1978-06-21
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066i~ial Minute~ 06 the QUEENSBURY ZONING BOARV OF APPEALS held
June 21, 1978 at 7:30 P. M.
Pll.e~ent:
K. COll.nwell, Chaill.man
C. Si~all.d
G. KuIl.O~ aka
T. Tull.nell.
M. Reed
S. Ri~hall.d~ 0 n
A. Fll.an~o
G. Li ap e~
S. Lynn
Gue~t~':
v. VanSi~kle, Re~oll.ding Se~ll.etaIl.Y, Il.e~igned.
Minute~ 06 pll.eviou~ meet~ng appll.oved a~ ~oll.ll.e~ted. Mil.. KUll.o~aka
d~~quali6~ed h~m~el6 on Vall.~an~e~ #552 & #556 06 the May 17, 1978
meeting.
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Vall.~an~e #564 - Vonald M~lne - to pla~e a dwell~ng on a lot that
doe~ not 61l.0nt on a publi~ Il.oad on the pll.opell.ty ~~tuated 066
F~tzgell.ald Road.
Mil.. M~lne and Attoll.ney L. Call.u~one appeall.ed. Mot~on by C. S~~all.d,
~e~onded by T. TUll.nell. to appll.ove Vall.ian~e #564 by V. Milne a~ ~t
~on~ull.~ w~th the Queen~bull.Y Planning Boall.d a~ Il.ea~onable u~e 06 land.
Call.ll.ied 7-0.
RESOLVEV: Vall.~an~e #564 Gll.anted.
Vall.~an~e #557 - William and Ro~e Re~~ell. - to ~ell b~~y~le~ and othell.
all.t~~le~ ~n an R-3 Zone on the pll.opell.ty ~ituated at We~t Mountain Rd.
MIl.~. Re~~ell. and daughtell. appeall.ed on thi~ va!l.ian~e. Obje~žlon~
by R. Thomp~on, H. Hell.man~e. Mil.. Na~y ~l~med that ~t wa~ a
Il.e~idenžlal all.ea, no pall.king 6a~~lit~e~ a h~ghway hazall.d, and the
~u~tomell.~ u~e ne~ghboll.~ dll.~veway~. Mot~on by KUll.o~aka to appll.ove
Vall.~an~e #557 a~ ~t i~ a home o~~upat~on a~~oll.d~ng to the Zon~ng
Oll.d~nan~e, Se~t~on~ 3.234 & 6.803. Se~onded by T. TUll.nell..
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Vote: Reed-ye~, Ku~o~aka-ye~, Tu~ne~-ye~, SÆea~d-ye~, RÆeha~d~on-no,
F~aneo-no, Co~nwell-no. ApplÆeatÆon denÆed 4-3 a~ a majo~Æty plu~
one ~equÆ~ed to ove~ ~ule County PlannÆng Boa~d.
RESOLVEV: Va~anee #551 VenÆed.
Va~Æanee #558 - John R. Voty, J~. - to plaee buÆldÆng~ wÆth le~~ than
the ~equÆ~ed ~Æde ~etbaek~ on the p~ope~ty ~Ætuated at 684 Uppe~ Glen
St~eet.
John Voty wa~ p~e~ent, No objeetÆon~. MotÆon by SÆea~d. Seeonded
by RÆeha~d~on.
RESOLVEV: Va~Æanee #558 G~anted.
Va~anee #559 - Wol6~am SehÆlle - to plaee an addÆtÆon le~~ than the
~equÆ~ed ~Æde ~etbaek~ on the p~oe~ty ~Ætuated at Cleve~dale Road.
Jaek Slopey objeeted to the va~Æanee beeau~e 06 buÆldÆng e~owdÆng
by po~eh addÆtÆon. M~. Robe~t MeMÆllen, Atto~ney, objeeted 60~
M~. and M~~. Mu~~ay, a~ lot wa~ ove~ buÆlt and no ha~d~hÆp wa~ ~hown
by eonve~tÆng to yea~ ~ound ~e~Ædenee. MotÆon'by Ku~o~aka to app~ove
a~ Æt meet~ Queen~bu~y ZonÆng O~dÆnanee SeetÆon 5.302-C. Seeonded
by Reed. Vote: 5ye~, 2 no. Ca~~Æed.
RESOLVEV: Va~Æanee #559 G~anted.
Va~Æanee #560 - F~ank NÆeote~a- to plaee a doek wÆth le~~ than the
~equÆ~ed ~etbaek on the p~ope~ty ~Ætuated 066 PÆlot Knob Road on
Lake Geo~ge.
F~ank NÆeote~a S F~ank VeCamÆlla appea4ed. Town Atto~ney B~ennan'~
leg4l .0pÆnÆon ~ead Ænto ~eeo~d. (See Atto~ney'~ lette~ 2/13/18 Attaehed)
M~. GU~b4 objeeted to va~Æanee beÆng app~oved ~ no ha~d~hÆp W4~ ~hown.
Alge~ Ma~on ~old ~ubjeet p~ope~ty to F. NÆeote~a. Jaek AtkÆn~,
Atto~ney, ~ead deed R.O.Wi; Robe~t He~~Æek, one 06 R.O.W. u~e~~,
objeeted to va~Æanee beÆng g~anted. MotÆon by RÆeha~d~on to dÆ~app~ove
va~Æ4nee. Seeonded by Ku~o~aka.
RESOLVEV: Va~Æanee #560 VenÆed.
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Spe~ial Pe~mit #13 - Tunn-Kote Vinol - to ope~ate an automotive
~e~vi~e ~hop on the p~ope~tif ~ituated at Aviation Road.
M~. Ma~tinez appea~ed. Motion by Tu~ne~ to app~ove. Se~onded
bif Si~a~d. Ca~~ied 1-0.
RESOLVEV: Spe~ial Pe~mit #13 G~anted.
Spe~ial Pe~mit #14 - Faith B¡ble Chu~~h - to pla~e a ~emete~if ¡n an
R-3 Zone on the p~ope~tif ~¡tuated onn Viv¡~¡on St~eet.
Rev. Sto~m~ appea~ed. Ku~o~aka ab~ta¡ned n~om pa~t¡~ipating on
th¡4 4pe~¡al pe~m¡t. Tu~ke~ ment¡oned that the Inte~national Pape~
Company had nlood ~¡ght~ to the p~ope~ty and a ~~eek on p~ope~tif.
Mot¡on bif S¡~a~d, 4e~onded by Tu~ne~ to app~ove w¡th ~t¡pulat¡on
that ~emete~if not ex~eed 10 a~~e4 and ¡~ ¡n ~on~u~~en~e w¡th both
Plann¡ng Boa~d~. Ca~~¡ed 1-0.
RESOLVEV: Spe~¡al Pe~m¡t #14 G~anted.
Va~¡an~e #562 - G~a~e Vunn - to ~onve~t a ga~age to ~e~¡den~e w¡th
le44 than the ~equ¡~ed l¡v¡ng a~ea ¡n an R-4 Zone on the p~ope~tif
4¡tuated at Glen Lake Road.
G~a~e Vunn and Vave Bou~he~ appea~ed. Vav¡d Spe~~if obje~ted to
the va~¡an~e be~au~e On ove~~~owd¡ng, a~ the~e a~e two nam¡l¡e4 ¡n
a ~~all hOa6e. Joe Reagan obje~ted be~au4e on the den4¡tif and
~onve~t¡ng ga~age into ¡n~ome p~ope~tif. Bettif O~m4bif obje~ted
be~au~e 06 ove~~~owd¡ng. H. Welle~ obje~ted be~au~e On ove~~~owd¡ng
p~ope~tif. Robe~t Potte~ obje~ted be~au4e tenant~ we~e di40~de~lif.
Mot¡on bif F~an~o to d¡~app~ove va~¡an~e a4 ha~d~h¡p not ind¡~ated and
w¡ll v¡olate the intent 06 the Zon¡ng O~d¡nan~e. Se~onded by
R¡~ha~d~on. Si~a~d ab4tained 6~om vot¡ng. 5 ife~, 1 no, 1 ab~ta¡ned.
RESOLVEV: Va~¡an~e #562 Venied.
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Va~~an~e #563 - M~~hael Jone~ - to pla~e an ove~~~zed ~~gn le~~
than the ~equ~~ed ~etba~k on the p~ope~ty ~~tuated at 104 Uppe~
Glen St~eet.
M~~hael Jone~ appea~ed. P~~~e ~~gn~ on boat~ and a~t~~le~
pla~ed outdoo~~ d~~c.u~~ed. A ~ea~onable 5" x 12" mo~e o~ le~~
~~gn on boat~ wa~ ~on~~de~ed not too ña~ out 06 l~ne. Mot~on
by S~~a~d to app~ove Va~~an~e #563 ~n ~on~u~~en~e w~th Plann~ng
Boa~d. The ~~gn mu~t ~on60~m by the 1986 S~gn Mo~ato~~um.
Se~onded by Ku~o~aka and ~a~~~ed unan~mou~ly.
RESOLVEV: Va~~an~e #563 G~anted.
Va4ian~e #565 - Logge~ ~ Equ~pment Sale~ In~. - to u~e va~ant lot
~n an R-4 Zone ño~ pa~k~ng, ~tø~age and exh~b~t~ng logg~ng equ~pment
on the p~ope~ty ~~tuated on the ea~t ~~de 06 Lawton Road.
Atto~ney La~~y Palt~ow~tz and M~. Bu~k~ngham appea~ed. M~.
Shovah had no obje~t~on~. M~. Bodenwe~~e~ had no obje~Uon. GealLge
Kouba obje~ted to the va~~an~e be~au~e no ha~d~h~p wa~ ~hown. The
no~~e would d~~tu~b h~~ tenant~ ~n the t~a~le~ pa~k. The va4~an~e
would ~hange the ~ha~a~te~ 06 the ne~ghbo~hood. Mot~on by Ku~o£aka
that Va4ianc.e #565 be denied a~ no ha~d~h~p ~hown. Se~onded by
R~~ha~d~ on.
RESOLVEV: Va~ian~e #565 Venied unanimou~ly.
Lette~ by Ma~y Bodenwei~e~ atta~hed.
Meeting adjou~ned at 1 A. M.
a.,.
Jown 0/ Queenjbup';j
QUEENSBURY TOWN OFFICE BUILDING
,;.,' TOWN COUNSEL
BAY AND HAVILAND ROADS. R. D. i;
GLENS FALLS, NEW YORK. 12801
TELEPHONE: (~18) 792.~832
POLICE DEPT. 793.2555
HIGHWAY DEPT. 793.7771
Februa~! 13, 1978
Mr. Harold E. Boynton
Assistant Building Inspector
Building and Zoning Dept.
Town of Queensbury
Town Office Bldg.
Bay & Haviland Roads
Glens Falls, NY 12801
TO./I' OF QUEENSBUR·(
IR1 ruU: na: IDJ
FEB 14 1978
AM P.M.
7' ~ 1~\\~1~J.?) H ~I ~) ~,~ ,~,
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Re: Dock on premises of Frank Nicotera at Warner Bay
Dear Red:
This is to provide m~ written opinion with respect to
your inquiry by letter dated December 29, 1977 concerning
the construction of a dock by Frank Nicotera at Warner Bay.
I note that you have provided to me photographs of the dock
constructed immediately adjacent to a boathouse of Mr. Gurba
and, according to your description, the dock was constructed
immediately adjacent to the proper~y line boundary. I further
note that you have provided to me a photocopy of the order
to remedy the violation which you directed to Frank and Anita
Nicotera on December 2, 1977. In that orde~ you recited two
apparent violations of the Queensbury Zoning Ordinance. The
alleged violations are that Mr. & Mrs. Nicotera apparently
constructed the dock without receiving a pennit :fx.em--y9ur of-
fice and secondly that the dock was in vioJat 1(YQ Qt:tbe ZO:Qinq
Ordinance because it has been constructed at a location closer
than five feet to the side lot line. You have apparently based
yourcqpclusion that constructing the docK-within five ~eet of
the side lot line violates the Queensbury Zoning Ordinance on
an opinion rendered by J. David Little, Esq., on October 7,
1975. I also conclude from the order that Mr. Little based
his opinion of a violation on Section 5.400 of the Queensbury
Zoning Ordinance.
I have reviewed the copies of the various oplnlons which
Mr. Little rendered conc~rning zoning matters in the Town of
Queensbury during his tenure as Town Counsel which opinions
were provided to me by Mr. Liapes some time ago and I am unable
to locate any such opinion being included therein. I would,
therefore, appreciate it if at your earliest convenience you
would provide me with a copy of Mr. Little's opinion in that
SETTLED 1763 . . . HOME OF NATURAL BEAUTY. . , A GOOD PLACE TO LIVE
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Mr. Harold E. Boynton
February 13, 1978
Page 2
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regard in order that I may be cognizant of the basis upon
which that opinion was rendered. I do not, however, intend
to wait until receiving that opinion before providing you
with my own. I will, therefore, set forth my opinion he10w
and, if upon receipt of a copy of Mr. Little's opinion of
October 7, 1975, my conclu8ions are altered in any respect,
I will inform you immediately.
With respect to the necessity for a building permit,
it would appear to me to be clear after reviewing the approp-
riate ordinance of the Town of Queensburv, that Mr. & Mrs.
Nicotera were re uired , . emit. I
w lnvlte your ättenti~n to Ordinance No. IV of the Town
of Queensbury. Section 3 of that Ordinance requires that an
individual procures a building permit when he "shall intend
to construct a building or structure on any land in the Town
of Queensbury...". As the boundary lin~s of the Town of
Queensbury extend in thqt area intoiake George itself, the
land upon which Mr. & Mrs. Nicotera intended to build a dock
is clearly located within the geographical boundaries of the
Town of Queensbury, irrespective of the owner£hip of the lake-
bed. I do not therefore feel that it is necessary to obtain
the deed reflecting ownership of this land lìy Mr. & Mrs. Nico-
tera in order to determine whether they may have acquired some
rights to the lakebed itself. That is simply because, in my
opinion, it is irrelevant as to the ownership of the land
underneath the lake, insofar as this problem is concerned,
lies in Mr. & Mrs. Nicotera or in the State 'of New York. Under
the provisions of Ordinance No. IV, a dock, by definition, is
included within the purview of the words "building" o'r "struc-
ture". That is so because of the definitions set forth in
Section 2 of the Ordinance. Therefore, it would appear to be
without question tÞat Mr. & Mrs. Nicotera are in v~olatinn n¥
Ordinance No. TV if no h 'ldin erlnit was issued for
~onstruction 0 the ~ock. Althoug ent of Environ-
mental Conservation requires the issuance of permits for the
construction of docks in certain circumstances, the State of
ti,ew York has not usur'p~ò 'H1Pr'l11+-'h0;ritv oLlocal ~un;i.cipalities
to re uire permits also. Therefore Ordinance No. IV the
own of uee sb is a licanle to this situation and a
bUl ding permit fact necessary for the construc lon of
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6.l
F~~"";,i~.'~~._'/'<1~
Mr. Harold E. Boynton
February 13, 1978
Page 3
I will next consider the issue as to whether it is a
violation of the Queensbury ZoningiJrdinance in placing the
dock within five feet of the side property 1ine~ I would
~_. agree with the apparent opinion rendered by Hr. Little that
.. 0- "Section 5.400 which is entitled "~ccessory Structures" is
, ., applicable to this situation. Thatq:5ort1.on of the Ordinance,
in Section 5.401(a) (1) states that no accessory structure.
which is not attached tò-a-principal structure, may be lo-
cated closer than f~eet to the side lot lines. There-
, rare 1.t must be determlned as 'Co whetheL d. dock 1.S in fact
an "accessory structure" within the purview of the Queens-
bury Zoning Ordinance. Section 3.201 defines an "Accessory
Use or Structure" as "a use or structure subordinate to the
principal use of a buildinq"·on the same lot and serving a '
purpose customarily incidental to the use of the principal
o building." The Ordinance then defines, in Section 3.259,
a "structure" as "anything constructed which requires a
permanent location on the ground, or an attª,chment thereto."
Since it would appear that the dock is attached to the
ground under the lake, which land is 10~ated within the
Town of Queensbury, this dock, in my opinion, would consti-
tute a "structure" within the definition set forth in Sec-
tion 3.259 and, therefore, it would fall within the defini-
tion of an "accessory use or structure" within the definition
set forth in 3.201 of the Zoning Ordinance.
~
Based on the foregoing, Section 5.401(a) (1) would clearly
appear to be applicable to this dock situation, since the dock
would be an unattached accessory structure, and the dock could
not be loca~ed within five feet of the side 10t'line.
Although Section 4.202 of the Ordinance would not appear
to be applicable to this situation since that section is cap-
tioned "Regulations Governing Certain Special Exception Uses"
and since no special use permit would be necessary for the
construction of the Nicotera dock within' the R-l zone, I think
it is relevant in ascertaining the intent of the ordinance to
consider the content of Section 4.202(b) which is applicable
to boat yards, boat building facilities, marinas and docks.
Although it can he argued that the docks intended to be covered
by this provision of the 0rdinance are commercial installations,
it is likewise relevant that 4.202(b) (2) states that no struc-
ture can be located nearer to any side lot line than five feet:
As stated above, this would ~ot be applicable to this situation
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Mr. Harold E. Boynton
February 13, 1978
Page 4
..;c_~'
other than to attempt to comprehend the intent of the ordi-
nance provision set forth in Section 5.401.
, Fram the foregoing, I must conclude that in fact the
construction of the dock by ~r. & Mrs. Nicotera within five
feet of the side property line does in fact constitute a
viiation of the Queensbury Zoning Ordinance.
An additional consideration, however, is ~hether the
Town is desirous of taking any direct action in order to
eliminate the apparent violations. That determination must
be made by the Town Board and I am therefore designating·a
copy of this opinion lett~r to Supervisor Michel R. Brandt
in order that Mr. Brandt may bring this matter to the atten-
tion of the Town Board. The law basically states that a
municipality may not be compelled to enfo~ce a Zoning Ordi-
nance. Therefore, the Town is under no absolute affirmative
obligation to take action with respec~ to this matter. A
decision whether or not appropriate legal action should be
commenced lies within the sound discretion of the Town Board
unless there has been a delegation of such disqretionary
decision-making authority to your office. To the best of
my knowledge, no such delegation of authority has been made
and therefore the decision is properly for the Town Board.
In that regard, I would suppose that a relevant consideration
"is that, according to the information which you have provided
to me, Mr. Gurba, the complainant, has alleged that he, along
with othe~s, has a right-of-way across the property in front
of ~hich Mr. & Mrs. Nicotera have constructed their dock.
Therefore, if in fact such is the case, it ~^70uld appear that
Mr. Gurba and others who have or might have a right-of-way
across those premises, would he in a osition to take direct
legal action to elimina e e situation in question Wlt out,
or necessit an intervention by the Town of yueensburv or
WJ. out formal action by the Town 0 ue s ur. In 11 e
as lon, Mr. Gur a wou appear 0 be in a situation where
he could personally take.direct action to enforce the Queens-
bury Zoning Ordinance along with Ordinance No. IV, if the
decision of the Town Board were not to take direct action by
the Town against the '3.pparent violations.
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. Harold E. Boynton
February 13, 1978
p ag e 5
In submitting the above, I do not intend in any respect
that it is my opinion that the Town of Queensbury should take
no action. Neither am I intending to represent that the Town
of Queensbury should take legi'll ae-tion to eliminate these
apparent violations. That is not my function as Town Counsel
and for me to do so would he, in my opinion, an intended
" usurpation of the powers, duties and responsibilities of the
Town Board. I am merely pointing out the foregoing in order
that the Town Board Mav he fully apprised of all circumstances
surrounding this situation in making its determination.
If there are any questions concerning any aspect of this
matter, please do not hesitate to contact me.
\:.;...
Very truly yours,
}
/f'L'C/
;~6SEPH R. BRENNAN
Town Counsel
JRB/dm
cc: Michel R. Brandt
Town Supervisor
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in Real Alpine Atmosþhere -,-- Open Year 'Round Commercial Rates
-Alpenkaud, Motel Inc.
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Recommended
Route 9, 24 lake George Road, 2 miles North of Glens Falls
Phone 518 792-6941
GLENS FALLS, N. Y. 1280 I
Hay 26, 1978
Mr. George Liapes
Building Department
Town of Queensbury
Glens Falls, N. Y. 12801
Dear Mr. Liapes:
TOW N OF QUEENS8URY
[ffi ~ ~:y ~2 ;~1~781E lID
A M p.M.
il~I~\l.<) l~llfl} I ~I ~ I~I ~I~J
· À
'.
I regret that I was not at home when you stopped by following
my call to your office.
In regards to the Story town sign on Route 9 just south of my
property, I should like to file a complaint that the sign has
been extended (by the addition of a projecting ladder) since the
sign ordinance went into effect. Reference: Sign Ordinance,
General, page 12.
I also believe that this sign is now over 25' in height in
violation of General Regulations, Paragraph 17 c, page 11.
Further, under General Regulations, parag~aph 3, page 9, I
hereby file a complaint that it is an annóyance. My property
faces the back of the sign, and the appearance is that the sign
is still under construction and that workmen have left a ladder
against it.
In regard to the Skyline sign, also on Route 9 south of my
property, I am filing a complaint that only the lettering has
been removed and the sign not taken down as per the Ordinance
under Penalties, Paragraph 4, page 18.
I would appreèiate your looking into the above matters immediately
and advising me.
Very truly yours,
\
/)(0'/1 K. d,'¿¡'~'L~
MaryR. Bodenweiser
cc: Zoning Board
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