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2009.01.21 (Queensbury ZBA Meeting 01/21/09) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JANUARY 21, 2009 INDEX Area Variance No. 83-2008 Joseph Riitano 1. Tax Map No. 226.19-19 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. 0 (Queensbury ZBA Meeting 01/21/09) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JANUARY 21, 2009 7:00 P.M. MEMBERS PRESENT JAMES UNDERWOOD, CHAIRMAN ROY URRICO, SECRETARY JOAN JENKIN GEORGE DRELLOS JOYCE HUNT BRIAN CLEMENTS JOHN ZANGHI, ALTERNATE ZONING ADMINISTRATOR-CRAIG BROWN LAND USE PLANNER-KEITH OBORNE STENOGRAPHER-MARIA GAGLIARDI MR. UNDERWOOD-Okay. I’m going to call to order the January 21, 2009 meeting of the Town of Queensbury Zoning Board of Appeals. First off, let me do a quick review of our procedures in general. For each case I’ll call the application by name and number, since we only have one this evening. The Secretary will read in the pertinent parts of the application, the Staff Notes as well as the Warren County Planning Board decision, if applicable. The applicant, then, will be invited to the table and be asked to provide any information that they wish to add to their application. The Board then will ask questions of the applicant. Following that we’ll open the public hearing. I’d caution that the public hearing is not a vote. It’s a way to gather information about concerns, real or perceived, and it’s a way to gather information, insight in general, about the issue at hand. It should function to help the Board members make a wise, informed decision, but it does not make the decision for the Board members. As always, we’ll have a five minute limit on each speaker. So that basically tells us everything they want us to know in that five minutes. A speaker may speak again, if, after listening to other speakers, a speaker believes they have new information to present. Following that, we’ll read correspondence into the record, and then the applicant will have an opportunity to react and respond to the public comment, and Board members will then discuss the variance with the applicant. Following that, the Board members will be polled to explain their positions on the application, then we’ll close the public hearing, unless there’s a reason to leave it open, if it looks like the application will be continued to another meeting, and finally we’ll have a motion to approve, disapprove or table and a vote. So tonight on the agenda we only have one item on the agenda, and that is project applicant Joseph Riitano. AREA VARIANCE NO. 83-2008 SEQRA TYPE: II JOSEPH RIITANO AGENT(S): JONATHAN C. LAPPER, ESQ. AND STEFANIE BITTER, ESQ. BPSR OWNER(S): JOSEPH RIITANO ZONING: WR-1A LOCATION: 16 SUNSET LANE APPLICANT HAS RENOVATED HIS HOME AND IS SEEKING RELIEF FROM THE FRONT & SIDE SETBACK REQUIREMENTS ANDFOR THE EXPANSION OF A NON-CONFORMING STRUCTURE. CROSS REF.: SPR 52-2008; NOA 4-2004 WARREN COUNTY PLANNING: 12/10/08 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.17 ACRES TAX MAP NO. 226.19-1-9 SECTION: 179-4-030, 179-13-010 STEPHANIE BITTER & KARLA BUETTNER, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-This was postponed from last December to this date. I think what I’m going to do here this evening is that the history of this project has been that it’s been sort of in progress here but never resolved, and I think it dates back to 2002 is the first time that we initiated the project, and I think what I’ll do is have Roy read in Staff Notes on what we’re going to do here, and then the reason that this recently revived was that we did receive a letter from some of the concerned parties that live adjacent to this project, and that project, this letter was received back on June 6, 2008, and I think I’ll read that letter in because that sort of precipitated the events that we’re going to be going through here this evening, and then the responses from Mr. Brown to that letter, and then also the responses back and forth and we did receive some new information this evening, also, from the Riitanos. So, Roy, do you want to do that first, or should I read the letter? What do you think? 1 (Queensbury ZBA Meeting 01/21/09) MS. BITTER-Mr. Chairman, is it possible, I totally appreciate the Staff Notes comment, but obviously I was planning on doing somewhat of a brief overview of how we got to this point. MR. UNDERWOOD-Sure. Right. MS. BITTER-If we could do that before reading in the letters from the neighbors. I understand that, obviously, the appeals precipitated this whole event, but at least if we could start with the application on hand. MR. UNDERWOOD-Sure. Staff Notes, I think, reflect, you know, where we’re at at the present time. So why don’t you just do that, Roy. MR. URRICO-Okay. STAFF INPUT Notes from Staff, Area Variance No. 83-2008, Joseph Riitano, Meeting Date: December 30, 2008 “Project Location: 16 Sunset Lane Description of Proposed Project: Applicant has renovated his home and is seeking relief from the front and side setback requirements and for the expansion of a nonconforming structure. Relief Required: The applicant requests 5.34 feet of front setback relief from the 30 foot requirement, 7.31 west sideline setback relief and 11.38 feet for east sideline setback relief from the 20 foot requirement per §179-4-030. Further, the applicant requests relief from the expansion of a non-conforming structure per §179-13-10. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor changes to the character of the neighborhood may be anticipated as most properties in the immediate area are non-compliant in regards to property line setbacks. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. With the house already constructed, feasible alternative would be drastic in nature in order to avoid an area variance. 3. Whether the requested area variance is substantial. Concerning setbacks, the request for 5.34 feet or 17.8 percent of relief from the 30 foot front setback requirement may be considered minor to moderate relative to the ordinance. The request for 7.31 feet or 36.5 percent for west sideline setback relief from the 20 foot side setback requirement may be considered moderate relative to the ordinance. The request for 11.38 feet or 56.9 percent of relief from the 20 foot side setback requirement may be considered moderate to severe relative to the ordinance. Concerning the expansion of a non-conforming structure, the applicant has increased the pitch of the roof, resulting in a two story sized structure. The applicant states that this will be used for storage only. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impact on the physical and environmental conditions of the neighborhood is anticipated. 5. Whether the alleged difficulty was self created. The alleged difficulty may be considered self created. Parcel History (construction/site plan/variance, etc.): AV 83-08 Front & side setback requirements; expansion of a non-conforming structure in a CEA Pending; 2 (Queensbury ZBA Meeting 01/21/09) AV 47-05 Maximum allowable FAR requirements; relief from the continuation req. Tabled 6/22/05; NOA 6-04 Appellant (Kelly) is appealing a Zoning Administrator determination regarding a FAR calculation relative to the basement Denied 12/22/04; NOA 9-04 Appellant request interpretation relative to a letter written by the Zoning Administrator dated 9/3/04 to Riitano regarding the ZBA's decision for Notice of Appeal No. 4-2004 Denied 9/25/04; NOA 4-04 Applicant is appealing decisions made by the Zoning Administrator in his 5/17/04 letter to Riitano regarding the renovation of the Riitano dwelling Upheld 8/25/04; AV 29-04 Relief from minimum front & side setbacks; permeability & continuation requirements Denied 4/28/04; AV 89- 03 Relief from the minimum front setback, expansion of a nonconforming structure and relief from the permeability requirements. Denied 12/17/03; AV 56-02 Relief from setback requirements for the front and both side yards, Floor Area Ratio regulations and expansion of a nonconforming use. Withdrawn; BP 02-866 Construction of a 319 sq ft residential addition per plot plan and specifications. Approved 10/25/02; BP 02-442 Septic Alteration Approved 6/2002. Staff comments: In an effort to ensure that the upper level is not suitable for living space, the Zoning Board of Appeals may consider the removal of the windows from the upper level area as a condition of approval. Floor plans as submitted do not accurately depict current conditions. The applicant may be required to submit updated floor plans as a condition of approval. The 33 square feet of crushed stone mentioned in the survey has been removed and replace with grass. SEQR Status: Type II-No action necessary” “Warren County Planning Board Project Review and Referral Form December 10, 2008 Project Name: Riitano, Joseph Owner(s): Joseph Riitano ID Number: QBY-08-AV-83 County Project#: Dec08-22 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant has renovated his home and is seeking relief from the front and side setback requirements and for the expansion of a non-conforming structure. Site Location: 16 Sunset Lane Tax Map Number(s): 226.19-1-9 Staff Notes: Area Variance: The applicant requests approval of an existing renovated home. The information submitted indicates the applicant had received building permit(s), and certificate of occupancy permit for the project that began in 2002 and was completed in 2003 with an issuance of a CO in 2004. An appeal was filed and upheld by the Zoning Board of Appeals in 2004 indicating the roof structure constituted a vertical expansion, making the building non-compliant. The applicant is requesting relief for a front setback of 24.66 ft. where a 30 ft. setback is required; a side setback of 12.69 ft. where a 20 ft. setback is required; a side setback of 9.62 ft. where a 20 ft. setback is required and relief is requested for the expansion of a non-conforming structure. Staff recommends no county impact based on the information submitted according to the suggested review criteria of NYS General Municipal Law Section 239 L applied to the proposed project. County Planning Board Recommendation: No County Impact” Signed by Richard C. Merrill 12/12/08” MR. UNDERWOOD-Mr. Brown responded to a letter, the initial letter that precipitated this was dated back on June 6, 2008, and again, that was from Caffrey and Flower, and in this letter here, I think that they were looking for some closure at some point, in other words, we had been through the process several times with Mr. Riitano, and the Board had rendered decisions going forward at that point in time, and in response to, things were sort of just left up in the air. It had gone to the Court system, it had been appealed, and then I guess the appeal had not been perfected at that point in time, in essence. So, at that point, it became one of two options, and I guess I’ll read in those two options, what they were. This letter is dated September 26, 2008 to Mr. Riitano. RE: The 16 Sunset Lane single family dwelling Tax Map Parcel 226.19-1-9 “Dear Mr. Riitano: I am writing to you in response to the recent court decision relative to the property referenced above. Your current structure at 16 Sunset Lane is considered to be in violation of our Zoning Ordinance and, consistent with the Zoning Board of Appeals, your construction constitutes an expansion. The necessary approvals for your project have not been 3 (Queensbury ZBA Meeting 01/21/09) issued. As such, your two options are either to seek an Area Variance approval from the Zoning Board for your as-built condition or you must reconfigure the home in order to bring the structure into compliance. It is my expectation that you will address this matter immediately in order to avoid a formal enforcement action which would likely include our Town Board seeking an injunctive action against you. It is my expectation that you will contact this office by October 6,2008 with your intentions and ultimately submit the necessary applications by our submittal deadline of October 15, 2008 in order to avoid formal enforcement actions.” Signed Craig Brown. The response to that letter came back at that point in time from Mr. Riitano, and again, this one is addressed to Mr. Craig Brown. “I am writing on behalf of our client, Joseph Riitano, in response to your letter dated September 26, 2008. In 2005, we filed an application for an Area Variance, 47- 2005, to address the issues now raised in your letter. Given the pending litigation at that time, variance application was tabled. At this time, Mr. Riitano desires to resurrect the application. However, it has come to our attention that an adjacent neighbor has constructed a home after receiving a variance from the Town’s height and setback restrictions. Based on this information, it is necessary for Mr. Riitano to obtain further information and modify his application. As a result, we are respectfully requesting that Mr. Riitano be permitted to submit the necessary application and modifications by November 15, 2008 to be heard at the December meeting.” All right. At that point, in December, we were tabled to where we’re at here this evening. The latest submission letter that we received, and again, this one here, I’ll read this, again, to you. This was dated January 20, 2009, and again, this is to Mr. Craig Brown, Zoning Administrator, Town of Queensbury. “Dear Craig: Thank you for meeting with us today to discuss the above mentioned application. As you are aware, the applicant is willing to make certain modifications to the home in order to clearly identify the upstairs area as non-living space, which would not be deemed part of the Floor Area Ratio calculation. Specifically, we are willing to remove the windows that exist on the second floor, and replace them with attic fans and grid covers, as well as to remove the stairway which exists up to the attic. With the removal of the stairs, the Riitanos are proposing to install a scuttle hole with a pull down to access this area for storage. If you would kindly advise if this is acceptable as non-living space which would then not be included in the Floor Area Ratio calculation, I would appreciate it. If you would kindly get back to us within the next 24 hours so that we can still maintain our spot on tomorrow night’s Zoning Board of Appeals agenda, I would appreciate it.” Signed Stefanie Bitter, and then Mr. Brown’s response back, and this letter is dated January 21, 2009. To Stefanie Bitter, Esq., and again, this is the Riitano project at 16 Sunset Lane, Area Variance No. 83-2008 “Dear Mrs. Dilallo Bitter: I am writing to you in response to your letter of today relative to the above referenced property. I have read your letter and understand your current proposal to include the removal of the interior stairway leading from the first floor to the upper level in favor of a pull down set of stairs at the Riitano home at 16 Sunset Lane. Additionally, I understand your proposal to include the removal of all windows from the upper level of the home in favor of two exhaust fans and the appropriate exterior louvers. As such, it is our position that such modifications will exempt the upper level from any current building code requirements necessary to consider the space as living space and as such the same should not be counted in the Floor Area Ratio calculation for the project. Should you have any further questions or comments, please do not hesitate to contact this office.” And that’s signed by both Craig Brown, Zoning Administrator, as well as Dave Hatin, Director of Building and Codes. So I guess that’s where we’re at. MS. BITTER-Okay. Good evening. My name’s Stefanie Bitter. I’m here this evening with Joe Riitano, the applicant, and Karla Williams Buettner from Bartlett, Pontiff. I want to start by saying it’s our position that this application should not be considered an after the fact variance. An after the fact variance, in our position, is that you build an addition, a renovation or a home without obtaining the necessary building permits and later have to seek approvals. As this Town is aware, that’s not how this matter has played out. To give you an overview, the Riitanos wish to renovate their home. They did not, and have not, re-built their home. The Riitanos had a couple of proposals that were actually before this Board which were either denied or withdrawn. As a result, this is back in 2002, as a result, due to the layout of the lot, and the fact that the house, as the original footprint was considered non-compliant, they sat down with Craig Brown and the Building Department to understand what proposal would allow them to move forward without needing a variance. When that had occurred, they submitted an approval, a building plan and received a building permit on October 25, 2002. With that building permit, they started construction. The Building Department did identify that certain modifications were necessary, and Mr. Riitano followed those directions, to the extent that he even removed a porch addition that he had constructed with a sledgehammer, to adhere to the building permit. Whatever he was told he did, and on August 24, 2004, he received a Certificate of Occupancy. However, soon thereafter, due to the actions of this Board, with the determination of Mike Kelly’s appeal, Mr. Riitano’s home was then deemed non- 4 (Queensbury ZBA Meeting 01/21/09) compliant. This non-compliancy resulted in this Board determining, at that time, that a vertical expansion then required a variance. Prior to that, that was not considered the case. In addition, the determination was also that the attic or the second floor was considered living space. Now the attic has a plywood floor floor, and still does to this day, and is being used for storage, which the Staff even inspected today, was our proposal. However, that determination considered this to be living space. The result of this overturning of Mr. Brown’s determination there over required Mr. Riitano to seek variances, specifically setbacks due to this now considered vertical expansion and the continuation of his non-conforming already existing house, as well as the floor area ratio, because this Board considered the attic space to be living space. The reason that the time has past since that 2004 determination is because Mr. Riitano commenced an Article 78 action trying to overturn the determination. Unfortunately, due to a technicality, we were unsuccessful with that determination. At this time, we are seeking setback variance as well as the continuation of the nonconforming structure. Upon submitting our application, we had inadvertently omitted the Floor Area Ratio calculation. When Mr. Brown brought that to our attention, we sat down and met with him, as the letter that Chairman Underwood just recently read. We sat down and discussed what alternatives could exist so that we could count that second floor as non-living space and we wouldn’t have to come to this Board with a Floor Area Ratio variance. As a result of that meeting, that letter had come forth, and now we have a determination that clarifies the attic as no longer being considered living space, with the modifications we were proposing. We were willing to make those changes and willing to do so as a condition of this approval, so long as we have time, up until September 1, 2009, to make those changes. As a result, with those modifications, again, the request that we’re making our setbacks and the continuation of a non-conforming structure, specifically the same setbacks that we have maintained with the existing home, 5.3 feet of relief from the 30 foot front setback, maintaining the 24.66 feet that exists there today and always has. 7.31 feet of relief from the 20 foot west side setback, maintaining 12.69 feet of a setback, 11.38 feet of relief from the east side setback, maintaining 9.62 square feet in the continuation of a nonconforming structure. Again, these are all setbacks that the original structure has always maintained. Vertical expansion didn’t even exist until such time that this Board determined that Mike Kelly’s appeal was correct and overturned Craig Brown’s determination. So this variance was not needed prior to that time. As a result, this Board now needs to look at this application in the same way that you look at all other variance applications. You need to look at the balancing test, and there’s no question that the benefit to the applicant in this case is outweighed by any detriment that can be deemed to exist by the community in the granting of this variance. That’s not only demonstrated by the fact that Mr. Riitano acted in good faith. He went to the Building Department, he obtained a building permit, he followed the instructions of the Building Department, he obtained a CO. It wasn’t until after the CO that this Board determined that his structure was deemed noncompliant by the appeal of Michael Kelly. In going through those five factors just one more time for you, when looking at the balancing test. The benefit that will be obtained by the granting of this variance is obviously that Mr. Riitano will be able to maintain his home as he has constructed, with the modification that we’re obviously incorporating with this application. The effect on the character of the neighborhood, none. This is not an after the fact variance as we had stated in the early part of this presentation. The renovations were done with quality workmanship. This renovation does not in any way impact anyone’s view of the lake, and the same vertical expansion was done by the immediately adjacent neighbor, Anita Sullivan, and granted by this Board. Are there feasible alternatives? None. We feel that we’re exhausting all feasible alternatives by proposing the modifications to the second level with this application. Is this variance considered substantial? No, not when considering the history of this application. Is this considered self-created? It would be unfair and inaccurate to consider this to be a self-created hardship, due to the matter as it has arose. No adverse effects could be considered to exist on the neighborhood, again, because the neighbor did the same exact application. Because this is in the APA, we have to consider practical difficulties. Due to the fact that this determination of this appeal was rendered after the CO was issued, making this home then noncompliant, obviously it’s practically difficult for Mr. Riitano to undo the construction that he had done, following the letter of the law, following the building permit that was issued with the CO that he was granted. With regards to the Staff comments, we have absolutely no problem updating the survey, as well as the floor plan, as a condition of your approval to demonstrate exactly what we’ve constructed, but before I turn it over to you, I just want to say one more thing. I want you to understand that Mr. Riitano got the building permit and was told by the Town what to do and followed those instructions and was issued a CO. I want you to stand in his shoes and think. You guys all own homes in the Town of Queensbury. If you want to do renovations to your homes, how would you handle it? You would go to the Building Department. You would follow the instructions of the Zoning Administrator, that’s what Mr. Riitano did. He was doing everything to avoid the 5 (Queensbury ZBA Meeting 01/21/09) necessity of having to seek a variance, which is what’s put us here today. I’m going to open it up to questions. MR. UNDERWOOD-Any questions from you guys at this point in time? MRS. JENKIN-What was the square footage of the original home before the renovations took place? JOSEPH RIITANO MR. RIITANO-It’s the same. MRS. JENKIN-You didn’t put an addition on the back? MR. RIITANO-The porch, yes. There was a porch, but we just made it a little bit bigger, the porch, yes. MRS. JENKIN-So I’m asking, what was the square footage. MR. RIITANO-I don’t know exactly. MRS. JENKIN-You don’t know what it is. MR. RIITANO-The only thing we added was a small porch and we made a bigger porch. It was with the square feet Craig told us to do it with. MRS. JENKIN-And then you changed the rooflines as well, raised the house? MR. RIITANO-Well, I had to raise the house, I have water. Because I have everybody dumping their water on my land. It used to be an open ditch. They closed the ditch. They put pipes, and my neighbor raised on one side. The other neighbor raised the other side. I was like in a pond. I had ducks back there in the summer. That’s how much water we have. MRS. JENKIN-That’s not good. MR. RIITANO-Not good, and that’s the reason why we raised the house, and I had a meeting with Craig ahead of time. MRS. JENKIN-Okay. Because you put a basement in the house. MR. RIITANO-Correct, yes. MRS. JENKIN-And raised the whole house up. MR. RIITANO-The whole house. I picked it up, raised the whole house. MRS. JENKIN-What is in the basement now? MR. RIITANO-It’s just a basement. MRS. JENKIN-Okay. You have two garage doors? MR. RIITANO-Yes. You walk through the basement, because I raised (lost word) because I’m still low on the bottom. I’m still low. I cannot raise that much. I didn’t think I could. MRS. JENKIN-So why I’m questioning the basement, I wondered if I could ask Craig, is that considered floor area ratio as well? MR. BROWN-Yes. I think that was something that was discussed before, and I can’t remember the configuration of the basement. I don’t think it’s something that we counted as floor area ratio before. I don’t remember. MS. BUETTNER-If I could, it was part of an appeal back in 2004 and this Board determined that the basement was not floor area ratio. MRS. JENKIN-Because it is exposed on one side, and so I just wondered, because it’s exposed on one side, if it would be considered. 6 (Queensbury ZBA Meeting 01/21/09) MS. BUETTNER-But this Board’s already determined that it’s not living space, back in ’04. MRS. JENKIN-But we don’t have that information. MR. BROWN-Was that the part of the appeal that says the attic is but the basement isn’t? It was all done in the same appeal? MS. BUETTNER-Yes. MR. BROWN-Okay. MRS. HUNT-I have a question. In your letter of November 17, 2008, you said that in August of 2003, pursuant to the request of the Zoning Administrator, Craig Brown, Mr. Riitano submitted new plans which more clearly reflected the renovations being made. Are we suggesting that he wasn’t following the building permits? MS. BITTER-I think there were certain changes that he was making, so he had to modify those. MR. RIITANO-Yes. They told me to make some changes, and the architect made the change, which I gave them a copy, and they stamped it. MRS. HUNT-So the new plans reflect what is built now? MR. RIITANO-Yes. Exactly. MS. BITTER-There are certain changes that we did discuss that that’s why the Staff had indicated that we have to submit updated plans. MRS. HUNT-Okay. MR. DRELLOS-Thirty-three feet of crushed stone that he’s talking about in the Staff comments, now you had also agreed to that as part of a condition? MS. BITTER-Right, for permeability purposes. MR. DRELLOS-All right. MRS. JENKIN-Are the plans we have now the updated plans? MR. RIITANO-Yes. MRS. JENKIN-Or the original? MR. RIITANO-They are with the house. MS. BITTER-They are what the CO was issued for. MR. RIITANO-CO. MS. BITTER-The only item, I believe and Keith Oborne directed to our attention, is that the windows are not the exact windows that were actually put in there. So that’s why we said we would submit additional plans to demonstrate the windows that exist, but with the change that we’re proposing, obviously we’d have to show exactly we’re proposing as well. MR. DRELLOS-Would the louvers where the windows are now, would they be smaller or bigger? MR. RIITANO-In the blueprints the windows were bigger, were double. I want to put a smaller window. MR. DRELLOS-Smaller, the louver there. MR. RIITANO-A small window there now. MS. BITTER-No, he did put a smaller window. 7 (Queensbury ZBA Meeting 01/21/09) MR. RIITANO-On the print it’s a double window, and I put a single window, smaller. MR. DRELLOS-But I’m talking the louvers that you’re going to replace. Will they be smaller or larger than what you have now? MR. RIITANO-I’m going to take the window out, the way the building permit, I’m going to take the window out, and probably put a fan for the heat, for the attic, and put louvers. So it will look decent. MS. BITTER-But would it be the same size as the window that’s there now or smaller? MR. RIITANO-Yes, the same size as the window that’s there now, just above the window. Take the window out, put in plywood, because they say they don’t want to have a window, and they put a fan on like this to take the heat out of the attic. MS. BITTER-But he would cover it with siding to obviously make it conform with the actual exterior. MR. RIITANO-Well, we try to get the louver to match that, to look decent. I want the house to look decent. MS. BITTER-Okay. MR. RIITANO-Because there’s already siding. MS. BITTER-Right. MR. UNDERWOOD-Any other questions from Board members? All right. MR. CLEMENTS-I just wondered if Staff was going to get a chance to respond. MR. UNDERWOOD-You can ask Staff their response, if you wish, ask Mr. Brown. Responding to what? MR. CLEMENTS-Well, to respond to the attorney’s remarks in the beginning. MR. BROWN-Yes. I think that generally summarizes what happened. I mean, and not to oversimplify it, but a building permit was issued. The construction that took place on sit didn’t match what the building permit was for. So we informed Mr. Riitano that he had a couple of options to seek variances for front porch or remove it or modify the house to bring it into compliance with the setbacks that he would be allowed, because there was an existing porch on the front of the house that he remodeled but he couldn’t enlarge. He enlarged it. He ended up taking that porch off because it wasn’t on the original plan, didn’t have any approval to do that. Subsequently, the determination was made that the changes in the original plan included the change in the roofline and the creation of the upper level, and my original determination was that that upper level didn’t constitute living space. That was challenged. This Board heard that. The Board sided with the appellant in the case that the upstairs did count as an expansion and did count towards living space, and that started this whole legal challenge that was battled over the last three or four years. So I think it’s fair to say that. We’re a couple of steps away from that looking to, I guess, formalize the end result that they have here. It’s accurate that both we and the applicant misidentified the need for floor area ratio, as part of this variance, and we did have some discussions as late as yesterday, and my letter of today, obviously after conversation with Dave Hatin of the Building Department, you know, when you remove the light and ventilation and access to the upstairs, there’s really nothing that triggers it to be considered living space under the Building Code. So that’s why we, you know, we agreed with their concessions to remove any access to it. So it shouldn’t count towards living space. MR. CLEMENTS-And could you tell me how, could you respond to giving a permit, is it my understanding that a permit was given without the need for any variances? MR. BROWN-Sure. Yes. I mean, the permit that was issued was for a renovation or remodel of the house with an addition on the back I think that met the setbacks at the time when it was originally approved. MR. CLEMENTS-Okay. 8 (Queensbury ZBA Meeting 01/21/09) MR. BROWN-I think that porch may have been constructed a little bit larger, and that was one of the reasons that they had to make some modifications. MR. CLEMENTS-So there were no variances needed? MR. BROWN-Originally there weren’t any variances needed. Right, but when we went from the original approval to what was actually built, we identified some inconsistencies and said you need variances or you need to chop the porch off or make some modifications and they ended up doing some of those, and now we’re here where we are with the upper expansion. MR. UNDERWOOD-Maybe you could elaborate for the Board members, also, prior to the issuance of the building permit that was approved, all right, that required no variances, the applicants had come in and requested, in essence, a plan that would require all these same variances that we’re being asked to grant here this evening. MR. BROWN-Yes. MR. UNDERWOOD-And what was the result of that? MR. BROWN-Yes. I mean, you’re testing my memory. I think we have some of it written, I don’t know if some of it’s written down here. There’s a 2002, I’m not sure what the date of this was, but, yes, originally they had come in, the applicant had come in with a proposal to do, you know, a second story addition. I don’t know if it enlarged the footprint at the time, but it was definitely a second story addition, and we told them that you need variances to do that. They were here. This Board either denied it or was about to deny it and it was withdrawn by the applicant. Subsequently they came back with the smaller plan, the remodel, and kind of ended up, you know, the second story size building. MR. UNDERWOOD-And, as a result of that, the plan, in other words, the present building as it exists, how did that relate to that initial plan that we were presented? MR. BROWN-I don’t know exactly. I don’t remember. That was a long time ago. MR. UNDERWOOD-Okay. Well, maybe what I’ll do is this. We like to be open-minded about the process going forward. You’re welcome to come in and present whatever you feel is your side of the story here, but I think that it’s important for the Board members and for the public also to recognize what the point of a Zoning Board is. A Zoning Board is there for you to appeal to us for relief from, you know, the rules and regulations as they exist in the community, and in the instance of this Board here, just to review carefully the process and how it all occurred, Mr. Brown was correct in his assertions as to what occurred initially. A project was proposed on site. It was presented in it’s full form to the Board. The Board at that point in time unanimously denied because all of the requests for variances that were necessary at that time, and I think the Board was cognizant of the fact, at that time, that this was a very small site here. It was in the Shore Colony, and I think everybody recognized that the Shore Colony at the time that this project was presented to us, there was a pretty strong review based upon the regulations in vogue at the moment, that is that these were supposed to be single story cottages, I believe, was in essence what it was, and that’s where we got into the difficulty with the second story, you know, that was proposed on that initial project. The proposal, as it was presented to the Building and Codes Department, was such that it was a compliant building. It required no variances whatsoever. It was a re-do of a building pretty much on site of what that building was as it existed, and I think that it was a complete teardown as I recall. I mean, you can correct me. I mean, did you tear everything down and re-do, or just use the same foundation? MR. RIITANO-No, I put a new foundation. We raised the house. We raised the house, the same truss underneath, the beams, everything, the beams underneath were the same. The only thing I changed was the roof because there was a fireplace, I took it down, the roof down, because there was a two by four roof which, every time it snowed, the water was coming in. MR. UNDERWOOD-Sure. Okay. Well, what I did was I went over today, to go back to the record, just to confirm, you know, what was going on here, and I think that, you know, as time went by, we ended up in 2004, and 2004 was kind of the last bite at the apple here, and you were able to present the project in it’s totality once more. I know that your neighbor, Mr. Kelly there, was still upset at the time, and they appealed the Zoning Administrator’s determination about the upstairs portion of the building and what its effect 9 (Queensbury ZBA Meeting 01/21/09) was, because it did have a full stairway that accessed that at that time, I think that that was primarily the sticking point of the Board, that they assumed that it was going to be converted at some point going forward, and obviously it hasn’t been, nothing’s been done up there to date, as far as that goes. There was some commentary in the 2004 resolution and, you know, unfortunately, I don’t think that was really made available to the Board members. No one really had access to that to get an understanding as to how the Board reached its decision in denying all the variances that were given at that time, and for some reason, I don’t know, you know, whether that would have jaded the viewpoint, that’s the reason for not submitting that to the Board members, Craig. MS. BITTER-Are you talking about the appeal determination in 2004? MR. UNDERWOOD-No, I’m just talking the motion to deny Area Variance No. 29-2004. I mean, that was kind of the last thing that we did as a Board, you know, with the project. That was where we were at, and at that point, you know, the appeals to the court ensued, and, you know, and so on and so forth to get us to this point in time here, and I’m just, I don’t understand why the Board wouldn’t have been provided, you know, that denial so they would have an understanding of why the Board denied it. MR. BROWN-Right, well, in the history, in your Staff Notes, it talks about a denial, Area Variance 29-2004, and that was denied, and the last action that was before this Board is Area Variance 47-05 that was tabled. So there was no decision at that point. It was tabled. MR. UNDERWOOD-Well, you know, I think the Board would be in a better position to make, you know, a distinctive decision regarding the project, knowing what the mindset of the previous Board was in 2004 when we thought we were sort of over and done with it at that point in time. MR. BROWN-Yes. I mean, we can always give you as much information as you want. I can’t, I mean, it’s difficult to guess which one of these half a dozen or eight or ten applications here that you want the minutes or resolution from. That’s kind of why we list them in the history here. We have the laser fiche option, and I know it’s difficult sometimes to get through them and manage through that Internet location, but all the approvals, all the resolutions, all the minutes, all that stuff’s available on-line for anybody if you need to do that research, or, you know, give us a call and we’ll get it to you ASAP, but to copy all the resolutions and all the minutes for all these applications is just not feasible. You’re going to balk when you get a package this big, and you’re not going to want to read it. MR. UNDERWOOD-Would it make sense for the Board members to at least hear what the resolution was in 2004? MR. BROWN-Yes, we can pull that file and read it. MR. UNDERWOOD-No, I can read it in, I’ve got it right here. MR. BROWN-You have it right there? Okay. Yes. MR. UNDERWOOD-Okay, and again, this is just for a reference point so you guys have an understanding as to how the Board got to where it was. This was a “MOTION TO DENY AREA VARIANCE NO. 29-2004 JOSEPH RIITANO, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: 16 Sunset Lane. The motion to deny is based on findings of fact and principle, based on documentation submitted to this Board, as well as verbal testimony given before this Board. A review of the information contained in the 12/17/03 and 4/28/04 ZBA meeting as well as the testimony today supports my motion to disapprove. A chronicle of that information is critical: 1. Mr. Riitano acknowledged that his building permit for the constructed porch was for 319 square feet and however he constructed a porch 345 square feet; a clear misrepresentation of Mr. Riitano’s intent. 2. Mr. Riitano acknowledged he removed crushed stone, and put sod, and topsoil thereby decreasing the permeability. At the 12/17/03 meeting of the ZBA, the Zoning Administrator states and I Quote “What has happened since then is some pretty significant changes to the plan. The roof pitches have changed, floor ratio areas have changed, the total size of the building is different than that first plan almost to the extent where it’s very similar reliefs that were sought in that original Area Variance application that was withdrawn If you compare the original site plan, he states, the original survey that was submitted, compared to the current site plan, that addition on the back of the house is larger with the 10 (Queensbury ZBA Meeting 01/21/09) new building.” 3. Mr. Riitano acknowledged that he constructed an entire roof system that was not included in the original plans. Page 43. 12/17/03 ZBA meeting 4. Mr. Riitano acknowledged that the roof plan was not included in the original plans, page 43 again, of the same meeting. 5. Mr. Riitano acknowledged that the front porch and deck addition was not submitted in the original plans, Page 43 of the same meeting. 6. Mr. Riitano acknowledged that this is a nonconforming structure. 7. Mr. Riitano acknowledged that he failed to read Section 179-030 Town of Queensbury Zoning Ordinance, page 43. 8. Mr. Riitano further agreed that he did not comply with the provisions of Section 179-030 Town Code. 9. Area Variance No. 89-2003 was denied for Joseph Riitano. 10. Area Variance No. 29-2004, heard this evening, is not notably dissimilar from his request of 12/17/03. Together with the fact that Mr. Riitano’s problems are incontrovertibly self-created, punctuated with stiff opposition from Mr. Riitano’s neighbors, and the fact that the structure is indeed non-conforming; and when a reasonable person reviews the balancing formula and bears in mind the following criteria for granting a variance as follows: does the benefit to the applicant outweigh the detriment to the health, safety and welfare of the neighborhood or community by granting the area variance, and in making the determination, 1. Whether an undesirable change will be produced in the character of the neighborhood or will a detriment to nearby properties will be created. It is my opinion that an undesirable change will occur as well as a possible environmental detriment to the health, safety, and general welfare of the neighborhood. 2. Whether the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than a variance, in my opinion, yes the applicant by his own admission acknowledges one alternative to this self- induced quagmire which is to remove the entire porch roof. Further, to revise all existing construction to conform with the zoning restrictions. 3. Whether the requested area variance is substantial, the following information is critical in my assessment to deny the variance: A. Mr. Riitano has acknowledged he exceeded the permitted size of the porch from 319 square feet to 345 square feet. B. Mr. Riitano has acknowledged he constructed an entire roof system that was not included in the original plans. C. Mr. Riitano has acknowledged that the front porch and front addition were not included in the original plans. D. Mr. Riitano has acknowledged that he did not comply with Section 179-030 of the Town’s Zoning Ordinance. E. Mr. Riitano failed to honor the constraints of the original building permit. F. Permeability is still in question. G. Glaring opposition of Mr. Riitano’s activities, from his neighbors are in evidence. And when you take into consideration the aforementioned facts, I move that Area Variance Number 29-2004, without prejudice, be denied.” And that was a unanimous decision of the Board that evening. MS. BITTER-Chairman Underwood, we’re not arguing that the denial had occurred. To draw your attention, what we said in our introduction is that we made the modifications that were necessary. With such, we received our CO, which demonstrated that we did everything that was necessary to make the house compliant. So, yes, that denial did occur, and that was the history of this project, but what Joe ended up with was Code compliant. That’s why we’re here today. It wasn’t until such time as the appeal was heard that then this house was then deemed noncompliant. So what we said was that he. He followed the instructions as he was told and what he needed to do in order to get to that point. MR. UNDERWOOD-Sure. MS. BITTER-Did you want to add anything? MS. BUETTNER-Well, I just wanted to, for the timeline that Mr. Kelly’s appeal was after the denial of that variance, and then there was a denial, we requested a re-hearing, and there was a denial for that, too, just to keep the record clear, that there were two other things before this Board after that variance. That’s all, to keep it clear. MR. UNDERWOOD-Board members have any other questions at this time? Okay. I think I’ll open up the public hearing, then. Anybody from the public wishing to speak on this matter? Would you come up, please. PUBLIC HEARING OPEN JOHN CAFFRY MR. CAFFRY-Good evening. I’m John Caffry from Caffry from Caffry and Flower, representing Michael Kelly, the adjoining property owner, who’s here with me this evening. I have a handout I would like to give to the Board. It’s a chart of the variances that were applied for, and I calculated the percentage of variance needed, and I thought 11 (Queensbury ZBA Meeting 01/21/09) I’d give that to the Board as kind of a visual aid, and Mr. Kelly is going to speak after me, and he had a handout also, but I assume he’ll hand that up when he speaks. So if I could bring this up. MR. UNDERWOOD-Sure. MR. CAFFRY-Mr. Chairman, I would like to make a couple of requests to start with. One, I would like to ask for additional time beyond the usual five minute limit. I won’t go on forever, but this is a rather complicated case with a lot of history, and Mr. Kelly has obviously played a key role in the development of the issue. Two, I’m going to request that in the end, unless you’re going to deny it tonight, that you table it, because there’s new information been presented that we ought to have a chance to respond to. This is at least the tenth time in seven years that this project’s been in front of this Board, and these variances have always been denied, going back to 2002. So the real question is, what part of no doesn’t Mr. Riitano understand? And as Mr. Underwood pointed out, he originally applied for a two story house, and Mr. Kelly will demonstrate this in great detail with copies of the plans and applications and permits. It is just not true that he complied with his permits. I’ve never heard an attorney, and I hate to say this about Ms. Bitter because she’s a nice person, but I’ve never heard an attorney be so misleading as I’ve heard her being tonight. It’s just not true. He applied for a two story house. He was told he needed several variances. He came before this Board. It got shot down. He went back to the Staff with an application and ultimately got a permit for a one story house. Then he turned right around and built almost the exact same two story house he had applied for in the first place, and that’s when all the enforcement and variances and everything else started. So for them to say that he complied with the permits and he did what he was asked is just misleading at best. I hope they’re not purposely misleading, but it’s very misleading, and I’ve just really never seen anything like it in all my years of practicing in front of this Board and other Boards. Ever since then he’s been trying to get after the fact approvals. That’s what this is. Even though the CO that she refers to, that was obviously issued in error because he’s still here applying for variances, and that really had more to do with compliance with the Building Code, Dave Hatin’s Department not complying with the zoning. We’re going to urge you to deny these again. In fact we think that legally you must deny them. There’s a legal doctrine called res judicata for the benefit of the clerk taking the minutes, that’s r-e-s j-u-d-i-c-a-t-a, which basically says that once you’ve ruled on an issue, you have to follow your prior ruling. You can’t undo it and vote differently unless there’s been a significant change in circumstances or something, which there hasn’t been. What they’re basically trying to do is overturn the decisions you made denying prior variances and denying, and granting Mr. Kelly’s appeal on August 25, 2004, and the issue of vertical expansion of the house being subject to the setbacks. Ms. Bitter said that was a new rule that you made up due to Mr. Kelly’s appeal. That is also not true. This Board made a similar ruling in connection with the Mooring Post Marina, also on Lake George. That was taken to the courts by that party. It went all the way to the Appellate Division, and it was affirmed. That’s in the record from 2004. I don’t know why Ms. Bitter wasn’t aware of that, but this wasn’t a new rule, what the Board found in 2004, that if you have a pre-existing setback violation, and you’re going to make it a bigger violation by raising the structure vertically, increasing the volume of structure within that setback violation area, that requires an additional variance, and that’s what this Board said, and it wasn’t the first time, and that was the rule in this Town before Mr. Riitano put the first hammer to the first nail on his expanded house. With regard to the floor area ratio issue, we think they’re just trying to evade your ruling. Again, we would want more time to respond to that. That was thrown out of court because of errors by his law firm. It’s not our fault that they couldn’t handle the lawsuit properly, and this Board’s decision was ultimately upheld. The reason that Mr. Brown and Ms. Bitter had to get together and talk about that issue recently was because Mr. Kelly realized that the applicant hadn’t applied for a variance from the floor area ratio. They were trying to avoid that issue, again, and Mr. Kelly wrote a letter to Mr. Brown, and that’s when they got together and tried to figure out a way to get around it. So the application, when it was filed, said the floor space was 1,632 square feet. They forgot to count the second floor as this Board had ruled they must do. We think that these variances should be denied, again, for the same reasons you said before. The only benefit to the applicant under considering the benefit to the applicant versus the detriment to the neighborhood, is he gets to keep his illegal structure intact. The detriment to the Town and to the neighborhood is it allows a violator of the Zoning Ordinance to get off scot free. It sets a poor example for others in the neighborhood, and it contributes to crowding in an area of undersized lots on a very, very small lot. The minimum lot size in this zone is one acre. This is .17 acres. That’s an extremely small lot. On the question of whether or not there is a change in character of the neighborhood and detriment to nearby properties, we think that, even though this may be on the same footprint, because it was raised vertically by quite a number of feet and the overall bulk of 12 (Queensbury ZBA Meeting 01/21/09) the building was substantially increased, both the foundation was made taller, before it was just a crawl space, now it’s a full basement, and the roof was raised, the building is much, much larger in volume and bulk. It’s much bigger than what’s typical in the neighborhood. The applicants have referred to the Anita Sullivan house next door that was expanded. Said it required variances. My understanding is that it did not come before this Board for variances. You would know better than I, but I searched your website with your minutes. I did not find any variances for her. Mr. Kelly says maybe there was a septic system variance or something. Well, that’s a different story. So whatever she did complied with the zoning. This proposal by Mr. Riitano is way too big for the lot that it’s on. The changes, whether or not they are substantial, the table I’ve given you, the side yard, the changes range anywhere from 18% to 100% of variances, and the average is over 50%, and that’s even before you count the floor area ratio. Even without that it’s over 50%, and if that’s not substantial, I don’t know what is. Whether the proposed variance will have an adverse effect on conditions in the neighborhood. Again, it contributes to overcrowding of the neighborhood, and I think, and when you denied the variance, and I know Mr. Underwood was on the Board then, I’m not sure if anybody else was or not, in December 2003, he referred to at the time some information that was in the record then. I couldn’t find it, my copy of it or a copy of it, but about the original design and intent of the Shore Colony subdivision, and at the time it was intended, as he said at the time, intended to consist of a limited number of sensibly restricted lots, designed for modest but permanent summer homes, and he felt that although people have upgraded their properties over the years, the vast majority of the people in Shore Colony have stuck to the original plan, and that’s still true, and allowing these extra jumbo houses to be crammed in with these variances that will make them even bigger than the zoning allows, is certainly contrary to the character of the neighborhood as it exists now. We think the violation is clearly self-created. Again, he had a building permit for a renovation of his existing house as a one story house that was compliant without any variances, and he chose to violate that. He did that, and since then he’s been trying to get variances. That’s self-created, if nothing else is. So what we’re asking the Board to do, really, is put an end to this. Deny the variance. Send it back to Mr. Brown. Maybe he will finally stop coddling this applicant and encouraging him to come back and waste your time on variance applications and take some enforcement action. He was doing nothing about enforcement until we wrote the letter that Mr. Underwood referred to, and really, again, the Town has got to put an end to this, or people are just going to laugh at your Zoning Ordinance, and they’re going to build and then apply later for variances and ask you to rubberstamp it, and that’s what this application is really about, and I’m sorry to be so hard on Mr. Brown and on Ms. Bitter and on Mr. Riitano, but this has become very frustrating for my client to have to keep coming back here year, after year, after year, when this should have been taken care of five years ago. Any questions about our position on this? MR. CLEMENTS-I just have a question on where your client lives. Is it, are you right next door to the property? MICHAEL KELLY MR. KELLY-My name is Michael Kelly. In response to your question, my property fully borders the northern property line of Mr. Riitano’s. I’m at 5 Honeysuckle Lane. MR. CAFFRY-So he’s not the corner lot. He’s the next one north, but his property borders the back of the lot on the corner, as well as the Riitano property. MR. CLEMENTS-Thank you. MR. KELLY-Mr. Chairman, may I hand out some material? MR. UNDERWOOD-Certainly. MR. KELLY-Mr. Chairman, and the Zoning Board members, my intent with this document is three-fold, and it’s to disprove Ms. Bitter’s timeline. It’s to establish that Mr. Riitano’s problem was fully self-created, and it’s also to establish that the Board has denied these exact same setback relief requests and this exact same expansion of a nonconforming structure relief request three times already. This document is completely from the Town record. It does not even include any of the multitude of letters that I’ve written over the years. The only thing, in addition to the Town record are some pictures that I’ve added. The first page is the original application from Mr. Riitano in July of 2002. The second page includes pictures of the original house, and the opening to the Zoning Board that Mr. Riitano requested a number of reliefs, including all these same setbacks he’s requesting now, and as my note there indicates, this application was withdrawn at 13 (Queensbury ZBA Meeting 01/21/09) the end of the hearing due to universal Board opposition. The next page is the set of drawings that were approved, these drawings are dated September 26, 2002. These drawings were approved for Building Permit 2002-866. This is the drawings that are of the house that Mr. Riitano was supposed to have built, or the modifications that he was supposed to have made to his existing house. Please note that the roofline matches the original roofline in the pictures above, and the back porch was to be converted into a family room with a very shallow sloped roof. The next page includes pictures of what Mr. Riitano did build, and you can see in the lower left he’s got two garages, and I would point out that Mr. Brown was considering these garages in the floor area ratio calculation until Mr. Riitano, I believe this is in the record, Mr. Riitano said, well, I won’t put in the fireproof wall, and so it can’t be considered a garage, and so that got stricken from the floor area ratio calculation. The pictures on the right, basically I highlighted the line that the original roofline roughly depicted and that’s really what he was supposed to have built. The next page is a letter dated May 26, 2004 from Craig Brown to Mr. Riitano, and I highlighted the passage, quote, I must again instruct you to do no work on the structure until a plan has been agreed upon and the necessary approvals have been issued. Your recent letter indicates that, quote, the roof is already being reconstructed, end quote, if this is the case you should contact Dave Hatin immediately with your plan so that he can determine whether or not a building permit is required for the work, end the quote of Craig Brown. The page on the right is a copy of what appears to be Dave Hatin’s framing inspection dated 6/30/03. The structure failed the framing inspection, and the note says submit revised framing plans, show all changes. The next page is the first revised set of drawings that Mr. Riitano sent to the Town. These are dated revised 07/03/03. These were not signed off on by either the Building Inspector, nor the Zoning Administrator. These drawings do not depict what Mr. Riitano had built, the next, as strange as that may seem. The next page is what has often been referred to as the revised drawings, and these are dated revised 7/3/03 and 7/30/03. These drawings were signed off on by Dave Hatin, the Building Inspector, but these drawings, to the best of my knowledge, at least up until the end of 2004/2005, had never been signed off on by the Zoning Administrator. In any event, these drawings were submitted and the other information that I provided shows that these drawings were submitted long after the roof structure had been constructed. The next page is a letter from Craig Brown to Mr. th Riitano. This is dated August 28. I have highlighted three sections, quote, I’ve reviewed the recently revised building plans associated with the above referenced balding permit and find the same to be in violation of the maximum allowable floor area ratio, as well as the minimum front setback requirement for the property. The plans depict additional construction that was not included in the original October 25, 2002 issuance of the building permit, end quote. The next quote, as discussed on June 25, 2003 during an inspection of the construction, I informed you that the building did not appear to be consistent with the approved plans, end quote. Finally the last quote from that letter, upon a brief site inspection on August 27, 2003, I observed that the front porch had already been constructed. You indicated that the porch had been constructed at least two months earlier, well before the revised plans were submitted to this office, end quote, and I submit that in order for that porch to have been constructed, the entire roof system had to have been installed and that’s further evidenced by the fact that Mr. Brown, at this point, had been considering the front porch in the floor area ratio calculation. The only reason that could have been considered in the floor area ratio calculation would be if it had been covered, hence the roof. The next page are excerpts from the December 17, 2003 hearing. I will summarize this. The relief requested included the exact same setback reliefs requested tonight. The relief requested also included relief for the expansion of a nonconforming structure. So, this hearing, and this was denied. This is effectively the second time that the Board denied these requests. Under Staff comments, it’s explicitly stated, quote, the home currently existing on the site differs significantly from the original plans submitted for BP 2002-866. Specifically the entire roof system, back patio area, were not envisioned in the original plans. Revised plans were submitted to this office only after the building changes had been constructed. While not identical the constructed home appears to require similar reliefs as those requested in AV 56-2002, which was presented to the Board and withdrawn by the applicant, end quote, and that was the first page in this handout. There’s some other excerpts where Mr. Brown states similar. In the upper right, he says, quote, after it was constructed, during the Building Permit inspection process, the Building Inspectors noted, hey, this building doesn’t match the plans you have. You need to get some revised plans in here that correspond to the construction that you’ve performed. When those plans were submitted, the Building Department reviewed those plans, found them to be in conformance with the Building Code requirements. Then the plans were ultimately forwarded to me to see if they complied with the zoning requirements. At that point, I informed Mr. Riitano that these plans don’t conform to the Zoning Code requirements, based on the floor area ratio numbers, the increased size of the porch on the front and other issues, but so did he have a set of stamped plans, yes, from the 14 (Queensbury ZBA Meeting 01/21/09) Building Department, but, no, not a complete set of stamped plans, end quote, and then there’s other conversation that goes on that identifies those as two distinctly different things. I’m going to interject here that when Ms. Bitter keeps saying that he had all the permits that he needed, etc., etc., this goes to the point that, no, he didn’t. He only had them after the fact. Finally, the motion to deny, it’s highlighted that it was a self-created problem. The relief is substantial relative to the Ordinance, and then finally the reliefs requested, again, are exactly the same as what’s requested here tonight. The next page is from yet another bite of the apple, a hearing from April 28, 2004, which is effectively the same set of requests but the Zoning Administrator determined that one of the measurements was different enough to allow a new hearing to be made. You’ll see the initial highlighted things are exactly the same as what’s being requested tonight, and I would argue that, what I didn’t highlight, which is the floor area ratio, really should be on the table tonight. Staff comments, again, are the same as the previous hearing, where it says revised plans were submitted to this office only after the building changes had been constructed. During the reading of the letters, during the public comment period, a letter was read that was sent in by Mr. Tom Lewis who is a New York State State Trooper. He stated the following, one, the applicant’s initial request for a building permit was denied due to numerous violations of the Building Code. He’s referring to the 2002 application. Two, the applicant’s second request for a building permit addressed the initial violations and a permit was issued. Three, the applicant made it arrogantly clear to any interested party in the Assembly Point area that he intended to construct his residence according to the original plans which had been denied. Finally, on the right hand page, is the motion to deny, and there’s several things highlighted there, and many of these overlap with what Mr. Underwood read earlier. One thing I would reiterate is in the middle of what’s highlighted Number Three, Mr. Riitano acknowledged that he constructed an entire roof system that was not included in the original plans. Next page is a, okay, so, at that point, Mr. Riitano took off the front porch and the back porch, and because this, because of the complexity of what got us to this point, it became apparent that some of the things that I was considering Mr. Riitano in violation of, or due to, Mr. Brown was not, and so that lead to my appeal to this Board that parts of the structure, aside from the front and back porch, violated front and side setbacks, expansion of a nonconforming structure, and floor area ratio requirements. At that point, and so this next page is the motion to uphold my appeal, in which those three things are identified, all three setbacks, expansion of a nonconforming structure, and floor area ratio. Finally, the last page, set of pages, is the letter from Ms. Bitter which was included with the application. Just to read the highlighted section, quote, in March 2003, the footings and foundation were substantially completed. In August 2003, pursuant to the request of the Zoning Administrator, Craig Brown, Mr. Riitano submitted new plans which more clearly reflected the renovations being made. In September 2003, the existing roof was substantially completed, and by October 2003, the entire renovation project was completed, end quote. That is a load of hooey. This obviously shows that everything was done before he submitted any revised plans. Thank you. MR. UNDERWOOD-Thank you. MR. CAFFRY-I’d just like to add a couple of technical points. There was a question, earlier, about the basement and the floor area ratio issue, and I’m not sure exactly what the answer the Board was discussing, but what happened with that was, because I just re-read the minutes in the last couple of days, that was a separate appeal of a decision by Mr. Brown that we made to this Board. That was heard in December of 2004, and that one the Board decided that the basement was not included in the floor area ratio. So that’s what happened with the basement. With regard to SEQRA, I disagree that this is a Type II action. There is an exemption for a single Area Variance. This is multiple variances. I disagree that this is exempt, and, lastly, just to show the lengths to which Mr. Riitano keeps going to try and get one more bite at the apple, after this Board voted in August of 2004 on the floor area ratio for the upper floors and the upper floors and the vertical expansion, they applied to have this Board re-hear that decision, and that came before you on November 17, 2004, and the Board voted against re-hearing the application. So, was that enough? No. They came back again, in 2005, with another request to re-hear, and the Board voted that down on June 22, 2005. So, again, we’re asking that you deny this variance, once and for all, and put an end to this. So, thank you. MR. UNDERWOOD-Anybody else from the public wishing to speak on the matter? MR. CAFFRY-And thank you for allowing us the additional time, we appreciate it. MR. KELLY-Thank you very much. 15 (Queensbury ZBA Meeting 01/21/09) MR. UNDERWOOD-Any correspondence, Roy? MR. URRICO-Yes. There are a couple of letters. There’s a letter here from Mr. Kelly. Would you like me to read that in, too, or do you think you’ve covered everything th sufficiently? This is from January 12, I believe. MR. KELLY-Is it regarding the floor area ratio? MR. URRICO-Yes. MR. KELLY-You can read it, I don’t think it’s too long, well, it’s up to you. MR. UNDERWOOD-Why don’t you read the other one. MR. URRICO-All right. This one is addressed to me. “Dear Secretary Urrico: My name is Frank A. Adamo, Jr., and I own the following two properties, one at 203 Assembly Point Road and the second one located at 211 Assembly Point Road. This week I received two notices of a hearing before the Zoning Board of Appeals regarding property owned by Mr. Joseph Riitano located at 16 Sunset Lane. Tax ID No. 226.19-1-9. My father built the aforementioned house for himself in 1958 and after he lived there 30 years sold it to Mr. Joseph Riitano. Since Mr. Riitano has owned this home he has made it into a beautiful home, and have been superb neighbors. I cannot speak at your public hearing but I wish you to convey my hope and best wishes to the Zoning Board of Appeals grant Mr. Riitano the Area Variance so he can keep his beautiful home comfortable for his family. My home at 203 Assembly Point Road is diagonally opposite Mr. Riitano’s house and we are quite pleased how beautiful he has improved his home! Thank you. Frank A. Adamo, Jr. 203 Assembly Point Road” This one is addressed to Mr. Underwood. “The history of Joseph Riitano’s to the Zoning Board of Appeals dates back at least to 2002. Years ago, when Mr. Riitano began constructing his home at 16 Sunset Lane, Queensbury, New York, I learned that he was then using my adjacent, unimproved lot at 14 Sunset Lane, Queensbury, New York, as a dumping ground for his construction site. Mr. Riitano continuously trespassed onto my property, despite my complaints and refused to clear the debris until the construction concluded. Thereafter, I learned that Mr. Riitano’s newly constructed home did not conform to the plans previously submitted to, and approved by, the Town of Queensbury. The home, as constructed, constituted a nonconforming structure; thus forcing Mr. Riitano, after construction was completed, to seek relief for numerous zoning violations, including the roof height (which the Planning Board denied in Mr. Riitano’s initial application), a floor area ratio violation, and front and side setback requirements. Throughout the planning, construction and subsequent application periods, Mr. Riitano has exhibited a blatant disregard for his neighbors and the rules and regulations of Assembly Point and the Town of Queensbury. Mr. Riitano built his home according to his wants, believing that “if he built it, they would approve”. Mr. Riitano’s current application and front and side setback relief should be denied (I understand that these variances, if approved, still would render Mr. Riitano’s home in violation of, inter alia, the applicable floor area ratio.) Should the Board approve Mr. Riitano’s request for relief, the message will reverberate throughout Assembly Point and the Town of Queensbury that any property owner seeking to build a nonconforming structure, should submit approvable plans, then build whatever structure he/she actually desires, since the Board, after the fact, will grant the necessary variances. I do not think this is the message that either the Town or Board wants to spread. Therefore, Mr. Riitano, who has had his numerous “bites at the apple”, both before and after he constructed his home, should be mandated to conform his home, at his expense, to the Town’s zoning requirements, which benefit all residents, not just Mr. Riitano. If you have any questions or need additional information, please contact me. Thank you, in advance, for your consideration. Sincerely yours, Sheldon Polner” And that’s it. Okay. Well, I don’t know where he lives in relation to that property. And then “Dear Mr. Brown: I am writing to you to explain two things. First, Mr. Riitano’s latest application to the ZBA, dated 11/11/08 is conspicuously devoid of any requests for relief for the floor area ratio violation that the Board itself determined his unapproved construction had created. I can only assume that you have come to a new determination in conflict with that of the Board’s that he is not currently in FAR violation. In the Board’s determination, the third point was stated, “Three, the second floor created by the new unapproved roof system should be included in the Floor Area Ratio calculation, and as such, it causes a violation of the Floor Area Ratio maximum allowed. Based on the documentation that was submitted and the verbal testimony before the Board this evening, Mr. Chairman and fellow Board members, I move that we approve the Appellant’s position that the Zoning Administrator did, in fact, err.” I have included herein a copy of the ZBA’s determination from Appeal 4-2004, from the 08/25/04 hearing. Please recall that the Board refused to re-hear this appeal, Appeal 4-2004, on 16 (Queensbury ZBA Meeting 01/21/09) 11/17/04. A copy of that motion and the resulting Board vote is also enclosed. Please explain what your current determination is, and if it is that there is no existing FAR violation, please explain what material changes have been made to the structure to justify this determination. Please recall that at the point the Board made its nd determination, Mr. Riitano’s agents claimed that the 2 floor was unfinished attic space, nd and they showed pictures of the 2 floor area as they made that claim. If you feel some material change has been made to now justify conflicting with the Board’s previous determination, (with the Board having already heard Mr. Riitano’s agents’ claims), please provide me all documentation regarding your interpretation of that material change, as well as a written statement of your determination. I have enclosed a FOIL request to this effect. If no material change has occurred in the Riitano house, you do not have the authority to hand-waive the Board’s determination away, even if Mr. Riitano’s agents suggest other construction in the neighborhood supports their argument that he is not in violation. Secondly, I ask you to explain the redaction of content within recent FOIL fulfillments that your office has provided me and/or my agents at Caffry and Flower. Specifically, please explain the following: 1. Your letter to Mr. Riitano dated 09/26/08, in which the last sentence has a submittal deadline (that presumably you previously communicated to Mr. Riitano) marked out, rendering unreadable I don’t see any reason that that information should not be publicly available. The context of the passage is that if Mr. Riitano did not meet your submittal deadline, that could lead to injunctive action by the Town. This letter was not written during any injunctive action or litigation between the Town and Mr. Riitano. I believe that this information should not be withheld. 2. The letter from Mr. Riitano’s agents, dated 10/03/08, in response to your letter of 09/26/08, has about half of the first sentence blacked out. The context suggests the unreadable information may also refer to a deadline time frame. Please explain. I have included copies of those letters, as well as a FOIL request specifically for access to these marked out passages, of course, unmarked. Thank you for your time. Sincerely, Mike Kelly” That’s it. MR. UNDERWOOD-Okay. MS. BITTER-I wasn’t sure if Craig wanted to respond before I did or if you wanted me to start? MR. UNDERWOOD-I had a question for Craig. Craig, you know, in this instance here, you know, with the changing of the plans, etc., I mean, in all the years that you’ve been involved in your position, how often have you come up against a case like this one, where it’s been so dramatically changed from the original plans? I mean, is this something that occurs regularly that you have to find out by going through afterwards? MR. BROWN-No. I don’t think regular. I wouldn’t use the word regular. This is a unique situation, no question about it. MR. UNDERWOOD-Sure. MR. BROWN-And just to clarify the record, in response to that last letter that you read into the record, I think we provided you with the updated copies. Those sections that we talked about, that were referred to as redacted, they’d been highlighted to highlight the dates. They didn’t photocopy well, and I think we got copies and forwarded them off to Mr. Kelly. MR. UNDERWOOD-Okay. MR. KELLY-I’ve received them. MR. BROWN-Okay. Good, and just a procedural, and it’s not in support of either side of this case, but procedurally, once this Board upheld Mr. Kelly’s decision, that does give the applicant a chance to take that new information that they hadn’t been told before that this was an expansion, they have the opportunity to seek an approval from the decision that you made, or, and/or challenge it in court. They chose the challenge it in court one, were unsuccessful, now they’re here before this Board taking that decision that you made at the appeal, trying to get relief from that. So, it is the same information, the same project they’re here for? Yes, but this is a new bit of information they weren’t told before they needed the relief from, and now that they’ve been told that and hadn’t made it through the legal system, now they’re here seeking that relief. So, procedurally, they can be here seeking that relief. MR. UNDERWOOD-Sure. 17 (Queensbury ZBA Meeting 01/21/09) MR. URRICO-Could you answer the question, if, in the original building permit that they submitted, had that been followed, there would not have been a need for any sideline variance, any of the other variances that we’re hearing tonight? MR. BROWN-I would say that’s correct. MR. URRICO-Okay. Thanks. MS. BITTER-I just want to respond, first, by saying it was never my intention to be misleading, and I don’t necessarily think any of the facts I stated were, in fact, misleading. What I identified was that during construction modifications had occurred and changes were required to be made by Mr. Riitano, which he did. The denial that was read by Chairman Underwood and was discussed by Michael Kelly was, in most part, with regards to the porch and the back deck, which I had explained Mr. Riitano did take off, which lead to the acceptance of that house as being Code compliant. There was questions as to whether or not it’s considered Code compliant, and Mr. Caffry raised that. As I mentioned before, the CO was issued for this house, it was deemed Code compliant, which then resulted in Mr. Kelly’s appeal, which then presented us in this noncompliant situation. I don’t think Craig is saying that that’s not accurate. MR. BROWN-No, I think that’s accurate. MS. BITTER-And I want to make sure that’s clear, because Mr. Caffry was kind of spinning that around that that wasn’t true. The change in circumstances is because of the determination of the appeal. We wouldn’t be here if that appeal didn’t come forward and if that appeal didn’t come in favor of Mr. Kelly making this house noncompliant. This house was deemed a vertical expansion because of the determination of the appeal, and as to Anita Sullivan, I’m sorry if I wasn’t clear. I indicated that her house was a vertical expansion, and a variance was required. I believe it was a septic variance, and let me clarify that for the record. I didn’t mean to be misleading in any way, and even if you consider the variances that Mr. Riitano is seeking right now to be self-created, it’s not a reason to deny the variances as you guys already know, but we don’t stand in that position that it is self-created by the facts submitted. I’m going to just ask Karla if she has an additional materials to respond to. MS. BUETTNER-I think Craig actually took all of the thunder I was going to use. Mr. Caffry talked about the res judicata argument, the legal doctrine, and while this Board does have jurisdiction and can use the res judicata, the substantial changes and circumstances say that we can be before this Board, and we can present this as a new application. The whole issue that this is now overcrowding, too, I think that needs to be addressed because as Staff and I and Mr. Riitano went up to Mr. Riitano’s house, it’s not the only non-bungalow style house there now. So while, in 2004 or 2002, Shore Colony may have wanted to have it as a single level bungalow style community, that’s not the case now, and in fact Mr. Riitano’s house is more in conformance with the character of the neighborhood as it exists now, than perhaps it was beforehand, but, I mean, and I just don’t even, I don’t even want to speak to the language that Mr. Caffry used with respect to our law firm and the litigation and I believe that was misleading, the way he presented that, but in any event, we’re here today, and the balance really is in favor of Mr. Riitano, and there are cases, as Ms. Bitter said, there are cases, self-created hardship, in and of itself, there are numerous cases that say that, by itself, is not enough to deny an Area Variance. You have to look at all, you all know this, you have to look at all of the five of them and the balance here, there was not one thing that Mr. Caffry said that showed that the detriment to the community at large, to Mr. Kelly, outweighs the benefit to Mr. Riitano to be able to stay in the house that he got a CO for, and I’m sorry, I also wanted to say that the letter read by Mr. Urrico from Mr. Polner is replete with inaccuracies, and I’m sure this Board was aware of that as it was read, that, for example, he didn’t build a brand new house. He didn’t re-build the house, and I think that was listed in the letter six or seven times. He didn’t re-build the house. He never went for a height variance. He never went before the Planning Board for a height variance. That, again, an inaccuracy in that letter, and I think that has to be taken into account that this was a letter faxed in today with tons of inaccuracies that really may be misleading, if we’re going to go down that road, but I believe they’re just mere inaccuracies, and I just think that needed to be brought to the attention of the Board. MR. UNDERWOOD-Okay. Any other questions from Board members at this time? MR. ZANGHI-I guess I have one. It’s just, when you followed through the detail here, are you asking the Board to think that the changes that you stated that were required, that 18 (Queensbury ZBA Meeting 01/21/09) were not applied for, are just coincidentally very close to what the original plan was that was denied? I guess that’s my question. I mean, we seem to come full circle here. MS. BITTER-Well, I think that the denial that Mr. Underwood was reading was because of the porch and the deck, and if I’m wrong, please jump in here, but as Craig Brown had determined, the attic and the garage, or I’m sorry, the attic and the basement were not considered to be part of the floor area ratio. The vertical expansion, or the expansion of the nonconformity existed because of the modifications that were presented with the porch and the deck. MR. UNDERWOOD-I think you were referring to the original plan that we denied prior, you know, the one that was withdrawn? MR. ZANGHI-Yes, withdrawn, I’m sorry, that was withdrawn. MR. UNDERWOOD-Maybe you could comment on that. MR. ZANGHI-Yes. MS. BITTER-In 2002? MR. UNDERWOOD-Yes. MS. BITTER-Mr. Riitano did that himself. MR. RIITANO-Yes, well, that was something new. I was not aware of what the rules and regulations, and when I came in to the Board they told me and we pulled the application right out. Nobody heard it, because I didn’t know how, I was a homeowner. I was not aware, we pulled it right out, and then I had a meeting with Mr. Brown, and we came up with the house we have now, and what I want to say to the record, okay, I built the house when I came with the original print. The only thing that was changed was the rooflines, because it’s easy to build a (lost word) roof and not a hip roof. This is the difference, and that’s why I have the different blueprints, because it’s the same thing, it was the same height, the original height that was there, you know, what’s shown on the blueprints. That’s the only thing I changed, and I gave them a new set of prints. The Building Inspector asked me to get a new print and I got a print showing the new rooflines, but the walls, everything’s there. I didn’t move it ten feet one way or five feet the other way. This is where they were. MR. UNDERWOOD-Right. Those are pre-existing setbacks. MR. RIITANO-Setbacks. That’s the way it was. That’s why I didn’t think I needed any setback (lost words). Now they say when you raise the house, you increase. I was not aware of this. Not the Building Inspector, not the zoning inspector told me it had to stay back, if not, they would not give me the permit. MR. UNDERWOOD-Craig, when the actual house was raised up, then, that was raised on site in its present position that it’s in now, the original house? I mean, it was jacked up? MR. BROWN-Yes. MR. UNDERWOOD-Put up on blocks. Then the foundation was put in underneath it. So were there variances that would have been required for it to remain on site as it pre- existed? MR. BROWN-For only the construction of a foundation underneath? MR. UNDERWOOD-Well, I don’t understand how, you know, the plans that ultimately acquired a building permit, those plans reflected jacking the house up and putting a foundation under it. Is that correct? MR. BROWN-I don’t know if there was a separate building permit to do just the foundation only. It was all part of the same plan? MR. RIITANO-No, you gave me all the permit at once. MR. BROWN-Okay. So, yes, the answer to that question is yes. So the foundation and the remodel at the same time. 19 (Queensbury ZBA Meeting 01/21/09) MR. UNDERWOOD-So I don’t understand how they ever could have gotten to the point where, no matter what they built, they would have required the setback allotments that they’re requesting here, because the house didn’t shift from the original home. MR. BROWN-Right. MR. UNDERWOOD-So how could they get a building permit and not have the Zoning Administrator review the plans and not? MR. BROWN-Well, they did get a building permit, and I did review the plans, and at that time we determined that it didn’t need a building permit. All they were doing is renovating the existing house and putting a foundation underneath it. MR. UNDERWOOD-Sure, so they wouldn’t require any setbacks. MR. BROWN-Wouldn’t require any setback variances. MR. UNDERWOOD-I’ve got you. MR. RIITANO-That’s the reason I say this, I don’t know why, because they did that, knowing, they did inspections. They inspected my foundation. They inspected everything right through, and everything. The only thing I did on the end, because I did it myself, I changed, which you can see the roof right there, barn roof (lost words), and the building inspector said get me a print, and Mr. Brown came over and inspected it and they said you need a print, and then I went to my architect and had him give me the print to show the new rooflines, but nothing else got changed, not the walls, nothing else. Now he came back and said, Joe, the front porch is not fitting to the things. I asked what I had to do to come into compliance. They said cut the porch and the roof on the top of the porch. I did that. MR. UNDERWOOD-And then the other one was as a result of that patio on the back. MR. RIITANO-Yes, I cut that out, too. Now with the setback, I was not aware of this. When the Board made an appeal, they said, when you’re raising, make an expansion, and when you make an expansion, you need the setback or something. This came out after, after the fact. MR. UNDERWOOD-So it was the expansion upwards, did that include the foundation underneath, Craig? That triggered it also, or? MR. URRICO-I think it was the roofline change. MR. BROWN-Yes. Originally, we had issued a Certificate of Occupancy that the house was completed, and met all the zoning and building requirements, and then that was challenged before this Board, and I think the thrust of that was that since the roof went from a pitch like this, a flatter pitch to a steeper pitch to include that upper level, that’s what the assertion was, that that’s an expansion. I don’t remember including the basement, but did that overall increase the height of the house? Yes, but I think the focus was on the roof change. MR. UNDERWOOD-But you were, what, at 28 feet at that point? MR. BROWN-I think it’s right at 28 feet. MR. RIITANO-Yes, I’m below the height. MR. UNDERWOOD-Yes. Okay. Well, do you have anything else you guys want to add at this point? MR. RIITANO-And then what we did is, they said, okay, they’re concerned, they said the attic could be second floor. It’s not attic where it is, but to make you more at ease, I said, okay, I’ll remove the windows, and take the center stairway out and just make a pull. MRS. JENKIN-Mr. Riitano, when you originally raised the roof, the existing space then was much higher, and it was high enough to have living space up there, is that correct? MR. RIITANO-Not really. You see the picture right there. 20 (Queensbury ZBA Meeting 01/21/09) MRS. JENKIN-How high is that now, at the peak? What is the height, from floor to the peak? MR. UNDERWOOD-It’s high enough for a door. MRS. JENKIN-Because why would you put an inside stairway up if you were just planning to have storage space there? MR. RIITANO-Because, see, my wife is handicapped. It’s easy to go up if you’ve got a stairway, not pulling down. MRS. JENKIN-And the large windows? MR. RIITANO-No, I put in smaller windows. See, let me correct that. In the blueprints which were approved, there were double windows, and I put smaller ones, which are there now. MRS. JENKIN-They’re not small windows now. MS. BITTER-That’s a single window. MR. RIITANO-It’s a single window. They were double. If you look in the prints, they’re double windows there, and I only put one single window. MRS. JENKIN-But there’s windows all around. MR. RIITANO-No, no, no. MR. UNDERWOOD-They’re just in the ends of the building. MR. RIITANO-Only two, one each end, that’s it. MS. BITTER-And it’s for ventilation purposes. MRS. JENKIN-And there’s also one in the addition, too, isn’t there, in the back? MR. RIITANO-In the back of the porch, but it’s all open. MRS. JENKIN-Right. That’s the cathedral ceiling. MR. RIITANO-I don’t think it’s against the law if you want to (lost words). I’m below the height the Town requires. MRS. JENKIN-No, I understand that it’s not higher than the 28 feet. I understand that. So it’s the windows at both ends, because it looks to be considerably higher than the original roofline in this photo. MR. RIITANO-Well, the original roofline, yes, was low. That’s why I was collecting al the water. Everybody was dumping the water on my land, like I told you before. That’s why I had to get a building permit and raise the house, put new footings in, and remodel, if you want to call it. MR. CLEMENTS-So, Craig, the windows as I, not being inside of the structure, which you have been, the windows that are over the addition in the back, they look like dormers. Actually, it looks like there’s a floor up there, but that is a cathedral ceiling back there? MR. BROWN-The porch addition in the back? MR. CLEMENTS-Yes. MR. BROWN-Yes. It doesn’t connect to the attic in any way. MR. CLEMENTS-Okay. MR. DRELLOS-Craig, barring major reconstruction, is there anything else that you can think of for Mr. Riitano to be more compliant than your comments? I mean, is there anything else that you can? 21 (Queensbury ZBA Meeting 01/21/09) MR. BROWN-No. I think the only other option is to bring the roof back down to the way it was before it was changed. MR. UNDERWOOD-Okay. This is what I want to do here, all right. First of all I want you guys to back up. I want Mr. Caffry back up here because I want to talk and see about what we’re going to do here as far as going forward whether we’re negotiate or try and get this thing over and done with here tonight, you know, to some resolution. So if you guys could back off for a minute. Okay. MR. BROWN-Also keep in mind, this is the applicant’s application. It’s not the public’s. MR. UNDERWOOD-That’s okay, because, you know, I want to get this done at some point in time, I want to see where we’re going with this, okay. Now, we received that letter this evening. That’s the first that the Board members have seen it. I went in, I got mine this morning, and that was taking out the stairwell inside the house, putting in a drop down stairwell that you grab up and pull down from the ceiling, effectively removing those windows. I know, in respect to the height of the building, it’s probably not going to be exactly what you want, but I’m looking for a practical solution here. As I see it, there’s two options that we have. We can either make this guy tear off his roof and lower the roofline down so it looks like the cottage that once existed on site there. As they pointed out to us, the change over is occurring up there in Shore Colony, regardless of whether we want it to or not. Obviously our Board hasn’t been privy to the other construction that’s occurred in the area that reflects those two story buildings, so to speak, as we now see it popping up on the radar screen, but I think what we want to do here is I think we want to be reasonable, but at the same time not allow people to get away with bloody murder, as far as doing whatever they want. I haven’t heard anything to suggest, through the whole process here, and the Board has been very cognizant of the previous Board decision making process that went through here. We spent untold hours of the Town’s legalese department and everything else. I don’t know if we ever had legal counsel on this. I don’t believe we did on this project. We pretty much handled it ourselves. We did overturn the Zoning Administrator because I don’t think we were happy with his position at certain times, but in general, we don’t want to see occurrences like this happening on a regular basis in the community here, and I think that’s what we’re most concerned with. In this instance here, I think in retrospect, if you were going to do your project again, Mr. Riitano, I would say to you, I don’t believe you would have pushed the envelope like you did on this one here, and spent all this time and money and hours and agony and hand wringing with your neighbors and everybody else and upsetting everybody over the whole process. You guys, I don’t know what you want, ultimately, here. So I want to hear a little bit from you as to what you think is a resolution going forward here. MR. CAFFRY-Okay. I haven’t really had a chance to discuss that question with Mr. Kelly tonight, in current context, but it’s always been his position that he wants to see the law obeyed. Why he’s spending so much time and money on my fees and all that, I’m not quite sure, but I think it seriously bothers him to see the law disobeyed the way it was disobeyed in this case, and certainly it did affect his property. There was a lot of runoff problems coming off the Riitano property onto his. I don’t know the status of them. They’re not before the Board tonight. So there are other issues here. One other thing I’d like to point out is, it’s been said, since we were up here before, that, well, the variances that were denied in the past only had to do with the porches. That’s not really correct. The one that was denied December 17 ’03 were the exact same side and front yard variances that they’re applying for here tonight. They’re the same variances, and if those are denied, then it doesn’t matter what they do about the floor area ratio because the roof has to come off, in order to come back into compliance with the rules that are in place if those variances are denied, but I’m looking at the minutes from that meeting. They’re the exact same variances. MR. KELLY-John’s correct in that it bothers me that the law was broken, but more so I have to look at this thing, and you can talk about the ongoing development on Assembly Point, and specifically within Shore Colony, and in fact Anita Sullivan’s house is very germane to this. She built a two story house, required no Area Variances, and the effect of that, of her becoming compliant, her previous house was nonconforming. The effect of her becoming compliant is that her two story house is now several feet closer to the east side of Mr. Riitano’s house where he needs something like nine feet of relief out of 20. So it’s crowding right in front of my face, and I can’t blame Anita Sullivan. She went by the book, but, and the fact that Mr. Riitano came first, well, I definitely can’t blame Anita, but I’m seeing this crowding right before my eyes, and the point about the house getting jacked up, to a point where, so he could put a basement in and get rid of the water problem, I had contemplated appealing the Zoning Administrator’s decision that 22 (Queensbury ZBA Meeting 01/21/09) that was expansion of a nonconforming structure, but I thought it was a very reasonable request of Mr. Riitano’s, and I had witnessed the water problem, so I didn’t pursue that. The house, you know, the upper horizontal of the house, is much higher than it used to be, just because of that heightened foundation, and then when you add on top of that this completely blatant and unapproved roof system, it’s a double whammy on this crowding problem. It would have been bad enough, and I wouldn’t have fought it, if it was just jacking it up and putting the foundation there, and keeping the roof pitch the same. I don’t understand Mr. Riitano’s argument about the roof pitch changing the water problem. The pitch does not affect how much water ends up next to his house. Again, I would not, I did not have any problem with that because that was a reasonable thing for him to do, and it wouldn’t have really affected the area that badly, and it would have looked better. I was totally cool with that, but then when this roof went up on top of that, it’s the mass of the unapproved roof system beyond what used to be there that this Board agreed with me in 2004 constituted, even though it was on the same footprint, it constituted expansion of bulk where it was already nonconforming. MR. URRICO-Hey, Jim, we’re not hearing anything new. We’re re-hearing the whole thing. We asked for a compromise and we’re not getting a compromise. MR. UNDERWOOD-Sure. All right. What I want from you is this. They put forward on the table tonight that they were going to take out the windows on either end of the building and put louvers in, remove the stairwell. In essence I believe that that would, and I would have to agree with Staff and Dave Hatin, that that would preclude it from being used as living space up there. I mean, it’s not everything that we were looking for. MR. KELLY-But it doesn’t change what I see. MR. UNDERWOOD-I know. MR. KELLY-Which is why. MR. UNDERWOOD-I don’t know, at this point, you know, do we want to make this guy take his roof off? MR. KELLY-Well, it was so blatant. The record shows that it was completely blatant on his part and intentional on his part. Where’s the justice for somebody that follows the law? MR. UNDERWOOD-Okay. Well, if that’s your point, then I guess you guys are done. So I’m going to poll the Board and we’ll render our decision going forward here. MR. CAFFRY-Thank you. MR. KELLY-Thank you. MR. BROWN-Do you want to close the public hearing? MR. UNDERWOOD-All right. I’m going to close the public hearing at this point in time. PUBLIC HEARING CLOSED MR. UNDERWOOD-I’m going to poll the Board. I’m going to start with you, Roy. MR. URRICO-Well, as the person on the Board that’s probably heard this case more than anybody else, I’ve been here in 2002, 2003, 2004, 2005, and now 2009. To me the factor that’s always been the critical factor in this has been the height of the roof. The living space that was created and was determined to be living space, is what was the tip of the iceberg that really created the issues that the Board fought over for the longest time. The stairway going up to the access, the light, the access, the ventilation, all lead us to believe that that could be living space and that’s why we voted the way we did, and there was also cumulative in terms of the variances, but I’ll be honest with you, I can’t disagree with my decisions before. I think the reasoning that I gave before, I think the benefit to the applicant, I understand that he can’t make the changes that are feasible, but the reason we’re at this point, was because of something that occureed, after a plan was submitted and got changed. So that’s still on the applicant as I’m concerned. As far as an undesirable change in the neighborhood, I think, to a certain degree, there is. It’s not pushing the height variance. It’s not pushing the height maximum, but there’s a problem there, and the request, in this case, what’s remaining, the side setbacks are moderate, but again, the reason they’re on the table is because something was changed. 23 (Queensbury ZBA Meeting 01/21/09) It wasn’t submitted at the time. If this was a brand new plan and something was submitted like this, I think we’d be questioning it, just as well, and the request, as far as physical or environmental effects, I don’t see that any longer, and I think the difficulty is definitely self-created in this case. So I’m going to stick with what I said right back to 2002, and I’d say no. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. I have to agree with Mr. Urrico, and I’ve been listening to this, too, from about 2003, and I can’t get beyond the fact that if Mr. Riitano had followed the original plans, there would have been no need for variances and everything would have been fine. So I would be against it. MR. UNDERWOOD-Mr. Zanghi? MR. ZANGHI-Coming into this not having the history back in 2002, and trying to follow this, it has created quite a situation, and I’m having, I’m struggling, looking at the motion th to deny from the 17 of December where it essentially, to me, looks almost, at least from a setback perspective, looks almost identical to what we’re looking at today, and I see nothing that’s been presented here tonight that would make us change what the Board has done to this point in time, and I would not be in favor of this, either. MR. UNDERWOOD-Okay. Mr. Drellos? MR. DRELLOS-Yes. This is a difficult one. I think there’s been mistakes on both sides, including Staff missed things in this, but, barring complete major teardown of your roof, I can’t see any other feasible alternative. So I’m going to agree with Staff. If you agree to all the comments, I would be in favor of the variances. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-I feel, by reading the Zoning Code that we are supposed to uphold, that no enlargement or rebuilding should exceed the aggregate of 50% of the gross floor area of such single family dwelling immediately prior to the commencement of the first enlargement or rebuilding, and that was not followed through. I felt that you submitted plans that were not what you actually built. You built something very much different than what you submitted in your first plans. I feel that the solution or the band aid to the whole problem, by putting a louver over the space, you said that you won’t take out the windows, you’ll just put louvers over top of them. MR. RIITANO-No, no, we’ll take the window out. MRS. JENKIN-You’ll take the windows out, but the space will remain the same. So in the future, the window could be put back in, and that could be converted to living space, and since it is, has enough space and enough height to actually be living space, I don’t see how that changes the whole fact. There’ve been other cases that have come before us that contractors have built. The homes are too large for the size of the lot, and they say, well, it’s done so let’s just cover up part of it and take out windows so that it’s just storage space rather than living area, and it’s actually living area. I feel very, very strongly that the lake needs to be protected, and these areas that are in all these wonderful areas that they started off as camps, we have a camp, and we treasure that camp, and it changes the whole atmosphere of these areas when these big homes are being built, and so I cannot go, I will not agree to this variance. MS. BITTER-I just want to make sure you’re aware that. MR. UNDERWOOD-I can’t have any interruptions. Sorry. MS. BITTER-I’m sorry. MR. UNDERWOOD-Mr. Clements? MR. CLEMENTS-This is very difficult, but I’m going to have to agree with Mrs. Jenkin, and we’ve recently denied an application for variances similar to this right in that same area for a builder that proposed a large house on a small site. We’re also looking at another one up on Assembly Point that is out of compliance now that has similar types of problems, and I think that approving this variance would send a message to the public that they would, if they build without regard to the Zoning Code, and thereafter request a variance, that they will get approval, and I don’t think that that’s right. I think that there 24 (Queensbury ZBA Meeting 01/21/09) will be an undesirable. I think that there has been an undesirable change in the neighborhood. I think that the benefit can be sought by the applicant by some other method, although it may be costly. Whether the request is substantial, I think it’s very substantial, and I think that it was self-created. I think that it has had an adverse effect on the conditions in the neighborhood also. So I would vote to deny this. MR. UNDERWOOD-Okay. Before I give my summation here, I’ve got to ask Board members. There was side setback relief that was requested, you know, and I don’t know of any way to practically resolve the side setback relief other than for us to grant relief for the side setback relief. It doesn’t look like the Board is going to muster the votes to allow the over height expansion. It looks like you’re going to have to be doing something with that roof at some point going forward here. All I would say is this. My understanding of the side setback relief is that it’s a reflection of what the original building had on it, and I think in a practical sense, I don’t know how we overcome that. What would your suggestion be, Craig, going forward on that? MR. BROWN-Well, I guess technically if we look at the expansion, if they kept the roof as it, or they put the roof back to where it was, the fact that they’ve raised the house by making the foundation taller, that’s a vertical expansion that you’re struggling with right now, but you’re focusing on the roof. So, either way you slice it, there’s going to be, if you give them the side setback, put the roof back down, there’s still some vertical expansion. MR. UNDERWOOD-Okay, but in a sense of, if the roof is the sticking point for the Board members at this point, it appears to be, I don’t think that the vertical expansion and the relief that’s required from the walls to the sidelines, you know, is that a problem for people on the Board? I didn’t hear anybody speak to that effect. MR. URRICO-Well, my problem with that, by expanding beyond what was originally submitted, that triggered the side setback relief. So that is. MR. UNDERWOOD-Right, but is that from the roofline, Craig? Is that the measurements going to the roofline? MR. BROWN-No, it goes to the foundation, the structure of the house. Yes, the eaves don’t count in this case. MR. UNDERWOOD-I mean, we’re not going to make this guy tear down his whole house, I hope, at this point in time, including the foundation. That would not seem very practical in a sense to me. I guess I’ll have to go back and poll the Board again, then. The side setback relief that’s required, do you guys have a problem with that, granting relief for that? MR. URRICO-I’m fine with it. MRS. JENKIN-I do. MRS. HUNT-I do, too. MR. UNDERWOOD-Okay. Well, all right. MRS. JENKIN-I do because everything changed when the house became much more vertical, and I agree that probably if the house had more or less stayed the same and looked like this, with a higher foundation, that they could have come in front of us and asked for the variance and it probably would have been approved, because, essentially the home has not changed, but now the home is much, much changed because it is much higher, and so the setbacks come into play. MR. UNDERWOOD-I’m just thinking in a practical sense, because if we’re going to resolve this thing, what is it you hope to achieve here? What would you like Mr. Riitano to do, because that’s what Craig’s going to have to do, as Zoning Administrator. There’s going to have to be some substantial changes that will occur on this property to bring it into conformance. The building site, as it exists, the footprint of the house now where it is, you can’t change that, I don’t think. MR. BROWN-That’s the same locations that it was before they did any work on the property. Right. 25 (Queensbury ZBA Meeting 01/21/09) MR. UNDERWOOD-Right, and so the setback, side setback relief to that building is the same as it was to the original one story camp that was there with no foundation under it. MR. BROWN-Yes, and keep in mind, the original building permit that was issued, 866 I think was the number, that was issued. The applicant proceeded with that approval to do that foundation raise and re-build the house at the one story level. They went beyond that, but that first story with a raised foundation, which effectively raised the house, that was something that was permitted to do. There was no variances required at that point. So if now we’re taking that away from them, saying we don’t want to give them that side setback relief now with the raised foundation. MR. UNDERWOOD-That’s a stretch. MR. BROWN-I can’t tell you what to do, but I think that would cause a lot more difficulties. MR. UNDERWOOD-Okay. I’m going to ask the Board members again one more time, because we would like to resolve this this evening here. Do you wish the whole house to come down, because that’s, in essence, what you’re asking. If you’re not going to give them side setback relief to the side of the foundation of that house, that’s what the side setback relief is for, correct? MR. BROWN-Correct. MR. UNDERWOOD-I don’t know what you’re, anything that can be done here in a practical sense. MR. CLEMENTS-I think you’re talking about, from my point of view, I think you’re talking about lowering the roofline. I think that the side setbacks have been there. The footprint is there. As far as I’m concerned, they wouldn’t have needed a variance if the roofline came down. MR. UNDERWOOD-Okay. Joan, I’m going to ask you again. How about the side setbacks? MRS. JENKIN-That would be fine, if the roof came down, because then it would be more, it would be, how much did you actually raise the basement? How much was that made higher? Because you did have a partial basement underneath it originally. MR. RIITANO-Right. I raised, there was a crawl space. Now I can actually, I’m only five feet two. MRS. JENKIN-Eight feet now? MR. RIITANO-No, it’s only six and a half feet, seven feet in the cellar. MR. UNDERWOOD-So whatever the minimum code is. Otherwise it wouldn’t have passed the Building Department. MRS. JENKIN-Well, that’s the whole thing. MR. UNDERWOOD-That would not affect the side line setbacks. MRS. JENKIN-As Mr. Brown just said, if they had gone ahead and made the renovations and raised, they wouldn’t have required a variance at all, and I guess that’s what I’m saying is, I feel it should be back to the time when you didn’t need a variance. It was a nonconforming structure. You gave them permission to raise the foundation, and at that time you said essentially the house is not being changed. So that is the nonconforming part, and so you don’t need a permit for that, or a variance for that. MR. BROWN-Correct. MRS. JENKIN-And that I agree with. MR. BROWN-But, again, I think the question that Mr. Underwood’s asking, that technically requires that side setback relief be granted, for the foundation house lift, not for the upper story stuff. 26 (Queensbury ZBA Meeting 01/21/09) MRS. JENKIN-Right. So what I’m saying is, if they lower the roof, then it would be actually back to the original permit that they got. It would be the same dimensions and requirements that you gave the permit for originally. Is that correct? MR. BROWN-Before any revisions were made to the permit. MR. CAFFRY-You asked for a compromise. I’m trying to offer. MR. BROWN-You closed the public hearing. MR. UNDERWOOD-I’ve already closed the public hearing. I’m sorry. MR. CAFFRY-Okay, but I think you can do this without a, you have to deny the site variance, but I think you can do it without making them tear up the foundation. He just has to remove the second story of the roof. We didn’t appeal the foundation. MR. UNDERWOOD-All right. I can’t have anymore interruptions. All right. Let’s go to you, George. MS. BITTER-Could I ask for a clarification question? This is just for Craig. MR. UNDERWOOD-Certainly. Most certainly. MS. BITTER-Because I know that Mrs. Jenkin keeps asking about the raising of the basement and when it became compliant, but I was under the impression that, with the storage area, that was also deemed compliant for the side yard setback. MR. BROWN-That was part of the original building permit application. MS. BITTER-Is that with the way the height is of the structure now, the rooflines, that was deemed compliant in your determination. MR. BROWN-Originally, but with the Zoning Board’s determination that a vertical expansion is an expansion, that throws the basement in there. MS. BITTER-Do you know what I’m saying? MRS. JENKIN-Right. I understand what you’re saying. MR. UNDERWOOD-Okay. I don’t want anymore interruptions here. I want to go through them and get this over and done with. Joan, so what is your take on it, what’s your final on that one? So you don’t agree with the side setback still, in essence? MRS. JENKIN-We’ve had a problem like this before. Maybe we need to hear from some other Board members, but the thing is, we can’t take it. MR. UNDERWOOD-It’s the side of the house. MRS. JENKIN-As one part of the variance. The relief required or requested is for the front, the sideline, the east sideline, and the expansion of the nonconforming structure. MR. UNDERWOOD-Okay. Mr. Zanghi, let’s go to you. MR. ZANGHI-I think based on the proposal I just heard of lowering the roofline, getting back to the original configuration, whatever that original configuration seems to be, I would be in favor. MR. UNDERWOOD-Okay. Joyce? MRS. HUNT-Yes. I would be in favor, if the roofline went back to the original, as close as possible to the original building permit. MR. UNDERWOOD-Okay. Roy? MR. URRICO-To me, that would be a sufficient compromise. I think if we allow the side setbacks, but ask for the roof to be lowered to the original request, and I mean the original roofline request, that that would be a sufficient compromise. Because at this stage we’re dealing with a house that’s there. To go, to use a phrase of a former Board member, that would be draconian to ask them to tear down the house. 27 (Queensbury ZBA Meeting 01/21/09) MR. UNDERWOOD-Is that going to bring, if the roof comes down, Craig, is that going to bring it down to like that roof on the back porch there that dormer, essentially? Do you want to look at the plan and figure it out, in a practical sense? MR. BROWN-I don’t know if those plans show the original roof location. MR. UNDERWOOD-I mean, because we have to deal with that side porch, you know, with that cathedral ceiling in there. How much would that lower the roof down, to get it to that point? I don’t know what the original roof was. It looks like this has a 9 12 pitch on it. MR. BROWN-Yes. I don’t have that information in front of me. I’ve got to believe it’s going to be four, five feet. MR. UNDERWOOD-Lower four or five feet? MR. BROWN-I would guess. Don’t quote me on that, but that’s my guess. MRS. JENKIN-There was a picture here. MR. UNDERWOOD-Yes. We don’t have time to review everything. All right. So, then h here’s what I need then. I’m going to need a resolution from somebody going forward here, and I guess I would request one that’s going to approve the side setback relief, but not for the height relief, and it’s going to require. Craig? MR. BROWN-Yes. I think what you can, if I’m kind of paraphrasing what I’m hearing, is that majority of the Board, or at least a few members that I’ve heard, are in favor of approving a resolution that grants all the setback relief and expansion of the nonconforming structure, only to the point, to include what was in the original building permit application, and not to include any of the above the original roofline expansion. So I think you want to grant them all that relief. That gets them back to this original permit, and nothing further. MR. UNDERWOOD-Sure. MS. BITTER-Can you just give me two minutes, just so I can make sure my client understands where you guys are at? MR. UNDERWOOD-Yes, certainly. MS. BITTER-I appreciate where you’re coming from. Can we just go out in the hall? I’ll just take two minutes. MR. UNDERWOOD-Okay. We’re just going to take a breather here. MS. BITTER-We’re looking for some explanation from, I believe, Craig, if possible, because obviously Mr. Riitano’s going to be the one that would have to make these renovations, if this is what the Board is willing to approve. So he needs more of an understanding. MR. UNDERWOOD-Okay. I think, in a sense, what we’re looking at is this. You had an original building permit that reflected a pitch of a roof, and I don’t know whether that was like a one four pitch, about, it looks like to me. MR. BROWN-The plans that we just looked at, it looks like it’s roughly five and a half on twelve. MR. UNDERWOOD-Okay. MR. BROWN-That were later revised to nine twelve. MR. UNDERWOOD-Okay. MR. BROWN-So if you do the math, and the building’s 24 feet wide, that’s going to come down about four feet. MR. UNDERWOOD-Okay. So, in essence, it’s going to have a reflection, it is going to effect that back porch, and it is going to affect the other end also. 28 (Queensbury ZBA Meeting 01/21/09) MR. RIITANO-That means I’ve got to take the roof out, the whole top of the house has got to come out. MR. UNDERWOOD-It appears that’s the answer is looking for. MR. BROWN-That sounds like the direction they’re going. They haven’t made any decisions yet, but that sounds like the direction they’re going. MR. RIITANO-That means I’ve got to take the whole top of the house down. MR. UNDERWOOD-Yes. MR. BROWN-That’s what it’s sounding like. MR. UNDERWOOD-All right. Then I guess what I’m going to do is have somebody make the resolution. Does somebody want to do it? MS. BITTER-Can I ask you a question, prior to making the resolution, is it possible, with this information, and obviously this would be costly if this was the route that the Board was going in, if you could possibly table it, so Mr. Riitano can consider what cost that would be, what he would have to do in order to make that determination valid? I mean, it’s hard to sit here today and say, yes, I can just tear my roof off and understand, and I understand where you’re coming from, the fact that right now the house is in violation. However, everything obviously costs money, and we’re trying to find a way in which to work together on this. MR. UNDERWOOD-I think that we’ve tried to work out a reasonable compromise. At this point in time, it appears to me that the inclination of the Board is such that you’re going to have to comply, and that you’re going to have to deal with Mr. Brown. Mr. Brown will probably give you that actual exact measurements that you’re going to have to bring the building into compliance to. At this point in time, you know, we’ve heard this, you know, this is the fifth time now, and at this point in time, the Board has unanimously turned it down every time. You’ve got a little bit of leeway given this time on the Board here. I think the side setback issue has gone away, in essence, and I think what you’re looking for is that you’re going to have to bring that roof into compliance with the original plans, and at any point during construction there could have been a stop work order that would have eliminated this whole action. MS. BITTER-But there wasn’t, right. MR. UNDERWOOD-All right. That’s not my department. I’m not the Building and Codes Department. I’m not the Zoning Administrator of the Town of Queensbury. In essence, you know, we’re asked to justify our actions based upon the five criteria, and all we can do is be reasonable, and I think that the Board, in rendering the decision, for the fifth time going forward here, in essence, has basically pointed you in the direction of resolving this thing completely to a finished point, and it’s unfortunate that it’s going to cost money to do this, and I sympathize with you fully, but, nonetheless, it’s a self-induced problem that was created when the roof was changed. All right. It’s beyond my scope. It’s beyond the scope of every member of this Board, if the Board, we have a seven member Board, and the inclination of the Board is such that they want to do this, then I guess that’s your only resolution. It’s been to the courts already. It’s been upheld before, and at this point in time, I guess you could always appeal our decision, whatever the ultimate decision is this evening, because we have not polled the Board at this point in time, but I think I’m going to cut you off and we’re just going to make the resolution, and have the Board members vote on it. Does somebody want to do the resolution? All right. I guess I’ll do it, then. MOTION TO PARTIALLY APPROVE, WITH SOME CHANGES, AREA VARIANCE NO. 83-2008, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 16 Sunset Lane. The applicant has renovated his home and is seeking relief from the front and side setback requirements and for the expansion of a nonconforming structure. The applicant is requesting 5.34 feet of front setback relief from the 30 foot requirement, 7.31 feet of relief from the west side line setback, and 11.38 feet for the east side line setback relief from the 20 foot requirement per Section 179-4-030. Further the applicant is requesting relief from the expansion of a nonconforming structure per 179-13-010. In making our determination here this evening, the Board has basically reached a 29 (Queensbury ZBA Meeting 01/21/09) resolution, and we’re trying to come to a final closure on this project here. It’s previously been denied four times in totality, and in this instance here tonight what we’re going to do is we are going to be giving the front and side setback relief to the building as is requested here. However, the Board still seems to have a problem with the height of the building as constructed, and as depicted in the plans that were most recently submitted to this Board. In essence, the Board is going to require Mr. Riitano to bring the roof into compliance with the original approved plans by the Town of Queensbury Building Permit, BP 2002-866. It’ll be incumbent upon Mr. Riitano to get together with the Building and Codes Department and Mr. Brown and unfortunately it’s going to require removing the roof and bringing it into compliance. Although a feasible alternative was suggested by Mr. Riitano, and that was removing the stairwell from inside the house, creating louvers and removing the windows from either end of the building, it was still deemed to be excessive relief from what was originally granted in the building permit, and from what was originally presented to this Board previously and denied in each instance. So that requested Area Variance was deemed substantial. The feasible alternatives were explored, but the Board has chosen to bring this building into compliance, to reflect what was originally intended to be built on site. As far as the proposed variance having an adverse effect on the physical or environmental conditions in the neighborhood or district, it was deemed that this roof line, as built, was going to be over height and was going to have a negative effect on the neighborhood, and the alleged difficulty was completely self-created by the fact that it wasn’t constructed according to the originally depicted plans approved by the Town’s Building and Codes Department. So the original pitch depicted on the approved plans is what you end up with. st Duly adopted this 21 day of January, 2009, by the following vote: MR. BROWN-Could I just ask one question before you vote? MR. UNDERWOOD-Yes. MR. BROWN-Just for my own clarity, and I know it sounded, I think you covered everything, but the intent of this resolution is to require the applicant to bring the house back into compliance, or into compliance with the originally issued building permit, 2002- 866. MR. UNDERWOOD-And that’s the height of the, so the original pitch depicted on the approved plans is what you end up with. MR. BROWN-Okay. I just wanted to make sure that’s what you were doing. AYES: Mrs. Hunt, Mr. Zanghi, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Underwood NOES: Mr. Drellos MR. UNDERWOOD-Okay. That’s it. MS. BUETTNER-Mr. Chairman, I just wanted clarification. You said that your resolution is a partial approval? MR. UNDERWOOD-No. I said the resolution reflects that we have granted you approval for the side setback relief as requested, and the difference was the expansion of the nonconforming structure to that over height from what was originally approved was disapproved. MS. BUETTNER-So it is a partial approval and a partial denial, in a sense. MR. UNDERWOOD-Yes. I mean, I think we’ve given you the direction to where it goes. All right. The height was disapproved. The side setbacks were approved, and it’s to bring it into compliance with that original approved plan. MR. BROWN-Yes. I think the relief that was granted was specific to the original permit. It didn’t include. MS. BUETTNER-Which included the lifting. MR. UNDERWOOD-Yes, that’s fine. MR. BROWN-Included the lifting, but not the above the original roof. 30 (Queensbury ZBA Meeting 01/21/09) MS. BUETTNER-And the front setback, that wasn’t discussed. You keep mentioning side setbacks. There was a front setback. MR. UNDERWOOD-No, I said the 5.34 feet, and that was the setback relief from the front, the 30 feet. MS. BUETTNER-Okay. I just wanted to make sure I knew if we were approved with conditions, denied with conditions, a little of both. MR. UNDERWOOD-No, I think the building, in essence, remains where it is. The roofline is going to have to get modified to what was originally approved, unfortunately. All right. I guess that’s it for our meeting. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, James Underwood, Chairman 31