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1989-12-27 ,/ -..-' QUEENS BURY ZONING BOARD OF APPEALS SECOND REGULAR MEETING DECEMBER 27TH, 1989 INDEX Use Variance No. 98-1989 FRANK PARILLO 1. Sign Variance No. 143-1989 NYS ENTERTAINMENT DIBIA BLOCKBUSTER VIDEO 24. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. --,-,- ZONING BOARD OF APPEALS SECOND REGULAR MEETING DECEMBER 27TH, 1989 7:30 P.M. MEMBERS PRESENT THEODORE TURNER, CHAIRMAN SUSAN GOETZ, SECRETARY JOYCE EGGLESTON BRUCE CARR CHARLES SICARD MICHAEL MULLER JEFFREY KELLEY TOWN ATTORNEY-PAUL DUSEK DEPUTY TOWN ATTORNEY-KARLA CORPUS DIRECTOR OF BUILDING AND CODE ENFORCEMENT-DAVID HATIN LEE YORK, SENIOR PLANNER PAT COLLARD, ZONING ADMINISTRATOR CORRECTION OF MINUTES October 26th, 1989: Page 1, under Area Variance No. 61-1989, MRS. GOETZ, sib we in no way want to impede or encourage APPROVAL OF THE QUEENS BURY ZONING BOARD OF APPEALS MEETING OF OCTOBER 26TH, 1989, Introduced by Charles Sicard who moved for its adoption, seconded by Susan Goetz: Duly adopted this 27th day of December, 1989, by the following vote: AYES: Mr. Kelley, Mr. MulIer, Mr. Sicard, Mrs. Goetz, Mrs. Eggleston, Mr. Carr, Mr. Turner NOES: NONE November 15th, 1989: Page 4, almost to the beginning of Variance 131 , Mrs. Eggleston, where it stated it was nonconforming in that it I s sib not inserted at the required setback from the screen, not after the word it's. Page 6, at the bottom of the page, MRS. GOETZ, we might be sympathetic with somebodys personal, the word hardship sib inserted after personal, but we can't consider sib that instead of them, because of personal hardship. Page 12, towards the bottom, Wayne Pelak, paragraph where it says stated he didn't know, at the end of that they saw the drywalls sib drywells. Page 6, 4th paragraph where it says Gary Boldin, sib Gary Golden. APPROVAL OF THE QUEEHSBURY ZONING BOARD OF APPEALS MEETING OF NOVEMBER 15TH, 1989, Introduced by Susan Goetz who moved for its adoption, seconded by Joyce Eggleston: Duly adopted this 27th day of December, 1989, by the following vote: AYES: Mr. Kelley, Mr. Muller, Mr. Sicard, Mrs. Goetz, Mrs. Eggleston, Mr. Carr, Mr. Turner NOES: NONE OLD BUSINESS: USE VARIANCE NO. 98-1989 TYPE I LC-42A FRANK PARILLO ROUTE 9L AND BAY ROAD TO OPEN THE FORMER ELLSWORTH MARINA FOR PUBLIC BOAT LAUNCHING. THIS USE HAS BEEN DISCONTINUED FOR OVER 18 MONTHS. (WARREN COUNTY PLANNING) (ADIRONDACK PARK AGENCY) TAX MAP NO. 23-1-19 LOT SIZE: 24.33 ACRES SECTION 4.020 MR. DUSEK-Addressed the Chairman and the Board, stated at the last meeting of this Board, the Board had asked him to review the legal issues the Board would be confronted with in connection with the Parillo application. They also asked that he get a letter to them before tonight which he did as of yesterday, unfortunately, with the review process ongoing, he found that after the sent the letter, he wanted to add a few more things. Asked the Board to bear with him and he would be brief in explaining a couple of things in the letter that are actually there now as the result of an error they had uncovered. Basically this Board at its last meeting moved to set a rehearing of a previous application made by Mr. Parillo's attorneys 1 -.-- on July 19th, 1989. At that time, the Board heard a request from Mr. Parillo's attorney's that the decision made by Mr. Hatin, Director of Building and Code Enforcement, should be overturned and that decision basically was that Mr. Parillo was not to use his boat launching facility because he had lost his rights in that, although it was a nonconforming use because he had either lapsed in the time period or because the use had changed, that he could not use it for purposes he wanted to. Well he appeal that decision, as the Board knows, to you, and at that time it was discussed and ultimately the Board decided that they would allow Mr. Hatin's decision to stand, confirmed that decision. At that point, Mr. Richard's then applied for a variance, saying, well if that I s the way the law is, then I would like to have some relief here and allow us to use this. Well, at the same time he was doing that, Mr. Richards had a meeting with both Dave Hatin and Mr. Dusek, wherein he introduced some new evidence that was not previously, before Dave Hatin when he rendered his decision in connection with this matter and that Mr. Dusek doesn't believe was before this Board. The new evidence being that of some weight. The matter came back before the Board, ultimately, a couple of months ago and that's when the Board, after hearing all about this decided maybe a rehearing would be appropriate. This was also based, at the time Mr. Dusek was there and reviewing a particular book that he was using, the Board had made a motion which was passed by a majority numbers of the Board setting the rehearing. After he had drafted the letter of yesterday, he found a statement in the law which said a unanimous vote as opposed to a majority vote was necessary. Of course, that meant a rehearing could not occur tonight if that was true. However, at the same time, he also found that on July 19th, a hearing on the interpretation or the appeal request was not conducted and that is required by law. As a result of that, Robert Anderson, in his book on zoning which is a considerable authority and also and a fact that sites some additional authority, which he believes is correct, states that the hearing in July, therefore, was a nullity. So, no matter how we come about it, whether it was a rehearing request, or whether it's a new hearing, the bottom line is the hearing is appropriate to go forth tonight, but he wanted to clarify that because of the confusion in his letter. If what he says is true then, that there I s two issues essentially before the Board. One is the fact that, he believes, the Board has to decide in the first instance whether a variance is needed at all and if they decide that a variance is not needed, then that completes this process and the matter is over. If they decide, however, that a variance is needed, then they would move on to the second part of the application which Mr. Richards has made, which is to consider his variance and whether or not he proves his case for a variance, as Mr. Dusek knows this Board is very familiar with. Going to the first issue, since that is what will be before the Board, he would like to offer the following comments which kind of correlate with the letter he sent the Board which basically indicates that he thinks there's essentially two issues that this Board has to consider in terms of facts. One is that the Zoning Ordinance says in Article 9 that a nonconforming use may be continued, Mr. Parillo could continue it, so 10ng as he does not alter it, enlarge it, or extend it. So, Mr. Dusek thinks the first issue the Board has to decide is whether there has been, or the proposed use that Mr. Parillo wants to put the boat establishment to is an enlargement, or an extension or an alteration of what previously existed there. So part of what, Mr. Dusek believes, the Board would want to do is determine exactly what existed there on a prior occasion, before Mr. Parillo took over. Once they've made that analysis, if they feel there is no enlargement, extension, or alteration, then the second part would be to determine whether or not there was a lapse of 18 months in the time that the building was used because the ordinance under Section 9.020 says that if a nonconforming use is discontinued for a period of 18 months, then the right of the individual to continue using that is also lost. So, there's essentially these two issues. One of the other items that Mr. Richards has brought up has been concerning that an increase in use is not necessarily a change of use or an alteration of it. Mr. Richards is correct in as much as a mere increase would not, in and of itself be sufficient to count as an enlargement or extension. However, ultimately it's up to this Board to decide whether or not the increase is an increase or whether it's actually a change in the overall use. If they decide it's a change then, of course, he'd have to apply for a variance. If they decide there is a mere increase, then he would not have to apply for the variance. The only last issue Mr. Dusek would like to mention to the Board is the issue of SEQRA because that's an issue that's come up from time to time. It is his opinion that in the first instance concerning the intial decision as to whether a variance is needed, it is not necessary to address the SEQRA issue. In other words, it is not necessary to do a long EAF or any kind of Environmental Assessment Form and the reason for this is because the Board is acting in an appellate or courtlike capacity. It is not rendering an approval in the first instance, however, if the matter were to go on and if the Board decided that a variance is needed, before they could grant the variance, they would have to complete the SEQRA process under the law. Mr. Dusek hopes this is of assistance to the Board in dealing with this matter. 2 .-' ~ MR. TURNER-Asked if the Board would care to discuss this before they got started? MR. MULLER-Asked Mr. Dusek, one of the things he mentioned was, if the Board found a "mere increase", sort of like a buzz word, what's the difference between a mere increase and an increase? MR. DUSEK-Stated he struggled over this for quite awhile, reviewing various cases and he thinks the courts are struggling in the same fashion. One case that sticks in his mind, may be because of the human nature of the case, has to do with a fish vendor in a community. The fish vendor was selling a certain amount of fish in the neighborhood and nobody real1y payed any attention to it, probably nobody noticed, but then he increased the numbers and amounts of fish he was sel1ing to such an extent that people began to notice smells and other things that they didn't like about this particular trade. When the court considered that, they said, well that's just a mere increase in the amount of business that he was doing. Is that a substantial change or increase? Wel1 they struggled over it. They said it was an increase and, therefore, a mere increase, so therefore was not precluded under the zoning ordinance. In another case, a private entity had a beach house 10cated on some property and they wanted to convert the private beach house, which was a seasonal, private beach house to a year round, public facility and of course, that's not a mere increase, that's a change in use. To him, depending on the given case, they could almost argue either way. It's almost a judgement cal1 for this Board and so long as their decision was reasoned and founded in facts as to why they think it's more than a mere increase or a change, then his opinion was that it would be upheld in any court. Stated he should mention one further thing in following with this. His recommendation to the Board would be when they make a motion, that they would want to state specifically in that motion, their reasons for the decision that they make. If they decide there is no increase or if they decide there is, or if they decide there is a change or there is not a change, they should indicate what they feel caused them to decide that way and of course, what wi11 cause them to decide one way or the other is the evidence they will hear, the testimony of the people speaking. MR. TURNER-Asked if there were any other comments before they got started? Stated, based on the opinion of counsel, he believed it was proper that they rehear the original application, the interpretation. Based on this, he opened the hearing up on the original interpretation. PUBLIC HEARING OPERED MR. TURNER-Dave, I'd ask you to elaborate on the issue that involves you. MR. HATIN-Original1y, back in, I believe it was June, I noticed some activity taking place in the Paril10 Marina which was not there the previous summer concerning a commercial boat launch facility. At that particular time, I wrote Mr. Parillo, excuse me, it was John Richards, the attorney for Mr. Pari110, advising him that I felt that there was increase in use here, a use that has not been there the previous year and also through personal knowledge and personal facts through people that have called me on it felt that there had been an 18 month lapse. I did some investigation on it and, what I believe at that time to be an 18 month lapse and reason, therefore, to send them for a variance. In doing that, I sent a letter dated, June 27th, 1989 to John Richards stating that there would be a need for a variance should they want to continue the use of the commercial boat launch. That's where this all started. That's when Mr. Richards appealed my decision to this Board and that's where we stand right now. MR. TURNER-Any other questions? MRS. EGGLESTON-I have one. In the course of your investigation (referring to Mr. Hatin), you said you did your investigation, did you find any cases at all, even minute or one where it was open to the public, or did you find absolutely none? MR. HATIN-At the time, there were posts in the ground, blocking the launch for the genera 1 public's use. That had been there from previous knowledge of mine, before I even became Director of Building and Code Enforcement, when I used to dock my boat at the Lake during the late '70' s, early '80' s. I knew the launch was closed then because I used to launch my boat there. Knowing that, that summer, some concerned residents had heard that the boat launch was going to open back up and asked me to take notice, particular notice, I think it was July of '88, to the launch, which I did and noticed that there were signs that said No Launching. I know there have at least been a year up to that point and, as far as I know, 3 ,.-" -,,' --" they were there from the Spring of that year. prove that there was at least an 18 month gap. I guess you could say, person collecting money time. So, therefore, that's how I can I saw no public launching, no, or fees to launch boats at that MR. SICARD-Dave, have you changed your opinion at all? MR. HATIN-No, I haven't. My opinion stilI stands. forth and my opinion still stands. I've seen letters go back and MRS. GOETZ-Did you see the evidence that they produced at the last meeting? MR. HATIN-I read letters this evening, and those letters did not convince me that that was still open to the general public. If you look in one of the letters, it stated, I believe, that it was open for three weeks in the Spring and three weeks in the faIl. Again, that was not a fee that was paid to use that launch. That was a gift from the owner to his dock renters and I think that's what's become the issue here, is whether dock renters constitute continued use or not. My opinion is they don't. MR. MULLER-Dave, do you have any knowledge that boats were launched there? Not public boats, but boats that were docked at the facility? MR. HATIN-Yes. There's no question of that. The people that docked there did launched there boats there. I don't think there's any question of that, I think everbodys agreeing with that. The disagreement concerns whether where you have people that now pay to use the dock versus people that dock their boats here. To me that's a change in use which, therefore, requires a variance. It's an increase in use. MR. MULLER-That is the basis of your opinion? MR. HATIN-Yes. MR. CARR-When in the fall, just friends? you said it was open for three weeks in the Spring and three weeks and that was strictly for dock owners only. I mean there was no, MR, HATIN-I can't elaborate that, possibly Mr. Richards can. I read in the letter. I have no knowledge of that. All I know is what MRS. EGGLESTON-Would you have been privy to any records, bookkeeping records, of either Mr. Parillo, or the people who owned it previously, the Ellsworth's, where they would keep a 10g of where people actually paid, general public, or were you not able to access that? MR. HATIN-I've never examined any records or requested any records. JOHN RICHARDS, ATTORNEY WITH THE LAW FIRM OF LAPANN, REARDON, MORRIS, FITZGERALD, & FIRTH PC IN GLENS FALLS; RICHARD FlRESTEIN, AN ASSOCIATE IN THEIR FIRM; FRANK PARILLO, THE APPLICANT ALL PRESENT MR. RICHARDS-If I could take just a minute to post this map that you've seen before, but I think that it's helpful for the audience and the Board to have this in front of them. It's difficult enough to keep in mind through all of this, just briefly, the launch that's at issue here is the launch going northl south and this would be Route 9L and above that would be Dunham's Bay bridge due north of that launch. Also, another matter to clarify things, I've outlined in yellow the tax map number for this parcel. The actual launch area we've based everything on is this 2.8 acre piece. Now, it is separated from that other part of the tax map parcel by a piece of property which Mr. Parillo also owns which he purchased several years earlier than this piece from Robert Ellsworth, who I understand is related to Allison Ellsworth, but not in the same immediate family and they're certainly not in a partnership or any profit sharing device at all. They're two separate pieces of property with two separate dock facilities on those pieces of property. I think that Mr. Dusek did isolate these on issue tonight and the one that I would really like to address first, because I think it answers the question in its entirity, is the question of the nonconforming use. What I'm asking the Board to determine tonight is not necessarily an easy thing. I'm asking you to decide that you really don't have jurisdiction or any necessity to proceed and actually require and veiw a variance application. That isn't always easy for a local Board to do, particularly in a situation like this where there is a good deal of public pressure. The Lake 4 ,..F -- ..../ George Association was kind enough to place an article in the paper this morning on this matter. My point is, the law and the facts support this conclusion. I'm asking the Board to judge it on its merits and I think that you will agree that it does not have to have a variance application here. The first point, and the reason why I came to you. To give you a little bit of background on the project here, and this point, I think, bears some research looking at, I don't know if Paul had mentioned this, I put it into a memorandum which I submitted, is that the nonconforming use that we're talking about here is not a boat launch. The nonconforming use is a marina operation. The boat launch is merely one facet of that, the same as docking the boat and anything else in connection with a marina. You can't pullout a boat launch, by the way, one of the three boat launches on the property. You can't pul1 out one boat launch and say that is a separate, independent use on which you are expanding or not expanding which is being discontinued or not. That is an intrical part of the marina. Always has been, always been used. There's no question, no allegation, that it's not been used continuously as part of the marina operation. I know that there are some 320 use definitions in the Queensbury Ordinance and boat launch is not included. It's not a separate use. Marina is and a bunch of other things, but not a boat launch. It is, by the way, defined in the Lake George Park Commission regulations and it's also specifically included in those regulations as part of the marina designation. It's one of the listed uses for a marina. There's one case which I don't know if you had a chance to note that in my memorandum, that talked about two trailers that were on a lot where it was zoned to prohibit trailers. One of those had to be taken away and put back, and it got kind of confusing, but the point I'm trying to make now is that the court in that case said, no we do not have two nonconforming uses. Your nonconforming use is trailer use and if you have two that's not two separate ones. It's the same principal here. The nonconforming use is the marina. You can't sit there and break that down into separate uses, I also used as an example in the memorandum that fact that if you have a nonconforming restaurant, you can pick any kind of commercial use of the property, it's nonconforming, You can't go into that restaurant, ok that bathroom is nonconforming so if you expand the bathroom, you're going to have to get a variance, or if the kitchen's nonconforming, or anything like that. You can't pullout uses that are integrated, that are actually part of the overall defined use, like the restaurant. I think that's an assumption that's perhaps erroneously has been voiced here is that you have to show whether or not the boat launch was discontinued or the boat launch was nonconforming. That's not the case, Was the marina discontinued and emphatically, no one has alleged that the marina ever stopped being used. I think, frankly, we should pack up and go home with that, but I'm afraid to continue on here, but I think that really does answer the question. MR. DUSEK-Mr. Chairman, I hate to interrupt, but may I ask Mr. Richards some a couple of questions that may help in this matter? MR. TURNER-Yes, MR. DUSEK-John, the issue of the, I think we should discuss this a little further, the issue of the boat launch. There was separate parcels here that were acquired by Mr. Parillo and the boat launch was on one of the separate parcels. What else was on that particular parcel that he acquired? MR. RICHARDS-Just to explain things. It's a little confusing because the overall Parillo ownership now extends off this map and I do have another map and it goes from 60 acres to the south and that 60 acre parcel pIus the yellow outlined piece, was purchase in the Spring of this year, in May of '89. The smaller piece which is improved also by docks, there's some vacant dwellings which Mr. Parillo has repaired, but they are all on a separate piece that was owned by Robert Ellsworth. So you've got Allison Ellsworth owning the big piece and Robert Ellsworth owning the smaller piece and each piece having docks and these having continuously rented docks on these pieces right here (referring to map). MR. DUSEK-The boat launch, is that on the Robert Ellsworth smaIl piece? MR. RICHARDS-The boat launch that we are talking about, the specific marina, is on, what I will call the Allison Ellsworth piece at the far north end of the entire parcel. MR. DUSEK-Are there docks on that parcel as well? MR. RICHARDS-Yes. They're noted here on the map. There are docks below this too. Right down on the west side. (TAPED TURNED) 5 -- --------" MR. DUSEK-Are these the boats on these docks that use that particular launch that's in question tonight? MR. RICHARDS-As we're going to show in a launch were not only the Allison Ellsworth boats. I think that also answers their separate owners that use that launch. minute, the boats that use this north boats, they're also the Robert Ellsworth question right there. There were two MR. DUSEK-I just wanted to ask that question. I think that's important. I know when Mr. Hatin's reviewed this matter he was under the impression that I was there, so I was under the impression as well that the docks on the parcel with the boat launch has to be where the connection was. That's where, you know, people rent dock, they use that boat launch and I think the issue here is whether or not there's another use to those that was put and whether the planned use is going to be different than that now. MR. RICHARDS-That was part of the new information. As I say, I really think that we could stop this whole thing right here, if we just sit back and take a look at the fact that we're talking about a marina that was a marina, is a marina and continues to be a marina, that's the nonconforming use and that really answers the question, but we '11 continue on to address some of questions that have been raised, ,. .what happens if you did ... the boat launch, what then would we have. Well we '11 make our case in reverse order from the way Paul did it, but I think the key issue here is was it in fact discontinued? And discontinuance as Paul noted to you, requires a complete cessation. It has to be totally stopped. One case you pointed out there was a marina, .... .Marina, and it was totally vacant, as I understand it, for two or three years, the only occupancy at all in this entire marina was an attorney for one of the parties had some litigation and occasionally kept a boat there, one or two times in the summer and that was sufficient to say that that use had not been discontinued. We've got much much more than that. One of the biggest things being what I've just reviewed with the Board here and with Mr. Dusek, is that we have a separate owner, Robert Ellsworth, operating a separate business, his rental docks, and having his people, all the people renting docks from him, using that north launch continuously and after Mr. Robert Ellsworth sold the property to Frank Parillo in '84/'85, Frank can certainly testify to this, all his people, also used that. This was when Allison Ellsworth still owned the north launch and all the other docks that go with that property. Frank Parillo owned that middle, smaIl piece and his renters use the north launch and I think right there you have a continuous use by people not renting docks from Allison Ellsworth that says far more the example I cited you from the law case. I do have an affidavit from Frank Parillo to verify this and I guess I'm a little unclear as to actually what material this Board has in the way of exhibits since we had the October meeting. I believe I submitted a lot of these things in, but I'm going to give you another copy just to cover it. MR. KELLEY-Can that be read into the record for the benefit of the public here? MR. RICHARDS-This is an affidavit by (Frank Parillo). Maybe I can just stream line this and ask Mr. Parillo to step up. I reside at 4 Theresa Terrace in Ballston Spa, New York and am the owner of the property commonly known as Ellsworth Marina and identified as lot number 23-1-19 on the Town of Queensbury Tax Map. I purchased the property from the estate of Allison B. Ellsworth in May 1989. Previously, I had purchased a smaIl parcel adjacent to Ellsworth Marina and identified as lot number 23-1-31 on the Town of Queensbury Tax Map. I purchased this parcel from Robert Ellsworth in October 1985. Both parcels are improved by docks, however, there is no launch site on lot 31. There are two boat launch ramps on lot 19. During the time I owned lot 31, upon information and belief, while Robert Ellsworth owned the lot, dock renters on lot 31 continuously used the launches on lot 19 to put their boats in the water. Also on information and belief, dock renters from other facilities launched their boats at 10t 19 at various times each year of Allison Ellsworth's ownership. I'm making this affidavit to demonstrate to the Queensbury Zoning Board of Appeals that the launch at Ellsworth's Marina has been used continuously by boat owners other than those renting slips at the Marina. (End of Affidavit) I also have a letter from John Gaugher, which again I think has been previously submitted and I'll read this since it's a short one. It says: I, Don Gaugher, residing at Assembly Point, New York and an employee of Dunham's Bay Boat Company, have seen a continuous use of the boat launch ramps at Ellsworth's Marina by boaters other than dock renters of the Ellsworth's. In speaking to Don again, he advises me that every fall, duck hunters use that north launch in connection, to bring their boats in and going down to the duck lines on the south part of Dunham's Bay there, Dunham's Bay Brook. I also have a letter, which again I think has previous ly 6 --- .-- -----,' been submitted, which 1'11 read none the less, from Peter J. Dailor which has been addressed to Paul Dusek, which says: I'm writing in connection with variance application 98-1989 by Frank J. Parillo to continue using the former Ellsworth's Marina for a boat launch. I have never rented a dock from either Frank Parillo or Allison Ellsworth. Each fall since 1985, however, I've launched my boat at Allison Ellsworth's Marina in order to hunt in the area. I've usually paid Mrs. Ellsworth a launching privilege by delivering firewood or other items to her. I trust this information will be helpful to you in determining that non dock renters have continuously launched boats at Ellsworth's Marina. May be that points out one aspect of this we'll have to keep in mind, and that is when Mr. Ellsworth, Allison Ellsworth, ran a launch over, I think, what was formerly there, my understanding is that he had a box out front and people just put money in were supposed to put their license plate number in, and he would periodically go down and check and eventually, as he grew more elderly, this became too much of a hassle for him and he stopped. There would be times, I think Dave Hatin knows as well, the launch was entirely open for severa 1 weeks, it just wasn't a tightly policed matter. Actually I think Dave's comment at the end was perhaps the most telling thing that he said when he did point out that it was open several weeks twice a year. Each of one of these separate uses, I've just mentioned to you, the use by the Robert Ellsworth renters, the use by the duck hunters and then the letter from the particular duck hunter and then Dave's own statement based upon some early information that we had had that it was open at various times in the year, all these things, each one independently, is enough to show that there was not a complete cessation, and that's the key thing, there was not a complete cessation of use by people other than Allison Ellsworth's renters. So, I really point out that this has not been discontinued and should be allowed for that reason. Moving on to another point which Dave made, or excuse me, which Paul Dusek made. I said that that this should be allowed as a nonconforming use because it's a marina use we're talking about not a boat launch. I said that even if you isolate, erroneously I think, but if you isolate the boat launch, even that hasn't been discontinued. Let's take it one step farther. Let's keep the isolation. Let's say it's discontinued. Even if you allow this public launching again, that's not a different use from what's there already and, again, when I say public launch, I probably should say advertising it to the public, as we've demonstrated already other than dock owners have used this. On the issue of whether or not we've got a different use, what are we talking about that's so different from what's been going on continuously throughout the last years? We've talked about mere increase and that really is the key, is this an increase in volume or qualitative difference and we have to really 100k at that, zero in on that. The famous fish case that Paul mentioned was far more extensive situation than we've got here. There they went, Paul didn't say all this, but they doubled their office hours, or their retail hours, they went actually from basically a wholesale fish business to a retail fish business. I think they tripled their volume. It was very extensive. There were a number of complaints about odors and traffic congestion and all kinds of things. A really onerous situation. The big court, again, made the hard decision and said, it may not be popular, but in that case it's not really any different, we're just adding a volume increase. So let's now 100k at this situation. What have we done. We have no physical alteration of any kind. We're not expanding a launch. We're not doing any construction into the Dunham's Bay Brook. There's really no change whatsoever. It's stilI being operated as a launch and always has been. If this Board were to deny us everything we ask for, boats would still be launched there, a boat renter could dock right on Allison Ellsworth's, he, without any permission from this Board, could launch his boat and pull it out 20 times a day if he wanted to. There's no change there. Nothing will stop that. That's a previously used and really no different than what we're asking for. The only difference that we can see hear, and it's not really a difference, it I S a mere increase in volume, in '89 somewhere in the neighborhood of 2-300 boats the entire summer were launched there that we're not directly renting for the season. So this is an extremely minimal change even in volume and certainly no qualitative difference. For that reason, we see a lot of continued and preexisting nonconforming use. I think, as Paul said in his letter to you and at the outset, this is the issue that really decides whether we have to discuss anymore. So I got that information, if I do have to address the banks question, but perhaps it's best if I stopped on the nonconforming right now and I'm going to ask Frank Parillo to just step up and just very briefly confirm what I told you about the Robert Ellsworth and Allison Ellsworth difference. Frank, can you step up. FRANK PARILLO, OWNER OF ALLISON ELLSWORTH PIECE, PRESENT MR. PARILLO-I reside at 4 Theresa Terrace, Ballston Spa, New York and I'm a summer resident of Lake George. Back in 1984, my wife and myself purchase the Robert Ellsworth piece which is approximately 30... It's 10cated in the center of the piece that we purchased in 1979, 89, I'm sorry. At the time we purchased the piece 7 in '84, Robert Ellsworth had informed me that his dock renters, in the past, had used the launches to launch their boat so they could get it in the water. So after we purchased in '84, my dock renters, on the Robert E11sworth piece, continued to use the launch. In 1989, as Mr. Richards has informed you, we purchased the Al1ison Ellsworth piece and continued to launch both dock renters from the Robert Ellsworth piece and the Allison Ellsworth piece through the same launch. So we continued to use the launch even prior to my purchasing the Allison Ellsworth piece, The launch was open 3 or 4 weeks in the Spring and 3 or 4 weeks in the summer and basica11y it was, you go there and launch your boat and there wasn't any supervision, So when we purchased the Al1ison Ellsworth piece in '89 we wanted a supervised launch where people would be allowed to come in and launch their boat and we had someone there when it was open to put some lighting up, fill the pot holes in, mow the grass, etc. and really launched, probably on the average of 4-5 boats a day. Taking the total number of boats we've launched for the year, excluding, of course, rain days when we didn't launch any boats and days when it was too windy. I think our best day on the weekend was probably around 18 or 20 boats. A lot of days during the week, we'd only launch 3 or 4. Some days you didn't launch any. So basically we're here tonight to ask that you find reason for what we're asking and, hopefully, undertake a conclusion. Thank you. MR. CARR-I think it's been answered, you aren't saying between public launching and launching for the renters. a boat is just part of a marina use. that there is a difference You had said that launching MR. RICHARDS-That's correct. MR. CARR-I can see a difference between the nonconforming, routine launching for renters that are there and then opening it up for public launching of anybody who wants to come down and pay the fee. So you're saying that's not a difference? MR. RICHARDS-I'm saying that, you have to keep in mind, what is the result of all this? The result is a boat going into the water off the launch ramp. No other change if we're granted everything we're asking for in regards to the nonconforming use. There's no change. Boats going into the water off that ramp. Whether that boat happens to be owned by a person renting a dock from Mr. Parillo or whether it's owned by someone else, is no change in quality. It's simply a change, at most, and it's not a great one, in volume. That's the point I'm trying to make in all this. The other point is that, I mentioned the case about one slip being rented and saying that was not a cessation of use. We've given you 3, 4 and perhaps 5 examples of use of that facility at the Allison Ellsworth piece by people other than renters from A11ison Ellsworth and I think that's the key that there are people other than dock renters from Ellsworth's Marina that use it and that's all we're saying is let us advertise and let other people who don't rent from that Allison Ellsworth piece also use it. MRS. EGGLESTON-Could I ask John, on the hunters and so on that you say use the dock, is that with the permission of the Ellsworth's and was there fees paid or is it like the ice fisherman who just go where they have access. MR. RICHARDS-I think the pay, we have the one documented letter where there was a payment in kind. MRS. EGGLESTON-I'm talking cash men pay? MR. RICHARDS-Buying wood or cash doesn't make any difference. It's consideration for doing this. The other's we don't know and we're not alleging necessari ly she was always paid every time they used it. I think maybe that's getting off the point a little bit. All I'm saying is whether it was free or not, and in one of the cases it wasn't free, whether it's free or not doesn't effect whether or not the launch is being used by someone other than a dock renter of Allison Ellsworth's. The fact that it's kind of opened up several weeks each year and is not a supervised, who knows who's using it then. AIl that just leads to the fact that the use does not stop. It's continuously used by other people than Allison Ellsworth's renters and that's the whole issue. MRS. EGGLESTON-But not necessarily with the permission of the Ellsworth's? MR. RICHARDS-Some with, some with not. We've got instances of both. The Robert Ellsworth people have permission. Dailor, the letter we submitted, had his permission and paid for it. Apparently, we don't know if the duck hunters had and I guess there are some that didn't. 8 -- --- ,~- MR. TURNER-Before Mr. Parillo stéps down, does anybody have any questions for him? MRS. EGGLESTON-I guess I just wanted to ask if there was, in 1984 to 1989, Mr. Paril10 said his dock leased people used the boat launch, we'll say exclusively his, the people who rented dock space from him from his own personal knowledge of in and out, they leased a space from him. MR. RICHARDS-He certainly knows the people who rented space from him used the Allison Ellsworth dock. MRS. EGGLESTON-As renters? MR. RICHARDS-As Parillo's renters, not Ellsworth's. MRS. EGGLESTON-Yes. I know. MR. RICHARDS-I don't think he said one way or the other if other people other than his people ... MRS. GOETZ- I'm concerned that the words pub 1ic launch are not inc 1uded in our definition of Marina and I'm wondering, because it's not included in that definition, if that would be a very reason to have to come in, for the very least, an interpretation because marina, you know if you read the definition of it here, I think it's a problem that it's not included and maybe that's a mistake of the ordinance. MR. RICHARDS-I don't think so. I think if it were intentional1y not included because it was deemed to be some kind of separate use, they would have separately defined it. MRS. GOETZ-I'm not exactly agreeing with you since I was on the committee that wrote the new ordinance. I don't remember that being discussed. MR. RICHARDS- I was on the committee that reviewed the new ordinance and some 320 definitions they probably blurred after a while. Not much intent being put on every single omission or not, but it is rather telling, I think, because it's not separately defined. MRS. GOETZ-And because it's not separately defined, it doesn't come under that definition that's in there. I just don't know if it can be considered part of a marina from the words public launch. MR. TURNER-There's other marinas' that do public launch. MRS. GOETZ-Preexisting. MR. TURNER-Right. also. Even though they have quick launch, that they do public launch MRS. GOETZ-In and out that same day? MR. TURNER-You've got to get them in the lake. MRS. GOETZ-I know you've got to have a way to get them in the lake. MR. TURNER-If your going to have a marina, you're going to have a launch. MRS. GOETZ-But why don't we say that here. Do you know what I'm saying? Do you know what my question is? MR. TURNER-Yes. I agree with you. part of the operation. I read it, you know. But still and all it's MRS. GOETZ-It's a big factor. pub lic . It's a big part of what goes on, be it private or MR. TURNER-Even though it doesn't say public launch, they all do it. MRS. GOETZ-Be it private or public, the fact that it's not spelled out there bothers me. MR. MULLER-Sue, I think John Richards point is that he's arguing that the launch 9 -' '---- -...,....-.---" facility sets an integral part of a marina. What you're searching for here is if he had his own restaurant, you'd also want to see a use to allow diningrooms and I think we're dotting the I twice. MRS. GOETZ-And you feel that both public and private launch have to go on as part of the marina use? MR. TURNER-That's part of the business. MR. MULLER-I don't know yet, speaking for myself. I just understand his argument. I wanted you to at least get an answer you're satisfied with. MRS. GOETZ-I understood what you said. MR. MULLER-I wanted you to understand that the launch is so important to the marina that it's understood to be part of the marina. You can either accept that or reject it. TAPE TURNED JOHN SALVADOR AND WIFE PRESENT MR. SALVADOR-We are the proprietors of Dunham's Bay Lodge. As I stated before this Board before, I can support this application to the extent to the extent to which Mr. Parillo is requesting the privilege to go on boats and that, I understand, is a limit of 20 boats per day. I don't think that this would have any adverse environmental impact. If the issue of use of the ramp were continuous use of the ramp, is at all important, I'd like to mention three uses that I've observed over the years that have not been mentioned tonight. One is I have seen trappers use the 10dge ramp to get up into the brook. I've seen contractors launch equipment onto the Lake in order to repair docks. PAUL GILCHRIST, DIAMOND POINT, PRESENT MR. GILCHRIST-I'm a secretary of the Lake George Boaters Association. I feel this ramp serves a legitimate and genuine recreational need for boaters those boaters who need access to the Lake who don't keep their boats on the Lake neither at a marina or the private residence of their own. Hearing some of the earlier comments here, I would like to confirm that boats other than those at Allison Ellsworth's Marina, at his dock, did in fact use that ramp over the years. I say that on the basis of several, at least a half dozen, lengthy conversations I had with both Allison and his wife over the last several years. Times when I was over there for one reason or another and talked with them when they were sitting there in their truck. They confirmed, I can confirm virtually everything John Richards said here about that. I was also kind of surprised to hear Frank's estimate of the number of boats launched there because those were almost exactly the figures I was going to give you as my estimate of how many boats probably would launch during the summer there on a weekday and on a weekend because those were figures similar to our ramp and other ramps that are active on the Lake. The use is very light on the weekdays. I think a figure of 3 to 5 boats on a weekday. Particularly when you're charging rates that are in line with everyone else. I'd like to point out that back when Ellsworth's were operating the ramp commercially, they got very low rates. It was sort of an honor box sometimes. It was only a dollar, two dollars, three dollars, depending on what year it was. That's not the nature of the prices that are being charged or that Frank is charging. If those were the charges, I think you'd have perhaps a little more traffic, but the prices that are in line with everybody else is as I think the figures Frank gave are very acurate as to what kind of quantity of boats you can anticipate. Those are quantities that are comparable to the west side of the Lake. I would like to, nobody's mentioned environmental issues here, although I read a little bit about it in the newspaper. I would like to mention on behalf of boaters who keep their boats off the Lake and launch into the Lake when the want to use it, that they represent the least amount of environmental burden on the Lake of boaters who use the Lake. Either boaters who dock their boats on the marina or boaters who keep their boats at a private residence would have to be considered a greater amount of environmental burden on the Lake than a boater who keeps his boat off the Lake and just uses it once in a while on the Lake and I think it would be kind of an irony if an environmental argument were used against them to say that they would put more burden on the Lake. I think 1'11 stop at that point. MR. TURNER-Any questions? 10 MR. MULLER-Mr. Gilchrist, your confimation of use of this boat launch, the applicab1e period that's of some great degree of relevancy is that in June of '89, our Building Inspector, Mr. Hatin, said that in his opinion that for the 18 months prior to June of '89 there had been a cessation of use of the boat launch. Do you have any personal knowledge or any information to give us within the 8 months prior to June of '89 there was use to the boat launch? MR. GILCHRIST-The boaters all up and down the stream there, whichever parcel they were docked at, a11 used the boat launch, whether they were Al1ison' s boaters or whether they were Pari110's or Robert's and Al1ison and his wife both told me that personally. MR. MULLER-Ok. And assuming that that be correct in terms of those two groups, anybody else that you know of? MR. GILCHRIST-They told me that they were pretty casual about other people using the ramp, especially in the Spring and fall and they made no claim that they supervised it very close1y and that it was perfectly alright with them if people used it. MRS. EGGLESTON-Since they said they were casual insinuate that during the summer months they were public in and how about these words that there was public launching and but there was physical a barrier in Spring and fall, does that more strict about not letting a boat or a sign that said no thought to surround that. MR. GILCHRIST-In the summer time, during the regular season, I don't think there was very much outside launching going on at all. I couldn't claim that there was and certainly not like there has been in earlier years. If the issue is, were outside people, or people other than Ellsworth's own dockers, using the ramp, the answer has to be yes, there definitely was. Up until Memorial Day and after Labor Day over the last few years, of course, the Mil1ion Dollar Beach ramp captures 90 percent of the boat launching business, particularly small boats which are virtually the same size as the ones you could use at El1sworth' s ramp because the ones at Million Dollar Beach have to go under a low bridge to get to the ramp, the ones at Ellsworth's have to go under a low bridge to get out to the Lake, but the boats that would be using a ramp in the Spring and fall mostly will use the Million Dollar Beach ramp rather than any commercial ramp. MRS. EGGLESTON-So, in your op~n~on, if it went from a changing class from Labor Day to Memorial Day where it was open to the public where in the summer it wasn't. To now go entirely public, would that be a change of use, in your opinion? MR. GILCHRIST-I'm not sure I entirely understood the question, but I don't think that anything that's being asked for here would represent a change in use in my view. I would also like to confirm the idea that a launch ramp is an integral part of a marina. Both the Park Commission and some of the other Town Ordinances have that definition in their vocabulary as one of the uses that comprises a marina. So that if it's not in this ordinance perhaps it was an oversight or something, but it is an integral part of a marina since it's inconceivable that you could operate a marina without it, without a launch ramp or someway to get a boat in and out of the water. MR. TURNER-Any other questions? SKIP GAUGHER, RESIDENT OF ASSEMBLY POINT, PRESENT MR. GAUGHER-I support this ramp simply because it provides the local people in the Town of Queensbury and the Glens Falls boaters access to the Lake and especially the I think that one thing that everybody is overlooking here and they're talking about a, I've been in the boat business for the last 30 or 40 years on Lake George and I'm familiar with that operation and I think one thing that everybody is overlooking is the fact that that particular ramp has a restriction already in place and that's the grate. You can only launch certain size boats from that ramp. You can't launch big cruisers. The height of that drum going underneath that bridge is 54 to 60 inches. There's a serious limitation as to what can actually go in that ramp. You're talking about a marina or a general ramp, it's not against some restriction and that's the bridge which is access to the Lake. I think when you consider increased traffic or more boats on the Lake you're considering smaller boats, certainly not the big ones. I'd just like to support it in view of local fisherman who have spoken to me and said it's great. I can come up in the evening and put my boat on the Lake and go fishing and go home at night and that's something that this Town hasn't had for a 10ng time. 11 -,' ~--",' - MR. TURNER-Any questions? application? Anyone else wish to be heard in support of the DICK KILMARTIN, RESIDENT OF THE TOWN OF QUEENSBURY, PRESENT MR, KILMARTIN-I support this because I am a local resident and occasionally, I like to go fishing on Lake George. I have a small boat. It's very easy and accessible to get on to the Lake and like the previous guy just said, you can't get a bigger boat, a big boat. It's very easy. I have children. I have grandchildren and it's very accessible for me. It's a lot easier for me to get on the Lake through this ramp than it is to go up to the Million Dollar Beach or Diamond Point where this guy just came from or any wheres else on the Lake. I think it's a help to the Town of Queensbury business wise. We're bringing business into the Town. That's all. Thank you very much. MR. CARR-Have you personally launched a boat there? MR. KILMARTIN-Yes I have in years past. MR. CARR-Would you say you've done it every year? MR. KILMARTIN-Not every year because I don't fish every year. MR. CARR-When was the last time you think you fished? MR. KILMARTIN-'86 or '87. I have a 12 foot, no it's a 14 foot, I'm sorry, with an outboard on it and I do like to fish on Lake George occasionally. MR. CARR-So you're saying the last time you think you've launched at that particular location was in '87? MR. KILMARTIN-Yes. In fact, I had a nephew up there at that time, a nephew and a niece at the same time. MR. CARR-Would that have been the summer of '87? MR. KILMARTIN-The summer of '87. I would say July or August. MR. TURNER-Anyone else wish to be heard in support of the application? Opposed to the application? CARL KROETZ, PRESENT . MR. KROETZ-I am a concerned citizen. I'm also a member of the Queensbury Citizens Advisory Committee for Lake George. I'll talk about what this man just said. I'm not against having boat launches. This boat launch is in the wrong place. There's nothing wrong with boat launches. Anybody who wants to launch a boat in Lake George, there are marinas all around the Lake. They could launch a boat there. That's the first comment I want to make. The other thing is, the first speaker, Mr. Hatin, I agree with him one hundred percent, that in my experience in going by that area two or three times a week, not this summer but the summer before, I have seen barricades, I have seen these posts in the ground. I have seen all these things which leads me to believe that it hasn't been used and of course Mr. Hatin has said that from his investigation and also the speaker before from the Boaters Association even agreed that he has not seen it used in the summer and that's the whole point, that it hasn't been used in the summer, The people who rent docks in the marina should have the right to use that launch and that is not the question here. The question is to open it up to the genera 1 public. That I s the problem and I was astounded to hear the lawyer for Mr. Parill0 say it doesn't make any difference. It's irrelevant whether you use the boat ramp for the public or for the dock renters. He says it doesn't matter. A boat launch is a boat launch. It does matter. He's talking like someone 30 years ago when we did not understand what these wetlands do for the Lake in general. Not just for the wetlands themselves. It is a cleansing body of water that takes all this water, drainage from Pickle Hil1 and cleanses it before it dumps the nutrients which is phosphorus and nitrogen into the Dunham's Bay and further on into the Lake in general. We know better now. Thirty years ago we didn't, when the boat launch was put in there, but we know now that it is different and that's what astounds me, that nobody has touched on it and a lawyer for Mr. Parillo said, it doesn't make any difference whether you open it to the public or not. Now why it makes a big difference is if the news goes out that this is an open public boat launch which is hasn't been for years and years, we're going to have, not alone, the motor boats that are now churning up the sediments in the wetlands, shoving them out through Dunham I s Bay and into 12 / '------ the Lake in general. We're going to have triple or quadruple the number of boats that are going to do just that. Scouging out that bottom of Dunham's Bay. Pushing that all out and we're going to have more sitings of milfoil. Dunham's Bay is one of the worst. I can go on and on about that, but the point that the lawyer made to Mr. Parillo, it didn I t make any difference. It makes a tremendous amount of difference. He's going to expand the boating activity in the wetlands, three fold, four fold, maybe ten fold and that is the problem we have and that's why many citizens are objecting to this. Not because it's a boat launch for the boats that are there, but that it's going to be used for the genera 1 public and the increase of the usage is what we Ire objecting to. -"""....-" MR. TURNER-Any questions? Who wants to be heard next? DR. JAMES BLAKE, PRESENT DR. BLAKE-I 1m a physician and also have experience in community health. First let me say I'm speaking as an individual, but Ilm also speaking as Chairman of the Advisory Committee on Lake George for the Town Board. Whether or not you know this I'm not sure, but the Town Board appointed an Advisory Committee for the citizens to keep them appraised of happenings on Lake George and Queensbury area that might have a net influence on the environment along the Lake and the land adjacent to the Town of Queensbury. We have been functioning as such a committee for two or more years now and have been reporting to the Town Board observations that come to our attention and observations that we make ourselves that we think might be a problem down the road somewhere that they should take a look at. This committee, to clarify further, meets regularly to discuss these subjects and we come to the conclusion among ourselves, we think that there might be the possibility, not today necessarily, but further down the road, to make such suggestions or recommendations to the Supervisor of the Town Board itself. Last summer, it was observed there was a tremendous increase in the activity in the area of the Dunham's Bay wetlands. Prior to this, it was a moderate, mild if you wish, marina, docking boats that were there. Whether or not they were launched, one didn't know because you didn I t see the so called launching area. It seemed to be open in the spring when the boats were put in, and then clears off for the rest of the year. For the 35 years I've lived on Lake George, this has never been a continuous launching activity on the Lake. Many time you saw no activity whatsoever. It was completely closed off. Possibly open in the Spring or summer. Opened up and closed up, but it was not a continuous operation. As far as the boats themselves, no one objects to the boats that are there, perhaps the launch there. As Mr. Kroetz said, it's the potential increase of transient boats coming from other areas that should be of your concern. We all, some of us feel confident of and we all suspect, that much of the milfoil in Lake George has been transported into Lake George by boats coming from lakes that are filled with milfoil and being launched without proper cleaning and inspection before their brought into Lake George itself. Dunham IS Bay, as you may know, is a definite site of milfoil on the east side of the Lake, and I believe the only one in the Town of Queensbury that has a milfoil site. In reference to the area itself, a couple of questions came to mind listening to the attorney you speak of. As a public health official, I take issue with him that you cannot pluck a part out. I make an issue that you can. You can in public health. If you are operating a restaurant he refers to and you've got a sanitary facility that's not meeting the public health procedures, I can come in and make you change that facility so that it does meet the standards. I think the same thing applies, sir, to a marina. Another point I think is important. These two marinas they refer to by different names. Those were at one time contiguous and somewhere along the way and another time, perhaps that can be verified, a road was put in between them, a road has been filled in and is separating them as far as the two areas are concerned, but at one time the entire area was contiguous with the boats being docked up to a limited point and then I guess perhaps when Mr. Parillo bought the deed south of him, they began to dock boats over there and eventually this... At first it was just a ... eventually it was filled in and now it is actually a dam. From an environmental point of view, it is very obvious that there is an excess of rapidly growing weeds in the wetlands of Dunham's Bay. This area 11m speaking of now in the summertime is a solid, green pond of algae. It is absolutely solid. It looks as though you could walk across it. This is all developed over a period of years and will continue to get worse as time goes on. I don't think the proper subject here is so much the question of the number of boats being out there as it is what's going with the excess of transient boats coming from allover the State, New Jersey, Long Island, coming in and going into Lake George at the most easy access place. I'm under the impression that there are marinas who do not have docking facilities for transient boats. Perhaps I'm wrong, but I don I t think so. There are marinas on Lake George that do not dock transient boats from around the State. The condition of these wetlands is the most important as far 13 ._-~ '-"'--" as the future of is concerned. The wetlands of any area is continguous and it raises the question, if you are making regulations today and not basing it on something that was decided 20 years ago, the question is would you allow any type of boating activity in your wetlands? I'm sure that the environmentalists would say no. You should not ever allow any type of boating activity or crowding activity of any kind in a wetlands. Salvation of a body of water is dependent entirely on the condition of its wetlands. I can see no problems with docking the boats there, but I can see a tremendous problem down the road if your permitted to have docking of transient boats coming from everywhere. This should not be permitted. MR, TURNER-Any questions? Opposed, next? DOUGLAS WRIGLEY, PRESENT MR. WRIGLEY-I reside at 29 Marcy Lane in Queensbury and we are summer residents at Dunham's Bay in Lake George. In regard to the use or non use of the boat launch, based on my personal observations over the last two summers, prior to this year, the boat launch was not in view. (TAPE TURNED) There was not the evidence of any automobiles or any additional traffic, cars, other than those normally there used by the dock renters. So that, as far as I'm concerned, the boat launch was not in use during any time at least for the two summers prior to this past summer and possibly before that and I'd like to reserve, Mr. Chairman, after this question is settled, to respond to further questions. MR. CARR-You said for the summer it was locked? MR. WRIGLEY-Yes. MR. CARR-Do you no what happened in the Spring and fall? MR. WRIGLEY-No. I do not. MRS. GOETZ-I have a question maybe Dr. Lee can answer. Mr. Richards? You need 24 hour access to toilets? This is a class A marina, MR. RICHARDS-Should be. MRS. GOETZ-And I would like to know, Dr. Lee, should they have this and then maybe Mr. Richards could tell me if they do. MRS. EGGLESTON-They don't address it on the Long EAF. MRS. GOETZ-Will deal with the answer later? MR. TURNER-Yes. Who wishes to speak next, in opposition? TOM WEST, REPRESENTING HIMSELF, PRESENT MR. WEST-I'm here representing myself as a shareholder in the Joshua's Rock Corporation. The Joshua's Rock Corporation, as I noted in several of the previous meetings, owns property immediately to the north of Mr. Parillo's property. It also is the owner of property to the north inside of Dunham's Bay, that's where my family has their camp. This property has been in my family for over a hundred years, two hundred, thank you. First of all, I'd like to object to the procedure tonight. I think it's highly irregular and improper that we're starting from scratch some six months after this issue came before this Board. Now, I respect your Town Attorney, but I cannot agree with his opinion that it's proper to start this hearing over from scratch tonight. I think there are many people in this room tonight who were in attendance, and I believe it was back in July, when we first came in response to what I thought was an advertised public meeting to hear the appeal by Mr. Parillo from Mr. Hatin I s determination that this was an expansion of a nonconforming use. I sat in this audience ready, willing, and able to make a presentation on that issue, but it was my understand of the way the proceedings went that night, and I think the minutes will accurately reflect exactly what did happen, that the issue came before this Board. This Board heard the presentation in a public matter, by Mr. Richards, he put in the evidence he had on that issue and this Board determined that he did not meet this burden of demonstrating that this was not in fact an expansion into a new use by reopening the public boat launch and consequently he was told that a variance would be required. I think that was a very important procedural event because it was advertised, the public attended, this Board listened to the presentation, from the property owner and determined that he had not met his burden. I think that qualifies as a public hearing and I think it is improper to start this procedure over. It's very important to decide that threshold issue 14 ~".-' "-'''"-' because it makes a big difference in what vote is required tonight because if you can just start over because you don't think you held an adequate public hearing it's open to a normal vote on any motion a majority will carry. If I'm right: that there was in fact a public hearing dealing with this issue already and the 30 day statute of limitations has expired, the only relief that Mr. Parillo has is to convince all of the members of this Board to reopen it. I believe your Town Attorney and I agree on that position, that unanimity is required. In so far as you are holding a public hearing concerning this issue tonight, I think it's important that we have a procedural understanding that all of the presentations that were given on this issue back in July, as well as the other times when this issue came up during the variance hearings, are part of this record. Very often cases like this end up in court and the lawyers have to fight over what's a part of the public record. So I try and make a habit, during the hearing, to get an understanding, for example, Mr. Turner, during the previous meeting, I put in photographic evidence dealing with the various ramps in issue and I would like an understanding that that photographic evidence is going to be a part of this record tonight. I think it would be a lot simplier for everybody if we treated all these hearings because they've been adjourned under unfortunate circumstances. MR. TURNER-Mr. Richards submitted some personal evidence that he claims he submitted before. We accepted that so we will accept all these others in turn. MR. WEST-Including the matters that are already before this Board, because I had submitted some photographs that I do not have copies of. I have one other to submit tonight. With that understanding, again, without waiving my position that we're starting over here, this issue has already been heard and determined once, 1'11 proceed to the merits of the issue that is before you. First, has there been a change in use or a mere increase in use? I think very clearly there has been a change in use, it's a dramatic change in use, opening a public boat launch in the Ellsworth Marina in the Dunham's Bay wetland. It is clearly a change in use from what's been going on there in the last couple of years. Mr. Richards made the statement that if you were to call this a change of use, you'd have to get a variance to put a diningroom in a restaurant. I don't think anybody would contend that you I d have to get a variance to put a diningroom in a restaurant, but if you go back to the fish case which is a very famous case dealing with nonconforming uses and expansions of nonconforming uses, and you look at a slight variation on that theme, I think you can come up with an example that's very close to this one. If a fish distributor distributed canned fish from a particular facility in a neighborhood, a residential neighborhood, decided to open up a fish processing facility to supplement their distribution business, so that they now brought in raw fish and processed them with all the attended smel1 etc., I don't think anybody would dispute the fact that that is a change in use, even though the only effect is, is the increase, his fish business, and that's why each one of these situations has to be decided by Boards such as yourself and ultimately courts if it goes to courts based upon the unique facts and circumstances of the particular case. I think that plenty of people have spoken to you tonight. I have a few more words to say about this subject, but I think when all is said and done, taking this marina which, since the public boat launch was discontinued several years ago or many years ago whenever it was, has been a far quieter operation. Far less impact upon Dunham's Bay, the Dunham's Bay wetland, and Lake George and allowing them to open up a public boat launch will stink just as much as a110wing a distributor of canned fish goods to go into the fish processing business. I think they are one and the same. In terms of whether or not there was a lapse. As I mentioned before, there were some photographs submitted in the previous hearings on that subject and I believe you have them. I think it's three photographs if I recall correctly. One dealing with the ramp, the northlsouth ramp that Mr. Richards referred to up here. Another one I believe dealing with either this launch here which is further south or the one on what I call the after the first bend in the river the next set of docks up in there, but those photographs which were taken back in the summer of 1988 clearly show that there was signs posted for no parking, no boat launching, that the launch was closed and in fact, on the north/ south launch which is the one in issue here, there were telephone poles permanently imbedded in the ground blocking access to that northlsouth launch and there was in fact a boat moored there. It's that boat that you can see in the picture I've just handed to you Mr. Turner which had a maroon cover on it and as I noted in previous sessions before this Board, I'm not only hear as an attorney, but I'm hear as a resident and give you my own personal observations that that launch has been closed as a public boat launch for at least several years prior to when Mr. Parillo purchased this property and in fact I remember that particular boat being moored in that launch spot for several summers and it was kind of unique because the boat very rarely went out. It sat there with its maroon cover. In fact, knowing that the Ellsworth Marina property was going to be going up for sale, I think it was my family that had requested Mr. Hatin, back 15 -- -,",,""-'" in 1988 to look at that and make his own physical observations and I think it's very important to remind this Board that Mr. Hatin has stated that it is his opinion, in his professional opinion as employee of the Town, unbiased witness, based upon his own personal observations that no public boat launch was operated at that site for several years prior to 1989. So I think the answer to the second question is very clearly that there was a lapse. Number four, was there an alteration or an extension when Mr. Parillo reopened that boat launch. Well that's really a restatement of issue number two. Of course there was. By reopening this as a public boat launch, he has dramatically changed the character of that particular facility. I think it's totally irrelevant that he only had three or four boats launch on a particular Wednesday of this summer or that his peak was 18 to 20. What really is relevant is how many boats are going to want to go there in the summer of '90, '91, '92, '93? Is there any authority of this Board to put any limitation on it. I've heard the number 20 thrown around as being some limitation. You've heard your own Town Attorney here tonight say, that you have no authority, this Board has no authority, to regulate mere increase in use. So what are you doing here? If you allow this public boat launch to reopen, your opening the barn door and this is the same barn door that's opened at many other marinas around the Lake where they're trying to convert the existing operations into quick launch operations and get as many boats in and out of the Lake as they can to expand or change their business. Nothing will prohibit Mr. Parillo from deciding to use this property, this vacant land over here, or some of the other acreage he owns now which I think he estimated as a total of 60 acres, from coming back before this Board as a matter of right, based upon your own Town Attorney's opinion, and putting in a full scale, quick launch facility. The only thing that will limit the facility is the height of the boat. That won't change unless DOT rebuilds the bridge, but there will be no ability of this Board, of this Town to enforce any restrictions and what does that mean? That means that we, as residents of Dunham's Bay, have to sit there and watch increased traffic go through that Bay, and remember, people got up and told you before that these are the people that don't obey the speed limit, they don't even know there's a speed limit till they get out to the end of the Bay. We have to bear the risk that more eutrophocation of the Bay is going to occur at a faster rate, that we're going to have increased Eurasian Water milfoil and Waterchestnut problems. These are the realities for the residents of Dunham's .Bay if you allow this barn door to open. Two other points and 1'11 close. I think that Mrs. Eggleston's repeated questions looking for financial records are very relevant here because what we're talking about here is we're talking about whether or not this facility can be reopened after a definite lapse in excess of 18 months. As a public boat launch where people are going to come in and pay fees to launch their boats, I think the fact that somebody gave Mrs. Ellsworth a load of firewood so that they could launch their hunting boat, I hope it wasn't a mechanized boat because mechanized boats are prohibited up in the swamp, is totally irrelevant. The fact that some of Mr. Parillo's customers docking in this in what he's referred to as the Robert Ellsworth property may have launched their boats without anybody' s permission again is, totally irrelevant. What is relevant, what is required, in nonconforming use cases is dollars and cents proof. 1 don't care whether you are trying to prove a case of no financial rate of return or whether you are trying to prove some other element. There has been not one shred of evidence before this Board to show that anybody was paying a fee to launch boats and that's really what's on the table here. That's the change in use that is more than just an increase in use. I recognize this is a tough decision for this Board. It is not an easy decision to tell somebody like Mr. Parill0 that he can't make a few more dollars off of his property. It's not an easy decision for this Board to say you're going to do something which may restrict the ability of a few citizens to launch their fishing boats at one place within this Town. 1 recognize those are tough decisions, but it's a very important decision to strictly enforce your zoning ordinance in this case. It's very important for the people of Dunham's Bay who will have to put up with the increased traffic. The people who travel on Bay Road will have the increase traffic of trailers and all the traffic of people waiting to get out there on a busy weekend and for all of us will suffer, as several doctors have testified in these proceedings, increased eutrophocation occurs and we have an increase in Eurasian Water milfoil and Waterchestnut. So on that basis, I respectfully request that this Board rule that number one, that when Mr. Parillo reopened the public boat launch he did change the use to a use that had been abandoned for more than 18 months and therefore a variance is required. On the variance issues, I think I've spoken two or three times, and 1'11 stand on my previous statements. Thank you. MR, TURNER-Any questions? Next. JOHN REID, PRESENT 16 -' -- --- MR. REID-I'm from the Lake George Association and of course the easy thing for you about my being here is that we're easy to anticipate. You know what views are going to be. It's the same on every subject we get into. If we think it's going to damage the Lake you're going to find we're on the other side. If we think it's going to help the Lake along the way, we're going to be for it. To back up one of the things Tom said that I think wasn't mentioned was the subject of such things as snowmobiles, trappers, fisherman and others that going over that as a launch area I think is just as irrelevant as paying somebody with a little bit of wood. I live on the Lake myself. I have snowmobiles and fisherman going over my property to get to the Lake all the time, I certainly wouldn't consider those public launching places and I wouldn't like it if anybody else thought of it that way, I'd like to leave one little thought with the members of the Zoning Board of Appeals and that is that something you are going to get into over and over and over again as time goes on. The Lake is in a state of deterioration now because of the situations that exist around it. Now that's going to require that we do two major things. Number one we've got to make sure that we don't introduce any further situations that complicate it and make it worse than it is, but that, friends, is only the beginning. Then we've got to go back and figure out what it is that has it in this deteriorated state today and we're going to have to start correcting some of those. Now if you think this one is tough, and must agree that this is a very difficult decision for you, the kind that you're going to be faced with someday when you're figuring out what we're going to do to correct the situation that already exists, is going to be a great deal tougher. Also, this particular issue is not one of whether or not the boats going in there are going to damage the main part of the Lake, that mayor may not be true, but I think that's not the major issue as was pointed out by somebody else, The issue is that a lot of boats going in and out of that area today would in fact cause considerable damage to an area that is already being trampled on. The big mistake made in that area, of course, was made a number of years ago when the marina was first allowed to be built. Now we're past that point at this moment, we can't do anything about that so we have to accept that, but let's not make it worse. So, in closing, I would just say that tonight is what a zoning board of appeals is all about. The decisions are tough but we do hope that you '11 make this one the right way. MR. TURNER-Who wishes to speak next in opposition to the application? JIM HAGAN, CLEVERDALE, PRESENT MR. HAGAN-I live on the Lake. I have seen the activities at this marina. There have been a 10t of facts give tonight that I don't agree with. I do know that a launching pad must be considered an integral part of a marina, but it does not necessarily have to be made public. We can bear this out by examining the two marinas in my area that which have signs which say No Public Launching. They have launches for their own boats and for occasional users of those launches, but not to be opened to the general public. AIl these arguments may serve a purpose, however, I have to think back to the early '60' s when I owned considerable land in the north country and actually it was invaded by our national government. Secretary Udall came to this Country, and this is not irrelevant, he came to this Countryside to establish a national park in the Adirondacks. I was part of this action, part of this action to defeat his wishes, but at that time, we discovered there were these four communities dumping raw sewage into the Hudson River. Now the fact that it has always been done, does not make it acceptable today. As I refer now to the use of the wetlands. Just because they were used 20 and 30 years ago, does not necessarily make it acceptable, as Carl Kroetz said, we're a little smarter. We're better informed. If you go over to Pruyns Island and examine the Hudson River today and compare it to pictures that were taken there 20 years ago, you'll see a drastic improvement. Conversely, if you come to Cleverdale and my private site, and take pictures of the Lake 12 years ago and take pictures of them today, you will find adverse affecting conditions, such as what is caused by Milfoil, overactivity in our wetlands, previous abuse of wetlands. Just because they were previously abused does not mean we should allow them to be abused today. I ask the Board to seriously consider this issue and deny the request to make this a pub lic launch. (TAPE TURNED) DOROTHEA HALL, PRESENT MRS. HALL-If you look at any of the trappers or fisherman, they will use any accessible point closest to where they want to be on the area concerned. However, my point tonight, is the lack of bathroom facilities that have been allowed to go on for some time. They have that green pond you heard of earlier because of out houses 17 --......- that have since been taken down, but there stil1 is no restroom facility and now we're going to have a public docking site so that we can compound what is already happening there. We had some people come to Town, the County inspecting 10 marinas this past summer with the criteria that they used. They had 2 marinas that passed and most of them are not passing because of they don't have public facilities for restrooms. Now we're talking about deterioration of the Lake and that certainly seems to be a rampant part of it and I'd like to see you deny this on the strenght that we do not have any more need for contamination. MR. TURNER-Any questions? Are there any other speakers, in opposition? ALEGRA IRELAND, PRESENT MRS. IRELAND-I'm part of the Joshua's Rock Corporation. My place just across the bridge from the marina. I had to have several thousand dol1ars spent to buttress my property from all the boats coming through the bridge. Now I hope I've had enough of it done so that it won't happen anymore, but I'm not sure because there are getting to be so many more boats coming through the bridge. MR. TURNER-Gentleman over here, DR. ROBERT EVANS, PRESENT DR. EVANS-11m the Town of Queensbury Public Health Officer. I'm speaking against the marina expansion for a number of reasons. On May 10, 1989, myself, Mr. Dan Olsen from Warren County, David Hatin from the Town of Queensbury, and Lt. Bill Crane from the Lake George Park Commission toured the marinas in North Queensbury, primarily organized by myself because of multip1e requests by residents in North Queensbury because of a nuisance and health concerns in regards to the marina. The E11sworth' s current property we're discussing tonight, based on Lake George Park Commission Rules failed the inspection for a number of reasons. One is already mentioned. Twenty four hour pump out facilities are not available for boats. Bathroom facilities for twenty four hours for boaters are not availab1e and dump sites for toilets are not available on that site. I've been on the site a number of times. There were a number of privies that have since been removed, but my current recommendations would be, with increased number of boaters, traffic in that area, resulting garbage already concerns and violations of the Commission, current recommendation that this be denied. Again, as the Public Health Officer, my grounds sometimes go from the North Queensbury responsibilities to the Commission responsibilities because of health type issues and I think because of increased traffic which this definitely create, I would have certainly some health concerns and some current regulations that are not being met. Thank you. MR. TURNER-Anyone else wish to be heard? MR. SALVADORE-I think it should be clearly understood that marinas are not required to have pump out facilities. They're required to have proven access to pump out facilities. Is that correct, MR. DUSEK-That's what I understand. MR. SALVADORE-Proven access is what they need. pump out facility. They don't need an on premises MR. DUSEK-That's right. MR. SALVADORE-If issue of milfoil propagation is of concern, I think the Board should avail themselves to the studies that the Fresh Water Institute has made concerning the difference between what they term mechanical fragmentation and auto fragmentation. There is a difference in the ability of the milfoi1 to replant itself depending on how it's fragmented. I don't know why that study hasn't been made public yet. Thank you. BARBARA KILMARTIN, PRESENT, IN SUPPORT MRS. KILMARTIN-Nobody has mentioned our children. I have two sons. I was raised, the nine of us. My father took us fishing and hunting in Lake George. What about our kids? What are they going to have up there? Nothing. If you don't allow boating or any of this, how are our children going to teach their children and carry it on, like, excuse me, I don't remember this Dr.' s name here, but he had a lot to give us heritage. How are our children going to carryon any heritage if we don't give them that opportunity to learn, to carryon. How are we going to do that? And Dr. Evans is my doctor and my childrens doctor. What are our children going to be able to do. 18 MR. TURNER-Mrs. Kilmartin, please address your remarks to the Board. MRS. EGGLESTON-Can I respond to that? I had the remarks that the State really doesn't want the marinas on the Lake George and more use of that. Your efforts should be in getting the State to have more facilities. MRS. KILMARTIN-I have them at home. MRS. EGGLESTON- I'm talking about boat launching for people who don't own a place on Lake George. MRS. KILMARTIN-I just know how I was brought up and I think that our children should be considered. MRS. GOETZ-I don't think anyone of us would argue with that, it's just how we've got to go about doing it and where the best place for that is and that's what we're trying to decide. So, thanks a 10t for your comments. GENTLEMAN-Mrs. Eggleston, as I understand it, it is in fact the State of New York that has given you a permit to launch 20 boats a day. That is where the number came from? MR. RICHARDS-Maybe I can clarify some of this. There's been a whole lot of, I would calI it, scare tactics and half truths being thrown around here, quick launches and milfoil and everything else. If we come to the point of reviewing the variance, ....prepared to address this, resolve a 10t of this including a question if a Park Commission permit was to be had, I think that's really not the issue here that we're trying to ...question I think answers the whole problem as far as this Board is concerned. Is this a nonconforming use? Has it been discontinued and ...conditions, yes or no? PUBLIC HEARING CLOSED CORRESPONDENCE A group a letters received in the last few days: From Mrs. Andrew Brown, Assembly Point (on file) From Elizabeth Bach (on file) From Leta Abrahms, Lockwood, NY (on file) From Lentin Simms, Lake George (on file) From Francis Gower, Scotia, NY (on file) From Leo Laughfrey, President of Dunham's Bay Association, December 18, 1989 (on file) From Edward Seeley, Joshuas Rock Corporation (on file) From Michael Maestrianni, MD (on file) From Ruth Gredlaw (on file) From Carl Kroetz (on file) MR. TURNER-Stated at this point in time, the Board is open for discussion. MR. MULLER-Asked, how many dock slips are associated with the Robert Ellsworth parcel? MR. PARILLO-Stated we dock about 30 boats. MR. MULLER-Asked, how many dock slips are associated with the Allison Ellsworth parcel? MR. PARILLO-Stated presently, around 90. MR. MULLER-Stated so if we call it a 120 dock slips, we've covered everything that's there behind the bridge? MR. PARILLO-Yes. MR. MULLER-Stated there doesn't seem to be a dispute here that boats that are docked at that facility, Robert Ellsworth's parcel, Allison Ellsworth's parcel, have been launched and taken out of the Lake from that launch. Asked, are we talking about 120 boats in, 120 boats out every year? 19 -----' - MR. PARILLO-Stated no. You're talking about more than that because we rent slips by the week, two weeks, a month, whatever. So, there's more than 120 boats in and out. MR. MULLER-Stated I didn't know that, that is that on the Robert Ellsworth Property, while you were the owner of that, were you renting dock slips on a weekly or monthly basis as well as seasonal? MR. PARILLO-Stated from time to time. take their boats to Lake Champlainge or boat out of the water and put it back picture of 120 boats in and out. Guys would go on vacation and wanted to wherever. They were allowed to pull their in when they return. So, it's not a true MR. MULLER-Stated I'm trying to get to the bottom of what's going through these slips. I see a picture in August of '88 where you've got a slip that's got a barrier in front of it. Asked, you've seen that picture that picture right? MR. PARILLO-Right. MR. MULLER-Asked, in the summer of '88, how are the boats getting in and out? MR. PARILLO-Stated the barrier's misleading in the picture because you could still launch a boat with the barrier there. The barrier was there to deceive somebody driving down the road. I've launched, we've got a Boston Whaler plus a larger boat, my Boston Whaler there even before I even owned it. The barrier is some distance from the launch itself. There's plenty of room to back up a trailer arond the barrier and down into the water. MR. MULLER-Asked, we're you expected to make a financial payment for the opportunity to launch boats in an out of the Lake when you only owned the Robert Ellsworth parcel, to the Allison Ellsworth owners? MR. PARILLO-Stated no. That's a free service you're allowed. MR. MULLER-Asked presently how many parking spaces do you have there that would be suitable for vehicle plus tow trailer? MR. PARILLO-Stated we can probably park 20 or 25 and stilI allow enough parking for the dock renters. lot which is about 65 acres, but that's not part available for parking. cars with trailers comfortably Plus we've got the back parking of this application, but it is MR. MULLER-Stated my concern is that, in trying to reach a determination and discuss it with the Board here in terms of whether we're altering, expanding, changing the extent that you propose to continue the use that Mr. Ellsworth had allowing the public to launch boats in and out. Mr. Ellsworth only had parking right where the boat launch was. MR. PARILLO-Stated no. He had the same amount of parking that I have. I have a very limited amount of parking with the Robert Ellsworth parcel, but he had the same area to park cars as I do. MR. MULLER-Asked, you would not be expanding this parking? MR. PARILLO-No. MR. MULLER-Asked, is there some limitation that's imposed upon your operation to launch boats, by the State of New York? MR. RICHARDS-Stated what we Ive got is a permit. I think Allison Ellsworth had a permit. Frank had applied to have the permit transferred over to him which he did receive this Spring. In his application he estimated a boat launch of 20± boats a day and that's where the figure comes from. That was part of his application when the permit was given. MR. MULLER-Stated the permit was issued to Mr. Parillo for '89. Asked, in 188 did we have the issuance of a permit to the State for any owner for that site? MR. RICHARDS-Stated yes. Allison Ellsworth has had, since the early '80's, a permit from the Lake George Park Commission. MR. MULLER-Stated Ilm not familiar with that application process. Asked is one of the requirements of the question and answers that go with that application, how many boats you're going to launch? 20 --- .......---.->" MR. RICHARDS-Stated not when Allison Ellsworth applied. They had a very brief application, but it was in the transfer application that Frank submitted. MR. MULLER-Asked, for this record you're prepared to state, though, that in years previous to Mr. Parillo's ownership, that Mr. Allison Ellsworth had whatever permit was necessary from the LGA to operate the facility that they have there. MR. KELLEY-Asked, at any time are you aware of a time period of a year or more where there was never a dock rented to anybody? Where this marina was completely closed in its entirity? MR. RICHARDS-Stated no. As a matter of fact, I think Frank told me that most of the year it was completely rented. MR. KELLEY-Asked, there may have been portions of it that didn't function, but there was always at least some docks rented. MR. RICHARDS-Stated as Mr. Ellsworth grew older, he kind of was manager. He kept pretty much one hundred percent occupancy. MRS. EGGLESTON-Stated I don't want to dog to death the monetary issue here, but for me, an exchange of money helps me determine whether it's open to the public use or not. Asked is that a wrong issue? MR. DUSEK-Stated I think that's a relevant issue to consider. I don't know if that's the only issue and that's up to the Board to decide. It's an element of proof that I certainly think we could take into consideration in how you decide to rule. I'd also add that the issue of the firewood, that's consideration, a substitute for money that you can also consider as to whether or not it was that. Of course, if you consider that, I think you should make a determination as to whether is was in fact exchange properly of him just being a nice guy and dropping off some wood or some other arrangement. You have to weight those type of things. MRS. EGGLESTON-Stated based on that, I'd like to ask Mr. Parill0, when you contemplated buying the Allison Ellsworth property, a smart business man would have looked at the income for the operation for the previous years and in looking at those records, income tax, income, whatever, did you see anything other than income from the boat house. Did you see a log that said, today 30 people from the public came through, so much money. The guy who rents the spot paid his money today. Did you in those records, in the same year you bought it when he finished with it, see anything that indicates there was revenues from the general public? MR. PARILLO-Stated we didn't examine any records. You want to keep in mind that the Ellsworth's were over 80 years old. We signed the contract to divide this in 1988 under the assumption that the launch was an intrical part of the marina, that it could be reopened. It was never advised that it couldn't be. I had conversations with Dave Hatin and until the day which was, I believe, in July , we were under the assumption that it was a part of the marina and that there would be no problems. We got the permit transferred from DEC. There was a year lapse from the time we signed the contract until we bought it because Mr. Ellsworth had passed away. To answer your question, there weren't any records to examine. MRS. EGGLESTON-Stated you just used the your mind it was closed to the public? was it closed to the public? word reopened. Asked does You used the word reopen. that mean in In your mind MR. PARILLO-Stated it was closed to the public as far as being advertised, but it wasn't closed to the public in my mind. There were no chains. It wasn't filled in so you couldn't use it. I personally used it myself. My 30 or so customers from the Robert Ellsworth used it. As far as using the reopen, I meant to reopen it as an advertised type of a thing where the Ellsworth's chose not to do it that way simply because they were of ill health and didn't have the man power to take care of it. We have it supervised, with strong lights. We put up traffic cones. MRS. EGGLESTON-Asked you did say you talked to Dave Hatin about reopening? MR. PARILLO-Stated I did, MR. WEST-Stated I'd like to just correct some terminology on the Lake George Park Commission permit that's been referred to. To the best of my knowledge, no permit has been issued by the Lake George Park Commission for this marina operation. 21 -- ---- In fact, as Dr. Evans testified, this marina is in violation because they don't have restroom facilities. I don't think they've demonstrated proven access to pump out, etc. What I believe Mr. Richards is referring to is the dock registration process that is also administered by the Lake George Park Commission and has been since the early 1980' s and that is what was transferred. If the applicant, Mr. Parillo or his attorney, really believes they have a permit from the Lake George Park Commission other than just a dock registration, they should submit a copy of it so we can end the speculation, but to the best of my knowledge, no permit has been issued for this facility and there won't be until the violations are resolved. I think it's even further complicated by the fact that the Town won't allow port-a-potties. Isn't that correct, Dave? He's going to have to put in some permanent facilities there to meet the Park Commission's requirements. ---".------' MR. RICHARDS-Stated, again, I do have the marina permit, permit number 50-82-0146 issued to Frank J. Parillo by the Lake George Park Commission signed by Carl Parker and Michael P. White. Michael White the current administrator. (TAPE TURNED) We're getting off the track as to what the issue is right now. MR. KELLEY-Asked, to be a marina, does it have to meet all of the criteria for a marina, to dock boats, to launch boats. To be qualified to be a marina, does it have to bathroom facilities? May be they don't have a marina, MRS. GOETZ-Stated that's what I'm wondering. MRS. EGGLESTON-Stated that's my question. MR. RICHARDS-Asked is the bathroom the big question here? As a matter of fact we've been discussing with Dave Hatin about putting permanent ones in. I don't think that's relevant to this question now. STAFF INPUT Notes from John Goralski, Planner (attached) MR. TURNER-Stated staff input refers to a file copy which is not included. MRS. GOETZ-Stated it I S Part I of the Full Environmental Assessment Form. He says that he made red markings on the file copy. There are copies of it, but nothing marked file copy with this. MRS. YORK-Stated I don't have a clue. Do you want me to give him a call? MR. TURNER-Stated I think we should discuss. MRS. GOETZ-Stated if we're going to discuss, I think we'd better get back to what we were discussing which was the problem do they need a variance or don't they. I think that's the first issue. MR. CARR-Stated Sue, they don't need a variance if we find it's a nonconforming use that has not been discontinued. MR. TURNER-Stated that's it exactly. MR. CARR-Stated it's a very threshold issue, Has this use been discontinued? I think then we've got to define for ourselves whether public launching means you have to have cash change hands or do you have to have an exchange at all. Can somebody from the public just use the dock provided that's public launching? MRS. GOETZ-Asked what are your thoughts on that? MR. CARR-Stated my feeling is that no, cash does not have to change hands. These people want to open up their property to allow people to use this dock facility and whether it was an honor system or any system they wanted to use as long ,as the people from the public were allowed to come out to these people's property to use that launch. To me, that's a public launch. Regardless of cash or anything changing hands. MR. KELLEY-Stated to look at Paul Dusek's letter to the Board, the next to last page where Paul signs it, that particular page, if you just start at the top, it talks about the case cited by Robert Anderson in the book Zoning Law and Practice 'that very minimal use of a non-conforming use is necessary to keep the same alive and avoid the termination of the same by the discontinuance after 18 months rule.' 22 --- Down here it says "An ordinance which terminates a right of non-conforming use upon discontinuance for a specified period has the effect of foreclosing the right of use only if discontinuance is total. There was no loss of a non-conforming marina where during the period of alleged discontinuance on slip was rented and occupied during part of the time." I asked this question and the answer was no, this was not totally closed at any period of time. Based on this information, myself, I would say the marina has not been closed and, in essence, doesn't need a variance. MR. MULLER-Stated I think it's a really tough issue. There's a lot of things to try and decide. Some of the things that I think are appropriate to not be part of our decision, although they're relevant points or other considerations, they're not relevant to what we're asked to do here tonight. Barbara Kilmartin, I agree with her about the concerns for our children and heritage and all that, but it's not relevant tonight. Environmental concerns, I think that everybody on the Board is concerned about the environmental aspects, but how do you reach those environmental aspects without first reaching the question about Mr. Parillo's property right versus the concerns that we're supposed to apply here about is this an alteration? Is this a mere increase? Is this a qualitative change in use? These are easy buzz words, but when we try to apply them here, they're very tough. When I'm looking at this thing, some of the words that were used by the people both for and against, I refer to, in one instance, one of the speakers said off premises boat launch. That makes sense in that I tend to agree with Bruce Carr that is that I'm not hung up on this consideration thing. I'm hung up on where the boats come from and has the use been continuous. If you look at the case that Jeff has read, the cessation of use of the launch is not something that I s been total. We Ive had testimony here that nobody wants to controvert that 120 boats in each year go in an go out pIus. I think stilI no one has controverted to my satisfaction that off premises boats were launched, that is they went from the Al1ison El1sworth parcel onto the Robert Ellsworth parcel. I'm sitting here struggling with are we expanding anything else here or altering anything else because there are things. I drove by there everyday, trying to take a shortcut. There were long periods of time where it was obvious there wasn I t boat launching there, yet I suppose the people who really knew the Ellsworth's could launch their boats and certainly Mr. Parillo is launching his boats. I don't think we're in the position to take away that property right about the boat launching and then reach the other issues about the environment, the heritage concerns and all that. I think that our tough job is that there's been a continuity of use here and that what we're going to see could be qualified, in my opinion, as a mere increase. MR. SICARD-Stated I've launched boats there back probably before Columbus landed, but I can remember many times going to Allison and I'd try to pay him and he'd say no go on in. Of course, whether we count that as an instance thing or a ...thing I don't know. Allison was a member of this Board for quite a while, one of the first members and it was probably because I was a fellow Board member, but I've seen, since that launch has been put in, I've launched boats up at dirt launch. Many times he would let people go in and I presumed it was ok to do this. MRS. GOETZ-Stated I feel there is a difference between private and public, exchange of cash or money or whatever or why have them work up a composite. It's as simple as that. I feel they do need a variance and I haven't been convinced that there wasn't some discontinuance and that being 18 months or more of that public launch. MRS. EGGLESTON-Stated I'm in agreement with Susan. I feel there has been a discontinuance of the use. Even if we spoke in favor of Mr. Parill0 and then if there had been some discontinuance of use and, in my opinion, the changing hands of cash does signify something to me as to whether it was open to the public or not and I really feel there should be a variance. MR. TURNER-Stated the way I feel marina use whatsoever and unless argument that that's not ceased. is that there has been no total cessation of the that IS total there's case laws to support the MR. MULLER-Asked Paul, if this motion is made when voted upon, is there any special requirement as to a unanimous vote or is it just the standard majority requirement? MR. DUSEK-Stated it just should be the standard majority of the Board requirement. MR. MULLER-Asked your recommendation was that there be some recitation of findings of fact? MR. DUSEK-Stated yes. I think whoever makes the motion for or against would want to outline in that motion the factors that give support in the motion to be made. 23 '"----- MOTION THAT VARIANCE FOR USE VARIANCE NO. 98-1989 FRANK PARILLO, IS NOT REQUIRED, Introduced by Michael Muller who moved for its adoption, seconded by Jeffrey Kelley: For the proposition that Mr. Parillo not be required to obtain a variance and that there has been a continuous use of the facility. That is with the marina as well as the launch aspects of the marina. The findings that I make to support that are as follows: The first finding of facts that I would make is that I would rely upon the testimony of persons who spoke on behalf of the application as well as those who spoke opposed. Mr. John Salvador, neighbor at Dunham's Bay Lodge confirmed that he has seen boat launches and construction boat launches at that site. Mr. Paul Gilchrist has confirmed the use of the boat launch within the period. Persons who spoke opposed to the proposition did indicate that they have seen the marina in use and were aware of the fact that boats were being launched prior to the docking season and after the docking season, not in the summer. Mr. Parillo testified that since his ownership of the Robert Ellsworth parcel in '84 or '85 and continuously until he actually aqcuired the Allison Ellsworth parcel, his customers having 30 boat slips launched and took boats out before and after the season and weekly and monthly dock renters during the season. We had a letter from one individual that had indicated that he had launched his boat for hunting purposes. That's made part of the record here. And I make mention of that letter because it's not a requirement of our ordinance that consideration paid for the services be actual cash. Another fact I would like to add is that our ordinance does not speak to a boat launch as a separate use and launching is practically speaking integral to the operation of a marina. My motion includes the finding of fact that Mr. Parillo and Mr. Hatin, the facts they have presented is that it is a launching of boats through a launch on to the waters of Lake George and from the waters of Lake George, the key issue being must those boats that are launched be limited to those docked upon the parcel known as the Allison Ellsworth parcel. There's uncontroverted proof that since '84 or '85 that has been the case. The fact being that boats were launched from the Allison Ellsworth launch, offsite, to the adjacent parcel launched to the Robert Ellsworth parcel. Mr. Parillo now proposes to launch through the season and allow others to do so. He is allowed that right as the evidence that we have heard as to a discontinuance was not total nor is this an alteration or an expansion. Appeal 41189 A yes vote supports the motion. Duly adopted this 27th day of December, 1989, by the following vote: AYES: Mr. Kelley, Mr. Muller, Mr. Sicard, Mr. Carr, Mr. Turner NOES: Mrs. Goetz, Mrs. Eggleston SIGN VARIANCE NO. 143-1989 TYPE: UNLISTED PC-1A NYS ENTERTAINMENT D/B/A BLOCKBUSTER VIDEO QUEENSBURY FACTORY OUTLET CENTER, CURRENTLY VACANT CORNER STORE ADJACENT TO BANK STREET, GLEN STREET APPLICANT PROPOSES TO INSTALL TWO WALL SIGNS; ONE SIGN IS PERMITTED AS OF CURRENT ORDINANCE. FOR A 31 FT. HIGH, 3 FT. WIDE SIGN THAT WILL READ "BLOCKBUSTER VIDEO". (WARREN COUNTY PLANNING) TAX MAP NO. 103-1-1 LOT SIZE: 13.72 ACRES SECTION 6.103 JON LAPPER, AGENT FOR NYS ENTERTAINMENT DIBIA BLOCKBUSTER VIDEO, PRESENT MR. TURNER-Stated this was tabled from last week. Asked Mrs. Collard to address the conformity of the sign in the plaza as far as color. MRS. COLLARD-Stated Mr. Dusek and she had met and discussed this since then. MR. DUSEK-Stated there were two issues. The first being, is this application properly before the Board? He has investigated the matter. He has received a fax copy of a court order appointing Mr. Carr as receiver, Mr. Howard Carr. Mr. Carr has also written a letter to Mr. Dusek advising that, in his capacity as receiver, he had the powers granted to him to lease the property subject to court approval. He is also in the capacity as a lessor which their ordinance says either an owner or lessor can come before this Board and make application. In that capacity, though he's not here, he has consented to the application. Another letter was sent to Mr. Dusek has indicated that Mr. Carr has given Mr. Lapper authority to act on his behalf. This letter was dated December 21st. In this letter it indicates that Jon is there properly on Mr. Carr's behalf. That is an issue that Mr. Liebowitz on behalf of Saul Birnbaum brought up. The second issue that Mr. Leibowitz raised is concerning, even if you get by that issue that a lease is not going enter into, that really this is not a proper matter before the Board, that the cart is before the horse, that a lease should be gotten first subject to the variance then they should come before the Board. Mr. Dusek evaluated that as well, and he would disagree. 24 ~ The reason he would disagree is because Mr. Carr is the lessor coming before the Board. If it were Blockbusters, Mr. Dusek thinks this would be right, the cart would be before the horse, that Blockbusters couldn't possibly prove a case unless they were able to show a loss. Mr. Carr, however, is able to come before the Board because he is a lessor, whether or not he proves a case is ultimately up to this Board to decide. As far as the issues are concerned in the case, it's Mr. Dusek's understanding that the Zoning Administrator has previously indicated that there was a sign ordinance in effect at the time this application was before the Board and that sign ordinance indicates that the signs have to be of a conforming color, or there has to be a plan or scheme arrangement to the color. He would draw to the Board's attention that Mr. Dusek reviewed the sign ordinance and he knows there was a question relative to the large, freestanding, green and cream sign. He would just bring to the Board's attention that the ordinance indicates that wall signs within the plaza have to be of a conforming nature and it does not refer to the green and cream freestanding sign, so he thinks that might explain why it was that it got away from the system, why that turned out to be a different color. The main issue before the Board at this point is really a typical variance balancing case of does the needs and the welfare and the aesthetic values that the community desires to have preserved here weigh more in the balance or less than the needs of the applicant in having the use of his registered trademark? That's the decision for this Board tonight, as to how the Board feels about that and whether there's any sufficient proof brought before them on that issue. MR. CARR-Stated, doesn't the applicant have to be Howard Carr? MR. DUSEK-Stated the applicant is Mr. Lapper, he signed the application, that was Mr. Dusek's understanding, but he did so with the consent of Mr. Carr who is the receiver of the property appointed by the court and capable of entering into leases subject to the court. MR. CARR-Stated the applicant, though, was Blockbuster Video. MR. DUSEK-Asked, on the actual form? MR. LAPPER-Stated he was there as attorney for Blockbuster, and what Howard did, in the letter presented to the Board, this all happened before they came to the Board, dated November 3, Mr. Carr quickly explained that he was the receiver and said by this letter I feel I consent to the application of NYS Entertainment dlbla Blockbuster Video for a sign permit in regards to the store. So this is Blockbuster as the agent of the lessor. MR. CARR-Stated his question was, they don't have a lease yet? He didn't want Mark to come later and come up with a 10t of technical issues. He thought he had heard Mr. Dusek to understand that Blockbuster couldn' t come unless they actually had a lease. MR. DUSEK-Stated that would be his opinion. MR. CARR-Stated but the Board doesn't have a lease there and they are there. MR. DUSEK-Stated that is a decision that the Board has to make, whether they feel comfortable that they have adequately identified themselves as agent for the receiver and whether there's sufficient proof there. He was bothered by the fact that Blockbuster is listed on the application as the applicant. This causes him a 10t of concern. He believes that Mr. Carr should have been listed as the applicant or the State should have been listed as the applicant because that really should be before the court. Blockbuster's has some difficulty because if they don't have any lease and they can't prove a case, he doesn't know how they're going to get a variance. MR. LAPPER-Stated he hoped to not spend that much time on this issue because he doesn't want focus to be lost on the real issue, the substance of his variance request, but this was important because it's been brought up. They have to put it to rest. Today he received a letter from Mark Liebowitz about 5 o'clock right before they come in. In this letter today it seemed Mark was throwing everything he could at this to have it not be heard. This is somehow son of Great American from last year. The same issue that, for whatever reason, and he doesn't represent anybody in the Saul Birnbaum family and he doesn't really understand the facts of what's going on there, but for some reason unlike in a normal business situation where the whole family holds' a piece of real estate hoping a business interest to lease out the plaza and get as much revenue as they can, for some reason, within the family, half of the family feels it's in their interest to have the plaza vacant. So their attorney's sent the letter with 6 or 7 different issues hoping that one 25 " ---' --- of them would strike the interest of the Board or the Town Attorney so that the application wouldn't be heard. It's because of that that the Surrogate's Court in Monroe County appointed Howard Carr receiver for the purpose of leasing out this half vacant or third vacant plaza so that they can get the real estate moving. As part of his authority as receiver, he's to enter into leases and as that, he's been negotiating with Blockbuster Video, Ed Nash who was here from Dallas with him last week, for about 3 months. In the letter that Paul received last week, Mark Liebowitz said he'd never heard anything about this. He'd never seen a lease. His client's weren't aware of this. The first thing Mr. Lapper did when he got back to his office after last week was to have Howard send over some correspondence with a copy of the letter that went to Paul that was dated about 3 months ago, it was in August now, saying Dear Saul Birnbaum and the rest of the family, please be advised that I'm negotiating a lease. Here are all the terms. It was a 2 or 3 page letter with an attached memorandum, and update as to negotiations and it was specific as to price, 10cation, and different tenant approvement. In terms of that statement that they never heard about this, they didn't know there was any lease. Mr. Lapper has documented proof which he submitted to the Town Attorney. Mr. Lapper was somewhat stunned. He felt that he was broadsided that the night of the meeting, this letter's presented to the Town, There's nothing the Board had any information on. Saul Birnbaum's attorney is claiming that they never heard about this. That was not true and Mr. Lapper submitted that to Paul. At the same time, tonight Mark came up with another letter saying, well we're not pushing your agency. It's a technicality. We go to the ordinance and the ordinance says you have to be the owner or lessor. When the issue first came up, when Mr. Lapper first submitted his application in November, knowing that someone had that authority, knowing that the lease had been carefully negotiated, but until a variance is granted, if a variance is to be granted, they can't go in the plaza. If for some reason they can't have not the issue of the two signs, but if they can't have their color scheme, that really and truly is in their franchise agreement and they'll either go someplace else in Queensbury or not go in Queensbury, but that's the choice that's on the table for them because they signed on with the franchisee and the franchisee doesn't have that many rights and are subject the agreement and the agreement says it has to be this trademark. It's their nationallinternational trademark. So with that in mind, the lease is subject to this Board's approval and it's not even worth going to the court and saying please approve the lease. There's no reason why the court should approve the lease if Mr. Liebowitz never suggested that there was a reason why the court wouldn't approve the lease, but as a contingency to that, as a condition precedent, if there's no variance for the sign, there can't be a lease. So with that in mind, Howard Carr said, I would gladly appoint you, Blockbuster Video, as my agent, so that they're here as the applicant and Mr. Lapper presenting their case. MR. TURNER-Asked if Mr. Lapper had the recent December letter addressed to him? Stated it indicated that Mr. Lapper was the agent, not Blockbuster Video. MR. LAFPER-Stated he would take a 100k at that. What he had in front of him was the November 3rd letter. It says that he consents to the application of Blockbuster Video. What the letter seemed to say was it was addressing the questions that were raised in Mark's letter of last week. A valid consent allowing NYS Entertainment helping me to make this application was granted by me as receiver. Mr. Liebowitz states that no such valid consent can be given until the lease goes through. So it is Blockbuster that's the agent and Mr. Lapper as their attorney. MR. DUSEK-Stated his opinion to the Board, he thought it was Mr. Lapper, but if he says Blockbuster, then they're the agent for Mr. Carr. He doesn't have a lot of difficulties with this. MR. TURNER-Stated they had left off with the color. MRS. GOETZ-Stated they wanted input from the Town as to whether or not the Town felt they wanted to enforce that particular section of the ordinance, which Mr. Dusek did clarify one point. MR. DUSEK-Stated Pat Town that she feels that plaza and she is Collard had indicated to him as Zoning Administrator for the that there is definitely a color scheme already started in desirous of enforcing the sign ordinance. MR. MULLER-Asked what the color was? MRS, COLLARD-Stated red, white, and blue. MR. CARR-Asked, either red, white, or blue or red, white, and blue? '26 -,' --- MRS. COLLARD-Stated red, white, and blue MR. CARR-Asked, the signs all have to have red, white, and blue? MRS. COLLARD-Stated no, one or any of those colors? MR. LAPPER-Stated he didn't want to belabor the points he made last time, he'd just like to recap them and open the discussion. The provision Pat's referring to under 6.103-4 "in a shopping center, one-freestanding sign denoting the name of the shopping center sha11 be permitted for each entrance fronting a different street or highway. Each occupant of the shopping center shall be permitted one wa11 sign on the portion of the exterior waIl." The crucial sentence is "Wall signs for each occupant of a shopping center sha11 be coordinated as to material, shape, lettering, color, andlor decorative elements. It's clear to him in terms of the purpose for this, you have to look at the Northway Plaza as a shining example in the Town of something where the signs are coordinated, not just in terms of color that they've been talking about so far, but in terms of the shape, lettering, which is the material shape and lettering, the style of the sign. It's certainly in the best interest of the Town aesthetically when you go into a shopping plaza that has a number of very different stores, to show the same style of sign. It looks a 10t nicer and in the Northway Plaza it looks great, especial1y compared to the shopping center at issue here. He pointed out a couple of other shopping centers, specifically the one across the street where Fay's was, where the signs are better coordinated in terms of color than the Queensbury Factory Outlet, but still. . . . there in terms of colors. His point was that if you start with a site plan in terms of really the integrity of ordinance, which he thinks this all gets down to, if you have a site pIan for a new shopping center, of course this would have to be and it should be enforced because it would make it a better plaza like Northway Plaza. In the case here, they've got an existing plaza and he thinks they can't ignore the fact that the store front they're talking about in addition to many other store fronts in the plaza has been vacant for at least 7 to 9 years since the place was constructed. It's for that reason Mr. Lapper's asking for a variance, not to say that this shouldn't be enforced because in every other case he thinks this should be enforced in the Town. He's a resident of the Town and it's in everybody's interest, but not withstanding this, he is asking for a variance because he thinks there are specific circumstances in this case which can be distinguished from every other case so that someone can't come to the Board and say this isn't enforced because you didn't enforce it in the case of Blockbuster. He would argue, hope the Board would agree, that there were distinguishing circumstances. Mainly that the plaza has been vacant for a11 these years not only is it an eyesore, but also in terms of the economic base of the Town, it would just be nice to get this thing moving and get somebody in there. The place looks like hel1 and it always has. If you just turn to the preamble to the sign ordinance, the purpose and intent, it's intended to provide maximum visibility, to prevent unreasonable distraction of operators of motor vehicles, to prevent confusion with regard to traffic lights, signs and signals and to promote maximum safety, comfort, and wel1 being of the users of the highways, to protect property values, to create a more attractive economic and business climate, to enhance and protect the physical appearance of the community, to preserve the scenic and natural beauty designated areas, and provide more enjoyable .....community. In terms of the business components of this which he believes are important especia11y in the commercial district, just having a store in there is more attractive, better for business and it's also more aesthetical1y pleasing to have somebody in there rather than to leave that place vacant as it's been for a11 this time. He believes that in and of itself is a distinguishing factor from every other application that will come before the Board, that there's not going to be some place that's been built, that's been up for 7-9 years, that's vacant and he believes that justifies the Board looking a litt1e bit harder in this case at the specific practical difficulty that his client, that they have this national trademark that they can't go in unless they have these colors. In addition to this, his other argument is that in Pat's reading the provision that he read before, reviewing that in terms of conformity and looking at the colors, she's right. The predominant colors there are red, white, and blue. They're not necessarily the same reds, the same blues, they're different shades, It's not that they're conforming, but that they're uniform right now. She is trying to create uniformity because that's what the ordinance suggests and that would 100k nice. He feels this is a situation where you've got a different lettering style, a different material. To be just specific to the color, you can't conform to what isn't conforming, isn't uniform here. What they were suggesting was a visual1y attractive, very simple sign that just says I'm Blockbuster Video. He doesn't believe that this would be an eyesore, a problem. It would just fill up a vacant space in there. In terms of asking somebody to come in after the fact to a site which wasn't done in conformity with the ordinance and say we'd like 27 --- ,- ..- '- you to conform now, it's virtually impossible to do that because even if you pick the colors, there's the material, the shape, the style of the lettering besides the fact that Bass Shoe is green, even the ones that are red, white, and blue. Great American has big block shaped letters and the various stores have round letters, block letters. It's not uniform. So he would just ask that without destroying the integrity of the ordinance, that the Board look a little further in this case and say that of course this is in the Town's interest and this ordinance should be enforced every case it can be, but that there's a unique circumstance or situation in this case because the place has been vacant and because of how it looks now because of the nonuniform signs that would justify a variance in this case. MR. SICARD-Asked when Howard Carr took that over? MR. DUSEK-Asked if he meant when did he become receiver? MR. SICARD-Yes. MR. DUSEK-Stated he believed it was the end of March. MR. SICARD-Stated since that time the number of stores has increased repeatedly so now he believes there are 10 empty stores, basically the way he thinks about the color, if they're ever going to do it, they're never going to get another opportunity like this where you've got 10 empty stores coming in and and they'll have the majority of stores color coded if they do it now. If they don't they're just going to continue. MR. LAPPER-Asked how he can 100k at color without looking at material, shape and lettering? Shouldn't he really be asking Mr. Lapper to coordinate with all the other. MR. SICARD-Since the day, April 1st, he took it over, there's been an increasing number of lights, highlights, out. Until recently about 85 percent were out. The front sign has been out since he took it over, the main sign. That's still out. Until 2 or 3 months ago, the grass hadn't been mowed or anything else. There's been no care at all there until 2 or 3 months ago, It's still the same way. It's a very small thing to just have the main sign lit. If he wanted to increase the looks of that area, he would have done a lot of these things a long time ago. He had a 10ng time to do it. MR. LAPPER-Stated he doesn't represent Howard Carr, but he knows that his receivership was challenged in court in Monroe County and one thing that Howard Carr said to Mr. Lapper was he was getting in there to try and clean this up. He did, on his behalf, come before the Planning Board in May to ask for the site pIan to be extended which allowed for a little more construction, but also he said on the record, the place looks like hell, he was aware of this, and to the extent that it was in his power and that was part of it, if he wants to lease it out, the place has to look better than what it does now. Mr. Lapper believes the lawn was mowed a couple of times at the end of the summer. In terms of the lighting, that stuff all has to be taken care of. His client was just trying to rent. MR. SICARD-Stated there's two old stores that have been sitting there for years. The point he was trying to make was, they have ten empty stores there now. It would be so easy now as the tenants come in to switch them to the new colors. If they let it happen to these stores which he doubts whether they will or not, they'll never get an opportunity like they've got now and he understands there's another one going out. It's a great time to get into this color change, MR. MULLER-Stated the point he would like to make and see if they can address is that when they're asked to make a change, afford some relief from the zoning ordinance, they need to find something that's unique to this particular piece of property or that there's something unreasonable in the ordinance. What he understood they proposed was that basically this was Mr. Lapper' s client's or Blockbuster Video's color scheme. This is the color of the 10go in the trademark. If the Board were to adopted that and say that's a good reason then the Town was vulnerable for every application that comes from now until hell freezes over on that same issue, So that when Red Lobster wants to go into the green shopping center, then the Board has to give them that because it's just a good reason and they want to be consistent, fair. That doesn't sound like a good reason because how does it relate to the property or how does it relate to this ordinance. MR. LAPPER-Stated he was certainly sensitive to this issue. He wouldn't want this to happen in the green shopping center. MR. MULLER-Stated he didn't know what the name of it was? 28 --,' -- -~ -' MR. LAPPER-Stated he believes it was Northway Plaza. He just wanted to highlight the issue that this has been vacant for 7-9 years. That this is a unique situation just to get somebody in there, so there won't be this vacant store front in the Town. MR. MULLER-Stated what was unique, as he understood it, was there was some particular problem with the land, not the land 10rd. MR. LAPPER-Stated in terms of the land itself, he believes other facts are that there's the NiMo right-of-way next door, there's the unkept parcel where Sears used to be back there, the parking lot. The fact that these stores are a distance of 400 feet from Glen Street, from the public thoroughfare and he believes these are all factors as to why this has remained vacant for so many years. MR. MULLER-Stated, when it comes to the sign, and he doesn't know, if the facts are correct he doesn't dispute them, but if it's 400 feet back from the public right-of-way, then the ordinance provides that they have a larger sign. He was really trying to figure out how they could be fair to this applicant and give him the relief he requested and yet be able to with stand a similar request by any other applicant. MRS. GOETZ-Stated they couldn't. MR. LAPPER-Stated another issue was that, when you 100k at the sign, the predominate color was going to be the blue awning which, he discussed this with Pat before he came to the Board, and that was really, Pat was looking at that, and he agreed with her, as a structure because that's something that's fixed to the building. It I S an awning which is attractive and the ye110w sign was only the letters that were very simple block letters right on the awning. When you 100k at that, what you're going to see is blue. The yellow would stand out as the lettering that's blue which is in conformity and we're not talking about that because Pat didn't feel there was any variance issue because blue is the predominant color. It's just a question of what the letter's were going to 100k at. MR. SICARD-Stated the Board has had their sign, that's there sign logos. down in the past. many signs that the company wanted to put in He didn't know how many of those they turned MRS. GOETZ-Stated it just wasn't an argument. he make the letters white? If it was so minimal, why couldn't MR. LAPPER-Stated if it were up to him, he would suggest to his client to make the letters white and get on with it, but that would violate the franchise agreement. MRS. GOETZ-Stated that that was their problem. MR. LAPPER-Stated, the only thing, it was in the Town's interest to get somebody in there at this point, rather than leave it vacant, in the hopes that that will attract other people. MR. TURNER-Stated there was no doubt that the Town has been interested in getting tenants in there. TAPE TURNED MRS. GOETZ-Stated maybe he could get the other tenants to go with his color scheme. MRS. COLLARD-Asked, since she didn't have the application with her, what size sign were they requesting? MR. TURNER-Stated 31 ft. by 3 ft. MR. MULLER-Asked if they were getting into a problem with the awning being part of the sign part of the structure? MRS. COLLARD-No. MR. LAPPER-Stated in terms of finding a way out of this so that they could get into the plaza and it wouldn't have a negative effect on the ordinance on they're interpretation, was there a way that they could consider yellow one of the conforming 29 -- -- .- - colors because the yellow, creamish yellow sign, that was approved on the freestanding sign, even though, technically, as Mr. Dusek explained you Ire only looking at the conformity of the stores. In terms of the character of the neighborhood, a year ago, probably before Pat's time, but it was approved with a green and cream sign to go on Glen Street which is more in keeping with the colors that are on Glen Street right now as he pointed out that there I s some with yellow in the green Northway Plaza. The building itself is kind of a brownish-yellowish color, the metal skin at the top of the building. Perhaps the Board could find it to rule that a variance isn I t required here because the yellow sign doesn't conflict because there's a yellow sign on Glen Street. MR. MULLER-Stated this was an interesting question. Board to find that yellow is a conforming color is kittens in the oven, that would make them muffins. He believed that asking the like proposing if a cat had MOTION TO DENY SIGN VARIANCE 143-1989 NYS ENTERTAINMENT D/B/A BLOCKBUSTER VIDEO, Introduced by Susan Goetz who moved for its adoption, seconded by Charles Sicard: There are two aspects of the application. One was for the second wall sign and the second variance was on the color scheme, which would have included yellow-black lettering. I don't think there are any special circumstances or conditions applying to these sign requests which do not apply generally to the signs in the neighborhood. The strict application of the ordinance would not deprive the applicant of the reasonable use of the sign. The variance is not in general harmony with the restrictions established for the area and the variance is not the minimum relief necessary to accomplish the intended objectives. Duly adopted this 27th day of December, 1989, by the following vote: AYES: Mr. Kelley, Mr. MulIer, Mr. Sicard, Mrs. Goetz, Mrs. Eggleston, Mr, Carr, Mr. Turner NOES: NONE On motion meeting was adjourned. RESPECTFULLY SUBMITTED Theodore Turner, Chairman 30 ~~ - TOWN OF QUEENSBURY / / .......... P12nning Department -NOTE TO FILE- Mrs. Lee A. York, Senior Planner Mr. John S. Goralski, Planner Mr. Stuart G. Baker, Assistant Planner Date: By: December 18, 1989 Stuart Baker Area Variance U. Variance ---x Sip Variance == lDterpretaticm Other: Subdi.ïaicm: Site Plan Rmew - Petition for a Change of Zone Freshwater WetlaDds Permit Sketch, Prelim' - mary, FiDal Appticaticm Number: SÜm Variance No. 143-)989 ApptiQDt'. Name: NYS Entertainment d/b/a Blockbuster Video MeetÜlg Date: December 20. 1989 ............................................................................................ . The applicant would like to put up two wall signs with yellow lettering at the Queensbury Factory Outlet Center. One wall sign of the proposed size on the front of the corner store will provide excellent exposure of the business to north and southbound traffic on Upper Glen Street, and should not deny the applicant reasonable use of the property occupied. Any existing or expected traffic congestion problems by the Bank Street entrance to the plaza should be corrected by traffic control signs rather than store wall signs. The majority of traffic entering the plaza does so via Upper Glen Street. On the issue objective of the yellow lettering. the sign, rather national franchise of the lettering of the store sign, the Board must weigh the sign ordinance section against the applicants desire for There are no special circumstances applying to the land or the applicants situation arises from participation in a with a registered trademark. SBlpw TOWN OF QUEENSBURY - ( 0 P f LE CC ---../ p):lnning Department -NOTE TO FILE- Mrs. Lee A. York, Senior Planner Mr. John S. Goralski, Planner Mr. Stuart G. Baker, Assistant Planner Date: December 14, 1989 By: Tnhn ~nr~ 1 c:1.t-; Area Variance ~ Use Variance Sign Variance == Interpretation Subdi~OD: Sketch, _ Preliminary, Site Plan Rmew == Petition for a Change of Zone Freshwater Wetlands Permit Final Other: Application Number: Use Variance No. 98-1989 Applicant's Name: Frank Pari 110 Meeting Date: December 27, 1989 ............................................................................................ At the October 18, 1989 meet ing the ZBA passed a mot ion to rehear the appeal of the Zoning Administrator's decision and the variance if necessary. The Board also instructed the applicant to fill out Part I of the Full Environ- mental Assessment Form. To aid in your review I have done a preliminary review of the Full EAF Part II and I have recommended answers (in red) on the file copy. JG/pw