s no provision in there for a public hearing for public notice. That’s why it wasn’t done. The other thing I want to point out, that the Brandi’s approached the Town informally and formally last fall, in November. They sat down with Town officials, with a map. They provided quite a bit of information before that letter of November 12 was issued. We have never been given any evidence of any additional th “evidence” that was given to the Zoning Administrator between then and his issuance of his March letter. So we’re not sure exactly what it is except maybe they finally digested the information that they had received the prior November, but the scope of the project did not change from November to March. It’s the same project that the Brandi’s came up and sat down and talked to the Town about, talked to them on private conversations, letters, and phone calls. So there was quite a bit of dialogue last November before that first letter was issued. MR. STONE-Thank you. MR. FITZGERALD-I think Mike already talked about the difference, the fact that his application for tubing was completely different than this application. Thank you. MR. STONE-All right. Gentlemen, we have a very simple issue before us. Do we think the appeal that we will hear, if we think it’s timely, is it timely, and, Jim, let’s talk about it first. MR. UNDERWOOD-I think, out of fairness to both the applicant and the appellants, that it would be in our interest to use the March 12 date as a reasonable point in time for discussion th to begin about whether or not this site plan will be approved, you know, that’s up to the Planning Board, as they said also. I think it would not be in our interest to ignore the fact that there’s considerable interest from the near neighborhood regarding the project, and, you know, if it’s a level playing field to begin with, and everybody gets their say, you know, we could make a decision based upon that information. MR. STONE-Chuck? MR. ABBATE-Okay. Thank you. I’ll preface my remarks, I’ve made a number of notes here, that I agree with Town Counsel, by the way. I think our decision should be based on fact, and I certainly would agree, and the question, basically, is was the neighbors appeal timely. Let me just give you my thoughts as I wrote these down here. I indicated earlier mitigating circumstances, are there any mitigating circumstances that ought to be considered to ensure, and this is critical, in my vote, a fair and balanced hearing. Now, the declaration in Section 179- 16-050 states, quote, an appeal from action, and I want to emphasize the term action, decision or rule by the Zoning Administrator regarding a requirement of this Chapter may be made only to the ZBA within 60 days, unquote. Now, having said that, Webster’s Collegiate Dictionary describes the word “action” as follows, quote, the term action often implies a process that involves more than one step, or is continuous as such decisions or actions, unquote. Now, my question is this, was the window of opportunity extended or reopened to the appellants by the Zoning Administrator’s action, i.e. correspondence dated March 12, 2004, as another step in the process, and thereby chance, by chance, extending the timeframe for an appeal. In my opinion, the Zoning Board of Appeals hearing on 5/28/04 did, in fact, set a precedence, and it’s my opinion that this appeal should be heard. MR. STONE-You mean ’03. MR. ABBATE-’03. Thank you. MR. STONE-Allan? 18 (Queensbury ZBA Meeting 5/12/04) MR. BRYANT-Mr. Chairman, I very rarely disagree with Mr. Abbate, but in this particular case, I think the Zoning Administrator was very clear in his March 12 letter that the new th information did not affect the actual determination regarding the use, and under the query tonight, he was also very clear in his response relative to that information that it did not affect the use. As far as the day in court issue, everybody will have that day when we do the site plan review, and they’ll all have the opportunity to say their peace, but as to this issue of timeliness, I have to side with the Zoning Administrator. MR. STONE-Roy? MR. URRICO-Yes. I think the wording, action, determination, rulings have been used quite a bit tonight, and going back to the original letter of November 12, Mr. Brown states that I th understand that your proposal does not include any new structures, new parking or new land clearing. My determination is based on these assessments of your proposal, and on the 12, he th addresses some of the new information that became available, relating to the scope of the facility improvements and such, and results in me making a new determination regarding your project, and in the Staff comments that were provided to us, it says not only that the review must be made not later than 30 days from the effective date of decision or ruling or the date when the action or omission occurred, whichever comes later, and I think even though the Planning Department did not change its decision on allowability, it did have to re-address it as new information, as new information became available. So even though a decision wasn’t made to change, let me make this clear. Even though there was no change in his decision, he still had to address it, and he still had to think about it and determine whether this new information did, indeed, create an allowability issue, and I think that, to me, opened up the door enough, and I believe the appeal is valid and deserves to be heard. MR. STONE-Mr. Hayes? MR. HAYES-Well, I think there’s several things that play here. First of all, I think that, I don’t think that anybody’s at fault in this particular case. I think that the public or the neighbor’s position that they weren’t informed about what was going to happen, or what the applicant had proposed to do with the project is very valid. It’s certainly a project that affects neighbors and that type of stuff, and that will all be examined under the Planning Board, but unfortunately the Code does not call for the Town to notify people that such a determination was being made, and whether that’s fair or unfair, that is the rule. The Town Counsel has already pointed out that that’s not a requirement set forth by the Code in this particular case. So then, to me, I had to move my examination directly to whether there was a new set of information, a new set of facts, that amounted to or related to Mr. Brown’s determination of whether this was an allowable use, and that’s really what we’re here about tonight. This issue of timeliness is one we have to handle, but we’re really here to determine whether this is an allowable use, whether Mr. Brown made the right decision, in the sense of this being an allowable use, but Mr. Caffry has not satisfied me in the sense that new information was set forth as to Mr. Brown’s determination of whether this was an allowable use. I just don’t see where that new information presented itself, in this particular case. So I would have to rule that, in my opinion, I just, I think that the clock started and stopped 60 days after November 12. th MR. STONE-Mr. McNulty? MR. MC NULTY-Okay. I’ve got two or three points. I’ll try to make them quickly because a couple of them diverge a little bit. There’s been a couple of comments made tonight about at some point our determining whether Mr. Brown made an improper decision. I’d have to make the point that he probably made the best decision possible at the time he made it, based on the information he had, and should we overrule him at some point later on, or whatever, that doesn’t mean that he made an improper decision. It just means that we disagree with him or there’s new information. In regards to the timeliness, unfortunately failure to notify the public is a problem with the Town Code or perhaps a failure to address public involvement as maybe the Town should, but there’s no requirement, and technically that November letter came and went. The decision came and went, and everybody agrees the neighbors did not meet the 60 19 (Queensbury ZBA Meeting 5/12/04) day deadline. Looking at the March 12 letter, I think, for me, Mr. Brown answers the question th in his letter himself. He says however new information relating to the scope of the facilities and so on has been presented to him and results in me making a new determination regarding your project. He made a new determination in March when he did this. Part of his determination was different. He determined that there now needed to be a site plan review. Part of his determination remained the same as what he made previously, but, to my way of thinking, he made a new determination, that the part that said that it was still an appropriate use for that region was the same he made before, but it still was a new determination in March. So, on that basis, I’ll agree, I think the appeal is timely, and I think a new decision was made. MR. STONE-Well, it didn’t come down to me having to make the final decision, which is sometimes good and sometimes bad. I have been a critic of the 60 day rule in New York State, and the Town, I think it’s much too short a time for a single action. As we have heard tonight, there is no need to notify the public that a determination has been made, and if somebody waits, six months, seven months, all within the legal timeframe, then there’s nothing on the record that says you have to tell anybody. I think it’s too short a time. We’ve had previous history in this Town. We’ve heard Mr. Caffry refer to other decisions we’ve made. We had a decision made by the Town Board, which is still going on, and it still bothers me, because of the timeliness issue. Nevertheless, in this particular case, the determination made by Mr. Brown on November 12, that this was an allowable use, has not changed. It is an allowable use. It is a th paintball facility, whatever that means to anybody, it is a paintball facility. Mr. Brown said it was a reasonable, an allowed use in that area, and therefore, even though, and we’re getting, overhanging over words and I know that the legal profession and the courts love to talk about words, and I do, too, but in this particular case, I think the determination was made that we, in fact, or the Brandi’s were told in November that this was an allowed use. The fact that they were then told that this allowed use now required site plan did not change the fact that it was an allowed use, and therefore I would say that this appeal is not timely. However, I need a motion to say that it is, so that we can continue. Because as I looked at the votes, we had four members say it is timely, and three saying it’s not. So would one of them, Mr. Abbate? MR. ABBATE-I’d be happy to make a motion, Mr. Chairman. MOTION THAT NOTICE OF APPEAL NO. 1-2004 , APPELLANTS: UNDERHILL, ARMANDO, ROSECRANS, AND OTHER NEIGHBORS, AGENT: CAFFRY AND FLOWER, ESQ. WAS TIMELY, AND THAT THIS TIMELINESS WAS BASED ON WHAT I CONSIDERED TO BE MITIGATING CIRCUMSTANCES THAT MUST BE CONSIDERED TO ENSURE A FAIR AND BALANCED HEARING FOR NOT ONLY THIS BOARD, BUT FOR THE PUBLIC AS WELL. ADDITIONALLY, I BELIEVE THE WINDOWS OF OPPORTUNITY EXTENDED AND WERE RE-OPENED BY THE APPELLANTS, BY THE ZONING ADMINISTRATOR’S ACTION CORRESPONDENCE DATED MARCH 12, 2004 AS ANOTHER STEP IN THE PROCESS AND THEREBY CHANCE EXTENDING THE TIME-FRAME FOR AN APPEAL. I BELIEVE THAT THE MARCH 12, 2004 LETTER BY THE ZONING ADMINISTRATOR DID, INDEED, FIND NEW INFORMATION UPON WHICH TO BASE THAT DECISION, AND CONSTITUTES A NEW DETERMINATION FROM THAT EVIDENCE, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: Duly adopted this 12 day of May, 2004, by the following vote: th MR. ABBATE-All right. Mr. Chairman, I move that the timeliness of the appeal is, indeed, well within the framework. MR. STONE-That’s all you’ve got to say, I think. MR. ABBATE-That’s all I’ve got to say. MR. STONE-Mr. Schachner, you’ve got more? 20 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-Yes. I’d strongly disagree with the premise that that’s all you’ve got to say. MR. STONE-Okay. Say why. Okay. I’m sorry. MR. SCHACHNER-Correct. You each, in my opinion, you each gave what I viewed were cogent, forceful reasons for your various individual views. Whichever way you decide, and as you well know by now, it’s certainly not my role to tell you which way to decide, but whichever way you decide, whoever makes a motion in that direction should, in that motion, include those same forceful, cogent reasons behind the motion. MR. STONE-Okay. Thank you. MR. ABBATE-He’s absolutely right. MR. ABBATE-May I modify the motion to approve? MR. STONE-You certainly may. MR. ABBATE-I’m going to spell it out, then, so that there’s no misunderstanding. MR. STONE-You’re the guy who might have to defend this. Are you happy, Mr. Schachner? MR. SCHACHNER-I’ve been happier. I think that the proposed motion does sound reasonably forceful and cogent in most respects, but I note that the proposed motion doesn’t seem to include the phrase new determination, and I think it would probably be appropriate that the proposed motion include the words, the term new determination. MR. ABBATE-Was that based on that March 12 letter? Was that what it was? I don’t recall. th MR. STONE-Yes, the March 12. th MR. SCHACHNER-The date of the letter is March the 12. th MR. ABBATE-Okay. All right. Fine. MR. SCHACHNER-And let me just say one more thing. I would suggest to you as your Counsel that what the proposed motion references as mitigating circumstances are not really the best grounds for this decision. That was the first part of the proposed motion. If you want to leave it in, leave it in. You’re the decision makers, not me, but the second part of the proposed motion, which really addressed head on the issue of timeliness is the more important part of the motion, and if that’s going to be the motion that’s made, I would suggest that somewhere in that motion the phrase new determination appear. MR. STONE-Thank you. MR. ABBATE-Okay. MR. STONE-In other words, in making this motion, we take cognizance of the 3/12 letter and a new determination. MR. ABBATE-I think Counsel is right. I’ll be happy to modify it for the third time. MR. SCHACHNER-Maybe I can make a suggestion. As your Counsel, I’m not uncomfortable with that motion, if at the end of that last sentence that was read, the phrase, and constitutes a new determination was added. MR. STONE-Okay. 21 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-And before a motion is seconded or voted upon, I want to make it very, very clear on the public record that I, as your Counsel, am not telling you to decide in this manner. I am merely advising you that if that motion is made, in terms of its ultimate defensibility if that motion is adopted, I’d be more comfortable with that language. MR. STONE-We understand. MR. SCHACHNER-How you vote is your decision, not mine. MR. STONE-No, we understand, and we appreciate your advise. MR. ABBATE-And we can agree to disagree. MR. STONE-No, we’re not disagreeing. I mean, he’s saying that this is what he thinks would be good in there. MR. ABBATE-Well, he’s saying he’s not comfortable, and I’m saying too bad. MR. SCHACHNER-No, with all due respect, you’ve completely misunderstood my comments. I am comfortable with the motion as amended. MR. ABBATE-Okay. I’m glad it’s on the record now. MR. STONE-Okay. Do I hear a second? MR. URRICO-Yes, I’ll second. MR. STONE-Okay. AYES: Mr. Underwood, Mr. McNulty, Mr. Abbate, Mr. Urrico NOES: Mr. Bryant, Mr. Hayes, Mr. Stone MR. SCHACHNER-At some point prior to your continuing, I do have a comment I’d like to make. MR. STONE-Okay. By vote of four to three, the motion to declare that Appeal 1-2004 is timely. Now, Mr. Schachner, you have a comment? MR. SCHACHNER-I do. I think that I’d just like to point out for the members of the ZBA and the public, it sounds like there’s considerable discomfort, my word, no one else’s word, with the notion that the Town Code does not require publicizing and/or that the Town Code only allows 60 days for filing of appeals of zoning determinations, and I think it behooves you to know that this provision of law does not actually originate in the Town of Queensbury Code. It actually originates in New York State Town Law. MR. ABBATE-Right. MR. STONE-I understand. MR. SCHACHNER-Well, you may understand, but I think others think that Queensbury is somehow out on a limb, and somebody even mentioned the fact that the Town Board hasn’t seen fit to provide a different provision of law, and just so you understand, the 60 day appeal provision comes from New York State Town Law. Queensbury’s not out on a limb in this respect. MR. STONE-I understand that. 22 (Queensbury ZBA Meeting 5/12/04) MR. ABBATE-Yes. One other comment, too. I think Counsel’s absolutely right, and I’m delighted to have him as Town Counsel. Also, I’d like to state on the record that I believe that Mr. Brown basically did an outstanding job. He’s hampered, like many other officials who have to make decisions, based upon the facts that are presented before him. MR. STONE-We haven’t decided that yet. That’s what we’re going to hear now. MR. ABBATE-Well, that’s okay, but I would like to go on record as saying as far as I’m concerned, the Zoning Administrator does an outstanding job. MR. STONE-Okay. We are now going to hear Appeal No. 1-2004, which basically says that the paintball facility is an allowed use in the RC zone. No more. No less. Whether it’s safe, unsafe, noisy, this, that is an allowed zone when one contemplates the Zoning Code of the Town of Queensbury, and that’s all we’re going to talk about, and when we have the public hearing, and we go off on a tangent, I will bring you back, because it’s a very limited thing. Every appeal we have, and we’ve done others. This happens to be the first one this year, they’re very limited, very hard to understand that we can’t talk of cabbages and kings. We talk about, is the Zoning Administrator’s determination that this is an allowed use correct. All right. Since you’re the appellant, Mr. Caffry, we’ll start with you. Keep in mind, Mr. Caffry, what I said, an allowed use. MR. CAFFRY-Thank you. Again, for the record, I’m John Caffry, and with me again is Lynn Underhill. The threshold issue on any zoning issue that comes before the Town at whatever level it comes in, is whether or not the project is an allowed use on that particular piece of property. In order to do that, you have to look at the zoning map and see what zone you’re in. You have to look in the definitions and the terms used in the Code and see what type of use the project is classified as. These may or may not be the same as what people think of in every day usage as how a term’s used. Nobody ever said the law is always logical or consistent with every day usage, and if there’s a definition in the Code, you go by that. If there isn’t a definition in the Code, then you have to look at other sources of law, if they’re available, to see what they are, and then lastly you look on the table of allowed uses to see what those are in that district, whether they’re as of right, or with site plan review, and see if your defined use is allowed there, one way or another. If it’s on there, you proceed. If it’s not, that’s the end of it, and you can’t do the project without a variance, and these are the rules, and as has been said, this isn’t about whether or not this is a good or bad idea, whether or not it’s going to be handled as safely as paintball can be handled. These are really more site plan issues. This is about whether or not this paintball facility is allowed under the Code. Mr. Brown has said that it is. We disagreed, and that’s why we’re here. We’ve got three issues we’ve raised on appeal. I certainly won’t repeat everything. We certainly won’t ask that the entire appeal be read into the record. MR. STONE-Thank you, sir. MR. CAFFRY-Nor the response to it, nor the reply to it, all of which is many, many pages of paper, and certainly not the attachments, but the first grounds for our appeal is that we think that legally, as defined, a paintball gun is a firearm, and that has certain implications under the Code. Now your Code does not, the Zoning Code, the zoning portion of the Town Code does not define the term “firearm” anywhere. It’s been mentioned by the Staff and the Rock-It Paintball in their papers, that while the Code says it is not defined here. You look at Webster’s Abridged Dictionary. However, I looked as much as I could, and I learned a lot about dictionaries, and it turns out there is no such thing as Webster’s Abridged Dictionary. MR. STONE-Let me just say, we thank you for drawing that to our attention. The Zoning Code, like all living documents, has errors, and that’s why we correct them as we go along. MR. CAFFRY-So now you can bring this dictionary issue to the Town Board and ask them to correct it. So the Staff and the Rock-It Paintball put forth a dictionary definition. I’m not sure exactly which Webster’s Dictionary it came from, because as it turns out, due to loss of the trademark or the copyright 100 years ago, there are many, many companies publishing 23 (Queensbury ZBA Meeting 5/12/04) Webster’s Dictionary. Mr. Webster was obviously a popular guy and they all wanted to use his name on their dictionaries from the different companies, and if you look at all the different dictionaries, you’ll find a variety of definitions, some of which a paintball gun, or a firearm involves gunpowder. Some of them don’t. Some of them even seem to say that it involves any kind of gun, air gun, whatever. So we think the dictionary is not definitive here, and I’ll move on. What we did find, and this is in our papers, there’s a lot of other State and Local laws that do define the term “firearm”, and we think that that’s what the Board should follow. The Town is an agency of the State of New York, and we think it would be good practice to follow those State definitions. There has been one zoning case involving paintball where they said it was an air gun, and as we get to see later, the fact that it’s an air gun, under some definitions, brings it under definitions of firearm. We think the most important one is under the New York Code of Rules and Regulations, and in this case the regulations of the Department of Environmental Conservation that defines a firearm as any gun or other instrument, which by force of gunpowder or other explosives, by which among other things, air or other gas expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage, etc. We think a paintball gun clearly falls within that definition. It works by force of air, CO in 2 particular, that expels a projectile. There’s no doubt that it’s capable of inflicting physical damage on wildlife, animals, human beings. That’s why the participants, quite wisely, wear face masks, body armor, and other such things to avoid physical harm to themselves. So we think that, under this definition by the Department of Environmental Conservation, that a paintball gun qualifies as a firearm, and we think it’s relevant, too, to Planning and Zoning, too, because it’s part of implementing the State law that says it’s illegal to discharge a firearm within 500 feet of a residence. So we think this has relevance to zoning. It’s not just something pulled out of the air that would have no bearing on zoning, and if we ever do have to go the Planning Board, that’s an issue we’re going to raise because of setback questions, but, there are other cases that say that a paintball gun is an air gun, and why do we think that’s important? Because, again, the DEC regulations say if it operates by force of air then it’s a firearm, and there’s any number of cases declaring these things to be air guns. We also have a Town Code provision. It’s a wonderful thing that your Town Code is available on the Internet, and searchable, and you can go look for these things without having to page through the whole thing. We understand that this provision is not part of the Zoning Code. It’s not part of what you ordinarily interpret, but that it is something you can look to for guidance on this question, and this defines a firearm as any pistol, revolver, shotgun or other weapon, and there are laws and court cases that define paintball guns as air guns, and those tie in to statutes that attach to the papers, and I won’t read the whole thing, but define a weapon as including an air gun. If a paintball gun’s an air gun, it’s a weapon, and therefore is regulated under the portion of the Town Code that prohibits use of them in Town parks. So, we think, for those reasons, that a paintball gun is considered to be a firearm. That doesn’t mean they’re illegal. It doesn’t mean they’re outlawed. There’s another State statute in the penal law that the Staff attached to their papers, that has a definition of firearm, and that one I looked at, and I truly feel it’s not just relevant here. It includes things like sawed off shotguns, automatic weapons, things like that, and outlaws them completely, and it doesn’t include your run of the mile things like rifles and shotguns, which are not outlawed. So, I think by, that one really lumps paintball guns more towards the end of rifles and shotguns than these things that are otherwise outlawed. So we think that it has a very narrow definition drawn just for the purpose of, what do we want to outlaw here, and really isn’t relevant to this discussion. So, if a paintball gun is a firearm, what does that mean to you guys. Your Code defines a firing range as a facility designed to accommodate the discharge of firearms and usually, it only says usually, includes targets or skeet launchers, although I suppose in the case of paintball you could argue that your opponents are your targets. We think because it’s a firearm, and this is a facility clearly designed to accommodate the discharge of that firearm, this is a firing range under your Code. It also includes various structures that are designed to accommodate, netting, various barriers that the players would hide behind, and whatever else is there. There’s no question a firing range is not permitted in the RC-3A zone. It’s permitted in the Rural Residential zones. Now we can’t ask whoever wrote this Ordinance, were they thinking paintball when they wrote this, but they clearly made a decision that the only place they allowed facilities for discharging firearms was in a regulated firing range in a Rural Residential area, and we think that, since there are laws declaring paintball guns to be firearms, that this ought to be treated the same 24 (Queensbury ZBA Meeting 5/12/04) way. If they wanted to allow paintball as an allowed use, they could have specifically said so. If they wanted to put it on the list of examples, in that whole laundry list of examples, in the definition of Amusement Center, that the Zoning Administrator says this is an Amusement Center, but paintball isn’t on that list of examples. It is only a list of examples, but they certainly did not choose to put it on the list of examples. So, for all those reasons, we think that this facility does fall under that definition of firing range and is not permitted in this zoning district. Our second point is that it doesn’t match the definition of an Amusement Center. Even if maybe you’ve got a little doubt as to exactly what it is, maybe it’s a firing range, maybe not, it doesn’t seem to match the definition of Amusement Center. This includes structures and buildings, okay, we have some structures, where there’s various devices for entertainment, including rides, well, this is not a ride, booths for the conduct of games, there’s no conduct of games here, no booths, I mean, there’s not a, like a carnival booth, I think was the intent there. There’s no buildings for shows and entertainment that we’re aware of. It then goes on to say it includes amusement uses, which isn’t really defined, but has a list of things like miniature golf, go karts, etc. I think of the one on Route 9 near Skate Land when they say that. It doesn’t include anything that involves discharging any kind of weapon, whether it’s specifically defined as a firearm or not. None of these other type of amusements involve shooting projectiles at other people. It might include Laser Tag or something, but you’re not actually shooting anything there. It’s just a beam of light. None of the, all these are contained on the site. Mr. Hull spoke earlier. He owns the adjoining property to the north. It’s been in his family for generations. It’s going to be quite easy for the paintball pellets to go on to that property. There’s no setbacks. There’s only a 50 foot setback and no nets on that side. So none of these other uses, even the most noisy ones, like ATV tracks, at least the ATV’s, if they’re on an ATV track, are going to stay on the property. These paintballs are not going to stay on the property. Even where there’s nets, they could go over the nets. So all these things differentiate this from an amusement center, and you look again at firing ranges. Firing ranges pose those same risks. If they’re not properly built, you could have bullets straying off the site and all that. We think it’s much closer to that than to these other amusement center uses, which don’t pose the same kinds of risks. There’s also a rule in zoning, it’s cited in some of the cases we attached, including the recent one I had in Kingsbury that’s attached to our papers, where you have something that meets a specific definition, like firing range, you can’t also try and lump it in under a more broader, more general definition like Amusement Center. It can’t be both. It can’t be two things. If it fits the specific, it can’t be part of the broader, general one. The Staff said, in their memo, well, when we looked at Amusement Center, we felt it was less intensive than some of the other examples like an ATV track or whatever, but in looking at the Code, I don’t see the definition of Amusement Center saying what’s more or less intensive. This isn’t like the old kind of zoning where you stacked them up and you said, everything allowed in this zone is allowed in the next zone which is more or less intensive. It’s not, it doesn’t work that way, and there’s no language in there about what’s more or less intensive. You have to look at things as defined, and how they work. They also referred to the purposes of the RC-3A district. I’m not sure that’s really, the purposes of the district are pertinent to the definition of what the use is. I think that’s an issue for the Planning Board, but if you do think it’s important, it does say to promote the Recreation industry. It also says to isolate it, and as I know you’ve received some maps prepared by my client’s, they show the distances to the houses. This thing is very close to houses. It’s certainly not isolated from residential areas, and I think that is the reason why it’s not consistent with the zone, if you want to go into that issue again, I don’t think that’s really the point of, you know, looking at RC-3A. You were looking at the definitions. Our last point that we raised was the property’s already occupied by a principle commercial use, and I could be wrong. I did not read every last clause in the Zoning Code this time. Maybe there’s somewhere that allows more than one commercial use on the same property without specifically saying so, but I didn’t see it. There are shopping centers where it specifically says, you can have a store and a restaurant and this and that, you know, you’ve got Lowe’s with the Applebee’s in its front yard. That’s specifically allowed, though, in the HC-1A zoning. The applicant mentioned the idea, well, a lot of motels have restaurants and other things. That’s, again, specifically allowed in the Code to have what would otherwise be two principal uses on the same property. The Staff also said, well, that would be contrary to Amusement Centers, which have multiple types of amusements on them, but that’s not what we’re talking about here. You can’t impose a second additional principal use on that ski center, the second use 25 (Queensbury ZBA Meeting 5/12/04) being the Amusement Center. It doesn’t matter whether the Amusement Center has one or six different things in it. If you’ve got a ski center there, that’s the principal use. Anything else, by definition, is an accessory, unless you’re specifically allowed two principal uses, and, under these circumstances, paintball or Amusement Centers or however you define it is not an allowed accessory to a ski center. A ski center does allow certain things. Somebody in their papers mentioned the mountain biking. The mountain bikers, at most ski areas, including this one, typically, they’ve come like skiers. It used to be mountain biking, you ride up, you ride down. Skiing used to be that way too, once upon a time, and not too many people climb up to ski anymore, although there maybe a few. I’ve done it on occasion. A chairlift’s a lot easier, but mountain bikers have gotten the same way. They pay to ride the chairlift. They ride up. They ride down. It’s not all that different from the skiing. It uses the same equipment. The level of intensity, if you want to use that term, is similar, but the mode of operation is pretty much the same, unlike the paintball which is just an entirely different thing from skiing. I don’t think anybody would think it bears any relationship to skiing. So we think that because the principal use says it’s the main or primary use, and when there’s more than one use, the most intense, which considering the skiing runs year round, it’s got all those lifts, it covers the whole mountain, is obviously the main or primary use of the property. That is the principal use. Therefore, anything else has to be an accessory, and this is not allowed as an accessory there, nor is this one of those districts that specifically allows multiple principal uses, and we think this makes sense, because it reduces the potential for overuse of commercial properties. If somebody thinks it’s a good idea, then they need a variance in order to get the two principal uses on a single commercial property where it’s not otherwise allowed. So our point is that, if paintball facilities are Amusement Centers, then they have to be located as standalone facilities on a separate property and not on the same property as a ski area, without a variance. Therefore, even if it’s an Amusement Center, it can’t go on this site, and I just want to say what we’re not arguing. I believe it was at the beginning, Mr. Schachner said what we’re not here for. I want to tell you what we’re not here for. We’re not saying that this applies to non-organized shooting of guns, people hunting. This does not apply to that. It’s nothing to do with hunting. It’s nothing to about individuals playing paintball on their own property, with their friends, in a non-commercial sense, assuming they can meet the 500 foot setbacks, and firing ranges are still allowed where properly zoned. You’ve got the Dunham’s Bay Fish and Game Club up on Ridge Road. We’re not saying they have to allow paintball there either, but we’re saying, we’re not trying to effect those operations, and we don’t think this does. We’re saying that paintball is however regulated like that, and this doesn’t mean that somebody can’t have a paintball business in the Town. They just need a proper site or they can locate it in a town where the zoning allows it. We’re not saying they shouldn’t have a business, but it’s just not allowed in the RC-3A zone in the Town of Queensbury, and with that we’d ask that you grant the Appeal, and reverse the decision by the Zoning Administrator that this is an allowed use, with or without site plan review. We just don’t think it’s allowed, even if it goes through site plan review, and people have said earlier, well, go to site plan review, have your issues heard there, but if you go to site plan review, it’s a different standard. It’s a different ballgame. It might very well get approved with some limitations and it shouldn’t be, though, if it’s not an allowed use. I mean, again, getting back to the basic threshold question, if it’s not an allowed use, it doesn’t matter what its impacts are, it’s not allowed. Thank you. Does anybody have any questions? MR. STONE-Any questions? MR. BRYANT-Yes. I have a question for Mr. Caffry. In your brief, and in your presentation, you touch on three points, the fire arms issue, the firing range, versus paintball marking facility, and the double use issue. Looking on the New York State information site, relative to applications for appeals to the ZBA, it indicates that a neighbor can file an appeal if they’ve been aggrieved by the decision or action of an Enforcement Officer. Specifically a person is aggrieved if his or her property value is affected negatively by the Enforcement Officer’s action. All the presentation that you’ve made, in the paperwork, you know, in the verbal presentation, hasn’t really addressed how it affects neighbors, the appellants. I’d like to hear what the appellants have to say. How does it affect their property values? What is the negative effect? The only thing you’ve really said so far is the fact that the houses are relatively close and maybe 26 (Queensbury ZBA Meeting 5/12/04) the paintballs will stray over the fence, or whatever, but I’d like to hear specifically how they’re aggrieved. MR. CAFFRY-I think you’re asking me to do what Mr. Schachner and Mr. Stone have instructed us not to do, in that they don’t want us to talk about impacts. I think we’re here on a legal question of how you define things under your Code, and I don’t think, for that, it’s necessary to address impacts, and if you, and the Board wants them to, they’ll all do it, I’m sure, and I can do it, but let me just say, too, I think what you’re reading there, and I’m not familiar with this on- line thing that you’re talking about, has an overly narrow of aggrieved, and I don’t think is necessary in order for the appeal to be heard for us to prove that it affects property values, and Mr. Schachner certainly can disagree with me, but generally courts frown on or minimize property values as a reason to make zoning decisions, and so I’m not sure we have to bring in an appraiser and show how it’s going to affect our property values. MR. BRYANT-No, no. How does it affect the neighbors? MR. CAFFRY-Well, I think I’ll, Mr. Schachner looks like he wants to talk, and if he does, I’ll be quiet for a minute, and then I can answer your question, unless he talks you out of it. MR. SCHACHNER-The issue of aggrievment, as far as I know, and obviously the applicant is represented here by Counsel. As far as I know, the applicant does not take the position, but I would welcome, with the Chairman’s permission, I would welcome hearing Mr. Fitzgerald speak to this issue, if he wishes to, but the applicant has filed with you, and I have reviewed, some of what the applicant’s contentions are, in regard to the allowable use issue. I have not seen, and I am not aware, of the applicant taking the position that we don’t, we, meaning you all, don’t even need to reach the merits of the appeal, because these neighbors are either so distanced from the proposed facility or so unaffected, or would be so unaffected by the proposed facility that they don’t fit within the concept of aggrieved or involved or potential affected, so that they don’t have what the law calls standing to even maintain this appeal. I would suggest, and it’s interesting, as you know, I don’t come to all of your meetings. There are way more attorneys on this Board than I realized. I don’t say that, although some might take that as a negative comment, it’s not meant as a negative comment. You’re focusing on many issues of some legal precision, and I’m not used to having the Board do that. If the applicant contends that the neighbors, and I think I started my comment by saying I loosely labeled this as a group of neighbors. That is not to suggest that all the neighbors here are objecting to the proposed facility, because I understand that’s not the case, but that’s just a convenient label, and if the applicant wants to contest the ability of the neighbors to take this appeal, on the basis that they are not potentially affected by the proposed operation, then I think your question is germane. I think we’ll have a much, much, much longer proceeding than we would otherwise have, but that’s not a basis for making a decision, but I’ve not heard that argument from the applicant. The applicant’s here. The applicant’s represented by Counsel, and I guess I would deflect the question and suggest that perhaps we should see if the applicant contests what I believe the “neighbors” position is, that they are potentially affected, and therefore are aggrieved. Does that seem like a reasonable approach? MR. STONE-My thought is that, this is an appeal of the Zoning Administrator’s determination. These are the people who have appealed it. They have made their case that it is not an allowed use. I intend to open the public hearing, allow the applicant for the paintball to speak as part of the public. MR. SCHACHNER-Okay, but let me make sure you all understand the import of our member’s question. MR. STONE-I understand. MR. SCHACHNER-I’m not sure you do. He’s absolutely correct. If the neighbors, the group we’ve labeled neighbors, or appellants, or whatever term you want to use, Mr. Caffry’s clients, if they are not potentially affected by the proposed facility, then he’s absolutely correct. They 27 (Queensbury ZBA Meeting 5/12/04) don’t have what the law calls standing and you, as a Board, don’t need to entertain this appeal. I’m not saying that’s the case, but I think the question has been asked. MR. BRYANT-That’s exactly my question. MR. SCHACHNER-Right. I had hoped so, and it’s a reasonable question, and if the answer is that they don’t, they’re not potentially affected, then the law says they don’t have standing to maintain an appeal. He’s correct. MR. BRYANT-Based on the data presented, that’s not even addressed. MR. SCHACHNER-Well, I think, perhaps, there’s been some assumptions made, because remember my comment. The applicant has not, at least thus far, contested this whole aggrievement standing issue, and I’m telling you you can make this a lot shorter and easier, if the applicant doesn’t contest that issue, then I don’t think it’s an issue, unless you, as a, unless a majority of the Board feels that they don’t have standing, you don’t need to get into that, but if the applicant does contest it, it may be appropriate to hear more from the neighbors about that issue. Either way, I think you should afford the applicant at least the opportunity to be heard on this sub issue, and if the applicant wants to avail himself of that, fine, if not, also fine, but I would urge you to do this prior to opening the public hearing, because this is a threshold issue that will have a substantial impact on the public hearing. MR. STONE-Okay. The word “applicant” means the Brandi’s. Is that what you say, when you say that? MR. SCHACHNER-Correct. MR. STONE-I just want to be sure. MR. SCHACHNER-As opposed to appellant, I mean, the applicant for the project. Correct. MR. CAFFRY-I would have no objection to hearing Mr. Fitzgerald, out of order if you will, in order to find out if they’re contesting our standing. MR. STONE-Okay. Fine. MR. SCHACHNER-It will have a tremendous impact on how you run the rest of your hearing. MR. STONE-Okay. Thank you. MR. FITZGERALD-Mr. Stone, we are not contesting your standing. Bill Fitzgerald. We are not contesting your standing. We just think they’re wrong. MR. SCHACHNER-So, and that’s kind of what I figured. This was obviously not rehearsed, but that being the case, then, I would suggest, if a majority of the Board members feel otherwise, I mean, you certainly have the right to ask those questions. I think that if the applicant, obviously with its vested interest, does not contest the standing, I guess I, as your Counsel, am going to tell you that I’d be very hard pressed to see a situation develop here where if, ultimately, some decision made here is challenged, a court decides that the neighbors that Mr. Caffry represents do not have legally sufficient interest to be deemed to have standing. MR. ABBATE-I think maybe we should address that issue right now, this Board, whether or not we believe they have standing, get it over with. MR. SCHACHNER-I don’t think you need to do that. MR. ABBATE-You don’t think so? 28 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-No, I do not. MR. ABBATE-Okay. All right. MR. STONE-I mean, is there anybody who has violent objection to not going into that issue? Al, you obviously brought it up, but. MR. SCHACHNER-The reason I don’t think you need to bother is because we have essentially two fundamental parties here. MR. STONE-Right. MR. SCHACHNER-And although the parties certainly disagree on the merits of the appeal, the parties agree that Mr. Caffry’s clients have, are sufficiently potentially aggrieved and have what the law calls standing. MR. STONE-Yes. Fine. Are you all right with that, Mr. Bryant? MR. SCHACHNER-I would suggest you not belabor the point, and I’m not saying this because I don’t want, I mean, I’ll stay here as long as we have to, but all kidding aside, I think if you want to hear testimony about that, I’m sure Mr. Caffry’s clients are happy to provide it. It does not seem necessary to me. MR. STONE-Okay. MR. ABBATE-Mr. Caffry, I’m not going to refer to any dictionary definitions and what have you, but, you know, I’m going to bring to this Board, and we can do that, experience. I spent 20 years of active duty in the United States Marine Corps, and quite frankly, I have a lot of experience with paintballs, if you will. Now there seems to be some confusion in some of the individual’s minds about the standing of a paintball marker. Both the Town and you and the other attorney made reference to certain citings in dictionaries describing a firearm. The real issue is how are the paintball markers discharged from the feeder from the barrel. Now you can tell I’m military retired, because, one, discharge by use of air pressure from an air tank, or, two, discharge from a 12 gram cartridge. Now the distinction is absolutely critical to this case, and here’s why. It’s critical because it’s due to the classification of a firearm. What I’m going to refer to is not the dictionary, but the American Fire Arms Association of the United States of America. Those are their words, not mine. So my question to you then, is this. Is this paintball, is it discharged, the marker, discharged by use of air pressure from an air tank or CO 2 or is it discharged from a 12 gram cartridge? MR. CAFFRY-A 12 gram cartridge? MR. ABBATE-Yes. MR. CAFFRY-I really don’t know. They operate off of compressed air, I believe, and I assume the applicants can probably answer that, and maybe even some of my clients. My clients have been researching the heck out of this. If there’s a website that mentions paintball, they’ve been there, but I believe they may have cartridges. They may use compressed air, but I don’t see, under the New York State law definitions, that it matters. I don’t know what definition you’re reading. MR. ABBATE-It does matter, because paintball, under New York State Law, paintball is not described as a pistol, a revolver, a rifle, or a shotgun, and you can’t deny that fact. MR. CAFFRY-No, but it is an air gun. MR. ABBATE-Let me go back to the issue. Is there gunpowder used in the discharging of these pellets? 29 (Queensbury ZBA Meeting 5/12/04) MR. CAFFY-No, no. MR. ABBATE-Well, then you’ve answered my question. MR. CAFFRY-It depends on what, I’m going off of the New York State Department of Environmental Conservation definition primarily, and I think it’s more relevant than some private firm’s organization. I don’t know who that group is. So I’m looking at State Law. I’m a lawyer. I’m going to look at laws. MR. ABBATE-Okay. All right. MR. MC NULTY-And to counter Mr. Abbate’s experience, I had 33 years with the Department of Environmental Conservation, and the attorney is correct, that the Environmental Conservation considers air gun a firearm. You’re not supposed to discharge is within 500 feet of a dwelling, and if you’re using it in a field, you need to have a hunting license. MR. ABBATE-We cleared that issue up real fast. Thank you. MR. STONE-Well, is there a muzzle velocity stipulation, Mr. McNulty? MR. MC NULTY-Well, as the attorney specified, the criteria in the Environmental Conservation law is whether or not it has the potential to cause injury or death to wildlife or people. MR. STONE-Okay. Thank you. Any other questions? MR. ABBATE-I have to lodge an objection. I don’t agree, but anyway, that’s just me. I don’t believe a paintball marker is, in fact, a firearm. MR. STONE-Okay, that’s, we’ll talk about that when we get to discuss it. MR. CAFFRY-I’d just ask you if you stick to that opinion, which is certainly your prerogative, that you remember we have two other grounds for appeal also. MR. STONE-Mr. Fitzgerald, would you like to make an argument? MR. FITZGERALD-If you want to take this out of context, yes. MR. STONE-Well, this is an unusual situation. Normally, on an appeal, we’re dealing with the appellant and the Zoning Administrator, but your client is a very active participant in this discussion, if you will, and if you would like to come up, at this point, prior to the public hearing, and I’ll give you extra time, if you want to make an argument, go ahead. MR. FITZGERALD-Are you done, John? MR. CAFFRY-For now. I was done with my presentation before (lost words). MR. FITZGERALD-Sure. The reason I asked Mr. Caffry whether he was done is because basically he talked about three different points, and so I’d like the opportunity to address those three different points. MR. STONE-Please do. MR. FITZGERALD-Okay. You gentlemen have a tremendous amount of information in front of you, from all sides here. I think the first thing we have to address is basically whether or not this is a firing range. John has indicated that there are three reasons that this is not an allowable use. One being that it’s a firing range. That’s based on the definition of firearm. The second that it is not an amusement center, and the third that the Code does not allow a second 30 (Queensbury ZBA Meeting 5/12/04) commercial use of the property. Taking your own Code, which is what the residents of the Town of Queensbury have to work with, you do not define firearm. You say look at the dictionary. I did what a normal Queensbury resident would do. I called the Department. I said, do you have a dictionary. They said, here’s the website, look it up. That’s what I quoted in my response, which is that the website that is given out to the public by the Town of Queensbury Officials, defines a firearm as a weapon from which a shot is discharged by gunpowder. MR. ABBATE-Right. That’s right. MR. FITZGERALD-Not that I don’t believe the Town Officials, but I went to the Crandall Library and asked them for Webster’s Dictionary. They have Webster’s Third International Abridged Dictionary, which contains the same definition of firearm. As John had indicated, there are other definitions, under the En Con regulations, under the penal law. Those, I believe, are very, very specific definitions or specific reasons. I mean, you can be incarcerated, and how long you are incarcerated depends, under the penal law, whether or not you have a firearm. MR. ABBATE-Right. MR. FITZGERALD-We’re talking about land use, and we’re talking about the Code itself and how it defines terms. So our position is that, underneath the Town Code, and what you are telling the people is the law of this Town, a paintball marker, which is really no different than laser tag, which is allowed on Route 9, other than instead of a beam of light, you fire at somebody a biodegradable piece of paint to mark them, that this is not a firearm as defined by Queensbury. Maybe it is defined somewhere else. I’ve talked to a local En Con official, who will not go on the record, but says, maybe if it’s used a certain way, it possibly could fit under the En Con definition, but, not being germane to this issue, but more germane to the Planning Board, as far as how this organization operates, under the procedures that they have to follow for insurance and for, there’s actually paintball standards out there, industry standards, the actual pressure in the gun is monitored and can’t go past a certain point. So it really can’t injure someone. I’d also like to point out that John, as we’ve heard in his documentation to several cases, one of the cases that he refers to the Town of Blooming Grove, which he says held that a paint ball is an air gun, actually, you have a copy of it, and if you read it, it doesn’t talk that way at all. It has to do strictly with whether or not a Town can issue an injunction when the Town Board has not passed a resolution authorizing that injunction. Most of the other regulations and the only other case that is even close is the Christopher case, which is basically, as it indicated, a case of first impression, and really doesn’t have to go to the point of defining the law, doesn’t talk about zoning at all. It’s a negligence case. It’s someone got hurt, and those who might be experienced in the court system know that sometimes courts take liberty to allow, especially if a young child gets hurt, to allow cases to go through and restitution to be made. As John indicated, you do define the term “firing range”. We feel that since this is not a firearm, this is no different than laser tag, that we do not fit within the definition. Basically, in your statement of definitions, you indicate that when I doubt, you take a reasonable approach to what this Ordinance means, and I think most of you are familiar with what a firing range is, and this is not what this game is all about. This is not taking a paint ball marker, which any of you can go over to Wal-Mart or anyplace else and buy tonight, because no one regulates the sale of them, and firing them in your backyard, this is an organized, supervised activity within a confined area. It is not a firing range. The second point that Mr. Caffry brings up is whether or not this is an amusement center. I think that, in reading the Code, you could argue that not only would this fit within an amusement center, this also fits within a recreation center. Both definitions are very open ended. Your Code is basically saying that this area, Recreation Commercial Three A, is there, and is designed to foster recreational opportunities. When the Code was written, we didn’t know what all the recreational opportunities are out there. Paintball probably was not envisioned at that point, and by the time the Code gets changed again, there’ll probably be other recreational opportunities that none of us in this room can envision today. That doesn’t mean you can’t do them. That’s why you have a Planning Board. So that if you do have an allowable use, they have an opportunity to put input into that. They can put restrictions on how you do that for the public good, but I think that Mr. Brown was 31 (Queensbury ZBA Meeting 5/12/04) correct in defining this as an amusement center, and that it is allowable within the zone specified. The second point that John makes is basically kind of an all encompassing theory that the Ordinance does not allow two uses on the same property. Now I think that, in many instances, that might be a physical impossibility to do. Because you’re taking a certain piece of land, and if you build a restaurant, let’s say, you’re going to build it out to the max, you put your parking in there, whatever. You’re running it seven days a week, and you’re running it twelve months out of the year. You don’t have room to put a second commercial use. We’re talking about a piece of property that is used probably from the end of November, if it’s a good season, Mike can tell me if I’m wrong, until probably the end of March, as a ski area, and sits idle the rest of the year. Well, it doesn’t really sit idle. Periodically there’s concerts up there. There’s also the mountain bike program, but where this is located, except for the fact that we’re using a building that is used for the northwest ski area, and we’re using part of parking lot, the area that we’re using really isn’t even used as ski area, but if you look at your Code, it basically says, under permissible uses, 179-4-010C, a use shall be permitted in a given zoning district, if it is listed in the Schedules or Regulations hereof as a permissible use for that district, provided all other requirements of this Chapter are met. I read the Code several times, and there is nothing in the Code that says you cannot have two uses on a piece of property. Again, that may be an instance that’s not going to happen very often, but there’s no question that there’s only one use going on at a time there, but that there can be two uses to the piece of property. That’s it, gentlemen. MR. STONE-Any questions, gentlemen? MR. ABBATE-Yes, I do. Counselor, as a student of law, I wonder if you’d explain something to me, please. Do you have a copy of this? It’s the New York State Assembly that was submitted by Mr. Caffry? MR. FITZGERALD-Probably. MR. ABBATE-Okay. What I’d like you to explain to me, Section 265.35, because it’s critical that we determine. MR. FITZGERALD-Where are you looking, sir? MR. ABBATE-Well, it’s in the New York State Assembly Consolidated Laws, Penal Article 265. MR. FITZGERALD-This is the exhibit dated May 10? th MR. ABBATE-No. It’s listed as an enclosure with the Zoning Board Staff notes. MR. FITZGERALD-That’s something that the Zoning Board came up with. MR. ABBATE-Yes, do you have that? MR. FITZGERALD-Yes. MR. ABBATE-You do. Could you do me a favor, please, and go to Section 265.35. Page 18 of 18. MR. FITZGERALD-Okay. MR. ABBATE-Ready. Section 265.35, you see it? MR. FITZGERALD-Yes, sir. MR. ABBATE-Okay, prohibit use of weapons, you see the word weapons? MR. FITZGERALD-Yes, sir. 32 (Queensbury ZBA Meeting 5/12/04) MR. ABBATE-It says any person who willfully discharges a loaded firearm, or any other gun, the propelling force of which is gunpowder. What does that mean? MR. FITZGERALD-I didn’t do well in physics, but it’s an explosion that takes a projectile, pushes it through the barrel. MR. ABBATE-And you can differentiate that gunpowder from a CO tube, could you not? 2 MR. FITZGERALD-Yes. MR. ABBATE-Thank you very much. I rest my case. MR. STONE-Any other questions? Okay. Thank you. MR. FITZGERALD-Thank you. MR. STONE-Okay. Mr. Caffry, I will listen to the public, first, and we’ll let you comment on anything that you may or may not have heard. If that’s all right with you. MR. CAFFRY-I’d rather not comment on things I don’t hear. MR. STONE-Thank you, sir. MR. CAFFRY-But I’ll comment on a few things I heard, if you give me the chance. MR. STONE-Yes. Okay. All right. Let me open the public hearing, and before I open the public hearing, I’m going to remind you that, first of all, every person has no more than five minutes, and we will time you. Secondly, I ask you, as I do every night at the Zoning Board meetings, if you hear somebody who is saying what you want to say, please say you agree with him or her, and sit down. Because, if you agree, then we’ll know it, and if you, that’s just the best way to do it. Do you have a comment, Mr. Schachner? PUBLIC HEARING OPENED MR. SCHACHNER-Only, this might be an appropriate time to also add, in your remarks, about the focus of the comments and what is and is not the focus of the comments. MR. STONE-Yes, yes, I will get there. Thank you. Remember, we are talking whether or not the Zoning Administrator has made a correct determination. That’s all we’re talking about. In other words, the Zoning Administrator has said that this is an allowed use, and that’s all we want to hear from. Okay. Please keep in mind that we’re talking only about the determination by the Zoning Administrator. The appellant has made three points. You certainly can address those, if you want. Again, I ask you, if you agree with somebody who says, whatever, please just say that and move on. So, having said that, and I will call people by those who agree with the Zoning Administrator first, and then I will go to people who disagree with the Zoning Administrator. MR. ABBATE-You can’t classify, Mr. Chairman. MR. STONE-Yes, I can. MR. ABBATE-No, you can’t. That’s discriminatory. You shouldn’t break into categories those who are opposed. We’ll let Counsel say that. MR. STONE-We do that all the time. 33 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-I don’t think it’s legally discriminatory but you’ll recall that the last public hearing at which you did that I advised that I thought that was not appropriate, not because it’s discriminatory, but because some people don’t necessarily want to be labeled as for or against. Some people may have an opinion that is not fairly labeled as for or against, and this is a generic suggestion, Mr. Chairman, and I made it at your last public hearing that I attended, I think you should just open public hearings and let whoever wishes to speak. MR. STONE-Okay. I guess we’ve been doing it for so long, I had forgotten about that. Thank you. MR. SCHACHNER-I understand. MR. STONE-Okay. Anybody wishing to speak on this appeal, the public hearing is open. Please come forward, write your name down, state your name and tell us what you want us to hear, and we will be timing, Mr. Hayes is on the clock. GABE ARMANDO MR. ARMANDO-My name is Gabe Armando, and I’m a neighbor. I agree with the issues as set forth by Mr. Caffry. We had a retained him as our attorney, and we have thoroughly reviewed information that he has gathered as well as what we have gathered, and I fully agree with those issues. However, there’s one other thing, I just want to back up here. Mr. Abbate, the thing about your gun here, okay. It says here a person who willfully discharges a loaded firearm or any other gun propelling force of which is gunpowder at an aircraft while the aircraft is in motion, blah, blah, blah. Okay. It’s saying there that particular weapon fires by powder. Then if you go down further, it says, any person who otherwise then in self-defense or in the discharge of an official duty willfully discharges any species of firearm, air gun or other weapon. Now, Mr. McNulty says, this is a considered a gun by En Con, right? MR. ABBATE-Mr. McNulty says, and I say no. MR. ARMANDO-Well, he’s from En Con. It says it right in black and white that En Con, it falls under that description. We’re all entitled to our opinions. Right? MR. STONE-Right, that’s it. MR. ARMANDO-Okay. Thank you. MR. STONE-Thank you. Next? KEITH ALTRAC MR. ALTRAC-My name’s Keith Altrac. I’m from Queensbury. I’m a paintball enthusiast. I’ve been in this about 22 years. I’d like to say that I just found out about this about an hour before I got here. So I was a little unprepared, but I totally disagree that a paintball is a gun. I’ve hunted all my life. I’ve given that up. I no longer choose to kill anything, but I enjoy the exercise you get from going out and shooting a paintball and it keeps you in good shape and it’s a nice adrenaline rush, and it’s safe. MR. STONE-Okay. You’re straying a little bit. MR. ALTRAC-Okay. I guess the thing is, my analogy is, if you wanted to have a fair in this location, if you wanted to have, where you throw darts at a balloon, or if you shoot the little star out of the piece of paper with a bee bee gun, would that be acceptable? Or if you wanted to use a water pistol to blow up the balloon on the top of the clown’s head, would that be acceptable? Because I think, under the definition that these people are trying to say that this paintball is a gun, I believe that that bee bee gun on the chain is definitely a gun, and I believe that that water pistol would also be a gun. It’s air pressure that’s pumped up, that pushes the water, that 34 (Queensbury ZBA Meeting 5/12/04) propels the water out, forces it into the clown’s mouth, and blows up the balloon. The same thing as an air gun with paint, only instead of water it’s paint. I don’t see the difference. That’s basically my point. MR. STONE-Thank you. MR. ALTRAC-Thank you. MR. STONE-Next? DEBRA AQUILINO MRS. AQUILINO-Good evening. My name is Debra Aquilino. My husband and I live at 5 Stonebridge Road in Northwest Village. It’s our contention that a paintball gun is a firearm, and that any commercial site where the purpose is to discharge this weapon is a firing range, as defined under Article 179-2-010 of the Queensbury Town Code, I quote, a facility, either out of doors or within a building, which is designed to accommodate the discharge of firearms and usually, but not necessarily, includes targets and skeet launches. Shortly after learning of the proposal of the paintball operation, I contacted En Con, and spoke with Officer Gerrain. He stated that a paintball gun did not fit the definition of a firearm under New York State Penal law, but did fit the definition of a firearm under En Con Law ELC 110931 . As such, it is illegal to discharge a paintball gun within 500 feet of a residence. Our home is 450 feet from one of the proposed paintball fields, and there are other homes that are closer. A paintball gun is not a toy. It discharges a pellet with sufficient velocity and force to enucleate an eye, or to break the bones in your hand. According to waivers used by the paintball industry, and again, I quote, the risk of injury from the activity and weaponry, this is their term, involved in paintball is significant. Including the potential for permanent disability and death. While particular protective equipment and personal discipline will minimize this risk, the risk of serious injury does exist. Paintball, like other extreme sports, is not stagnant. It is a growing industry, and in considering appropriate location, one must look at the potential future activities which will be associated with paintball parks. To remain interesting and competitive, paintball fields will need to extend the game. Paintball pellets are now being manufactured heavier in order to increase their accuracy and distance. Paintball guns are being made to look like and mimic such weapons as M-16 rifles, and AK-47’s. An array of other war weapons are being introduced into the mock war scenarios. Things like hand grenades, landmines, bazookas, mortars and cannons. Recent assault vehicles and tanks have been added. At recent large scale game, paintball bombs were dropped out of helicopters. However we are zoned, Northwest Village is a residential community. A firing range and the discharge of weapons is not appropriate on property adjacent to our homes. Within 500 feet, it is illegal. Thank you. MR. STONE-Thank you. Next? ARTHUR HULL MR. HULL-Arthur Hull, and I’m bordering the north side of their property. One of the things that we have zoning laws for, this is my own understanding, is somewhat for the protection of the people who are in a community, and we’re trying to establish if it’s a firearm, we really firmly believe that because they are proposing to put this, in some cases, within 400, 500 feet of homes that have children and pets, and you’re going to be making a decision here tonight, or you’re going to be making a decision at some time, are we going to have these projectiles which have the ability to put an eye out, break a hand as you’ve heard testimony of, in the vicinity of children that are four, five and six, playing on their swings, in their side yard, and I just think that it’s wrong. Thank you. MR. STONE-Thank you. Next? Keep in mind that we’re talking whether this is an allowed use. That’s really what we’re talking about. SCOTT BRANDI 35 (Queensbury ZBA Meeting 5/12/04) MR. BRANDI-I’m Scott Brandi, and my wife is the owner of Rock-It Paintball, and I wasn’t going to get up tonight and say anything, but given the fact that we’re very outnumbered in the audience, I thought I might come up and address you gentlemen and make a couple of comments. First of all, I just want to address a couple of comments that were made a few minutes ago by a lady that was just up here. They’re mentioning that their homes are 450 feet away from the playing fields. A paintball will not travel more than 300 feet. That’s without netting. We have netting surrounding the playing field, which is then surrounded by trees, in some cases a couple of hundred feet of tree line. They talk about paintballs not being safe. The game not being safe. The rate of injury in the paintball industry is .31. MR. STONE-We’re going too far. MR. BRANDI-I just want to make that comment. It’s .31 per thousand MR. STONE-Okay. MR. BRANDI-They commented about injury. I want to counter comment, if I may. MR. STONE-Well, that was the public. You’re. MR. BRANDI-Well, I’m the public. I don’t own the business. MR. STONE-Okay. MR. BRANDI-Talking about waivers. I think it’s very appropriate to sit and read a waiver. I could read you waivers about rental of skis, about mountain biking. We all know, in the litigious society that we live in, the role that waivers play. So, yes, anything you do in this Country could end up in death or injury, and we want you to pass that right. We want you to assume that risk. So I think a waiver is a very poor example. The fact is, there is no gunpowder utilized in a paintball marker. It’s regulated air, compressed air, or compressed CO. It’s 2 chronographed before each activity, before any player gets on the field, every game is refereed. There are set ASTM standards. There are insurance industry standards. Hence the safety record. .31 injuries per thousand. The ski industry is over 2. I just wanted to make those comments. There’s no gunpowder. We’re not going to use any helicopters, by the way. We’re not going to use any mortars or any cannons. Thank you. MR. STONE-Thank you. Next? NATE WILLIAMS MR. WILLIAMS-My name is Nate Williams, and I live at 212 West Mountain Road. My house is 305 feet from the proposed paintball field. Mr. Brandi just said they’ll carry 300 feet. So I live within range. There is very little of a buffer of trees between me and the proposed paintball fields. There was up until last fall, and maybe I wouldn’t be sitting here if they were still there, but they’re not. I agree, I’m not going to go any further, I agree with the opponents. Everything that they said. I agree that it should not be allowable use. MR. STONE-Thank you. Next? I’m just going to caution everybody that we’re talking whether or not the Zoning Administrator’s decision that this is an allowable use is correct or incorrect. Not whether the fields are this close or that close, because if we decide it’s an allowable use, those become site plan issues. GEORGE LANGFORD MR. LANGFORD-My name’s George Langford. Actually I live on Assembly Point, but my grandchildren hike and bike right in that area where you’re talking about putting the paintball. It seems to be an issue as to whether or not a firearm has to have gunpowder associated with it, 36 (Queensbury ZBA Meeting 5/12/04) but, in fact, a paintball is a dangerous missile. People have to wear body armor and face masks. You have to put up a 17 foot net to protect the area surrounding it. You have to adjust the velocity of the discharge to keep it within the 300 feet. In fact, they’re capable of shooting well over 600 feet. You could shoot right over one of the nets. It is a dangerous missile. Channel 6 news report on March 24 said the government wants you to know paintball guns can be as th lethal as their real life counterparts. MR. STONE-Okay. We’re going too far, now. Be careful. MR. LANGFORD-U.S. Consumer Product Safety Commission Release, No. 04105, issued a warning for paintball guns because the canisters can act as a missile. Several people have been killed as a result of this. Mr. Fitzgerald said that, in fact, these things are nothing more than a laser beam. In fact, that’s not true. They’re very dangerous, and the DEC definition of a firearm is really correct with respect to how they should be handled. Thank you. MR. STONE-Thank you. DARRYL GRAY MR. GRAY-My name’s Darryl Gray. I border the property they’re proposing the paintball park to. Mr. Abbate, I wanted to revisit what Mr. (lost word) visited earlier. You cited New York State Assembly when you were speaking about the firearm, and I wanted to visit, re-visit that passage that he brought up again. He didn’t take it quite as far as I would have like to have seen it taken. It said that any person who otherwise then in self-defense or in the discharge of official duty, A, willfully discharges any species of firearms, air gun or other weapon or throws any other deadly missile, either in a public place, or in any place where there is any person to be endangered. This, to me, is that type of area, and therefore I don’t think that this type of business is allowable in that area. MR. STONE-Thank you. WENDY STEWART MS. STEWART-My name is Wendy Stewart. I live on Bedford Close, one of the neighbors. I totally agree with John Caffry, and everything that he has said. I guess I’d like to touch on the fact that it’s near a residential area. I just want everybody to know that after the March 11 th meeting, I called numerous paintball facilities throughout the State, and in Blanford, Massachusetts, and of the individuals that I spoke with, including owners of facilities in Argyle, Hunter, Patterson and Cooperstown. None of the operations were near houses or residential areas, and most of the facilities utilize between 50 and 300 acres of land. I want to address one other thing regarding the firearm. We just recently had a 10 year old student at Queensbury Elementary school, fifth grader. He just recently returned to his studies after being shot in the eye with a paintball, which has caused severe injury to his eye. This was back in February. He’s just returned last month, and it’s evident to me that the risks associated with this sport are just becoming known. Thank you. MR. STONE-Okay. Thank you. Anybody else wishing to speak? Just keep in mind, again, is this an allowable use, is the Zoning Administrator correct. I know it’s a very difficult, narrow area, but I’m going to keep reminding people. SUSAN BEADLE MS. BEADLE-No, it’s not. He’s not correct. He’s wrong. I am sorry. I’m glad you let us speak, but I can’t agree with you. I really do believe that it should be a firearm, and I do believe that it is a firing range, and even under the best of circumstances, netting, proper supervision, you name it, there are always going to be people who push the limit. It’s common practice, now, to freeze the markers so that you can get a harder hit. All kinds of ways that you can rev up your 37 (Queensbury ZBA Meeting 5/12/04) guns, and given that people can do all kinds of things that are beyond the Brandi’s control, even in the best of situations, it’s a bad situation. So it’s a firing range, and it really shouldn’t go. MR. STONE-Okay. Thank you. GLENN DESO MR. DESO-Yes, sir. My name is Glenn Deso. I’m not one of the neighbors. I’m a friend of a neighbor. One of the issues for the appellant is whether it’s a firearm, and there’s a disagreement. Gunpowder, and there’s an argument whether it has to be gunpowder or not. Gunpowder does not launch a projectile. Gunpowder produces a compression, and whether it’s gunpowder or a CO cartridge or whatever else, the projectile is launched, and so it’s a 2 weapon or gun. Gunpowder does not launch a projectile. I’m a physics teacher. Compression launches a projectile, whether it’s a bullet or a paint gun, and the problem is, for you people, your zoning laws are specific, and therefore you have to use commonsense, and I hope you do. Thank you. MR. STONE-Thank you. Next? JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. Mr. Stone, you mentioned earlier that the zoning laws, sometimes zoning code is sometimes flawed, and that you’re here to correct it. I’m sure you understand that only the Town Board is empowered to correct the Zoning Ordinance. MR. STONE-I didn’t say exactly what you said. I said it’s flawed and we bring it to people’s, the Town Board’s attention. I’m well aware of that, sir. MR. SALVADOR-I thought you said we’re here to correct that. MR. STONE-No, I did not. MR. SALVADOR-In any case, I believe the Zoning Administrator has erred in determining that this is an amusement facility. There’s a distinction between amusement and sport, and if you heard the lady who quoted from the manufacturer’s literature, the manufacturer referred to this as a sport, and there’s a distinction between amusement and sport, in that the tax authorities tax amusement. Amusement is something that you are more or less a spectator at. Where as a participatory sporting activity, you are active in it, and therefore the admission is not taxable. How could the Zoning Administrator make the right determination? He’s flying blind. Lack of definition. It’s not an allowable use in any zone in this Town, is it? This specific activity is not an allowable use in any district in the Town. It’s not defined. The parameters under which you conduct it are not included in the Code. I wonder what the Planning Board is going to do with this? Where do they start? I suggest that you table this application for the 62 days that you can, and that the Planning Staff undertake revision to the Zoning Ordinance to define all of these things we talked about tonight, to lay out, maybe with the Planning Board’s suggestion, where this use would be allowable in the Town, and under what conditions, and then there’s a basis to hear an application. Maybe there’s no variances required. Maybe they can meet the Code, but that, in all fairness, is what should be done, and by the way, the Town has done this sort of thing in the past. They’ve turned this Code around in a matter of a couple of weeks. They did it three times with Special Use Permits in the last two years. No big deal at all. MR. STONE-Thank you. Anybody else? JOHN OBST MR. OBST-My name is John Obst. I live in Bedford Close. The Town definition does not seem to say that a paintball range is an approved amusement. From what I’ve heard tonight, and 38 (Queensbury ZBA Meeting 5/12/04) this is the first time I’ve been in a meeting on this subject, it doesn’t seem to define this as an acceptable amusement. There’s a lot of evidence that it could be an air rifle. A physic’s teacher suggested it, it might use something other than gunpowder, but it’s still a gun. It’s propelled by air, CO, whatever. There’s enough doubt that this is something that should be approved, that I 2 would think that you would err on the side of caution. Is it going to take some kid getting his eye out on this thing? Some two year old kid that wanders off somebody’s yard, and is 15 feet into the range? Is it going to take him to have an eye out to show us that this is really a firing range? Thank you. MR. STONE-You’re welcome. Anybody else? MARCUS ALTRAC MR. ALTRAC-My name is Marcus Altrac. I’m a senior at Queensbury High School. I agree with the Zoning Administrator that this is an approved site. About some of the issues that were addressed earlier about the kid with the eye that got injured and the frozen paintballs. In a site like this, the eye thing would most likely not happen, because facial protection is required when playing the game, and the frozen paintball thing will not be an issue here, because at such sites as paintball arenas, you’re not allowed to bring your own paintballs. You have to use the ones that are supplied by the arena. Thank you. MR. STONE-Thank you. Anybody else? KAT WILLIAMS MRS. WILLIAMS-My name is Kat Williams. My husband Nate you heard from a couple of times. We live directly across the street from one of the paintball fields. He mentioned the fact that we were 300 and something feet as opposed to the 500 feet, which is true, but my mailbox is across the street. So, you know, we’re even closer, and I’m concerned about the joggers, the bikers, the people that roll their baby carriages. They’re also going to be put in harm’s way. I agree with the neighbor’s, as far as it being a firearm, and, you know, I think there are plenty of rural areas in this area where there are no residents that are as close as we are. Thank you very much. MR. STONE-Thank you. Anybody else? KIM GRAY MRS. GRAY-Hi. My name is Kim Gray, and I’m adjacent to the property on the right hand side, and in regards to the paintball guns, as far as them freezing the paintballs, that they wouldn’t have the ability to do that because they would have to purchase the paintballs from the facility. My concern is not really when they’re in the game. My concern is when they’re unsupervised, off the game, but still on parking property or in the area where it’s still their property but unsupervised. Kids are bringing their own equipment and they don’t have to have their paintballs in the game, but they can have their paintballs with them when they are off a supervised area. So, teaching Middle School, I am hearing that kids are freezing the paintballs to make them so that they’re more effective for pain, and ultimately I’m more worried about the unsupervised areas that are still on their property, but what are the kids doing and how are they being watched? MR. STONE-Are you saying that there’s paintball activity on the property now? MRS. GRAY-Just in terms of practice, for what they were doing, but not anything that I’ve seen where kid are actually going and playing the game. My concern is if they open the facility, not how they’re refereed in the game itself. My concern is when they’re out in the parking lot, still on the property, but not in the game where a referee is. MR. STONE-Okay. Well, I opened that, and I’m going to close it. Thank you 39 (Queensbury ZBA Meeting 5/12/04) MRS. GRAY-Okay. I remembered what the other thing was. In terms of the calibration of the guns, I think it’s possible, from what I hear of kids, they can have their gun calibrated, but can change it immediately afterwards. MR. STONE-Okay. Thank you. We’re straying. I totally understand that you’re doing it, and it’s very hard. That’s why it’s very difficult for us, on Appeal, because it is a very limited discussion point. Again, is the Zoning Administrator correct in his determination that this is an allowed use in this zone. Not that it’s dangerous, not that it might be dangerous, it is an allowed use, and I know it’s hard to stick to it, and I would probably have the same problems, but it’s my job to try to make you stick to it. CONNIE LANGFORD MRS. LANGFORD-I’m going to stick to it. Prior to the March letter issued by Craig Brown, we had a conversation outside the office, and I asked Mr. Brown, and I’m sure he remembers this, I was there with my daughter, I said, do you even know what paintball is all about, and he said, no I don’t, and I said, well, don’t you think it would be a good idea to find out all the ramifications before you decide whether this can go where you think it can, and he said, well, you might have a point. Now Craig is very charming. He and I get along most of the time, but on this, I think he was blindsided. He was given information, very limited information, by somebody who had their own agenda, and that was, put to put a paintball park in a place where it doesn’t belong. So, I think that it would be a very good idea if everybody found out exactly what paintball is all about, before you decide that it could possibly go into any area, anywhere near a neighborhood, not just this one. Thank you. MR. STONE-Thank you. Anybody else? TOM ROSECRANS MR. ROSECRANS-My name is Tom Rosecrans. I live in Northwest Village, up the mountain a little bit. I’ll just address the firing range. If you don’t have to wear protective equipment, and if you don’t have to put netting around it, then I would agree that it’s not a firing range, but as soon as you have to have safety parameters in place, it’s a firing range. The firearm issue, you know, we’ve argued back and forth on whether it’s a firearm or whether it isn’t. We used to put pennies in the air guns when I was eight years old, and, you know, we could drive those pennies into trees. So, you know, the term firearm, is probably one of those issues that came up a long time ago, and they didn’t know about where technology would take us. That’s all I have to say. MR. STONE-Good. Thank you. Anybody else? LYNN UNDERHILL MS. UNDERHILL-Again, my name is Lynn Underhill, and my backyard buts up against the road next to the parking lot. I agree that we do have three issues here. I think we’ve proven three issues, but if we have unsuccessfully proven three, I’m sure we’ve proven at least one, and I believe that is enough. If we need to look further at certain situations, whether it’s a firearm, if you choose to do that, you know, please make sure that you use the worst case scenarios, because that is what we could be looking at, not one. Again, obviously I stand behind everything that we’ve put forward tonight. Again, I want to thank you for letting us speak, on both issues, and especially on the second issue. Thank you. MR. STONE-What do you have for correspondence? MR. MC NULTY-We’ve got it looks like maybe 16 letters. I’ll read fast. Okay. We have one from Mr. and Mrs. Nathanial Williams. 40 (Queensbury ZBA Meeting 5/12/04) MR. ABBATE-Counselor, do they have to be read into the record? MR. SCHACHNER-No. MR. STONE-No. MR. ABBATE-Thank you. MR. STONE-Can you just summarize them, if they’re on point. MR. CAFFRY-I’d even go further. Has the Board read them all? MR. STONE-Not all of these, no. MR. MC NULTY-Not these. MR. CAFFRY-Well, if the Board hasn’t read them all, then obviously they need to be read in. MR. STONE-That’s why we do them in public hearing. MR. MC NULTY-Let me see if I can go quickly here on some of these. From the Williams’, they say when they built their home on West Mountain in 1977, the property. MR. STONE-They’ve both spoken. MR. MC NULTY-Okay. Do you want to skip that? MR. STONE-Yes, skip it. MR. CAFFRY-If there’s new information that they didn’t speak, because I purposely told my client, don’t repeat your letters. MR. STONE-Okay. MR. MC NULTY-Well, they’re making the point, I guess, that when they bought their place on West Mountain Road in 1977, the property that the proposed paintball park is going to be played in was not part of West Mountain Ski Center. Activities that were conducted on the property were mostly conducted in the winter. There was also a wooded buffer between the property and West Mountain Road. There’s very little buffer left. They’re not against paintball in general, but this type of activity does not belong in a residential area. It belongs in a rural setting. A letter from Wendy Stewart. She’s in the Bedford Close. She indicates that it seems clearly inappropriate to place this activity in the middle of a residential area. MR. STONE-I think the rest is noise and traffic. I just looked at it briefly, and that’s site plan. MR. MC NULTY-Peter and Marion Policastro. They’re saying when they bought their home in 1977, this neighborhood was not zoned as it is today, and if there’d been any indication that there would have been paintball activity in the area, there would have never have located there. They’re arguing that it should be a firing range. That was a letter with a map. Another one that says that this is a firing range not an amusement center, and it’s the second commercial use of the West Mountain property. It’s basically about the danger, and some concern that parents will tend to drop their kids off and use it as a babysitting service and not supervise their kids. E-mail. MR. SCHACHNER-Mr. Chairman, my only question is, summarizing letters is fine, but it seems like we’re summarizing no matter what they say, whether they’re on point or not on point. MR. STONE-Well, we’re trying to just get the point. 41 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-Okay. The things I’m hearing, a lot of them don’t have anything to do with whether it’s an allowable use or not. For example, whether it’s an allowable use or not has nothing to do with whether people drop off their children, supervised or unsupervised. MR. STONE-I understand that. We’re trying to scan. It’s hard to. MR. MC NULTY-Another one that says that they feel it doesn’t belong in that area, that firearms do not belong in the vicinity of children’s swing sets and back yard barbecues. I think that’s a copy of the same thing. Lynn Underhill, and she spoke. MR. STONE-Anything new in that letter? You think there’s something new, on point? MS. UNDERHILL-On point? MR. STONE-My Counsel is making me stick to point. MS. UNDERHILL-Yes, I question the multiple use of the property. MR. STONE-Okay. MS. UNDERHILL-And a firearm in a neighborhood. MR. STONE-They sit you at a table with Mr. Caffry. I’m going to take his arguments as yours. MR. MC NULTY-Yes. Another one that calls it a firing range. There is a note here from Andrew Williamson, Supervisor, Town of Argyle. Says letter is to confirm we have paintball business and field in of Argyle. Says letter is to confirm we have paintball business and field in our Town and we have no concerns or complaints from the public. MR. BRYANT-Mr. Chairman, this is causing more frustration than information. MR. ABBATE-Agreed. MR. STONE-Do you want us to read them all? We’ve got to something. We’re trying to summarize them quickly. MR. ABBATE-I think Counsel said it right. It’s just a rehashing of what’s already been said. If it was that important, quite frankly, why didn’t we receive this information before the meeting? MR. SCHACHNER-Well, in fairness, I have no idea what’s in the letters. My only comment was if we’re going to summarize them, I think we should summarize them with the relevant points. MR. STONE-Correct. MR. SCHACHNER-For example, I happen to know Mr. Williamson, fine gentlemen. Whether there are these facilities in the Town of Argyle or not has nothing whatsoever to do with whether it’s an allowed use in the Town of Queensbury in this particular zone. That’s what I’m trying to say. MR. STONE-We agree. It was a one page, one sentence thing. So it got missed. Anything else? MR. MC NULTY-I think all that we’ve had is essentially the same. MR. STONE-Okay. Basically, there are arguments all over the place, and they are the kind of things we have heard tonight. Some on point, and some off point, and I’ll close the public hearing. 42 (Queensbury ZBA Meeting 5/12/04) PUBLIC HEARING CLOSED MR. STONE-Mr. Caffry, do you want to come forward, and Mr. Fitzgerald, if you want? I’ll allow both of you, you’d like him to go first? MR. CAFFRY-I’ll just try and respond to a few things that have been responded to, or comment on a few things, and I think one thing that came out is interesting. I should have said this at the start, is one thing that’s interesting about these cases is what I’ve learned from my clients, that I didn’t know before, and it was Deborah Aquilino who first discovered that the En Con law defines these things as firearms, and by talking to Lieutenant Gerrain at DEC in Warrensburg. It’s not something I dreamed up. It’s not some lawyer thing that we learned in law school. This is because the neighbors did some homework and spoke to knowledgeable people in law enforcement about this. With regard to whether or not it’s an amusement center, I think there is a germane point on this subject of, think about where else in Town amusement centers are allowed. They’re allowed all over. We’ve got them all up and down Route 9, on very small sites, and whether or not this is the type of facility that if you rule that it’s an amusement center, does this belong on those sites next to Skate Land or wherever on Route 9, because it certainly could be proposed there if you rule in that fashion. I want to go through my notes just to find a few things I did want to reply to. Mr. Fitzgerald talked about, he went on-line to an on-line dictionary that the Town Staff uses. Well, that’s fine if the Staff uses it. I tend to use the one I got when I graduated from high school, you know, whatever works for you, works for you, but it’s not what the Code says. The Code attempted to be very specific and solve this problem by saying Webster’s Abridged Dictionary. It turns out there’s no such thing, and it turns out that there’s a zillion Webster’s, all published by different companies on-line and in paper, and they all have different definitions, some of what totally support my position, some of which support his position, but the point is that whatever dictionary you look at, I don’t think that answers the question. We need to look at the laws of the State of New York. Whatever one that the Town may use on-line now may or may not be abridged. He referred to our case, the Christopher case, saying it wasn’t a zoning case. I didn’t say it was a zoning case. What it was is this is the one in New York City that said that a paintball gun is regulated as an air gun under New York State law and hence is illegal for a child under the age of 16 to possess it, and I think that is germane, because it points out that these things are considered to be air guns, and you tie that in with the other definitions that refer to air guns, refer to things propelled by compressed air, and I think it is relevant here. He also said that this is an activity that is organized, supervised, and it’s a regulated area, and that a firing range is not. I’m sure any rod and gun club would be aghast at the thought that their areas are not regulated and defined and supervised, because obviously there’s a great deal of danger there, and I’m sure they’re very careful. He argued that it’s a recreation center, also, and I think the Staff mentioned that, too, but Mr. Brown didn’t say that. That’s not part of the Appeal. It’s not relevant. We shouldn’t even be looking at the zoning code definition of recreation center, because it’s just not the issue here tonight. On the question of allowed uses and multiple allowed uses, he refers to the Code section that says, if a use is listed on the table of allowed uses, it’s allowed on that site. That’s good so far as it goes, but it doesn’t have to do with density, how many uses you can have. It’s kind of like saying, if it’s zoned single, you can put six houses on it, no matter what the lot size, and again, we all know that’s not the rule. So this is really a question of how many principal uses can you put on it, and the rule is, unless it’s zoned specifically to allow multiple principal uses like a shopping center, then you can’t squeeze two onto there. I think my clients pretty well covered Mr. Abbate’s point about Penal Law Section 265.35, so I won’t repeat that one. Although if you read that, take it literally, it seems to say that it is allowable to shoot moving airplane with a paintball gun. Maybe the legislature ought to look into that one. The question was asked, if you had a fair, could you shoot bee bee guns. Bee bee guns are defined as air guns, and they have to be regulated as such, and, you know, the law falls where it may, and we’re not here talking about bee bee guns tonight, and specific things. You could say it’s different because they’re used in a booth, and not on a range, and maybe that’s an amusement because it’s in a booth. Usually at the fair you’re not running around the fair shooting between the rides. You’re in a specific booth. So maybe that’s a different thing, but that’s not the issue here. They refer to a water pistol that uses air pressure. However, there’s no projectile. There’s just water, and lastly, I 43 (Queensbury ZBA Meeting 5/12/04) would just like to say, I am concerned that people took the time to write letters, and for whatever reasons they weren’t distributed to the Board members in advance, even if they’re repetitive, even if they don’t say anything different, even if they’re partly off the point, that is a concern that that didn’t happen. I realize the Staff has a lot of work to do, and you have a lot of paper here, but I’m surprised that didn’t happen. MR. STONE-Well, just in defense of Staff, we normally get one or two letters, and we read them in, but this was, we don’t get them ahead of time. MR. MC NULTY-Yes. MR. STONE-Mr. Schachner, I’m looking at you. MR. SCHACHNER-Well, I mean, I think what Mr. Caffry is saying is he’s expressed a concern that things have been written in letters and that you’re not aware of that, and that’s not an inappropriate concern. If you receive written correspondence on the Board. MR. STONE-I wasn’t trying to be flip. I’m sorry. MR. SCHACHNER-No, I’m not suggesting you were. I’m just weighing in on this issue. If you, as a Board have received correspondence that for whatever reason, I don’t think the reason matters, you’ve not had a chance to review, you know, as a matter of due process, if you will, as a matter of opportunity to be heard, if you have correspondence, you should probably review that correspondence. MR. CAFFRY-So I’d just like to conclude, saying that we presented three reasons that we think are solidly grounded in the Town Code as to why this project does not belong on this site. Even if you don’t agree with one of them, we think all three have to be examined, and as Ms. Underhill said earlier, any one of them is enough to overturn the Zoning Administrator on. Thank you. MR. STONE-Mr. Fitzgerald? It dawned on me, as we were talking, that I have not given the Zoning Administrator a chance to say something, and if you want to do it when he gets done. I apologize. MR. FITZGERALD-Thank you, Mr. Stone. A couple of things. Number One, I don’t believe I said that a firing range was not supervised. I don’t think I talked about that at all, and to another gentleman who spoke, I did not say that a paintball marker operated like laser tag. I was using the analogy that the operation of a paintball facility is like a laser tag facility, which already in use in the Town of Queensbury. With all due respect to the many neighbors and other people who’ve turned out tonight. I think a lot of the comments that this Board heard are really not on point to the issues that are before the Board tonight, the three reasons that Mr. Caffry and the appellants have raised as to why this is not a permitted use, and I think most of the comments tonight deal with matters that are best heard by the Planning Board in site plan review, and we had several people who, if we were getting to site plan review, we would have to speak for the project, because they know the intricacies of the game and can speak to that, but that’s not relevant here tonight. Mr. Salvador made the point that possible there’s no place in the Town of Queensbury that would allow this operation. If that is such, I think then the Code is discriminatory, and that’s not what the intent of the Code is when you read it. The intent of the Code is, for this District, to encourage recreational opportunity, and where better than a place like West Mountain, one of the few places in the Town of Queensbury that is zoned as a recreational area, where you have hundreds of acres that are open. A lot of talk had to do with safety tonight. Fortunately or unfortunately, paintball, and paintball markers, are out there in your community, right now. Whatever this Board does is not going to change that. What these folks are trying to do is to put a facility, as I mentioned before, where this type of activity is supervised, and it’s confined to a specific area. That enhances the safety. Nothing is safe in this world. Rollerblading is not safe. Skiing, Mr. Brandt is not here, is not safe. Unfortunately, no activity is perfectly safe, but we think that this would enhance the safety of the area, but that’s 44 (Queensbury ZBA Meeting 5/12/04) also not necessarily directly on point. When you talk about firearms, I spoke to a local conservation officer. I spoke to the council in Raybrook. None of them will go on the record as to whether or not this is something that they have jurisdiction on, per se. What they tell me is, it depends on how it is used. There are paintball facilities in New York State. As Jack Williamson said, there’s one very close in Argyle. There’s also one in Albany, and down in the Catskills. If this was a prohibited activity, these operations would not exist. What we’re talking about today is not the Penal Law. It’s not En Con law. Although maybe En Con law goes into play with site plan review, but what we’re talking about today, is the Queensbury Zoning Ordinance, and I indicate to you, that when you read your Ordinance, and your read the common definitions of firearms, this is not a firearm. This is therefore not a firing range. We believe that Mr. Brown made the correct determination. His determinations, if you read them, are reasonable, based on the information that he has, and we believe that the Appeal should be dismissed. Thank you, gentlemen. MR. STONE-Thank you. Mr. Brown, would you like to say something? MR. BROWN-Yes, I would. I’ll try and be brief. I know the hour’s late here. I guess what I’ll do, I’ll try and stay on point by going through the three items listed under the summary grounds for Appeal in Mr. Caffry’s Appeal, and I’d start with the third one first, which is the second commercial use on the property. If you take a look at the definition of a principal use, in the definitions of the Zoning Ordinance, it talks about multiple principal uses on a property, and which one you may consider the primary or the major use on the property. It happens all the time. We have a lot of properties in the Town of Queensbury that have multiple uses on the property, a go kart track with a water slide, ski facility with a tubing park. There are oftentimes properties that have multiple uses on the site. If you look at the Section of the Code, 179-4- 010(C6), the Code does limit, explicitly, one principal building per property, if they’re single family residences. It doesn’t say, it doesn’t speak to commercial uses. It doesn’t speak to anything other than principal dwellings. Typically what we do, when you make the determination whether a piece of property can support, I don’t want to say support. That’s more of a site plan issue. If a piece of property might allow multiple use on there, you’d perform some sort of a density calculation. You would take the base lot size that’s allowable for a certain District, for example, if you’ve got three acres in a one acre zoning district and you want to establish a one use on the property, you want to come back next year and establish another use on the property, a different use, well, you have two other acres left over where, if you’ve got the density and that property can support that use, you’re allowed to have it. So, does the Town of Queensbury strictly prohibit multiple uses on a piece of property? No, it doesn’t. I think in some cases it would encourage it. The second one, the allowable use, I think it would be impossible to come up with an exhaustive list of what are allowable uses for each and every district in the Town. When we’ve got a situation or a proposed use that’s not explicitly listed in the Code, and there’s probably dozens, if not hundreds of those types of uses, typically what we do, and we do it on a seemingly daily basis, is you give some sort of consideration to the intensity of the use, the characteristics of the use, and the similarities of that use to the definition of uses that are allowed in that zone, and if it’s consistent, and you make those reasonable analogies between definition and the proposed use and the impacts of the use, then you would consider it an allowable use, and I think that takes us to the third point, which is listed first in Mr. Caffry’s Appeal, is a firing range. I think as the notes, as my notes offered, the logic of paintball marker equals weapon equals firing range equals not allowed, I don’t find it, I don’t find it supported in the Code, and I think those are two pretty big leaps you’re being asked to make, to call a paintball marker a weapon, and then to call it, the fact that it’s a weapon, now it should be a firing range, and I make that argument because when you make a decision on allowable use, again, you go to the intensity, the characteristics of the use, and the intent of the use. If the intent of this use is for destruction, if you’re hunting, then maybe you want to call it a firing range. If you’re there for recreational purposes or amusement purposes, I don’t think the logic follows, and those are my brief comments, and certainly if you have any questions, I’ll try and answer them for you, but that’s all I have for now. MR. STONE-Anybody have any? 45 (Queensbury ZBA Meeting 5/12/04) MR. ABBATE-No. MR. URRICO-Yes, I do. Craig, you used amusement center and recreation interchangeably. Do you consider them interchangeable? MR. BROWN-No. I heard that comment come up a couple of times, but it’s not something I made either in the notes or any of my determinations. In the notes, you’ll see a reference to the definition of a recreation center and how that, and we can read it right from here if you want to. Further, the notes, they say, the definition for a recreation center, which is also an allowable use in the RC zone, doesn’t say that a paintball facility is a recreation use. It just says a recreation use is allowable in the RC zone. The fact that it is allowable offers substantiation as to the purpose and the intent of the RC zone, which is to encourage the expansion of recreation industries. It was meant merely as a comparison for other types of allowable uses in the zone. MR. URRICO-Thank you. MR. STONE-Okay. Are we ready? MR. CAFFRY-Mr. Stone, could I just respond to a couple of things? MR. STONE-Yes, I’ll give you a couple of minutes. MR. CAFFRY-Mr. Fitzgerald said, well, this fits at West Mountain because there’s hundreds of open acres. The problem is, this is a site plan issue I know, but he said it and I want to respond to it. This is the absolute worst spot on the West Mountain property. If it was on the top of the mountain, it wouldn’t be near anybody’s house. He also said that paintball ranges do exist in New York. They’re not prohibited. We never said they were prohibited in New York. We said that if they’re a firearm, it’s a firing range, and they’re not allowed in this zone in the Town of Queensbury. I said early on they’re allowed in other zones in Queensbury. With regard to what Mr. Brown said about the multiple principal uses, I tried to look as much as I could, and where that’s done in the Town, I think it’s done where it’s specifically allowed by your Code, that, again, a motel specifically says it can have a restaurant, which would otherwise be a principal use, on the motel property. A shopping center specifically can have more than one thing. Amusement centers can have more than one thing. If it’s not an amusement center, then you can’t put, or even if it is, you can’t put an amusement center on top of an entirely different thing, a ski center. So, I’m just trying to clarify what we didn’t say here. Where he said that, well, the list of amusement center things can’t be exhaustive. I wasn’t just looking at the list of examples. I went through all the categories, the broad categories, which the examples been modified. It doesn’t fit any of those broad categories of amusement center, and lastly he said we made some big leaps about from, is it a weapon, is it a firing range. We think the laws of the State of New York and the courts of the State of New York have said these things are weapons. It’s been said numerous times by the courts. We didn’t make this up. It’s not a leap. Secondly, it’s certainly not a leap from there to firing range. If you decide it’s a firearm, you look at the definition of firing range, it fits, and he said, well, a firing range is for hunting. Well, I don’t think they do much hunting on the range there. They’re shooting at paper targets. They’re not hunting there, and I don’t think that that’s an (lost word). Thank you. MR. STONE-Thank you. Mr. Fitzgerald, do you have anything to say? Okay. We’re going to talk about it, as we do at this particular point, and I am not going to entertain any comments from the public. I mean, I’m not going to put any of us on the spot. We’re going to say what we say, and when we get all done, we will make a motion to agree with or disagree with the Zoning Administrator. Now, I also challenge the Board, as I would challenge the public, to speak to the issue of is Mr. Brown right or wrong, for whatever reasons you want to say he’s right or wrong, but it’s a zoning determination we’re talking about, and I’m glad I’m going to be last, because I’m hoping we can all stick to that subject. Mr. Abbate, let’s start with you. MR. ABBATE-Thank you very much. It’s going to be difficult whether the Zoning Administrator is right or wrong, and I’d give you the following reasons. My questions this 46 (Queensbury ZBA Meeting 5/12/04) evening were to extract information that would aid me in arriving at a fair decision, and it certainly did not reveal my position on this matter. Now, it is getting rather late, but on a personal note, I, too, find the Zoning Administrator rather charming. Now to the issue at hand. One, it’s my opinion that the Town has defaulted in addressing this issue, and as a result, the Zoning Administrator is at, and continues to be at, a disadvantage to address adequately this issue. We should, indeed, err on the side of commonsense and on the side of caution, and I suggest to this Board that we table this until the Town Board has addressed precisely this entire matter. Thank you. MR. STONE-Mr. Bryant? MR. BRYANT-Mr. Chairman, I’m going to be brief, and I’m just going to address the three points as I see them. The first point, relative to the firing range. I don’t want to get away from, I don’t want to get into the semantics thing, based on the teacher’s description of a firearm, power, water gun is a firearm, because it’s fired under compression. So I don’t even want to go there with that. In my view, the purpose of the paintball center is completely different than what takes place on a firing range. The second issue, relative to the paintball facility and amusement center, Mr. Salvador so graciously talked about sports versus amusements, and we really do appreciate your visits to this Board, Mr. Salvador, but there are certain, in a Recreation Commercial area, there are certain things that are allowed, and some of them are sports related. So, is the paintball facility an acceptable use in that type of area? Yes, I believe that it is, and finally the second commercial use on the property, I think Mr. Brown described that use when he talked about waterslide and go kart and there are similar facilities in the area that have multiple uses and I think the description is adequate. So, in my view, I would have to be opposed to the Appeal. MR. STONE-So you’re supporting the Zoning Administrator? MR. BRYANT-Exactly. MR. STONE-Thank you. MR. BRYANT-Which is unusual. MR. STONE-Mr. Urrico? Let’s not have editorial comment. MR. URRICO-I guess it’s appropriate for all of us to comment on the job that Craig does with these type of applications, and how difficult sometimes it is to put things in the proper category, but Number One, I don’t buy the firing range argument at all. I think there’s a reason why people at firing ranges don’t shoot at each other, and those at paintball facilities do. I think if people at firing ranges shot at each other, there would be a lack of repeat business and that certainly would extend the problem, but I do empathize with what’s being asked of us, and I think there’s a definite, this doesn’t fall, in my estimation, under the amusement center category. It’s closer to recreation, and it’s even closer to the, I believe, the sportsman club firing range category, but I don’t think it falls into any of them, and I tend to agree with Mr. Abbate on this, that I believe the Town does not specifically address paintball. I think it’s too new. It’s under the radar. In many cases, it’s considered a Generation X activity, which, I think automatically puts it on the defensive, and I think that’s not fair, either, and I would like to see the Town address this and be more specific in its definition of what’s allowable and what isn’t allowable, because, as currently defined, I have a hard time making a decision. MR. STONE-Mr. Hayes? MR. HAYES-Well, sometimes on these appeals, it becomes difficult to separate the desires of the greater neighborhood and the Code as applied by the Zoning Administrator. I mean, I wouldn’t want a paintball range by my house. I think that has to be said, and I think probably the rest of the Board members probably feel the same way. I’m not sure if Mr. Brown would want one next to his house, but in this particular case, that’s not his job to determine what 47 (Queensbury ZBA Meeting 5/12/04) people might want next to their facility or next to their house. He has to take the set of facts, as they’re set forth in an application, and interpret them to how do they apply to the Zoning Code, and in this particular case, he’s got to do that based on the standards that they’ve applied historically, and using, to the best of his ability, will it be commonly applied if it’s not specifically set forth in the Ordinance, and in my case, in my belief in this particular case, I think he did that. In the first case, the causal chain argument that a paintball marker equals a firearm equals a firing range and therefore is not an allowable use I think fails. I don’t, I just don’t see a paintball marker an item that people voluntarily shoot at each other in a recreational movement type activity, which I’ve done before, I just don’t see that as the same as a firearm, which is something, to me, that’s designed to inflict injury or incapacitate an animal or another combatant. I think they’re just two different things. I just don’t think that that causal train, the logic of it fails at a certain point. So I don’t think that that, I think it is an allowable use as defined. I think he made the correct determination on that, and the second issue that has been brought up by Counsel was this idea of a second commercial use on a site, and in the Town, there’s just an unbelievable number of examples where this type of activity, where there’s more than one commercial use on a site, if the site sustains it or can, you know, maintain it. Martha’s Ice Cream, I mean, some of the ones that come to mind, Martha’s Ice Cream has an ice cream stand, a diner, a house and a hotel, all on one site. Skate Land has laser tag, roller skating, and a go kart track. I mean, these things on these type of sites, it does happen if the area can sustain it. I just, I guess I’m pointing this out because I think most of the issues that the public or the neighbors are upset about have to do with going to the Planning Board and have to do with site issues. They don’t have to do with whether Mr. Brown made the right determination. Did he take the set of facts that he was set forth, that were set forth in the application by the applicants, and apply them properly to the Code as it was written, and you could argue whether that’s the right Code, but that’s not his job. His job is to apply them as it’s written, as it’s set forth, and I think he did. So I would be against the Appeal. MR. STONE-Thank you. Mr. McNulty? MR. MC NULTY-Well, typically, several thoughts. I think one thing, this obviously is a difficult decision because there’s impact, whichever way we go, whether we support the Zoning Administrator or don’t. I think it’s also a disservice to the applicant, the paintball people, if we table this, because they’ve got a business timeline, and I’m sure that they would like to have a decision post haste. Looking at the arguments, the argument about multiple uses, I’m inclined to kind of agree with the rest of the Board, that I’m at least not convinced that that’s a valid argument. I will agree, however, with the appellant, that I don’t think a paintball application matches the description of amusement center. Although it’s kind of difficult, the way the Town Code’s written, to figure out what it does match. I have a great deal of difficulty seeing what the real difference is between recreation center and amusement center. I get the impression that an amusement center maybe is more inclined, well, it does say, I guess, that it can be inside a mall or something. So it brings to mind more video games, to me, than it does a paintball operation. Firing range, as I mentioned before, I’ve got a long history with Environmental Conservation and I guess I’ve been trained for a number of years that anything that potentially can cause injury or death to wildlife is a firearm, as far as Environmental Conservation is concerned. Paintball guns certainly, if they hit somebody in the eye, can cause damage, but even people that are wearing face masks, body armor, end up with some pretty serious bruises at times when the paintball misses the armor. So I think there’s enough justification there for me to say that, yes, indeed, it is a firearm, and I think I do follow the chain, then, if it’s a firearm, it belongs on the firing range. I think people very often, when they think of firing ranges, think of a whole bunch of people lined up in a row with guns and a whole bunch of paper targets down a few hundred yards away, but that’s not necessarily the only kind of firing range. There’s, you’ve seen things on television, the FBI mock villages where they’re training FBI agents to react quickly. There’s a variety of things that are firing ranges that maybe don’t meet what people think of initially, but, anyway, for me, I think it probably belongs in the firing range. The other thing, I kind of back in to where I ended up, looking at the definitions for a Recreation Commercial Three Acre, which is what we’re talking about. There’s two RC categories in the Town Code. One’s three acre. One’s 15 or 15,000 or something like that. The three acre has a little tag on the end of it’s description that says it’s compatible with residential 48 (Queensbury ZBA Meeting 5/12/04) areas, and, backing up from that, it strikes me that dirt bikes, ATV’s, and paintball operation, at least right next to a residential area, are not compatible with residential area. So, coming both directions, I would support the appellant. MR. STONE-Mr. Underwood? MR. UNDERWOOD-I would have to agree pretty much with what Chuck said also. I think as far as the secondary use on the property, that there are secondary uses that would be more appropriate in this area. I think that at this point in time, given the nature of the paintball guns, the fact that they fire things, that’s good enough for me. I’m sure, if you took everybody outside that thought they were a great idea and shot you in the backside, you’d have second thoughts about not saying they were firearms. As far as what we should do here this evening, I would have to agree with the majority here on the Board, that we should send this on to our duly elected officials to see what kind of guts they have to change things appropriately. They should investigate things such as hours of operation, the adequacy of the buffers, what areas of Town are appropriate. Certainly West Mountain has a lot of space, and it was suggested that this be moved further up the mountain. I think that if this facility were located on the top of the mountain, it would be very easy to accommodate it up there with the lifts in operation in the summertime. It would adequately protect the neighborhoods at the base of the mountain also, and I think that’s a very doable, feasible alternative to what’s proposed here to the Town. It would be inappropriate for us, I think, to decide this in favor of the original applicants. I think it’s more appropriate to, you know, decide this (lost words). MR. STONE-He’s saying we ought to table it, is what I heard. Is that correct, Mr. Underwood? MR. UNDERWOOD-Yes. MR. STONE-Okay. Well, we do not have consensus. We do not have a decision here tonight. The only thing that we could do, well, do have one, we can make consensus on one thing. We could agree to table it. If the three gentlemen, and I’m mixed, and I will explain my position, but I just want to be sure that the three of you who said they would like to table it will not go either way. You’ll table it? MR. ABBATE-Yes. MR. STONE-Okay. I just want to be sure. That’s fine. That’s all. I’m not putting any pressure. You want to table it. Okay. I’ve listened to everybody here, and I think that, first of all, Mr. Hayes made a very cogent argument. I think he went through the three things the three arguments, and came down on the side that the Zoning Administrator is correct. I certainly could go that way, but when I hear the majority, not the majority, three members of the Board are saying they want to table it, and let’s talk with the Town Board, who particularly since they’re the elected officials in this Town, in charge of the Zoning Code, this is a new issue. I’m certainly one who, looking at my older dictionary that we have in the house, and I have two older dictionaries. A firearm says explosive. It says gunpowder. There is no question in my mind that these are not firearms. So I have no problem with that. However, I am concerned by the recreational amusement area discussion that’s been made, particular when I hear concern, and I’m not saying it’s on point, in terms of yes or no, but I hear concern about the safety of the residential area adjacent to this, and while I would probably come down on the side of Mr. Brown, because I think he made a very excellent argument. He went through the various points in the Code, and he is our expert as far as the Zoning Code is concerned, until we say he’s wrong, but in this particular case, I think the majority of the Board, three members, say they would like to see further discussion on this thing, certainly by the Town Board. Do you have a problem with what I’m saying, Mr. Schachner? MR. SCHACHNER-I don’t have a problem. I have a comment, at whatever time you feel is appropriate. 49 (Queensbury ZBA Meeting 5/12/04) MR. STONE-Okay. So, I would go along with the majority of the Board and say I would like to table this so that the Planning Department, Community Development Department, in conjunction with the Town Board, can decide what to do with the Zoning Code, as it applies to this very new activity called paintball. It’s new, and obviously it’s not in the Code, whether one argues, as Mr. Brown has, that it’s not prohibited. It’s not specified, but it certainly follows some of the other things. So, having said that, after we hear from Mr. Schachner, I will ask for a motion to table. MR. SCHACHNER-Mr. Chairman, I just want to make sure everybody understands exactly what’s being discussed by way of input from the Town Board, and I heard two different concepts mentioned. One concept I heard mentioned was to ask the Town Board to legislate, okay, and that’s fine. You can ask the Town Board to legislate. I just need to make sure that you all know, and that the public knows, you cannot force the Town Board to legislate. The Town Board may or may not avail itself of the opportunity to legislate, and it may or may not do so within the time that’s typically allotted for your decision on an interpretation appeal. That’s okay. You know, you can certainly ask the Town Board to legislate, and they may or may not take you up on that offer. The second thought I heard expressed, though, was something about discussion with the Town Board, and that you cannot lawfully do. You cannot go, and if this is what somebody was envisioning, I need to address it. If this is not what somebody was envisioning, I don’t need to address it, but if anyone was envisioning you will go seek guidance, you, as the ZBA, will go seek guidance from the Town Board, that you may not do. MR. STONE-No, I didn’t hear that. I heard that the Zoning Department should try to develop some language in combination. MR. SCHACHNER-Legislate. MR. STONE-Legislate. MR. SCHACHNER-Yes, what I call legislate. Okay. MR. STONE-Well, I’m saying the Community Development Department, legislate, yes. MR. SCHACHNER-Well, the Community Development Department cannot do anymore than it’s done, formally. The Community Development Department, in the person of our Zoning Administrator, has issued a ruling which is on appeal. MR. STONE-Right. MR. SCHACHNER-The Community Development Department certainly can assist the Town Board in legislating, if the Town Board chooses to legislate. MR. STONE-Okay. MR. SCHACHNER-I just want to make sure it’s clear, though, you can ask the Town Board to legislate. You can’t force it to, or require it to, and you can’t seek informal guidance from the Town Board. You can’t do that. Okay. MR. STONE-Okay. MR. BRYANT-Mr. Chairman, I want to ask Counsel a question. Assuming that the Town Board would legislate, it wouldn’t necessarily have an affect on this ruling, after the fact. MR. SCHACHNER-That’s generally not correct, meaning if the Town Board legislates, that generally would have an affect. MR. BRYANT-It would affect this ruling? 50 (Queensbury ZBA Meeting 5/12/04) MR. SCHACHNER-Probably, because, although when you say, after the fact, the fact is that you were correct that the ruling has already occurred, but the use has not, obviously is not yet in existence. So New York State Zoning Law holds, and a lot of people have a lot of problem with this, but New York State Zoning Law holds, generally speaking, that legislation, whatever legislation is in effect on a given date does carry the day, assuming that a use has not already been commenced through construction and something called vested rights, and I don’t want to open that can of worms, but that’s the general principal. So, short answer, yes, if the Town Board avails of your, of the opportunity you’re asking it to legislate in a timely manner, that probably would carry the day, whatever they legislated. MR. STONE-Okay. MR. SCHACHNER-Have I answered your question, Mr. Bryant? MR. BRYANT-You did, thank you very much. MR. STONE-Mr. Bryant? MR. BRYANT-I understand some of the other Board member’s concern that they want to table it for whatever reason, for whatever occurs, but in fairness to the appellant, in fairness to the original applicant, I think we ought to try to resolve this. I mean, these other members, where do they sit, on what side of the fence do they sit if that is not an option? MR. STONE-Well, that is why I asked the question that I asked. I have three members, besides myself at the moment, who say they would like to table it for what Mr. Schachner has clearly said, to ask the Town Board to legislate new zoning wording, worded. MR. ABBATE-Right. MR. BRYANT-And if the Town Board decides, in their infinite wisdom, not to legislate, then we’re back here with the same discussion, all over again. MR. STONE-Yes, we are. Yes, we are. MR. ABBATE-And then we make a decision. MR. BRYANT-Well, the question is, why aren’t we making the decision today? MR. ABBATE-Well, let me tell you why I’m not making the decision, Al, because I strongly feel that the Town has not addressed this new issue of paintball activity, and based upon the fact that they have not issued, they have defaulted, because there are many complicated issues, and many complicated questions that have yet to be answered, in my mind. MR. BRYANT-Well, I don’t think that the Code addresses a lot of different conditions, and I think one of the Counselors mentioned that, you know, it’s up to the Zoning Administrator to interpret those. MR. ABBATE-But I go back again. You’re right. You’re absolutely right, and the Zoning Administrator is doing a good job, but the problem is, he’s at a disadvantage because the Town Board has failed to address this new activity. MR. STONE-Okay. The problem, Mr. Bryant, as we sit here now, we do not have a majority position, with the exception of tabling. I mean, we’ve got one man who said, no, he would not support the Zoning Administrator. We have three people, I’m not counting myself at the moment, who said they would like to explore this legislative option for the moment, and we have two people who have said yes. There’s no four votes there, except for tabling, and I don’t 51 (Queensbury ZBA Meeting 5/12/04) think we can sit here, maybe somebody is willing to change their mind, but I haven’t heard it. So, having said that, I would move that we table the Appeal. MOTION TO TABLE NOTICE OF APPEAL NO. 1-2004, APPELLANTS: UNDERHILL, ARMANDO, ROSECRANS, AND OTHER NEIGHBORS, AGENT: CAFFRY AND FLOWER, ESQ., Introduced by Lewis Stone who moved for its adoption, seconded by Roy Urrico: With the recommendation that the Town Board be asked to legislate definitions and regulatory provisions concerning Paintball in the Town of Queensbury, in a timely manner. Duly adopted this 12 day of May, 2004 by the following vote: th MR. SCHACHNER-It’s a good motion. You might want to say definitions and regulatory provisions. MR. STONE-Okay. Thank you. MR. ABBATE-Yes. AYES: Mr. McNulty, Mr. Underwood, Mr. Hayes, Mr. Abbate, Mr. Urrico, Mr. Stone NOES: Mr. Bryant MR. STONE-Sorry, people, but we have this dilemma. Having said that, as the microphones start to go, it’s five minutes of eleven, as they do when we’re here at eleven o’clock, the meeting is adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Lewis Stone, Chairman 52