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1988-12-28 "'-'- -/ '-'" QUEERS BURY ZOIURG BOARD OF APPEALS Regular Meeting: Wednesday, December 28, 1988 at 7:30 p.m. Present: Theodore Turner, Chairman Joyce Eggleston Daniel Griffin Susan Goetz, Secretary Jeffrey Kelley Charles o. Sicard Paul Dusek, Town Attorney (in Counsel's Office) Lee York, Senior Planner Mary Jane F. Moeller, Stenographer Absent: Michael Muller Chairman Turner called the meeting to order at 7:30 p.m.. NEW BUSINESS AREA VARIANCE NO. 1453 Frank and Joan Arzberger The application is for the purpose of having one horse on 2.78 acres of property just south of the Town-owned property on the east side of Jenkinsville Road, SR-1A. The zoning Ordinance requires three (3) acres of land for one horse. (Tax Map No. 52-1-29). Edward Murray, Real Estate Agent for Woodland Real Estate in Queens- bury, represented the applicants who are out of town; Mr. Murray is trying to sell the house for the Arzberger,s. He feels that approval of the Variance would enhance the saleability of the property. However, if the property were not sold and the Arzberger's had a pony, that would induce the grandchildren to visit. Mr. Murray was of the opinion that an approval of the Variance would be beneficial to the area, rather than developing the land further. There are three out-buildings on the property; two are suitable to house a horse. One of the problems with the property is the proximity to the Town landfill. If the Variance was granted, it would be more feasible to sell the land as one parcel. The big marketability is the Queensbury School district. The house has been on the market for approximately 2~ to three months. Mr. Murray confirmed to Mr. Turner that the two or three people who called and showed interest in the property, also visited the site. Purchase of the home by the prospective buyers had been contingent upon the new owners being able to have a horse. The land is .13 acres less than the required three acres for a horse. Mrs. Eggleston was concerned about whether the public park would be 1 '-- '--../ affected by flies from the horse/pony. Mr. Murray advised her that the building that would house the horse was, at one time, a chicken coop. It is a good-sized building with a concrete slab, and is furthest away from the Town property. There is a shed located in front of the barn that is closest to the Town property. Public Hearings no comment Correspondences Mrs. Goetz read a letter of opposition from Harold Boynton, who stated that the people who are applying for the Variance will not be the owners, the area is residential and there is not enough acreage to support a horse. In addition, a letter of opposition from Nancy and Ronald Robson (1) stated they object to a horse being kept across the street, due to the smell and flies. Mrs. Goetz also read Staff comments from Mrs. York (Exhibit A). Warren County Planning Board approved. Mr. Murray affirmed to Mr. Turner that there are other persons in the neighborhood who have horses, the location is down the street from the landfill. He is not aware of how many acres are involved. There was a discussion among the Board regarding the Zoning Ordinance requirements, Section 7.041 Farm Classifications. It was decided that the application comes under Class D - Hobby, and that the next person who buys the land has to apply for a Site Plan Review. Mr. Kelley moved APPROVAL of Area Variance No. 1453. The zone calls for three acres of land, in order to keep a horse on the property, this property is 2.78 acres. This would be a minimum Variance and the differ- ence in size would be 5,227 square feet. Mr. Murray, Real Estate Agent, testified that the Arzberger's are having trouble selling the property. With approval of the Variance, so that a horse could be kept on the pro- perty, there is a better chance of being able to sell the home. One of the drawbacks of the property is its proximity to the Queensbury Landfill. This would in the area subdivision. be a minimum relief and not detrimental to other properties and cannot be subdivided. The Variance terminates with the The Zoning Board of Appeals reviewed the Short Environmental Assessment Form, with no negative impact. The person who desires to house the horse has to seek a Site Plan Review, because of the Town Zoning Ordinance, Sec- tion 7.041 - Farm Classifications. Class D - Hobby. The Real Estate Agent is Edward Murray of Woodland Real Estate, Queensbury. Seconded by Mr. Sicard. Passed Unanimously 2 .,-, -./ AREA VARIANCE NO. 1457 Karolyn Smith The present residence on the property will be torn down on Hillman Road, Cleverdale, WR-1A. A new residence will be constructed in compli- ance with the setback requiremeq~s of the Adirondack Park Agency shoreline restrictions. Lot size: .385 ao~.s. (Tax Map No. 12-3-34). In addition to reading the application, Mrs. Goetz read a letter from Dennis Phillips, Esq., (Exhibit B) to Paul Dusek, Town Attorney. The purpose of the letter is to set forth pertinent facts regarding the pre- existing use of the property, so that the Zoning Board of Appeals may make a decision as to whether or not a Variance is required. (Due to the length of the correspondence, Mr. Phillips requested to waive reading the last half of his letter, this was agreeable to the Board. The Board has copies of the letter and it is on file.) Mr. Dusek reviewed Mr. Phillip's letter and, although the comparisons to APA are noteworthy, he does not feel that they would be binding on the Zoning Board in any way. There are two lots, side by side and both with houses on them, which were under different ownerships until 1987. While under different ownerships, the lots were non-conforming and existed under the old and new Ordinances. In 1987 the lots became owned by the same people (James W. & Flora S. Ingalls, Jr.). The 1982 Ordinance required that two, adjoining lots that are in common ownership at the time the Ordinance was in effect should be joined, however, the Ordinance indicates that any non-conforming lot of record as of the date of the Ordinance (1982) will be allowed to stand unless side by side with another lot. It is Mr. Dusek's opinion that the Courts have taken a very strict construc- tion of this type matter and, if it is not on the date of the Ordinance that the lots were owned separately, then the lots do not merge. Regard- ing the 1988 Ordinance, at that time both parcels were owned by the same people on the date the Ordinance came into effect. The Board has two alternatives. 1) The Board can say the lots were merged under the Ordinance and therefore the applicant, in order to do anything at all with the lots, would have to go back for a subdivison process, in which case the lots would not meet subdivision requirements and therefore would require a Variance, or 2) to find that the lots were not merged by operation of the 1988 Ordinance. If the Board did feel that the lots were merged, one question to be asked is, -Does it involve unconstitutiQnal taking of the property, be- cause there are two separate houses which have existed over the years, does it deprive the owners of property without due process, is the value of the property reduced, etc.? Another approach is to examine the statutory language. In the Town 3 ~ ,-.,.;I Ordinance, Section 2.020, 150., Page 16, -Lots means a parcel or portion of land separated from other parcels or portions by description or by a subdivision map, survey map or by metes and bounds Mr. Dusek con- tinued to note that what the Ordinance does not talk about is whether a house on this lots makes any difference. However, he pointed out that many of the Court cases and the reknown author, Anderson, make the distinc- tion that a lot is not only a piece of land, but is improved by a house. Therefore, the Board has to make the determination as to whether the lot includes vacant land or land with a house. If the Board finds that a lot is vacant land only, then the application is dismissed because there is no need for a Variance. If the lot includes the house as well as land, then the Board has to determine if that makes sense under Article 8, he advised the Board to look at the reasoning behind the merge~ of lots. He advised the Board to not add any more nonconforming to the community. Another recommendation Mr. Dusek made to the Board, is that it review what would be accomplished by joining the two parcels. There are two houses, two septic systems, two wells, all of the problems of two houses. Mr. Dusek not merged by Board decides stitutionality advised the Board that, if they decided that the lots were the 1988 statute, it is a reasonable interpretation. If the that the lots were not merged, he cautioned about the uncon- aspects of due compensation of having two separate parcels. Mr. Turner noted that basically nothing has changed, the houses were always there, the lots are the same. Regarding the new Ordinance and responses from the public on the new regulations, Mr. Kelley felt that the intent was that the public liked the openness, they did not want to see crowded conditions, etc. When considering the merging of lots, it is his op1n10n that it is the empty lots, not the ones with houses, that get into developments and are substandard. Mr. Dusek noted that there are two separate deeds1 there was a tax merger through the Assessor's Office. Public Hearings supports Mr. Arthur Buckleys neighbor to the south. Mr./Mrs. Buckley do not object to the change from a Use Variance to an Area Variance. Garfield Raymonds Dr. Raymond requested to know on which issue a vote was being taken. Answers The merger of two lots. Mr. Turner moved APPROVAL of Area Variance No. 1457, Karolyn Smith. (A) come lots. The Board has ruled that it is not necessary for the applicant to before the Board for a Variance because there has been no merger of The reason there has been no merger of lots is because to read the 4 '- -......./ Ordinance seem that merge, as application reasonably and to the fairness to everyone cOQoerned, it did not two lots with pre-existing, constructed houses on them would a result of the operation of this Ordinance. Therefore, the is not necessary. -Assuming that the merger of the -green lot- and the -red lot- has not occurred, our client desires to upgrade the situation. She proposes to comply with the minimum building setback requirements of the Adirondack Park Agency, namely, 50 feet from the water's edge. This is an improve- ment from the present setback of 12 feet but still ~s a little shy of the 1988 Ordinance requirement of 75 feet. It is our thought that because our client desires to make the situation better, there is a justifiable reason for the setback variance. Also, she proposes to abandon the old sewage disposal system on the lot and construct a new state-of-the-art system more than 100 feet from the lake, thereby substantially improving the septic situation. Finally, she proposes that the lot width of 145 feet be acceptable as a pre-existing lot on the ground that it exceeds the APA regulation of 100 feet but falls short of the 1988 Ordinance by five feet. We do not believe the 1988 Ordinance was intended to be confiscatory and we believe that a rule of reason has to be applied in the interpreta- tion of the doctrine' of merger. We believe that the unique facts and circumstances of this situation are such to warrant an interpretation to the effect that these two lots should remain as non-conforming lots under the Ordinance.- (Mr. Phillips and the Board discussed the location of the proposed new structure. The setback from the right-of-way is 10 feet from the septic system, and the proposed new structure is 50 feet from the shoreline. The present building is 12 feet from the shoreline.) (B) The setback cal difficulty septic system. other relief relief. The Environmental in Area Variance No. 1457 (A) is approved. The practi- is that there has to be room between the house and the The house will be located 50 feet from the shoreline. The is that the lot is 145 feet in width; this is a five-foot practical difficulty is the pre-existing lot size. The Short Assessment Form was reviewed with no negative impacts. Seconded by Mrs. Goetz. Passed Unanimously AREA VARIANCE NO. 1454 Roger and Karen Howard The house proposed project is to remodel an existing four-bedroom, three-bath on Rockhurst Road into a four-bedroom, three-bath house on Rockhurst 5 '-' ...-' Road, Cleverdale, WR-1A. Locationl Route 9L to Cleverda1e, take Rockhurst turnoff, .4 mile towards point from Seelye Road turnoff. Lot size 11,070 square feet. (Tax Map No. 15-1-17). John Mason was Agent for the application and stated the house was built in the 1950's and has been remodeled several times. The motivation for the entire project is to put a master bathroom off the master bedroom. To do that would mean encroaching on one setback; the lake setback is exactly the same. The present 8 ft. x 20 ft. existing covered deck is pre-exist- ing, and is 44 ft. from the shoreline. The house is 8 feet from the north shoreline and the deck addition will be 8 feet from the north shoreline. When the master bedroom is moved to the covered roof, access to the deck would be closed. When the 10 ft. x 16 ft. deck addition is built, it will be constructed around an existing tree. The Agent will go before the Planning Board for Site Plan Review. Public Hearingl no comment. Correspondence I Warren County Planning advised this was under a blanket motion. from John Goralski (Exhibit C). Board approved; Mr. Mason Mrs. Goetz read Staff report Mr. Goralski advised the Board that this application is Type I Action under SEQR and will require the Long Environmental Assessment Form. Mrs. York stated that Lake George has been declared an environmentally- sensitive area and any unlisted actions within 500 feet of the lake become Type I action automatically. She would request that the Zoning Board of Appeals become Lead Agent, if it so desired. The Zoning Board of Appeals requested to TABLE Area Variance No. 1454, Roger and Karen Howard. John Mason, Agent, is to prepare the Long Environ- mental Assessment Form, Type I action under SEQR. This request was made in agreement with the Agent. AREA VARIANCE 1455 Keith W. Coe The application is to build a summer camp or residence on the property, off Birdsall Road on Glen Lake, WR-1A. Lot size 30,000 sq. ft. (Tax Map No. 40-1-19.4. Keith Coe represented the project and stated the purpose of the applica- tion is to request extension of a Variance which was approved three years ago. Mr. Coe stated he has no present plans to build on the property. Mr. Kelley reviewed that the problem with the first request was that it was necessary to get a lot of conforming size; the lot was originally 6 '"-, '"-'" 19,000 square feet in a 30,000 sq. ft. zone. Mr. Coe agreed at that time to add a piece of property to it, making 30,000 sq. ft., now the Ordinance has the property zoned for one acre. Mr. Coe stated that he was advised that, once a Variance was extended, he would not have to appear before the Board again. Mr. Coe would not divulge the source, but said it was an attorney in Town. Mr. Kelley pointed out that there is a vacant lot adjacent to the sub- ject property that was thought to be for sale and would solve the minimum 30,000 sq. ft. problem, however, it is a common beach area which is deeded to the other landowners. It is not in Mr. Coe's best interest to purchase that piece of property, especially because of liability involved. Public Hearing. Dr. Robert Hughes. 33 Garrison Road Dr. Hughes has a summer home on Glen Lake and noted that the subject property does not meet the waterfront requirements. He also objected to the fact that no plans for a residence were presented, and that the pro- perty is for resale for monetary gain. Dr. Hughes is has a significant interest in Mud Pond, which is close by, and he does not feel approval would be in the best sense of the environment. There are several clauses that have to be considered in the Variance, speci¥;~ally, tAB waterfront ~ isauerand t~ adjoining ~LeLrLufit. Mr. Turner advised Dr. Hughes that the only change since the applica- tion was previously approved is the zoning requirement, plans were prev- iously presented showing the house and appropriate amenities. Richard Bartis. owns a second home on Glen Lake. Mr. Bartis is against the Variance because the size of the lot is not conducive to building a home. He also questioned if the buyer was aware of the laws and restrictions. Mr. Turner stated that the rules and restrictions have changed, since the buyer purchased the land. Public Hearing Closed. Warren County Board approved. Staff report was read by Mrs. Goetz (on file) and commented that the Variance is greater than shown, because the right-of-way is excluded from the calculations. There is no septic field location presented with the application. It would be difficult to locate the services on the lot without encroaching upon the right-of-way. Strict application of the Zoning requirements would preclude any construction on the subject property. There is vacant property available for purchase on the west, so that the minimum requirements could be satisfied. Mr. Turner explained that, when Mr. Coe came for an application, he 7 '-- -.,/ bought another piece of property so that the size of the lot would be in- creased. At that time, Mr. Coe presented to the Board a Plot Plan drawn by Coulter & McCormack, Land Surveyors, which depicted, the location of the house on the lot, septic and well placement, and pertinent setbacks. Also, Case Prime, former Zoning Board of Appeals Counsel, stated that the right-of-way square footage can be included in the property, but cannot be built upon. Mr. Coe confirmed the above information at this meeting. Mrs. Goetz advised the Board that she would not want to grant this as a permanent variance, that would be setting a precedence. Presently, a Variance is granted for one year and then the Variance has to be renewed. Again, Mr. Coe stated that he is not planning on building immediately. Because of problems of acquiring land three years ago to bring his pro- perty up to specifications, Mr. Coe stated he committed himself contract- ually to another piece of property. One month after the commitment, paperwork fell into place for the subject property on Glen Lake, and the applicant had to buy the property or give it up, which he did not want to do. Mr. Kelley moved approval of Area Variance No. 1455, Keith W. Coe. This applicant previously was before the Board in July 15, 1987 under Area Variance No. 1235. At that time, the Zoning Board of Appeals agreed that all the setback requirements could be met and the lot was buildable. Due to the adoption of the new Zoning Ordinance on 10/1/88, Mr. Coe's lot be- came an undersized building lot. He is here today seeking an Area Variance for. 1) a lot which has 30,000 square feet, not the one-acre requirement, 2) shoreline frontage of 59 1/2 feet, in lieu of the required 150 feet, 3) permission to build on a lot which does not bound on a Town-approved road. The request is to make this a permanent Variance that runs with the land. The justification is that if this was not granted, it would deprive the applicant of reasonable use of the land. The practical difficulty is that the site is in a one-acre zone, but there are no one-acre lots in the area. It is not detrimental to the Zoning Ordinance or other properties in the vicinity, because the majority of lots in the area are substantial- ly smaller. From recollection, none of the neighboring lots have the shore line frontage or area sizes or front on a Town road. The Zoning Board reviewed the Short Environmental Assess Form and there are no negative impacts. Seconded by Mrs. Eggleston. Passed 5 Yes (Kelley, Sicard, Turner, Griffin, Eggleston) 1 No (Goetz) 1 Absent (Muller) 8 "'--" -....../ AREA VARIANCE NO. 1458 Norman C. Benack The applicant is seeking relief from the required 50 foot buffer zone between zoning districts on Ridge Road, HC-1A. Lot size is 2.285 acres. (Tax Map No. 109-3-35.1) Norman Benack represented the application and stated that there is a 50 foot wide Commercial buffer zone within the property which has boundary lines as follows I on the south, there is 697.05 feet, which runs east to the Albany Engineering property, on the west, the Ridge Road frontage is 150 feet plus 162.10 feet on the Robert E. Ruggles land, on the north, there is 567.73 feet, which runs from Ridge Road to the Albany Engineering property, and on the east there is 106.31 feet bordering Albany Interna- tional, the land is unusually shaped. Heber Associates has expressed a desire to buy the property, because of the need for more parking. The 50 foot buffer, which is entirely within the subject parcel is excessive, the applicant would prefer ·ordinary· setbacks. By eliminating the buffer zone, the land could be used for parking. Albany Engineering uses the western end of its lot for parking and a rather large utility building, which was built within the last two years. Mr. Turner stated that setbacks have been a problem in the area. At one time Heber Associates expressed an interest in the property, the house, barn, etc., and wanted to put a driveway on the north and south side of the residence on Ridge Road, but there was not enough land avail- able. Messrs. Benack and Robert E. Ruggles were unaware of the 50 foot buffer zone. The property on Ridge Road with a frame house and garage is a residence in a commercial zone, of pre-existing, nonconforming use. Sep- arate deeds have established the two properties as separate entities. Public Hearingl against Richard HerlYI 342 Ridge Road Mr. Herly was against the application for the following reasons I 1) there was no submittal of a detailed proposal of the land, 2) research should be made into the reason for the original granting of the buffer zone, and, 3) it seems unreasonable to change the new Ordinance dated 10/1/88. Mr. Herly also asked if there was any piece of property in the Town that was safe from Variance changes. He also did not understand why the applicants did not present this problem at the pUblic meetings held regard- ing the new zoning. Marilyn Gormanl 338 Ridge Road. 9 '- ~ Mrs. Gorman expressed concern about the possibility of three accesses on Ridge Road near Cumberland Farms and the traffic light at the inter- section of Ridge Road and Quaker Road, if the applicant's plans included putting in two driveways. Regarding hardship, if Heber Associates were to purchase the property, there would be access to an expanded parking lot off Quaker Road. Mrs. Gorman has been to Heber Associates and has never had a problem with parking in the present parking lot. Mr. Benack stated that the distance from the property entrance to the Cumberland Farm property is 172.47 feet and the red light is slightly beyond that point, it is not 50 feet. He also responded to Mr. Herly that the applicant did not know that there was a buffer zone and that the land was changed to commercial. He again inferred that, because of the buffer zone, there is no land left and it is worthless. Mr. Benack stated that there are bushes between his property and the residential lot to the south. Mrs. Goetz asked what the guarantee is that Heber Associates will buy the property. The impact of another landowner is unknown, since there is the possibility Heber might not buy the land. Public Hearing Closed. Correspondence. Warren County Planning Board modified with conditions (on file) that the buffer be reduced to thirty (30) feet, because no use is proposed making it difficult to weigh the impact. Mrs. Goetz read Staff review from Lee York (Exhibit D) stating a major concern about eliminating buffer zones between residential and commercial areas, espe- cially in a situation where the use of the property is not defined. Mr. Kelley and criteria basically has proposed use not feel that agreed with Mr. agreed with Mrs. York noting that the Ordinance has rules by which property owners must abide. Because the applicant stated that the land is not usable, but has not shown any or given reasons for practical difficulty, Mr. Kelley does the request is a justifiable reason. Mrs. Eggleston Kelley. Mr. Kelley further stated that the buffer zone is there for a reason, it protects the neighbors from noise or unsightly conditions, etc. Pre- sently, the Board does not know from what the community is to be protect- ed, if Heber were to buy the property, some type of construction might be built that would be in poor taste. At that point, landowners would ques- tion why the Board approved the applicant's request. If the buffer zone was to remain, the ingress/egress would be 75 feet each, the Town road is 50 feet and there is plenty of room for vehicle movement. Sale of the property could be contingent upon seeking a Variance. Plans could be presented to the Zoning Board, which might show that alter- ations in the buffer zone would be justifiable. 10 '~ ........,; Mr. Benack informed Mr. Turner that, at this point, sale of the lot is contingent on approval of the Variance. Heber Associates is interested in purchasing the land, if the partial relief can be granted. Any uses in the Highway Commercial zone require Site Plan approval. Again, Mr. Turner reiterated the Board's feeling that the proposed use of the land must be known, before any approval can be given. Mr. Benack verified to Mrs. Goetz that Robert E. Ruggles, part owner of the subject land, also owns the 18,879 sq. ft. piece of property situated between the two access points of the subject property on Ridge Road. Mrs. Goetz thought that, if the two pieces of property were to be put together, there might be enough land for a buffer zone and still sell the property. Mr. Benack contended he did not want to have to rely on Mr. Ruggles sel- ling his piece of land. The property is one entity and that is the way the three owners would like to have it addressed. Mr. Benack stated that a 50 foot buffer zone is a lot of land to take away from one landowner, if 25 feet were taken away from the subject property and 25 feet from neighboring land, that would be more reasonable. He requested a decision at this meeting to reduce the buffer zone along the southern boundary line. Mr. Benack stated that he has been in real estate for 30 years and has never heard of a 50 foot buffer zone. Mrs. Eggleston asked Mr. Benack why he did not attend the pUblic meetings, which were held prior to the new Ordinance, and express his disapproval of the zoning. Answers He was not aware of the meetings, ·these things can slip by the public.· -None of us were...· (the three landowners). Mr. Benack lot were not meeting live that neighbors advised the Board that the only residential present at the meeting, those present about four to five houses away. However, living away from the property are afraid of neighbors to the and heard at the Mr. Turner noted encroachment. Mr. Kelley referred to the Zoning Ordinance, Article 2, Section 2.020, 32. ··Buffer Zone· means an unpaved, natural area without buildings designed to reduce the possibility of adverse impact on land or water quality and/or conflicts of land use between two (2) or more areas. No parking or storage of vehicles of any kind or objects associated with the use of the property is permitted. When not inhabited with natural woody plants (ie. trees and shrubs) sufficient to visually screen adjoining uses or zones, such buffer area shall be planted, regarded, and/or fenced as approved by the Queensbury Beautification Committee.· When asked by Mr. Kelley how long the property has been advertised, how many signs were placed on the property, how many people have looked at the property and what the reaction to the property has been, Mr. Benack's answer was ·Actually, we haven't tried to sell it.· Mr. Benack also stated that he did not feel that the Heber's know what they want to do with the property, except that they want to buy the land, possibly for parking. At one time, Mrs. Heber mentioned putting up more offices. 11 '--' ~ Mr. Turner moved to TABLE Area Variance No. 1458, Norman C. Benack, for one month. The applicant is to bring the prospective buyers before the Board, in order to present proposed plans of the property. Seconded by Mr. Goetz. Passed 5 Yes (Kelley, Sicard, Turner, Goetz, Eggleston) 1 No (Griffin) 1 Absent (Muller) AREA VARIABCE RO. 1459 Sears Roebuck Co. Donald Brown, Store Manager The application is for the installation of a six-foot satellite dish on the roof at Aviation Mallon Aviation Road, PC-1A. (Tax Map No. 98-1-5.2) There was no representation present at the meeting and Mrs. York veri- fied that no information was received from anyone regarding the applica- tion. Mr. Sicard requested that the Zoning Board discuss the project. According explore any three types cussed. to the submission, Mrs. York felt that the applicants did not alternatives. Construction details indicated that there are of mountings which could be used; however, only one was dis- Mr. Hatin advised that, when the application was requested, there was some question regarding the distance that the cable could be run; that was one reason why the cable could not be run on the ground. The antenna would have to face southwest and be put on the back side of the Mall. Public Hearing. no comment Correspondence. Warren County Planning Board disapproved, as it did not want to set a precedent and felt that feasible alternatives existed. The Beautification Committee disapproved, also because it did not want to set a precedent and felt that placing a satellite dish on the roof of any building is unjustifiable. Staff review from Mrs. York was read (Exhibit E), which noted Section 7.080 of the Zoning Ordinance, and that the appli- cation does not discuss feasible alternatives. Mr. Turner moved to DISAPPROVE Area Variance No. 1459, Sears Roebuck Co. based on the fact that no feasible alternatives have been explored. Seconded by Mr. Griffin. Passed Unanimously 12 '-- -.../ USE VARIANCE NO. 1460 Robert Clark The application is on Sanders Road, SR-1A. for the placement of a mobile home on the premises Lot size a 1.45 acres. (Tax Map No. 126-1-46). Garfield Raymond represented the project and stated that the junkyard application had been withdrawn and that the new application is for the placement of a mobile home, which is more conducive to the area. A letter dated October 20, 1988 verifying withdrawal of Use Variance 1385, Clark's Used Auto Parts, was sent to the Zoning Board of Appeals for the purpose of removing the application from the Agenda. The trailer has been purchased, however, it is not on the lot. All requirements will be dealt with including setbacks and Department of Health. Mr. Raymond verified that a house could be put on the lot, but the area is not conducive to new, single-family construction. The lot is surrounded by mobile homes, three of the mobile homes were granted Variances within the last year. Mr. Clark verified that a foundation will be installed consisting of a concrete slab with blocks around it. Mr. Sicard expressed concern of the increasing use of mobile homes in the area and their encroachment into other residential areas. He was advised that the subject property has a natural barrier on one side. Mr. Turner noted that, previously, the area was zoned originally Resi- dential, then Light Industrial and now Single Family Residential. Public Hearinga no comment. Correspondence a with no negative (Exhibit F). The Short Environmental Assessment Form was submitted impact. Mrs. Goetz read Mrs. York's Staff report Mr. Turner's opinion was that which was originally submitted (a neighborhood. the proposed use is better than that junkyard), it is compatible with the Mr. Griffin moved APPROVAL of Use Variance No. 1460, Robert Clark. The applicant has demonstrated hardship in that no one will build a single family residential home on the property, which has been zoned Single Family Residential, but Variances for trailers have been granted. There is a power line to the west, a junkyard further to the west. The property is surrounded by existing mobile homes, and there is no reasonable rate of return for anything else. The property is unique, because of the items mentioned in this statement. There will be no change in the neighborhood character. Seconded by Mr. Turner. 13 ~ Passed Unanimously Chairman Turner adjourned the meeting at 10155 p.m. Theodore Turner, Chairman ~' ographer Date J. / 'y . ¡. f Date / 14 "-" .....~ Hþ<~1µ,,- Jown 0/ QueenjbuJ'fj tilE C \' . '- .....::::..¡...-----. ~. "NOTE TO FILE- PLANNING DEPARTMENT JOHN GORALSKI, PLANNER npl" 77,lQRR DATE Application Number: Area Variance No. 1453 Applicant/Project Name: Frank and Joan Arzberger The applicant is seeking a variance from Section 7.044 which requires three acres of land to keep a horse on the property. The Arzbergers cun-ently own 2.78 acres. The proposal is a 5,227 sq. ft. variance from the Ordinance and appears to have no effect on public facilities. There is cun-ently an allowable use on the property, a single family home with several accessory structures. Strict application of the Ordinance would not deprive the applicant of the reasonable use of the property. It would preclude them from keeping a horse on the property. There is sufficient area to subdivide this lot into two lots. If a variance is iranted it would be for the 2.78 acre parcel and would not cover the suhdivided lots. fIi"" .. , ' ~ ..~~~. John Goralski Planner BAY AT HAVILAND ROAD QUEENSBURY. NEW YORK, 12801 TELEPHONE: (518) 792-5832 5fTTl-ED 1763... HOME OF NATURAL. BI.'AUTY ... A GOOD PLACE TO LIVE E'XHI/9/í II- '-' -......./ BERNARD F. McPHILLIPS MARTIN A. MEVER RICHARD E, McLENITHAN JOSEPH R. BRENNAN DENNIS J. PHIWPS WILUAM E. FITZGERALD JAMES E. CULLUM RICHARD V. MEATH SCOTT R. HATZ JULIE Viet< STEVENSON' JEFFREV E. McMORRIS MCPHILLIPS, FITZGERALD, MEYER & MCLENITHAN A TTORNEVS AT LAW 288 GLEN STREET - P. 0, BOX 309 GLENS FALLS. N. V, 12801 PHONE (5181 792-1174 November 28, 1988 OUR FR..E NO. 312 2 6 'ALSO ADMITTED IN CT AND VA Paul B. Dusek, Esq. Town Attorney Town of Queensbury Bay at Haviland Road Queensbury, New York 12804 RE: Variance Applications of Karolyn Smith and James W. Ingalls, Jr. and Flora S. Ingalls Dear Paul: We are enclosing for your review and subsequent discussion a color-coded map which explains the facts relating to property presently owned by James W. Ingalls, Jr. and Flora S. Ingalls and under contract with Karolyn Smith, our client and the applicant for a variance before the Queensbury Zoning Board of Appeals. It may be that no variance is required because of the pre-existing use of the property, in which case we are seeking a favorable interpretation of the Zoning Ordinance to that effect for the record. The purpose of this letter is to set forth the facts of the matter and then to analyze these facts under the Adirondack Park Agency Act (the "APA"), the 1982 Queensbury Zoning Ordinance and the 1988 Queensbury Zoning Ordinance, resulting in the conclusion that a merger of the Ingalls lot would be an inequitable and unintended result under the 1988 Queensbury Zoning Ordinance. Referring to the enclosed map, the separate chain of title for the "green" lot is such that between 1963 and 1987 title was held by Robert A. Salvadore and Flora S. Ingalls, but in March of 1987 Flora S. Ingalls, as surviving joint tenant; conveyed the lot to herself and James W. Ingalls, Jr., as joint tenants with a right of survivorship. The house on the green lot was built in 1964 and is the permanent home of Mr. and Mrs. Ingalls. The separate deed for the green lot was recorded in the Warren County Clerk's Office on March 18, 1982 in Book 691 of Deeds at page 470. ÇYJrl/å./T ø \...-- .-/ Paul B. Dusek, Esq. November 28, 1988 Page -2- The separate chain of title for the "red" lot is such that between 1958 and 1987 title was held by Velma M. Ingalls and James W. Ingalls, Jr., but in March of 1987 James W. Ingalls, Jr., as surviving joint tenant, conveyed the lot to himself and Flora S. Ingalls, as joint tenants with a right of survivorship. The house and garage on the red lot were built in 1901, according to Mr. Ingalls, and have been used on a continuous basis between 1901 and the present date. The separate deed for the red lot was recorded in the Warren County Clerk's Office on March 18, 1988 in Book 691 of Deeds at page 4~2. It is clear that on May 22, 1973 the green lot and the red lot were separately owned f>re-existing lots; that each lot was improved by a single family residential house; and that the two lots constituted a pre-exi&.ing subdivision of land. . '1 Based on the above ~tatement of facts, there is no merger of the green lot and red lot under the APA. The APA authority for the conclusion of non m~rger is Regulation 573.4(i): "Merger of lots acquired prior to ~tay 22, 1973. Adjoining lots owned by one land owner, each acquired prior to May 2, 1973, except lots ~n a pre-existing subdivision or separately owned pre-existing vacant lots of record as d~scribed in Section 811(1) (a) of the APA Act, shall be deemed to;;have merged into one undivided lot as of that date, even if described in different deeds or acquired at different times." The APA \provisions that do apply to the above two lots are found in Section 811, Regulation 573.5(2), Regulation 573.5(3), Regulation 575.5(a) and Regulation 575.5(b). I APA Section 811 (2) states that: "Any pre-existing land use and development shall not be subject to review by the Agency." The definition of pre-existing land use or development is found in APA Section.' 802(48): "Pre-existing land use or development" or "pre-existing use" means any land use or develop- ment, including any structures, lawfully in existence prior to August 1, 1973 . . ." The definition of "pre-existing subdivi- sion of land" is found in APA Section 802 (49) : "Pre-existing subdivision of land or pre-existing subdivision means any subdivision or portion of a subdivision lawfully in existence prior to August 1, 1973 . .." APA Section 802(25) defines "in existence" to mean: "With respect to any land use or development, including any structure, that such use or development has been substantially commenced or completed." ~ ......" Paul B. Dusek, Esq. November 28, 1988 Page -3- Continuing to look at the two lots in the context of the APA, it is instructive to understand what changes or alterations could be made to the two houses. With two separate lots and pre-existing single family residential dwellings on each lot, APA Section 811(5) allows a single family dwelling to "be enlarged or rebuilt to any extent provided that it continues to be used as such, provided, however, that no such increase or expansion shall violate, or increase any non-compliance with, the minimum set- back requirements of the, shoreline restrictions." In furtherance of the law, Regulation 573.5(2) provides: "A single family dwelling or mobile home may be expand,ed to any extent provided it continues to be used as such." Regulation 573.5(3) says: "All increases or expansions involving 'an existing non-conformance with the shoreline building setback restrictions shall be subject to Section 575.5 of these Regulations. II Turning to Regulation 575.5 as directed, this provision states: "Any existing structure lawfully in non- conformance with the building setback restrictions, or any such structure :which was existing on August 1, 1973 and was thereafter removed ar destroyed may be replaced in kind on the same foundation or location or in the same immediate vicinity, provided the ¡previously existing setback non-conformance is not increased~" Regulation 575.5 (b) (2) provides: "An existing single family dwelling or mobile home which is lawfully in non-compliance with the building setback restrictions may be expanded to the rear or laterally provided such expansion does not bring the structure any closer to the mean high water mark, and provided the structure continues to be used as a single family residence. Turning now to the 1982 Town of Queensbury Zoning Ordinance, the green lot and the red lot maintain their identities as separate ldts by virtue of Section 8.010, which relates to exceptions to' minimum lot area requirements. That section states: "Any non-conforming lot of record as of the date of this ordinance (our emphasis) which does not meet the minimum lot area and/or minimum lot width requirements of this ordinance for the zoning district in which such lot is situated shall be considered as complying wÏth such minimum lot requirements and no variance shall be requirèd, provided that such a lot does not adjoin other lots in the' same ownership . . " When the green lot and red lot came into the same ownership in March of 1987, the separate identities of the two lots remained unchanged because they were separately owned and non-conforming lots of record as of the date of the ordinance. Very similar to the APA ç X/f-11é r(' &- "'--- ~ paul B. Dusek, Esq. November 28, 1988 Page -4- was language under Sections 9.010, 9.011 and 9.012 allowing a non-conforming structure to be enlarged or rebuilt, provided the minimum setback requirements of the shoreline restrictions were not increased. In effect, the APA and the 1982 Town of Queensbury Zoning Ordinance reached the same result in the 1nterpretation of the green lot and the red lot. Under the 1988 Queensbury Zoning Ordinance effective October 1, 1988, the single family dwelling on the red lot is a non-conforming structure because it does not satisfy the new setback requirements of 75 feet from the water's edge (in fact, it is only 12 feet from the water' sedge) . But under Section 9.015 of the 1988 ordinance this dwelling could be altered, enlarged or extended in place so long as such alteration, enlargement or extension does not violate the area requirements of the ordinance. This provision is similar to the APA regulation whereby alteration can take place to the side and to the rear but not to the front. Section 9.012 confirms this when it says: It In no case shall any increase expansion violate, or increase non-compliance with the minimum setback requirements of the shoreline restrictions." Since the house on the lot is a conforming use in the zone, it is clear from these sections that pre-existing nonconforming structures are allowed to remain standing, as well as being enlarged and improved, and that the purpose of the ordinance was not intended to be confiscatory. Turning now to the general exceptions under Article 8 of the 1988 ordinance, we believe that the merger language under Section 8.010 should not be interpreted to apply to the green lot and the red lot now owned by Mr. and Mrs. Ingalls, and we are seeking a favorable interpretation and area variance to this effect. Moreover, we are of the belief that the language of Section 8.010 should primarily apply to vacant lots, not to lots where a subdivision has already occurred, where there are two separate and distinct chains of title, and where there is a pre- existing single family dwelling. To put our position in perspective, we have taken a hard look at APA Sections 811(1) (a), 811(2) and APA Regulations 573.4(h) and 573.4(i). Section 811(1) (a) states: "Single family dwelling on existing vacant lot. One single family dwelling or mobile home shall be allowed to be built on any vacant lot which was on record on the date that this act shall become a law regardless of the overall intensity guidelines (synonymous with the minimum lot area of the 1988 ordinance), or the minimum lot width provisions , '¡' " , --- .......,/ Paul B. Dusek, Esq. November 28, 1988 Page -5- of the shoreline restrictions. For the purposes of this exemption, such a lot must not adjoin other lots in the same ownership, provided however, that all such lots in the same ownership may be treated together as one lot." Although the word "vacant" does not appear in the 1988 ordinance, Section 8.010 under the General Exceptions is substantially the same as Section 811(1) (a) and is designed to serve the same purpose of "sweeping up" adjoining vacant and undeveloped property in the same owner- ship. Section 8.010 states: "Any non-conforming lot of record as of the date of this ordinance which does not meet the minimum lot area and/or minimum lot width requirements of this ordinance for the zoning district in which such lot is situated shall be considered as complying with such minimum l~t requirements, and no variance shall be required, provided that: As of the date of this ordinance, such a lot does not adjoin other lots in the same ownership, provided however, that all such lots in the same ownership shall be treated together as one lot except that this provision does not apply to subdivisions approved and filed prior to the date of approval of this ordinance." APA Section 811 (2) makes it perfectly clear that "any pre-existing land use and development shall not be subject to review by the Agency" and recognizes the fact that the green lot and the red lot are separate pieces of property not only because they were separat-ely owned on August 1, 1973, but also because under Regulation'S73.4(i) there was a pre-existing subdivision of land and that development had already occurred, a question of fact under Regulation S73.4(h). We are of the opinion that Section 8.010 of the 1988 ordinance should be construed to recognize pre-existing land use and development and pre-existing subdivisions of land and that the exception language under Section 8.010, "except that this provision does not apply to subdivisions approved and filed prior to the date of approval of this ordinance, " should not be so narrowly interpreted as to apply solely to subdivisions of record approved and filed, but also should be applied to pre- existing subdivisions where a buildout has occurred but which came into being before any land subdivision regulations existed. Assuming that merger of the green lot and red lot has not occurred, our client desires to upgrade the situation. She proposes to comply with the minimum building setback requirements of the Adirondack Park Agency, namely, 50 feet from'the water's edge. This is an improvement from the present setback of 12 feet but still is a little shy of the 1988 ordinance requirement of 75 Fý"/fll$/T ;;; \ t ,!. "--...- ---./ Paul B. Dusek, Esq. November 28, 1988 Page -6- feet. It is our thought that because our client desires to make the situation better, there is a justifiable reason for the setback variance. Also, she proposes to abandon the old sewage disposal system on the lot and construct a new state of the art system more than 100 feet from the lake, thereby substantially improving the septic situation. Finally, she proposes that the lot width of 145 feet be acceptable as a pre-existing lot on the ground that it exceeds the APA regulation of 100 feet but falls short of the 1988 ordinance by five feet. We do not believe the 1988 ordinance was intended to be confiscatory and we believe that a rule of reason has to be applied in the interpretation of the doctrine of merger. We believe that the unique facts and circumstances of this situation are such to warrant an interpretation to the effect that these two lots should remain as non-conforming lots under the ordinance. We will give you a call to further discuss this matter prior to the Zoning Board of Appeals hearing scheduled for December. Very truly yours, McPHILLIPS, MEYER Dennis J. Phillips DJP:wcw copy: Mrs. Karolyn Smith 49 Wincrest Drive Queensbury, New York 12804 Jown 0/ Queenjbuf'fJ f'm~ E C~T""'\..,!," ~ ...~: f ~ ,I ", ,: ':I:: ¡: II' ¡I ~.~ '~,..t li tj "--" ',~ ,-- .-.....--..- r:::> -. -NOTE TO FILE- PLANNING DEPARTMENT Dec. 27, 1988 DATE ;/ JOHN GORALSKI, PLANNER Application Number: Area Variance No. 1454 Applicant/Project Name: R02er and Karen Howard Mr. and Mrs. Howard are seeking a variance from the shoreline setback and the side yard setback to construct a 10 ft. by 16 ft. deck addition. The Zoning Administrator has determined that althou2h the addition is in line with the existing deck it is increasine the encroachment on the lake. The application indicates that the hardship is the inability to access the deck directly from the master bedroom. This does not reduce the owners reasonable use 'of the property: it is simply an inconvenience. Because this action is within 500 ft. of Lake George (a critical environmental area designated by the Lake George Park) it is a Type I action under SEQR. . ',' John Goralski Planner r ~,.. BAY AT HAVILAND ROAD QUEENSBURY, NEW YORK, 12801 TELEPHONE: (518) 792-5832 SETTLCD 1763... HOME OF NATURAL BfAUTY... A GOOD PLACE TO LIVE ~ ifill ð / T c.... ~ ---... - Jown 0/ Queendbuf''j ,-..J ~ . ...;::.,( ~·FflE ~ßPV -NOTE TO FILE- Planning anci Zoning Department LEE YORK , Senior Town Planner Application Number: Area Variance No. 1458 December 16, 1988 Applicant/Project Name: Norman C. Benack Mr. Benack discussed this project with David Hatin prior to the adoption of the new Ordinances on October 1, 1988. That is why his map is reflective of the old Ordinance. Mr. Benack is seeking relief from the side yard and rear yard setbacks. The residential property does not require any buffering although Mr. Benack has indicated a 75 ft. buffer zone. On October 1, the properties in question became Highway Commercial and therefore no buffering is required (Section 7.079) between the residential use and the commercial zone. I would recommend that the Board consider some type of screening or buffering of the residential property as long as it remains residential. A concern I have is that a variance from the setbacks is being requested on a vacant piece of property. The application of practical difficulty usually assumes that construction or use of the property cannot be accomplished without infringement into the setbacks. This application is for 100 percent relief from the setbacks and buffers without indication of a proposed use of the property. Mr. Benack indicates that Mrs. Heber is interested in the 2.285 acres. If she ii' _ nee4 ,for the 20 ft~ setbaçk at the property line. t· . 't.....i~.: t rJi'~~'>;"'''':a, -rri ' ~ '.' .....' . . ..... "" I , Ð .' "',' , . ' ",' "s Oi . D, if.. J~y, < . '.' i"'l"'~ ,~~,. '.;", "'''".", ' .~;~~.~~~:'\><:..~~.:' ,.~:.:,":).~.,~.: LEE' SeDÏor BAY AT HAVILAND ROAD QUEENSBURY, NEW YORK, 12801 TELEPHONE: (518) 792-5832 SETTLED 1763. . . HOME OF NATURAL BEAUTY. . . A GOOD PLACE TO LIVE k''I-IIØlí b ~"- /" own oJ Queenjtul'f¡f ~ .~ n>. "NOTE TO FILE- Planning and Zoning Department LEE YORK . Senior Town Planner Application NUJilber: Area Variance No. 1458 December 16, 1988 Page Z of Z App1icant/Project Name: Norman C. Benack During the recent rezoning efforts this area of Queensburv was rezoned at the request of the commercial property owners in that area. The rezoned area cWTently is in accordance with the type of activities going on there. I have a major concern about eliminating buffer zones between residential and commercial areas. Especially in a situation where the use on the property is not defined. ~: ~: ::>. ~~,l~¡~:r\õ.:.. ¡ ..: ~ . .,.. '·rfi'!i' '1':,- . n ~Q IQÍ]:' ]~.~~. '.' ~~" ""-;';~~l?~.p~,.::. c'.;·''; fIL·, .: ".;..;.;;¡~~!!·_·,,~..~."",.£....\v·l, ' ..;:..... ".'1.' '. .. t , 1· . I" . ~_. .......' ...,. , ::i. ··'·1":., .J, ..."...... ._ I BAY AT HAVILAND ROAD QlJEENSBURY, NEW YORK, 12801 TELEPHONE: (518) 792-5832 ,..,.' ... SETTLED 1763... HOME OF NATURAL BfAUTY ... A GOOD PLACE TO LIVE '- Jown 0/ Queenjbup'J ..........,; FILE COpy ....;:::..( ~ "NOTE TO FILEn Planning and Zoning Department LEE YORK . Senior Town Planner Dec. Z8, 1988 Application Number: Area Variance No. 1459 Applicant/Project Name: Sears Roebuck Co. This application is for a variance from Section 7.080 (Satellite Receiving Antennas). The Ordinance states that the "antenna shall be placed before the ridge line" of the roof. The applicant proposes to mount the antenna on the flat roof of A via tion Mall. The application does not indicate if any feasible alternatives have been examined. The construction details submitted indicate (3.1) that there are 3 types of mounting for this mechanism; 1) Flush Wall Mount, Z) Pole Wall Mount, 3) Non Penetrating Roof Mount. No alternatives were discussed. The Beautification Committee and WatTen County Planning Board disapproved \Î this variance because no alternatives were investigated and approval of this variance would set a precedent. ~; ~ . ~~~. .... ~. ./·¡;~Il~' -- ~~.. .... <,:,;'h4\"../~ !I[-~(~!q \Q I~... . ,.~~~~~ r,· ~..,(".... .,~*4" . ~,..,. 'In' .'" ''', ..~"__;.. ¡. ." ".".. Si2'~" C~:;', ::~~:·;Jh~;~.JJ¿~]j~~j~1J:~:~~'''~ BAY AT HAVILAND ROAD QUEENSBURY, NEW YORK, 12801 TE~EPHONf:: (518) 792-5832 SfTrLED 1763... HOME OF NATURAL BEAUTY.,. A GOOD PLACE TO LIVE ¡;-'1-/l1911 ~ Jown 0/ Queen:JbuPIj r w r"" £" (ftí f" ~, p' fl'P F' n'Jf\~~'"' Û ~ ~~~ tJu ............. ',~- ~. "NOTE TO FILE- Dec. 27, 1988 PLANNING DEPARTMENT DATE JOHN GORALSKI, PLANNER Application Number: Use Variance No. 1460 Applicant/Project Name: Robert Clark The applicant is seeking a variance to place a mobile home in an SR-IA zone. The property is surrounded by a power line easement, a junk yard, mobile homes, and modest single family homes. The allowable 'use for the property would be a single family residence. The lot is large enough to accommodate a single family residence and meet all of the area requirements. The applicant claims that he cannot realize a reasonable return because "the property is not compatible with sinile familv new construction". However. he does not offer any proof that this is the case. tlf'^' .-. John Goralski Planner BAY AT HAVILAND ROAD QUEENSBURY. NEW YORK, 12801 TELEPHONE: (518) 792-5832 SETTLeD 1763... HOME OF NATURAL BrAUn... A GOOD PLACE TO LIVE ¡? X/I-1I&.J í P