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1987-02-05 SP ;?&;{ A QUEENSBURY ZONING BOARD OF APPEALS '-- Special Meeting Held: Thursday, February 5, 1987 at 7:30 p.m. Present: Theodore Turner, Chairman Charles O. Sicard Jeffrey L. Kelley Gustave Behr Susan Goetz, Secretary Daniel S. Griffin Michael Muller R. Case Prime, Counsel Stuart F. Mesinger, Senior Town Planner Mack A. Dean, Zoning and Building Codes Administrator Susan E. Davidsen, staff/stenographer Planning and Zoning Dept. The special meeting was called to order by Chairman Turner at 7:30 p.m., to rehear Use Variance No. 1050, John DeMarco and Notice of Appeal No. 7 Stop Work Order. REHEARING: Use Variance No. 1050 I Notice of Appeal No.7 Stop Work Order John DeMarco Mrs. Goetz read the application: John DeMarco, Star Route, Glens Falls. Owner of the property: Lena Hall. Mrs. Goetz noted that the application is marked as an area variance and should instead be an application for a use variance. Mrs. Goetz continued to read the application - the zoning is Lakeshore Residential 1 Acre. The recent use of property: Parking for dockage and one time restaurant and existing cottage. Proposed use: Residential - I wish to take down the existing twenty year structure of some 300 square feet and build a 1,200 square foot home. The location is on Rockhurst Road, 200 feet north of Seeley Road. Is there an adverse effect on neighborhood character? Mrs. Goetz commented to Mr. Mesinger that the questions being read were pertaining to an area variance. Mr. Mesinger said it's an application for a use variance and that it is old ground anyway. Mrs. Goetz continued to read the application. Is there an adverse effect on neighborhood character? It is residential area. The existing lot is larger than most in neighborhood. Is there an adverse effect on public facilities? No. Are there any feasible alternatives? No. Is the degree of change substantial relative to ordinance? Yes, current zoning calls for 1 acre per building, however, existing building has been up for over 20 years. The proposed change is to a house that has been '-- 1 ~&;) 6 '- standing on the property for 20 years. The front of the property is the shoreline at Warner Bay. The rear of the property is Town of Queensbury land. The north end is the continuation of the property for some 300 feet. The south end is 50 feet from the outer edge of a 16 foot Right of Way to Town of Queensbury property. Attorney John Richards introduced himself and stated he was here this evening on behalf of John DeMarco. He stated that he wished to take a more logical view of the procedural situation and a practical approach to the financial dilemma that the Town has placed Mr. DeMarco in. Mr. Richards said emphatically that he didn't believe there was any reason why he should be here at all this evening. Mr. Richards proceeded to discuss his belief that the application is not for a use variance and he didn't believe that the resolution from the last meeting stated it was supposed to be rehearing on a use variance. He understood the resolution to be instead a rehearing on the Notice of Appeal that Mr. DeMarco has for the stop work order. -t/' Mr. Richards briefly reviewed the situation regarding the stop work order. , He stated that the stop work order issued was a nullity and was illegally issued. He also noted that the interpretation made by the Board in May of 1986 specifically directed the Zoning Inspector that no variance application was necessary and that the previous variance application was correct and the stop work order issued in December specifically countermanded the direction of the Board and was not based on a post permit violation. Based on this Mr. Richards didn't believe the stop work order should have been issued. Mr. Richards stated he had searched through various memorandums and files, including the letter that justified the stop work order, dated January 21, 1987. Mr. Richards said that there was nothing in any of the letters that said the variance application should be made. He repeated again that there should be no reason for him to be here this evening and that if anything, it seemed like these issues should go before the Planning Board. Mr. Richards asked the Board to explain exactly what the purpose of this meeting is for this evening and if it is anything beyond a reconsideration of the notice of appeal. Mr. Turner answered yes and stated that it is a rehearing on the original application. Mr. Richards questioned Mr. Turners answer and stated that he didn't believe that was what was said in the resolution. He said the Board did not say it's a review or request on anything other than the notice of appeal on the stop work order. There was much discussion between Mr. Behr and Mr. Richards concerning the issues in reference to the last meeting. Mr. Richards stated that at January's meeting, it was an interpretation, not a rehearing made at the request of the Zoning Inspector and not by the applicant - an interpretation of the Zoning Ordinance that would determine that no variance application should have ever been made. 2 ;)&~t Again, Mr. Richards pointed out that the resolution stated that factual issues are whether or not there was an appropriate stop work order issued and proper procedure followed. He said that the Board proposes to have a rehearing and have fact finding on the issues and that the resolution doesn't mention anything about a use variance. And in the first sentence of the resolution it states what these issues were. Mr. Richards stated if he had understood this meeting to be a formal rehearing for use variance he would have objected vehemently at the time and given a number of reasons why it's not applicable. Mrs. Goetz read the resolution from January 21, 1987's meeting. She read as follows: Voted to rehear this Notice of Appeal No.7. The factual issues before the Board are whether proper procedure was followed. The Board should allow all parties to be heard. The Board has made a previous error which cost Mr. DeMarco time and money. The Board proposes to have a rehearing to have fact finding on the issue. The notice of the rehearing will be published and the Board will have a rehearing as soon as possible. This special meeting will be scheduled within the minimum time period required by law. Section 13.020 under Enforcement of the Zoning Ordinance is used as a basis for having the meeting. Mr. Richards stated that if the Board had determined that this was to be a hearing on a use variance, the Board has already skipped over at least 4 major issues, without giving us a chance to be heard. Mr. Muller said that when he made the motion he was persuaded by Mr. Stewarts point that you need to publish notice to have a hearing on the motion that rescinded the necessity for a variance. And the basis of my motion was in response to Mr. Stewart's proposition; that you need a rehearing to bring back the public because they should be on notice as they were when Mr. DeMarco first presented his application and was also persuaded by what Mr. Mesinger said because on that evening the Board had a rehearing that came back on the bonsai shop application. Mr. Muller stated that he could never distinguish on this one whether this was a use variance or an area variance. And what he had in mind was to have everyone come back here to be heard. Mr. Mesinger said that if it was determined by the Board that no variance is necessary, the only problem was that they didn't do proper notification and that was the whole point of having proper notification here so that could be done legally and correctly so that they could get onto the next step. Mr. Muller stated that he recalled saying that we'll have a full hearing on the issues. Mr. Richards said that he didn't think it was the intent he had when he walked in here that there would be a reapplication or rehearing for a use variance. Mr. Mesinger said that was the point of Mr. Richards being here tonight so that he could make that argument to the Board and the Board, if persuaded by that, would then say that you are right, we shouldn't be here, or you're wrong. If you are right then on we go, it has been properly notified and the public has had its say and we're onto the next step; and if you're wrong then the Board also makes that decision and in either case the public was put properly on notice that new facts "~ 3 ~&~D have come before the Board in order to annul or uphold the use variance decision. Mr. Richards stated that by the Board doing that, they are prejudging. Mr. Mesinger stated that was not so. Mr. Richards and Mr. Mesinger continued to discuss at length the purpose that they are here this evening. Mr. Richards noted that there was nothing,in t¥: Jan~,ary 1986 variance denial that mentioned it was a use variance. ;' '; l ¡" }' ; Mrs. Goetz asked how it was determined to be a use variance. /(Alf (:'1//' Mr. Mesinger stated that it is a use variance and that the reason why it was advertised as a rehearing is the Board took an action annulling the previous action and didn't notify the public. To rehear an issue you have to notify the public and that has been done now. Mr. Mesinger also stated that if the Boards action in May 1986 is the same action it wants to take now, it can do that; it has now gone through the proper notification procedures and can now go onto the next steps which would be deciding is this a valid stop work order and what comes next. Mr. Prime said we are here for the Board to hear the merits on the circumstances. As they are willing to listen to what you have to say as to your right to maintain the building there and we want to hear the publiC; we are here to hear both sides and not argue procedure. Mr. Richards said that his position regarding the merits was that the procedure was totally incorrect in issuing the stop work order and that if we have to go to any discussion beyond that then we shouldn't be hearing any variance application at all. He believed the Board was getting him into a category of being here on behalf of a use variance. He again stated that no documents ever said at any time that this was necessary. Mr. Richards wished to address to the Board why he thought a stop work order was incorrect and why no application has ever been necessary. Mr. Muller read the resolution from January 21, 1987's meeting. He mentioned that it may be possible that the applicant read the resolution in a limited sense of; is this a good stop work order or were the appropriate procedures followed in issuing the stop work order. Mr. Richards agreed that was exactly how they interpreted it. Mr. Muller said that he believed the sense of his motion is not so limited as to the first sentence of the resolution. He again reread the resolution. Mr. Muller stated that he thought the issues were that Mr. DeMarco had a preexisting building there that was or was not used as a residence: it was or was not the principal building on that particular piece of property. He said that the building Mrs. Hall lives in used to be a restaurant and now because it is not used as a restaurant it is deemed a dwelling: it is or isn't the principal dwelling on the property. There were also issues of preexisting nonconforming use. Mr. Muller stated that is what he thought the issues were. He stated that he understood Mr. Richards position but believed the issues he was proposing were more expansive. '- 4 J&~ E - Mr. Richards responded by saying that he was ready to discuss the merits as he saw them. He believed all the documents including the application leave him in a position, which he feels strongly about, that the whole matter should not be before the Board. He continued to say that he has stated why he thought a stop work order should have never been issued and why it was in fact a nullity and that he further has stated that the interpretation made by the Board in May of 1986 is vali.d and binding as an interp~etat~n of the,yrd,.41ance in determination that no varlance was ever needed. 'l} tJ.7f (q Z () j , ~ , I Mr. Richards wanted to discuss one of the issues that came up at the main meeting which was the question of whether they were dealing with nonconforming usage. He stated that the 2 principal buildings on the property preexisted this ordinance and that he was talking about a preexisting nonconforming use. Work would be done on the new dwelling and would constitute an area variance not a use variance. He stated that the situation was that there were 2 preexisting dwellings on the property and the former restaurant known as Casa Bianca has been occupied by Mrs. Hall, mother of the applicant, ~ at least the late ~40's and continuously to date. ,<2.-vrl'Cf ~)C(" r'rtÆ-/.../ VfXÂA:;[': Mr. Richards gave a brief history of the cottage because he felt there was some confusion about it. He stated that the cottage predated the Casa Bianca building. It was the first structure built on this 1.1 acre parcel of property. It was built there and lived in by the Hall family until the restaurant was built. The exact date on the cottage he was a little uncertain of but said somewhere around the year 1947 1948. He said the Casa Bianca Restaurant was believed to have been built in 1950. The cottage had been moved 4 times since the late 1940's. When the Casa Bianca Restaurant was built it was moved slightly south. It was occupied seasonally by members of the Hall family and rented out throughout the 1950's and '60's and into the '70's. The cottage was last moved in the late '60's. .' ,.{ .,v:'W"( - , (, Mr. Richards said that throughout that time the property had been assessed as having 2 cabins on it; as having 2 buildings on it. Mrs. Hall has paid taxes on the two buildings on the property and it has always had kitchen and plumbing facilities, electricity, all things necessary to make it inhabitable. In the 1970's the cabin was secured because there were a number of acts of vandalism. Throughout the 70's and in the early '80's Mr. DeMarco lived on the west coast of the United States and intended to return here and make this his residence. Mr. Richards said there was some family illnesses in the early '80's that prevented him from doing that; it is now that he has returned. Mr. Richards said that Mr. DeMarco had originally intended to renovate the cabin itself and live in that. It was only then when he discussed this matter with Mack Dean that he realized that to do what he wanted and to work within the setback limits would require something more than just a rehabilitation of the cottage. And it was at this time he came in originally and, Mr. Richards said, erroneously, for an application for a variance when he had 2 preexisting buildings. Mr. Richards said that the only alternatives the Zoning Ordinance gives us is to allow this property to be rebuilt within the setback lines subject to approval of site plan review by the Planning Board. He said that was the only position they would take if the Zoning Board considered the stop work order was valid in being issued in the first place. '-- 5 ;;4& ~ F '- Mr. Muller asked Mr. DeMarco if he would rely upon the proposition that the cabin is being rebuilt to its proper setbacks. Mr. Richards said he would be following Section 9.011 in the ordinance which states that a single family dwelling or mobile home may be enlarged or rebuilt to within the setback provisions of this ordinance, subject to site plan approval of the Planning Board. Mr. Richards asked the Board if they were saying it is not a preexisting nonconforming use. Mrs. Goetz stated that is was not clear in her mind what he had just said. She believed that when all this began he was going to renovate the cottage - enlarge it. Mr. Richards said that was the original intent. Mrs. Goetz said that somehow that had changed; you weren't renovating the cottage anymore, you were adding a 3rd dwelling. Mr. Richards said it was never intended to have 3 principal buildings on the lot. Mrs. Goetz believed that this was what had happened. Mack Dean said John DeMarco had every intention in removing the cottage from the property. Mr. Dean said that at the time of the issuance of the stop work order he had personally advised Mr. DeMarco not to move it or remove it from the property. Mr. Dean based his advice on the possibility some type of court procedure may carry on for some great length of time and that people have a tendency to forget where things used to be or what used to be there. Mr. Dean felt that it was in the best interest of all parties that everything remain as is at the moment he issued the stop work order. Mrs. Goetz said that it seemed to her that if it was a 3rd dwelling and not a continuation or enlargement, then a variance was required. Mr. Dean stated that it was not a 3rd dwelling. Mr. Dean said that Mr. DeMarco had come to him originally with the intent of renovating the cottage. Mrs. Goetz then stated that the situation had changed. Mr. Dean stated that Mr. DeMarco wanted to add onto the cottage. Mr. Dean told him he couldn't meet setbacks to do that; it would require a variance. Mr. Dean said that Mr. DeMarco thought about moving the cottage a little bit, putting an addition onto it and thereby meet the setbacks. Mr. Dean stated that Mr. DeMarco felt that if he went through all that expense then perhaps he should entertain the idea of building a new house in place of what he would have if he rebuilt the cottage with the additions at the proper setbacks. Mr. Dean stated that this was how he ended up with 3 buildings on the property at this point and time. Mrs. Goetz asked Mr. Mesinger about the situation of a 3rd dwelling in regards to a site plan review. Mr. Mesinger believed that the contention is that Mr. DeMarco is rebuilding an existing cottage and that the original cottage would come down - so there is 2 now, there would be 2 afterwards. But the rebuilding requires a site plan review. Mr. Behr said that the building has to come down before the Certificate of ''-"-" 6 ~&;'~ (;, Occupancy is issued. Mr. Muller stated that Mr. DeMarco had previously appeared before the Board seeking a variance for some purpose. That variance was denied. Then came a time when the Board was advised that Mr. DeMarco didn't even need to be before the Board in the first place. Because of that it was decided to rescind the denial and allow Mr. DeMarco to go on his way, go build what he wanted to build. Mr. Muller asked whether there was a change in plans or a change in the Boards understanding of the facts. Mr. Dean said that perhaps the change in thinking was on his part. The original confusion arose in his position that Mr. DeMarco already had one principal use of the property. However, on reflection, what Mr. DeMarco proposes to do is a permitted use in a residential zone. The restaurant itself is a nonconforming use. Mr. Dean related back to a previous application before the Zoning Board (Katskill Bay Post Office property) where they had several dwelling units, one being a 2% story house and one being a cottage where we took the same attitude that they were preexisting, they were dwellings and even though they had not been used in some 10 years or more, that they were still entitled to that use. It was at that point where Mr. Dean stated he had requested that the Board annul the variance based on that position; that it was a preexisting use and he was entitled to continue that use. Mr. Muller said that was fine but there had come a time when Mr. Dean changed his mind on that one. Mr. Dean asked if he was speaking in terms of the stop work order. Mr. Muller replied, yes. Mr. Muller asked Mr. Dean if that was based on change of facts? Mr. Dean said it was not necessarily a change in facts but a very difficult situation that he felt only the Board should deal with. That is, did Mr. DeMarco have preexisting rights allowing the cottage to be rebuilt? Until that was clarified, Mr. Dean felt it was the proper thing to issue a stop work order. Mr. Muller said that this Board has never heard that issue. Mr. Dean said that he believed that is why we are here tonight. The stop work order was issued December 12th. Mr. Muller asked Mr. Dean what his concern was as a building inspector in regards to why the Board should be sitting here this evening. Mr. Dean replied that his concern is there is some question as to the preexisting rights of the applicant for the cottage. Mrs. Goetz asked if he meant whether or not it had been used for 18 months. Mr. Dean said no. Mrs. Goetz said she didn't get what his concern was. Mr. Dean said it is whether or not the cottage actually constituted a preexisting use with rights to be rebuilt. He felt the Board should make that decision as to whether or not the cottage is a preexisting use with rights to be rebuilt. Mr. Muller asked Mr. Dean if the cottage is the principal dwelling on that lot, then is he free to expand it within the setback limits without a variance but with a site plan review? Mr. Dean said that is correct. Mr. Muller asked if this was true whether or not the cottage was used? Mr. Dean said that was correct. ~ 7 d&)µ Mr. Muller said that Mrs. Hall lives in what used to be a restaurant and by not using it as a restaurant it became a dwelling. Mr. Dean agreed. Mr. Muller said the structure that Mrs. Hall lives in is the principal dwelling. Mr. Dean said that was one of the reasons that he thought led to some of the deep rooted questions of the preexisting rights and use of the cottage. Mr. Muller said as the building inspector you're not making these decisions but instead are shooting them back to the Board and letting the Board decide. Mr. Dean agreed. Mr. Muller said that if we as the Board made a finding that what Mrs. Hall lives in is the principal dwelling, it would in fact be possible for the applicant to have lost his grand fathering status on the cabin if it were not used. Mr. Dean disagreed, saying he had looked into some of the zoning laws in regard to preexisting uses. He said there are a great many types of preexisting uses and structures, some of which the courts have held maintained rights, others did not. Mr. Dean felt that this was a situation that he did not feel comfortable in making that determination. He felt that it really needed to be a decision of the Board as to whether or not the cottage did or did not maintain or retain its rights as a preexisting use on that property. Mr. Dean said that there was no question in his mind in regard to Casa Bianca: it is indeed a dwelling and no longer a restaurant. Mr. Muller said that on the 1.18 parcel is certainly a nonconforming use and there is a marina usage on the parcel as well. He asked Mr. Dean if that was somehow relevant to his decision in issuing the stop work order? Mr. Dean said absolutely not. He said that was one of the confusing issues in the early stages of the whole scenario which originally caused him to recommended a variance application. There are several uses on that property and things were confused in terms of what they were actually applying for - what uses were preexisting and were legal uses. Mr. Behr asked the Chairman to read the variance denial on the original hearing. He realized the code didn't exist when the first cabin was put up. Mr. Dean said it predated any zoning. Mr. Behr said that the cottage was at one time the primary residence. Mr. Dean said that was correct and that up until 1982 it was not a nonconforming use. Mr. Behr agreed and stated it didn't need a variance at that time because the restaurant also predated the ordinance. Mr. Behr asked when the marina started. Mr. Dean said that as a child he had spent many years in the Sandy Bay area and seemed like there was always docks there. Mr. Behr asked if everything was there prior to the ordinance. Mr. Dean said yes. Mr. Dean stated he wasn't sure when the existing current marina was built but had recalled about one or two docks in the Sandy Bay side of Casa Bianca. Mrs. Goetz read the rough copy of the findings of the Board regarding Use Variance No. 1050, dated January 15, 1986. She read: motion by Muller, second by Behr to deny application. Criteria for practical difficulty has been somewhat met because of dimensions of lot. However, variance would be materially detrimental to the purpose of the ordinance. Adding an additional residence to an already existing residence and preexisting marina on a 1.1 acre would be too heavy a use for the property. Mrs. Goetz said everyone voted to deny the application. '-- 8 ~&). 1: -- Mr. Turner asked Attorney John Richards if he had any other questions. Mr. Richards said no but wanted to clarify what the ordinance states. Mr. Richards said the ordinance limits it to one principal building and believed the Board to be saying there are two principal buildings. Mr. Richards stated Mr. DeMarco has been taxed as having two principal buildings. Mr. Richards asked for a determination that it constitutes a preexisting nonconforming use of the property and that no variance application is necessary. Mr. Behr asked if there was a separate tax item on his tax bill for that cottage. Mr. Richards said yes and that he had checked with the assessor this past week. Mr. Turner asked Mr. Richards if there was any thing else before starting the public hearing portion of the meeting. Mr. Richards said he was not trying to dictate the course of the meeting but thought the issue would have to be decided if a variance application was necessary. This is a threshold issue that if a variance is required he wanted to discuss this with his client as to whether you want him to present evidence for a variance. Chairman Turner recessed the meeting for 5 to 10 minutes. The meeting was called back to order by Chairman Turner at 8:40 p.m. Mr. Richards again said he didn't believe we should be here on a variance. Mr. Richards said there was another unresolved question that has come up which is whether this is a use variance. Mr. Richards asked the Board to review that issue and consider this instead as an area variance. Mr. Richards made reference to the way the proceedings first started in January of 1986. He believed that the whole issue is in reference to the Zoning Ordinance Section 4.020 on acreage requirement. It is fundamental law that Anderson in New York Zoning sets forth as have court of appeals cases that say that density guidelines are in fact matters of area variance (not use variance). Mr. Richards said he would like to have the Board to consider that so he would know what his burden of proof is. Mr. Mesinger asked Mr. Richards if his argument to the Board was that no variance at all is required. Mr. Mesinger asked Mr. Richards if that was in fact the new evidence that was being presented to the Board (no variance is required). Mr. Richards said that was correct. Mr. Mesinger stated that the reason for the rehearing of the variance was because Mr. Richards was bringing new evidence before the Board. Mr. Richards agreed. Mr. Mesinger said he understood this to be a use variance. Mr. DeMarco has a 1.1 acre parcel which is in conformity with zoning. The lot meets density requirements and has one use on it which is a restaurant. Mr. Mesinger said if the cabin wasn't there and an applicant wanted to build a second house, he would be directed to seek a use variance to establish a second residential use on the property. Mr. Muller said to be fair to Mr. DeMarco he needs to know the burden of proof. He said the burden of proof for an area variance is that there is practical 9 ~(¡J:'< J difficulty. '- Mr. Mesinger said he understood Mr. Richards argument to be that he didn't need a variance at all. This issue should be decided first. Mr. Richards said the first thing is that the stop work order is a nullity. We shouldn't have to be here to appeal that and somewhere down the line my argument is that no variance was ever required and we shouldn't have to be here for that. Mr. Richards said he understood that he was directed to address the variance question. He believed the threshold question is whether any variance at all is necessary. He would like for that to be determined. Mr. Muller said he had made the original motion to deny Mr. DeMarco a variance. His denial was because Mr. DeMarco had a 1.1 acre parcel which was being overused. Mr. Muller said he believed from Mr. DeMarco's application it was first proposed as an area variance. He showed up as an applicant without an attorney, perhaps relied on his own intuition about what was required or maybe the building department helped him fill it out. But obviously that's what it was, an area variance; it was denied. Mr. Muller said that some months later he had gotten advice that no variance was necessary. Mr. Muller said that right up until this evening, this very moment, he was still convinced that no variance is necessary. Mr. Muller stated he thought there were sufficient facts here so that he can build on that piece of property. But he said when he made that motion to rescind, he still presumed that Mr. DeMarco would still have to abide by whatever else there was in the ordinance by way of requirements to get a building permit. Mr. Muller said that Mr. DeMarco has a single family dwelling cabin on that lot. The proposition was that the cabin was first built on that piece of property and that it predated that restaurant. Mr. Muller said he believed that taxes have been paid on it throughout. Although Mr. DeMarco did not continuously use the cabin, he didn't think he's obliged to because it is a use consistent with the zone. You can't erase it because you're not using it. Mr. Muller pointed out that if he had a house on his property and didn't use it, as long as it's zoned for a dwelling he wouldn't lose it. Mr. Muller said he wasn't going to oblige Mr. DeMarco to keep using it. Mr. Muller said that Mr. DeMarco has a single family dwelling that does not meet setback requirements and he wants to enlarge it, he wants to alter it, he wants to expand it; he actually wants to just demolish it and put in its place, instead, a brand new larger building. And if he wants to do that the Zoning Ordinance has a vehicle or procedure in which the applicant would be required to present to the Town Planning Board its plan by way of a site plan review, saying this is where I'm going to situate it. Mr. Muller stated that it was entirely possible that Mr. DeMarco's application was misunderstood by the zoning inspectors office. Mrs. Goetz said that it seemed that counsel to the town didn't understand the whole situation, based on letters in the file. She thought the Board based its rescinsion on the opinion of counsel. Mr. Muller said that the variance wasn't necessary but that there might still be a requirement preceding getting the building permit. 10 ~&:< K "-- Mr. Muller stated that he still thought this was a public hearing and the public ought to be heard. Mr. Dean asked the Board if they were saying that the public should be party to its decision for rescinding. Mr. Kelley stated at the last meeting Board members decided to rehear it and have a public hearing. He felt that they owed it to the public to have a rehearing. Mr. Kelley had understood that there were some people with objections and felt they should be heard. And if they have a problem, let's find out what the problem is and why and go on. Mr. Kelley stated that he thought that the cottage is a single family dwelling and if it needs to be altered and moved it should have a site plan review before it got a permit. Mr. Muller said that at the time they rescinded the motion, they didn't have all the knowledge they had this evening. He also said that at that time he would have made the same comments and would have rescinded. The public should have been heard on it and that gets us to where we are right now. Mr. Dean agreed. Mr. Richards said that he assumed that the issue is whether these things are nonconforming. If we resolve that issue we don't have to spend any time by anyone on the variance question. Mr. Behr stated that the issue was that at the time they had the meeting when they rescinded the variance the public was not notified and they were not aware that the variance was going to be rescinded. The only purpose of letting them talk is to finish that portion of it; then we will continue on with the hearing. Mr. Behr stated that it doesn't mean there will be a decision made one way or another because of that but it will drag on unless we get those comments over with so that they could proceed. Mr. Behr and Mr. Richards continued to discuss, at length, the reason why the public should be heard. Mr. Muller stated that maybe a variance wasn't needed anyway under any circumstance and we don't have to reach the issues about what is the test here. Although he felt a variance isn't necessary, he felt that Mr. DeMarco has other things to do before he gets a building permit. Mr. Muller stated that the motion he made to rescind was proper. Mr. Turner stated he wanted to proceed with the hearing. Mr. Richards asked, exactly on what issue? Mr. Behr said no issue; just what the public wants to say. Mr. Kelley agreed. 11 ;)&~ L Public Hearing Opened: - Frank Munnoff, Queensbury, said he knew very little about the law, but wanted to share something with everyone. He said he shared this question with his 4th grade, class; 9% year old minds. He asked what would you do if you told you're wife you quit your job and they heard the whole scenario. What would you do if this happened to you and if you were on the Board and had to make this decision; what direction would you go? He said he hoped he wasn't boring anyone with this story because he thought it should shed some light on what has happened here tonight. He said the 25 kids had the same answer and it was not a resolution of the problem. They all asked me the same question. They had to hand write this. "Was the gentlemen in question ever issued an apology?" Mr. Munnoff said he wasn't trying to be Dudley DooWright but felt that was to be in order no matter what the resolution is resolved here tonight. He felt an apology, hand written or verbally is in order for anyone who has gone through the expense and the time and the difficulty through no fault of his own or their own to be put in this position. He said that was all he had to say; thank you. He said he offers the apology. Pat Collins, Queensbury, spoke about the parking situation. He stated he works as a contractor part time and that him and his partner, on his own time, went over to help Mr. DeMarco build a fence to resolve the parking situation. He said the way it used to be was that all the cars would come into the parking lot and park single file. The fence was built with openings on both sides so that cars could drive in either way and make a double line of cars. Mr. Behr asked Mr. Collins how many cars in the area he was referring to. Mr. Collins replied, "twice as many as before." Mr. Behr and Mr. Collins discussed at length how many cars could be parked in the lot. Mr. Collins explained that he just wanted to point out that Mr. DeMarco had done something in order to resolve the parking problem. Fred Alexy, Cleverdale, said he felt that Mr. DeMarco had gone through the proper procedures in getting a building permit and should be permitted to continue to proceed and complete the project. Chairman Turner asked if there was anyone opposed to the application. Bob Stewart represented the property owners living in the immediate area of Mr. DeMarco. He expressed his concern on what and how this has happened. Mr. Stewart stated he wished to try to make some sense of organization to this evening. He said Mr. Richards suggested that he would like to limit the discussion to whether or not the stop work order was justified. Mr. Stewart did not agree the discussion should be limited to just that. Mr. Stewart discussed at length the situation of Mr. DeMarco and how he felt about it. He stated that 3 or 4 months after the variance was denied in January of 1986, Mack Dean, Building Inspector, had written a letter to the Board in which 12 ~&)M he made representations that no variance had been necessary in the first instance. '- Mr. Stewart stated, "Why did Mack Dean spring out of bed one morning, 3 months after an application was disposed of and in a very very busy office and suddenly say I'm going to write a letter to the Board and do this analysis of what the law is, what the facts are, and ask the Board to change their minds." Mr. Stewart said he was not there and it is perfectly fair to assume that Mr. DeMarco was there and Mr. DeMarco got Mr. Dean to write the letter. Mr. Stewart said he thought in his honest judgement that the letter contained sharp misrepresentation of what the facts and the law in this case were. He said that is was a terrible disservice to the Board, who relied upon that letter, to make the subsequent judgement. Mr. Stewart stated that what Mr. DeMarco was really going to do was to repair or enlarge or somehow rebuild an existing cottage on the property. Mr. Stewart continued to discuss at length Mr. DeMarco's dilemma and why he felt the letter Mack Dean had written was a misrepresentation. Mr. Stewart stated the Board had been given two false facts: one that Mr. DeMarco had a valid preexisting use. He said that the building had been abandoned for 25 years. Also, the Board wasn't told that Mr. DeMarco was not going to touch or rebuild the cabin in the first place. Mr. Behr and Mr. Stewart discussed what they thought was the principle residence. Mr. Stewart said the restaurant had become the principle residence. Mr. Muller stated that a marina requires that it have bathroom facilities. He asked Mr. Stewart how Mr. DeMarco's marina continues to operate. Mr. Stewart stated that, to his knowledge, that ENCON, who has one inspector, Michael White, who has the entire Lake George to inspect plus he's in charge of all building permits and 800 other things, couldn't even get out of his office to check. Mr. Muller asked if he didn't think that this was a priority in relation to some other things. Mr. Muller stated that maybe there can't be a marina there and that that would be evidence the Board would want to hear; if the marina doesn't have proper facilities, then it should be shut down. He said if it was shut down it may make a difference in the Boards opinion. Mr. Stewart agreed and said he didn't foresee that coming about. Mr. Stewart discussed the septic system and parking situation. There was inadequate parking. Space for 50 cars should be provided. It was obvious that if a problem already existed it would only be made worse by building a large house on the site. There were no sanitary facilities provided for marina users. Mr. Dean stated that the Town requires that sanitary facilities be provided - any acceptable means meet that requirement whether it be porta-johns, holding tanks or whatever type of system there is. There is no way that a typical absorption system could be put on that property to work as indeed on most other properties on Rockhurst because of the high ground water and poor soils in some areas. Mr. Muller and Mr. Stewart discussed at length the principal use of the property. '- 13 ?&~~ Mr. Muller stated that he was convinced that if it were solely a marina there he - could find a clear shot that that's a principal use. They represent that there is also a restaurant that has been abandoned but is a living area as well, so that is certainly a principal use. What seems to have predated everything is this other cottage that wasn't used for 20 years. Mr. Stewart continued to discuss the principal use and adequate parking facilities. He said that rights to rebuild the cabin had been lost because it was abandoned. The 18 month discontinuance period for nonconforming uses prevented it from being rebuilt. He again emphasized there was inadequate parking. Mr. Stewart suggested Mr. DeMarco take down the old Casa Bianca. He stated that Mr. DeMarco can't have three principal uses on the property. Mr. Stewart stated it would be a tragedy to Mrs. Hall to uproot her at this stage in her life, so he had no objection to the Board conditioning the new house on the old house going down, but the Board should suspend the operation of that rule until she either passes away or leaves the property and can no longer use it herself. Mr. Stewart said he felt this was a reasonable way out for Mr. DeMarco. He would have a brand new valuable house on the property plus a 49 boat marina with a septic system and some parking operating according to rules. Tom Callahan, law enforcement officer of Lake George, spoke about enforcement regarding outhouses and septic systems. He said one simply has to provide sanitary facilities to a person who wants them. You could let them go into your house if you wanted to. Mr. Callahan said he spoke to Mike White when the project got under way and said Mr. DeMarco had all his permits; it was a marina that existed prior to the effective date of the law. It was registered back to 1982 which means you don't have to comply with all these regulations. The only thing you do have to comply with is availability of septic and he could let them come into his house if he wanted to. Jim Farley, resident of Queensbury, stated he had a summer camp on Rockhurst. He said what bothered him was not knowing what was going on; 2 weeks ago was the first official notice he had gotten of the meeting regarding what was happening although he had passed by the residence. He wanted to know, what was the ultimate use of the property would be. Bill Finch; year round resident on Rockhurst Road, wanted to point out another problem created by the house. He discussed his concern about drainage. He said there is a tremendous puddle created halfway across the road. He said he was concerned with the traffic that has to come through there. Mrs. Goetz read letters from Roland Faulkner and Frank Gallagher opposing Mr. DeMarco's project. Joe Roullier, Cleverdale Road, stated he would like to know if a perc test was done on that particular piece of property before any plans were made for the septic system and if so, what were the results of the perc test. Mr. Mesinger said he didn't know but stated that the house was being built 14 ~&~D with holding tanks. He assumed it would not be an issue. - Mr. Roullier said he felt there was another problem. If the little 10 by 20 ft. boarded up house is the principal residence then maybe he would be before the Board with 30 or more applications next year for all his customers that have garages on the Cleverdale Road with principle residences. He expressed his concern on what was the principle residence on the property. Public Hearing Closed. Mr. Richards approached the Board once again and wished the chance to be heard in response to Mr. Stewart's statements. Mr. Behr referred to the Zoning Ordinance page 56, Section 13.021 Stop Work Order. Board members discussed this issue at length and determined the order had been appropriately issued. Mr. Richards said the marina was clearly grandfathered. If directed to go to site plan review Mr. DeMarco could present plans to improve the area and to answer the questions raised, parking being the big one. Mr. DeMarco approached the Board and gave a brief history of the cottage and spoke of his family situation. He stated he had come to the Board in good faith. Chairman Turner stated that a motion was in order. 15 ;<& Ä P '- John DeMarco Rehearing Use Variance No. 1050/Notice of Appeal No.7 MOTION as transcribed Motion by Mr. Michael Muller, member Zoning Board of Appeals I'd like to make a motion and it's going to be fairly complex as is this whole application process and hearing. My motion has findings of facts and conclusions. I think that point number one, the applicant owns the 1.1 acre parcel in the Lakeshore Residential zone. On that parcel Mr. DeMarco has indicated to his unsworn testimony that it was a cottage built in 1947 or 1948 and that - that cottage was used but not used after 1969. Now, clearly, throw that part out - I'm just making findings of fact. There was also representation which I believe is not disputed that there was soon after the construction of the cottage in '47 or '48, perhaps a year or two later, construction of still another building on the premises and that building was ...unintelligible... characterizes as a residence and then utilizes a restaurant. It was a restaurant that had living quarters in it - that would certainly be additional building on the premises. At the time that it was constructed it would not be a building that would be inconsistent with zoning because again there was not zoning at that time. There is clearly a third use on this 1.1 acre parcel of land and that happens to be a 49 boat marina and I'm given to understand from the representations this evening that that as well, has preexisted the ordinance. And it's clear that as we sit here this evening, the first building to be built is still there although it has not been used since 1969. The second building to be built is still there and is no longer used as a restaurant, but Lena Hall the owner of the premises and the mother of the applicant, has living quarters in there and she utilizes that particular building for her residence. And it is clear, I think, uncontroverted that the marina still exists although it's going through some renovations; it ultimately will be back to docking facilities for 49 boats. Additionally, we have on the same parcel of land a brand new dwelling that's partially constructed for which the applicant was first advised that he required a variance and he presented that application for a variance to this Board. And at the time he first presented his application for a variance and without the benefit of Counsel, he requested an area variance and he at that time represented that he was taking approximately 300 square foot building and he would tear down (that's his own words on the application) and then it's, instead of, not in its exact footprint, not it's exact place he would then build a residence dwelling for himself. And further finding of fact would be that it was the decision of this Board at the time of that representation of the first application to this Board - denied the application for a variance. The next finding of fact would be that there did come a time when the issue again was presented to this zoning Board in the form of information from the Zoning and Building Inspector indicating that it was the opinion of that department that the applicant did not need a variance. And upon that presentation of that information, 16 ~&~Q '- I believe it was by letter, it was the action of this Board by further resolution rescinding the initial action of this Board and the consequence of that decision, of course was that Mr. DeMarco was then free without the requirement of the variance to obtain the building permit which he did. It would be a further finding of fact that there came a time when it became known to the Zoning Board that the resolution that rescinded the initial action of this Board was done at a meeting where adequate public notice was not given to all those parties entitled to notice. And it would in fact be a nullity. Thereafter, again finding of fact in this resolution that a Stop Work Order was issued by the Building Department and that Stop Work Order required that Mr. DeMarco no longer proceed under construction of his home on the 1.1 acre site. And at the time of the issuance of the Stop Work Order it would be fair to say that on the premises was the cottage which Mr. DeMarco had represented, would be torn down. But that still stood there, existing. The partially constructed new residence, the building that Lena Hall resides in was no longer ooounintelligible... Mr. DeMarco's new dwelling - the cottage and of course the marina use, that would all be on the premises as the day the stop work order. Now it was the unsworn testimony of the Building Inspector that there were solely two reasons why he issued the Stop Work Order and I believe that this Board made adequate factual inquiry as to whether or not he issued the Stop Work Order because Mr. DeMarco did not have a variance and the answer was no. The two reasons, according to the unsworn testimony of Mr. Dean who wanted that Stop Work Order issued, one: these were all in his mind, one: the public had not had the opportunity to be heard at a meeting where this Board took action to rescind it's initial action. And, two: Mr. Dean was uncertain as to the facts of suspicion in his mind as to whether or not what Mr. DeMarco proposed to do - that is, take down or alter or use the benefits that might be available to him for a preexisting building, the so called cottage and thereafter take the benefit of the section of our Zoning Ordinance, 9.010 to expand it or enlarge it or extend it or alter it, that's ...unintelligible.. we're to hear about this evening. I think that's a fair analysis of the facts that got us up to this evening. There was in fact, indeed considerable discussion as to whether or not the purpose of this meeting was to determine, is a use variance appropriate - is an area variance appropriate. I don't think that we have to reach those questions, I think that the two questions that have to be answered adequately are the two issues that Mack Dean actually had brought - that is - that the public is entitled to notice. I think that we have adequately provided for that by giving the opportunity for the public to be heard. I believe that the notice was published, certainly we've had opponents to this project for tonight. Really on the issue of this Stop Work Order, certainly not on whether or not a use variance is appropriate here. I think that we have addressed that issue and everyone had their opportunity to be heard. On the issue of whether or not this is a factually nonconforming structure or whether this is a nonconforming use, I don't believe that the Board needs to reach that issue if you analyze it in that fashion that is - that the facts are that the first cottage to go up, preexisted the Ordinance; built in 1947 and not utilized since 1969. If that were a building other than a principal use of premises, an allowable use, allowable principal building, I think that there might be a legitimate argument and there would have to be ...unintelligible.. as to what constitutes the abandonment - was there sufficient intent to abandon. As I look and search through this Ordinance, as I analyze this, if there's a building that goes up on the premises, in 1947, clearly 17 )0~R that would be the only building on the premises - clearly if it's used as a residence "'-- as I believe it was indicated here and uncontroverted that is a principal use and it is an allowable use - it's a residential use on the Lakeshore Residential zone. There is nothing, absolutely nothing in our Ordinance that then says that when you add other uses to your lot, add other structures to your lot, whether or not they're conforming or nonconforming that - that will impact upon the first principal use that is, that once you close the door on the summer cottage, if you will, board it up; you can't go back and unboard it and use it. There's nothing in our Ordinance that says that you would be prohibited from going back - that you might loose that preexisting right because you have abandoned it for 18 months or any longer period of time. So, fundamental to my proposed resolution is that the first built building has to be the principal dwelling on this parcel. Now if that's so and my resolution proposes it is and there cannot be an abandonment of that - Mr. DeMarco still obliged to fulfill all of the requirements of this Zoning Ordinance. ...unintelligible...requirement of the variance and relying entirely upon the proposition that he is taking a single family dwelling, the principal dwelling that has been on this property the longest and that he cannot lose that right through any alleged abandonment. He still must comply with the requirements of the site plan review. Because we have a Section 9.010 and that section is going to require that if he chooses to alter and that's essentially what he's ...unintelligible... I think, would be fair saying that his proposition is that he's not enlarging or extending. He may want to argue that but I think that the wisest, most liberal terms available to him is that he has altered it and alternatives as I understand it ...unintelligible... as exactly what he wants to do. He is taking this principal dwelling and moving it within the proper setbacks. He's moving the dwelling to the proper setbacks. The proposition is for that he would have to demolish it. He'll have to meet all of the requirements of site plan approval by the Planning Board and I've been attentive and I think this Board has also in listening to the issues, that is - that I think that the Planning Board should well understand that the sense of this motion would require that in a site plan review on the 1.1 acre parcel with very deep circumstances here - that is, that all of these uses conforming, nonconforming, predate the ordinance, heavily impact upon this parcel and they may very well have to delve in and resolve the issues as to adequate parking because it's obviously taking up space, that used to be space available for parking and that if it is appropriate of the Planning Board to be further considered and they should and must consider all of the other requirements that have been addressed here in the public hearing in terms of septic facility, trash facility and other concerns in terms of the landscaping and drainage. That would be my motion. Passed Unanimously. The meeting was adjourned at 11:00 p.m. ø~ fJ~~ Theodore Turner, Chairman Minutes prepared by Susan E. Davidsen, Planning and Zoning Department 18