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1992-03-30 ~ , I ,~ ~EEJlSBURY ZONING BOARD OF APPEALS ŒETIJIG SPECIAL ŒETIJIG MARCH 30TH, 1992 INDEX Clarification on Notice of Appeal No. 1-92 Francis and Carolyn Martindale 1. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR (IF ANY) ON THE FOLLOWING MONTHS MINUTES AND WILL STATE SUCH APPROVAL OF SAID MINUTES. ~EENS8URY ZONING BOARD ŒETING SPECIAL ŒETING MARCH 30TH, 1992 7:30 P.... Œ..8ERS PRESENT THEODORE TURNER, CHAIRMAN JOYCE EGGLESTON, SECRETARY MARIE PALING BRUCE CARR CHARLES SICARD FRED CARVIN Œ_RS ABSENT MICHAEl SHEA ZONING ADMINISTRATOR-PAT CRAYFORD STENOGRAPHER-MARIA GAGLIARDI MR. TURNER-The Special Meeting is for clarification on the Notice of Appeal 1-92 Francis and Carolyn Martindale, as to the question Number One, is the sale of fruits and vegetables off site a permitted agricultural use?, and the motion was, The answer would be yes, provided the off site fruits and vegetables are used to augment fruits and vegetables and other agricultural products grown on site. The clarification is in reference to the word "augment". So, Mrs. Martindale, do you have anything to? MRS. MARTINDALE-I have a whole lot. Did you want to talk first? BOB MARTINDALE MR. MARTINDALE-We'll answer any of your questions. MR. TURNER-Do you want to respond to the word "augment" yourself, at this point, or do you want to wait? MRS. MARTINDALE-Why don't we wait. MR. TURNER-All right. Does anyone here wish to be heard in reference to this clarification? Mr. O'Connor, do you? MICHAEL O'CONNOR MR. O'CONNOR-I do, Mr. Turner. Mr. Chairman, Ladies and Gentlemen, I'm Michael O'Connor from the law firm of Little and O'Connor. I'm here to speak with regard to this particular question, but I would like to understand, first, where the discussion is going maybe. I'm not sure. We did appear at the first time that this was discussed before the Board. We objected to Board's interpretation at that time. We continue our objection. We do not think that the objection is founded within a reasonable reading of the Ordinance, but I won't try to re-hash the same issue again. I think we do intend to challenge that in an Article 78, as soon as another decision is made, or based on that interpretation. I've discussed it with Mr. Dusek and he's in agreement with me that until an actual determination is made, based upon that interpretation, we cannot actually challenge it. I think the Ordinance is clear and I think the history of the Ordinance is clear, and I think your interpretation as it now stands, at least, although there are problems with even how it stands, is incorrect. So, depending upon where you're going to go with your discussion tonight, I'd be glad to participate, but we do continue our objection to the interpretation that you can bring produce from off premises to a premises in an agricultural zone and sell them. We think that this is then moving it into a commercial venture and not an agricultural venture, as determined by your Ordinance. MRS. MARTINDALE-It definitely is in the Ordinance. MR. TURNER-We're not going to re-hash the whole thing that we went through the last time. MRS. MARTINDALE-Okay. Then we know that, under agricultural use, it is commercial use. It is retail, according to the definition in Article II. Do you remember that, or do you want me to read it? It says commercial right in there. MR. CARR-Where was that? MR. TURNER-Are you talking about farm uses? MRS. MARTINDALE-Yes. 1 MR. TURNER-Ten acres or more? MRS. MARTINDALE-Yes. It definitely states it. MR. CARR-That's, what, 63, 69? MRS. MARTINDALE-179-63. MR. TURNER-179-63. MRS. MARTINDALE-Class A and Class C, One and Three, which we were established under both. It says, for commercial use, and if you go to your Definitions in agricultural use. We've already hashed this through. It is commercial and it is retail, according to your definition in the Zoning Ordinance. MR. CARR-Okay. I don't think there's any complaint with that. MRS. MARTINDALE-Mr. O'Connor is complaining about it being commercial and retail. Everything he's said has all been relating back. MR. CARR-But the question before us is whether my choice of the word "augment" was improper or ill-advised. MRS. MARTINDALE-Well, during the other meeting on February 18th, it was stated hand melons, everything, and they said that we could bring in. It was really, supplement, was what they were referring to, because I remember Mike Shea and everybody saying, we love hand melons, and everything within there. Joyce Eggleston said, we do not want to get that specific. We could bring in things from off site, if we go back through the minutes. It was really, supplementing, was what they were referring to. MR. CARR-Yes, and I think the Planning Board, from the definition that I had given in the motion, felt that that still was not specific enough and that we should re-hash the issue, to look at it more closely, to become more specific, to guide them. MRS. MARTINDALE-Okay. Then if we go to Article 81, which I brought up that evening, too, and Article 160 of the Queensbury Code. It relates to Article V and the General Municipal Law, and Article 81 relates to General Municipal Law, which they both are based on State Law. MR. CARR-Right. MRS. MARTINDALE-Okay. When you get into Article 81, we are a producer. We are not a Transient Merchant. We could qualify as a Transient Merchant because we don't reside in the Town of Queensbury. We own property in the Town of Queensbury and this is why we're going under site plan review, to get established year round for that usage, but under Article 81, it says, New York State producer, and we are a New York State producer, and that entitles us to sellon our farm in Queensbury, and this is why it's in General Municipal Law. MR. CARR-Wait. Article 81 of the General Municipal Law. MRS. MARTINDALE-Which is in the Queensbury Code, 160-14. MR. CARR-Okay. 160-14. Where's 160? What's 160? 179 is zoning. What's 160? MRS. MARTINDALE-160 is Transient Merchant. MR. CARR-Pat, do you have the Code? MRS. MARTINDALE-If it would help the Zoning Board, I went to the Municipal Law Center last week. I have a copy that I did at the Warren County center, under General Municipal Law, under Five, it goes into the Transient Merchant. It establ ishes that it is a New York State Law, and under Article 81, it's on Page 489 of the General Municipal Law, under Article V. It deals with Article 81 which is also in Section 160-14, and that, the reason why we have a Transient Merchant Law and Article 81 relating to New York State producers is because it is a New York State Law, and Queensbury has to allow it, allow for it in the Zoning Ordinance because it is a New York State Law. MR. CARR-Could I see what you've got there, please? MRS. MARTINDALE-It's right here, and the reason for the Transient Merchant Law is because you're not supposed to discriminate against non residents. Under 179-63 in the Zoning Ordinance, you allow for people within the Town, within your Zoning Ordinance, and you can't discriminate against non residents or against New York State producers because it is a New York State Law. This is why, it's based on State Law and then it's, in General Municipal Law, and then you have it in your Queensbury Code, because you can't take it out of there. 2 MR. CARR-Right. We can't force you to get a license to do it. MRS. MARTINDALE-No. That's not what it's saying. MR. CARR-Well, that's what all the ~ are saying. MRS. MARTINDALE-Under 160-14, it says you are exempt from the whole Chapter. MR. CARR-Right, of the Transient Merchant Law. You're exempt from. of this Chapter, Chapter 160. MRS. MARTINDALE-The whole Chapter, right. MR. CARR-Of 160. MRS. MARTINDALE-Which deals with, 160-14 deals with Article 81, which you have. MR. CARR-Right. MRS. MARTINDALE-It's saying, if you're a New York State producer, you have a right to sell it on your property. MR. CARR-I don't read that the same way. I see it as you don't have to get a license to sell farm produce. MRS. MARTINDALE-That's not what this says. MR. CARR-But that's what all the cases say. Every case here deals with a license. MRS. MARTINDALE-This here says, the governing board of a municipal corporation shall not, by ordinance authorize, regulate or prohibit the pursuit of the exercise of hawking and peddling farm produce, if such farm produce is hawked or peddled by the producer thereof. MR. CARR-Right. MRS. MARTINDALE-Which is what we are, a producer, under New York State Law, and this is why it's in there. MR. TURNER-Hawking you go door to door. MRS. MARTINDALE-No. MR. TURNER-Or peddling you go door to door. Hawking you exercise by the tone of your voice. on the street with a vehicle with produce on it. You're going down the street. You're hawking. shouting out the vegetables that you have for sale. That's hawking. You're going door to door. You're You're MRS. MARTINDALE-Okay, but under Section 160-08, Transient Merchant. Solicitor, Peddler, in there, it states that you can be on a permanent site or structure. MR. TURNER-What Section are you referring to? MR. CARR-160-08, Ted. JAMES MARTIN MR. MARTIN-Ted, I just want to throw out one comment. We, as a Planning Board, when we're looking at site plan review, we're talking about a permanent, fixed use. We're not talking about Transient Merchant. Transient Merchant is temporary, seasonal use. I don't know where Transient Merchant, under what we have to look at, is going to. MR. TURNER-It has no effect on it. MR. MARTIN-Yes. I have no problem with Transient Merchant. MR. CARR-But if it's seasonal use they're looking at, then they might be under Transient Merchant, in some fashion. If it's seasonal use, if all you're going to do is maple syrup there, or whatever. MR. TURNER-Yes. I think if it's seasonal use, they don't have to pay a fee for a license, if it's seasonal use, because they have a business in the Town of Queensbury. MR. CARR-Right. MR. TURNER-So, they could sell seasonal use. They'd still be considered Transient Merchant, with no fee. Is that correct? 3 MR. MARTIN-See, what I feel is the case here, and, again, it's not just for this one application, as I said at your last meeting. This has got to be dealt with, now, for all agricultural zones in the Town, because if you say you can augment, then, okay, it's the middle of December, the middle of January, and someone can import oranges or apples from down south and sell them in the middle of winter, or potatoes or any vegetables, or Christmas Trees. There's a whole range of things, here. That's what separates it from a Transient Merchant. Where a Transient Merchant is usually bound by a season, you know, June to October, the growing season or something like that. You're talking about allowance, now, through site plan review, of a permanent, year round use, and all the things that go with that, and that's what separates it from Transient Merchant. MRS. MARTINDALE-Which, you already have a precedent set. MR. MARTIN-Well, I just wanted to throw that out. MR. O'CONNOR-Mr. Chairman, we seem to see the same clouds continuing to rise, okay, and I think, really, what you've got to do is distinguish the issue from the clouds. Article 81 of the General Municipal Law, which has been referred to, deals with Hawkers and Peddlers. It does not deal with the subject that you have before you. If you look at 81, you can't look at only just the first sentence. You've got to look at the bottom part of that that says nothing in this Section shall be construed to permit wagons, from which farm produce is sold to stand in front stores or private residences for a longer time than may be necessary for the sale and delivery of produce purchased by the occupants of such stores or residences. They're talking about what you were talking about. The person who has the goods on their wagon or their vehicle, that are going along the streets and hawking them. If you look at New York Juris Prudence, under Businesses and Occupations, a Peddler is an itinerant who moves about from place to place without a fixed permanent stand, and there's case law that backs that up, although he may sometimes make such brief, temporary stops as may be necessary in the conduct of his business. These two things are not what we're talking about, as far as this applicant or as far as the Ordinance goes. We're not talking about trying to prohibit people who hawk or peddle vegetables, whether they're grown in town or out of town. We're talking about people that are asking for a permanent place of business from which to sell those goods. The other cloud that is raised, and I'll leave these with you if you want. MR. CARR-Can I interrupt you for a second. Did you ever find a definition of Hawker? MR. TURNER-I looked it up in the dictionary last night. MR. CARR-And what does it say? MR. TURNER-Just what I said. It's a guy going down the street. MR. O'CONNOR-Here it says, may be considered synonymous with Hawker, Peddler, and then it gives a definition of Peddler. This is from New York Juris Prudence. You can have it and look at it. It says, the term Peddler ordinarily means one who travels about the country with merchandise for the purpose of selling it. The word is derived from an old Scotch word, Pedd, meaning bag, and was originally defined as one who went from house to house carrying a bag, goods, which he sold to persons along the way. The word is generally considered to be synonymous with Hawker, hence the phrase, Hawkers and Peddlers, and then that definition of Peddler that I read to you, and I think if you read through it, they sprinkle them back and forth. So, it's the same thing. It's somebody who's operating from a wagon. MR. TURNER-It's either going to door to door, or crying out you've got the product. MR. O'CONNOR-Yes, and I can remember they used to do that. MR. TURNER-Yes. MR. CARR-This is what I've been looking for, is definitions of Hawkers and Peddlers. MR. O'CONNOR-And you've got to read the first part of 81, General Municipal Law, not just the first part. That's the first cloud that we keep seeing rise. The second cloud that we keep seeing come up is this itinerant Merchant Law within the Town of Queensbury. That law was adopted before this present zoning law. The itinerant Merchant, under that law, says that they can have a stand 10 by 10, a maximum, and it has to be seasonal. We're talking about a barn, in this particular application, that's much larger than 10 by 10. We're also talking about something that is not seasonal, in the sense that it is going to stand there for the year, but try and imagine this on Wincrest Drive or this in Bedford Close. If you say that the itinerant Merchant law supersedes the zoning law, that means the itinerant Merchant can set up his stand any place he wants, regardless of what size property he has. I don't think that's what is meant. The itinerant merchant says that you can do these things under certain conditions, but then you have to look at the other laws that are in effect, and one of them is the zoning. If you can't carryon that activity, regardless of whether you qualify under the itinerant merchant law, you can't carryon that activity on that property. I've 4 had discussion with Dave Hatin about that. I've had discussion with Paul Dusek about that. I'm sorry that they aren't here, because I don't like reporting to you what their opinion was. They have told me that they have not enforced it the way that I read it, that in the past they have not said that you had to qualify for zoning as well as qualify for itinerant merchant. They tell me that I am correct, though, when they read it, and they look at it, in that now they will say that you've got to qualify for zoning, as well as for itinerant merchant, and you can verify that with them. So, those are the two clouds that we keep hearing about, and I don't know, really, how they relate to here. Here what you have is an exception to the farmer, the guy who grows produce on his property, and I think that's clear from the intent, clear from the way it's set up. Aside from the definition of Agricultural use, whether it be A, B, C, it simply says, and I think what the intent was, we're not going to disqualify somebody from being a farmer or being a agricultural user simply because he wants to sell on premises some of the goods he raises. It doesn't say bring on goods from other property. It says very clearly that including the sale of products grown or raised directly on such land. I really don't think there's much room for interpretation. I was surprised that you had a question. I think it was clearly answered, even by everybody that looked at it before. I realize that this Board is the Board of final interpretation or entitled to give the final interpretation if somebody raises an issue with prior interpretations, but that's an exclusion, that was a pri vi 1 ege that was given to peopl e that want to raise produce on their property. You can sell it on your property and not be disqualified as being agriculture. · Now, this particular applicant is doing the opposite. They're saying they really don't intend to raise anything on that property except, if you read through different minutes, and I've got the minutes from the Warren County Planning Board, from the Town Planning Board and from one meeting here. All the presentations vary a little bit, but I think it's clear that their intent is to continue to raise their produce in For Ann and then bring it on to this property and sell it. They will try to qualify by augmenting what is put in these flower boxes, or the boxes of plants that the Planning Board said, or the Beautification Board said would be nice to use as dividers, and they may even have some plants on premises, but I don't think they're going to grow hand melons on premises. I don't think they're going to grow varieties, or some of the varieties of everything they're going to sell, but I go beyond that. If you look at this interpretation, you forget about the itinerant merchant, you forget about Section 81, can they do it under this Ordinance with this definition. I think, clearly, they can't. I think they have to apply for either a variance or for a Change of Zone. Whether that's granted, I don't know, but that's not what's before you, and that hasn't been what's before you up to this particular point. If they think that Section 81 allows them to do it, if they think the itinerant merchant allows them to do it, then they don't need the permits that they're looking for, because those aren't permits that they're, Section 81 doesn't require a permit. It simply says a Town can't prohibit a Hawker or Peddler. If they're a Hawker or Peddler, let them Hawk or Peddle, and if they're itinerant merchant, they don't go to the Planning Board or to this Board for an itinerant permit. They go to, I think, the Building Inspector, pay a fee, and they get a permit. MRS. CRAYFORD-They'd have to go to the Town Board. MR. O'CONNOR-The Town Board for an itinerant, but it's not to this particular Board, but maybe I getting back into the old argument too much, but I think the clouds have been there, and they really have presented this in a manner that's not fair to this Board. You've got to look at this particular Section, regardless of those other things, and can they supplement, augment, or, more plainly, can they sell goods that aren't raised on the premises. This was an exception, even the way it is written. It says, including the sale. It's written as an exception. That's my argument. MR. TURNER-Okay. MR. MARTINDALE-My name's Bob Martindale. What he just said, that all these other, Transient Merchants I guess, they're seasonal. That means they cannot be, say, grandfathered in. Now that Dave is going to, everyone's going to interpret this differently now, because they weren't doing it right before. Does that mean all the other ones, now, can still do it as they were doing before, or are they going to have to go under new guidelines? MR. TURNER-You'd have to ask them, but what it sounds like to me is they haven't enforced it before and now they're ~ to enforce it. MR. MARTINDALE-So, now they're going to enforce it. So, that means, I don't mean to say names, but, last year, he's saying you can only sell what's on site. So, my grandfather, and I know for a fact, did not grow all the corn on site. He bought it in Greenwich. Does that mean that, seeing that he said he's a farmer, he cannot sell corn unless he grows all the corn on site? Is that true? MR. O'CONNOR-Again, we're talking about clouds, Mr. Chairman. MR. TURNER-Yes. MR. O'CONNOR-What his grandfather's activity has to do with the application before you is beyond me. MR. MARTINDALE-Well, what I'm trying to get at is, he's saying that he's representing my grandfather, and he's saying that we can't do something, but he can? That doesn't make sense. MR. TURNER-He didn't say that. 5 J MR. O'CONNOR-Mr. Chairman, did not say that. MR. MARTINDALE-Right, but I just want this on record so this summer, when we watch him and he's not growing his corn on site and trying to sell it, then we have something that we can say to Dave Hatin, because when we complain, it doesn't seem like anything happens, but when he complains, he's over there the next minute. Now, that doesn't seem fair. That's all I have to say. MRS. MARTINDALE-Okay. Could I get back to the issues at hand, please. Under 160-5, Transient Merchant, a person, corporation, partnership, association, or any other organization who, for a period of less than six consecutive months, engages in a business of selling and or delivering goods, wares, merchandise, and/or services and furtherance of such purposes hires, leases, uses, or otherwise occupies any building, structure, motor vehicle, including a truck or tractor trailers, car, boat, room or space in motels. It says a permanent structure, of what we have on 149, and as a Transient Merchant, we are allowed to use our structure, and I look at what Mr. O'Connor is saying completely different. If we go back to agricultural use, it says, Agricultural Use, Definitions, Article II, Page 17911, it says, Agricultural Use, any management of any land for agricultural, the raising of cows, horses, pigs, poultrys and/or other livestock, truck gardens, horticulture or orchards, including the sale of products grown or raised directly on such land, and this is where we got into before, including the sale. It did not say to the exclusion of. This is why it had any management of any land, because it relates back to General Municipal Law 81. They can't regulate it because if you're a producer you have a right to sell it on your land as a Transient Merchant. You've got Transient Merchant right here under 160-5. MR. CARR-No, no, but you said 81 gives you a right to sell it on your land. MRS. MARTINDALE-On your land. MR. CARR-I don't agree with that. MRS. MARTINDALE-And we have a permanent structure there. It's always been agricultural use. It has never stopped being that. There's no house on the property. Before my grandfather died, in 1979, we had sap that we were taking off the property. We had purchased property, in addition, from Bernard and Mary Beekbane, in 1987, and we showed you before how we were selling blackberries, etc. off the property. We are grandfathered in under agricultural use. We were selling pigs, cows, everything out of that barn, and nowhere in your Ordinance does it say that you have to sell just vegetables. All of it is agricultural use, whether it's vegetables, whether it's fruit, whether it's horses or cows or whatever. It's all defined as agricultural use. Nowhere does it say that you have to do all of those in order to be considered agricultural use. It is a very broad definition, under your own Zoning Ordinance. MR. CARR-Right, but you're talking about selling at that point. MRS. MARTINDALE-It does say, including the sale, and Mr. O'Connor stands up here and says that we're not going to produce anything on the property. We have told the Beautification Committee we're going to bring in logs off. There's going to be an extensive area in the front. There's considerable land on the second parcel that we bought from Bernard and Mary Beekbane. Bob has had a garden there in the past, and it our property. We have allowed him to use it. We are going to be plowing that up and planting corn and everything that we grow over in Fort Ann. There will be no exclusions. MR. CARR-Okay, but just to take your Definitions, okay, Class C Agricultural, okay, any land in excess of five acres used for the production of agricultural products, especially fresh fruits and vegetables, for commercial purposes. It doesn't say sale on the property, okay, but lets keep going. We go back to Definitions, and lets just start with Farm, because I know it's in here. MRS. EGGLESTON-17921, Page. MR. CARR-And it's F, right? MRS. EGGLESTON-Yes. MR. CARR-Any parcel of land used for agricultural or silvacultural use including any building, structure or residence which is incidental to the permitted use. Okay, so now we've got agricultural use. Lets go to Agricultural Use. Okay, Agricultural Use, any management of land for agriculture, which is the raising of cows, horses, pigs, poultry, and/or other livestock, which is a truck garden, which is horticulture, or it's orchards, including the sale of the products grown or raised directly on such land. How do you get around that one, to bring in stuff from Fort Ann? MRS. MARTINDALE-We are growing. MR. CARR-No, no, including the sale of those products. MRS. MARTINDALE-On the property. 6 - -- MR. CARR-Right. MRS. MARTINDALE-Under that 30 something acres, we have got land there that we're. MR. CARR-Right, but you're going to bring in stuff from Fort Ann. MRS. MARTINDALE-In addition to. MR. CARR-It doesn't say you can do that, though. It doesn't say in addition to it. It says, including the sale of products grown or raised directly on such land. MRS. MARTINDALE-But what I said before is, under Agricultural Use, any management of any land. MR. CARR-Okay, using the land to grow. MRS. MARTINDALE-It doesn't say in the Town of Queensbury. MR. CARR-No, well, you're using management as sales. A sale is not management of land. MRS. MARTINDALE-True, but it says, for commercial purposes. MR. CARR-Right. You can manage land to raise potatoes to send to the Grand Union. That's a commercial purpose, okay. A commercial purpose doesn't necessarily mean sale. MR. MARTINDALE-But, if you say you can grow those potatoes on site and sell them to the Grand Union, then you are selling from that site, aren't you? MR. CARR-Not necessarily. MR. TURNER-Not necessarily. MR. CARR-I mean, maybe the sale might be consummated at the Grand Union, in a commercial zone. MRS. MARTINDALE-Well, you said before it didn't say to the exclusion of. We had already agreed that at the time they wrote this Ordinance they had the opportunity to say, to the exclusion of, not grown on site. We had already established that. MR. CARR-Right. That night I did say that. MRS. MARTINDALE-That's right. MR. CARR-And I'm saying, right now, I think I was wrong. I mean, I didn't read this real carefully or as carefully as, I mean, it was put in front of us, and I didn't spend the time that I spent today going through the book and trying to figure out exactly what is meant by this. MRS. MARTINDALE-Would you agree that commercial means buying and selling? MR. CARR-No, I don't. See, there's where I don't agree about commercial. MR. MARTINDALE-Wait a minute. If we grow, how much do we have to grow on site to, we can only sell what we grow on site, is that what you're saying? MR. CARR-That's the way I think this reads, yes. MR. TURNER-That's what it says. MR. MARTINDALE-Okay. So that means, getting back, I'm just trying to get things in light for everybody. MR. CARR-For you grandfather, I'll make it real simple. If he doesn't grow it on his property, and that's the decision of the Board, he can't sell it on his property. MR. MARTINDALE-Okay. That's what I wanted to know. So, if he grows, say, an acre. MR. CARR-If he grows two ears of corn, he can sell two ears of corn. If he brings in 100 from Greenwich, as far as this says, in my personal opinion, we haven't voted on it, would be he can't do it. MR. MARTINDALE-Okay. MR. CARR-Because, I mean, I've spent a lot of time that I should have been working trying to go through a lot of this stuff, too. 7 --',- MR. MARTINDALE-I just want it to be fair for one, fair for all. That's all we're trying to get across, and it hasn't been this way. MR. CARR-Yes. MRS. EGGLESTON-Wait a minute, though, under the Transient, though, so that he doesn't get off on the wrong thing, here, they could get a Transient, the grandfather in the summer could get a Transient license and sell it on his property. MR. MARTINDALE-And we can too. MR. CARR-Right. MRS. MARTINDALE-No. Transient Merchants is for non residents, according to Article 80, and the General, you can't be a Transient Merchant if you live in the Town of Queensbury. MR. CARR-Okay. Well, here's the thing. 1f he can get a Transient Merchant, if he can get that, and if you can get it, yes, he can sell from off site. I mean, I'm not going into the whole Transient Merchant Law because that's not my jurisdiction. MR. MARTINDALE-So, we can sell what we grow on site, plus we can sell what we grow in Fort Ann as a Transient Merchant? MR. CARR-If it's applicable under the Transient Merchant Law, yes. I'm not saying it is. I'm saying, if it is, you can do it. MR. TURNER-Wait a minute. Lets go right back to the issue. They asked for a clarification of Agricultural Use. The definition is right here. We spent a half an hour talking about, and that's what it says. You've got to grow it on site to sell it. MR. CARR-Just to get on to the Hawkers and Peddlers, this was what I was trying to find this afternoon, because I wanted to find a definition of what Hawking and Peddling is, and I would just ask, I mean, some of the things here, the statutes regulating Hawkers and Peddlers should be considered applicable only to persons who fall clearly within their purview. Although originally the term Peddler was intended to designate a person who traveled exclusively on foot, that is not now the case, and one may adopt a modern method of travel, and yet be a Peddler, so I guess I would ask, how do you read Hawkers and Peddlers? It seems to me that the case is for somebody not from a fixed spot, okay. So, if you were a Hawker and Peddler, you're right, you don't have to get any 1 icense, but you aren't a Hawker and Peddler in relation to your property, because it's a fixed location. MRS. MARTINDALE-It says if you produce it, if you're a producer in New York State. MR. CARR-Right, if you're a Hawker and Peddler producing it you can sell it. MRS. MARTINDALE-No, if you're a New York State producer, and I have all kinds of laws from Ag Marshal's, defining a producer and what they do. MR. CARR-Yes, that's the one I found, and I agree, you are a producer, but the law says, shall not by Ordinance or otherwise regulate the pursuit of Hawking and Peddling farm produce if such produce is Hawked or Peddled by the producer. Okay, so you are a producer, but you aren't Hawking and Peddling. MRS. MARTINDALE-We are peddling it on our own property using wagon loads or anything. MR. CARR-But that's just it, a Peddler is an itinerant who moves from place to place without a fixed permanent stand. Now you're asking for a fixed, permanent stand. So, how can you be a Peddler? MRS. MARTINDALE-Because it says if we bring in wagon loads, whatever, we can do that, as long as it's not a city of the first class, such as New York City, and as long as you don't stand in front of resi dences. You can leave you wagons there as long as it takes to sell your produce, according to the New York State, as long as you're a producer. MR. CARR-I agree. No, you aren't a Hawker and Peddler. MRS. MARTINDALE-We are peddling our merchandise, our produce, for as long as necessary by that wagon load or whatever on our property. MR. TURNER-Yes, but you're not peddling it door to door. You're not hawking it door to door. MRS. MARTINDALE-It doesn't say you have to. MR. TURNER-Yes, it does. 8 - MR. CARR-That's what these cases say, is that the peddler is not someone who goes from a permanent fixed stand location. It's somebody who goes around on foot or by other means of travel. MRS. MARTINDALE-Well, Mr. Maguire, he's the Agriculture Commissioner. He tried to reach Mr. Brandt last Wednesday, but due to the emergency Mr. Brandt has. He was going to try to clarify all of this for us. MR. CARR-Yes. I mean, I agree, if you were hawking and peddling. That's the problem. I agree with everything you've said. except that you fit under the definition of hawking and peddling. MRS. MARTINDALE-Well, I think, when it says here, for the sale and delivery of produce produced, you can put your wagons, because Pat Crayford went through this before. She said we could put our wagons on the site there and sell for as long as it took to sell the produce. MRS. CRAYFORD-From the wagon. MRS. MARTINDALE-From the wagon. MR. CARR-Nothing shall be construed to permit wagons from which farm produce is sold to stand in front of stores or private residences for a longer time than necessary to sell. MRS. MARTINDALE-Right. MR. CARR-So that's saying you can't do that. MRS. MARTINDALE-Not in front of the residences or stores, but it doesn't say, not on your own property. MR. CARR-Well, that's not the definition of hawking and peddling, is not from your own property, then you're outside. MRS. MARTINDALE-According to the Attorney General's Office it was, with Karen Menks. MR. CARR-Do you have that in writing? MRS. MARTINDALE-Mr. Bartholomew had it faxed in last week and he isn't here tonight. MR. CARR-He's saying hawking and peddling can be from? MRS. MARTINDALE-No, it's by the producer thereof, they can sell it on their own site, on their own farms. MR. CARR-Hawking and Peddling? MRS. MARTINDALE-You can sell it on your own. MR. TURNER-That's not Hawking and Peddling. MR. CARR-I'd have to see that. I would have to see the Attorney General's opinion on that, to see if it fits into what fact pattern they're using. MRS. MARTINDALE-Okay, but anyway, when we were talking here, before, this is where, under Article 81, any management of any land. It doesn't say, it says, including the sale of products. MR. CARR-Sale of products grown directly, I mean, you can't just take a phrase. You've got to read, it's including the sale of products grown or raised directly on such land. I mean, that's what the phrase says. MRS. MARTINDALE-But you're saying, now, that you're not saying to the exclusion of? MR. CARR-I'm saying, I believe I was wrong in February, in that I did not read this close enough. MRS. MARTINDALE-And you're saying you're wrong when this Board said that we could sell produce? MR. CARR-And augment it. MRS. MARTINDALE-And bring it from off site? MR. CARR-I believe I was wrong, yes. MRS. MARTINDALE-The whole Board was wrong, because there was six, or five, four. MR. TURNER-I wasn't wrong because I said no. Don't count me in. 9 MR. CARR-Well, I'm admitting I was wrong. I made the motion, and. MRS. EGGLESTON-Bruce, can I ask you a question, first? Agricultural Use, including the sale of products grown or, products grown, which, anything that grows is a product. are two separate. I want to go back to the definition of would you say products raised directly on, Are there two, you could interpret these MR. CARR-Phrases? MRS. EGGLESTON-With the "or" in between? MR. CARR-No, not. I mean, if you're asking English. MRS. EGGLESTON-Think about it a minute. Products grown or products raised directly on such premises. MR. CARR-I don't understand your point. MR. MARTINDALE-I see what you're saying. Any product, or products grown on site. MRS. EGGLESTON-Yes. I mean, it could be construed. MR. MARTINDALE-You could take it that way. MRS. EGGLESTON-I'm asking you to look at that. MR. CARR-You're saying, including the sale of any products grown anywhere, anywhere should be in there? MRS. EGGLESTON-Yes, or raised directly. MR. CARR-No. MR. TURNER-No. MR. CARR-I don't think you can read that, looking at the punctuation. PETER CARTIER MR. CARTIER-Just a quick reaction, off the top of my head. I think grown may refer to plant products and raised may refer to animal products, but I think it both refers to on-site. MR. TURNER-Yes. MR. CARTIER-I'm not sure, but I'll toss that in. MR. TURNER-The top part of the Agricultural Use lists the items. MR. CARR-No, you'd have to set it apart by commas if it was a separate thought. MR. TURNER-Yes. Do you have anything further, Mrs. Martindale? MRS. MARTINDALE-Yes. Under Article XVI, New York State Town Law, Reasonable Use of Property. By the constitution, we are guaranteed a reasonable use of our property, and one such use, all zoning is restrictive, and it is only where the restriction of zoning precludes the property owner from making a reasonable use of his property for any of the permitted uses for which the property is adapted that the owner may complain of such restriction. This was one example that was in the New York State Town Law Article XVI. Another is, Reasonable Use of Property, traffic congestion and retention of residential character of a neighborhood are a legitimate concern to government and are readily brought within police power to zone for health, safety, and welfare of community, but if these names deprive a property owner of making any reasonable use of his property, there is an unconstitutional taking, and there's others. Those are the two most important things, which is then in reference to our property and the barn. We are supposed to have a reasonable use of that property, which has always been agricultural use, and in accordance with your Zoning Ordinance, it says you can grow and raise and sell. So, are you saying that if we grow it on-site, we can sell it on-site, that's what you're saying right now tonight? MR. CARR-Yes. MRS. MARTINDALE-And under site plan review, George Ryan, May 17th, 1988, went through site plan review. Mr. Cartier was present during that. MR. CARTIER-Is this on 149? MRS. MARTINDALE-Yes, it is. 10 -- MR. CARTIER-Okay. MRS. MARTINDALE-We've already set a precedent, under site plan review, for a person having a mlnlmum of five acres, because under that site plan review it was stated, under Highway Commercial, if he took out eight percent of his property, he would continue to have five acres, and Mr. Ryan is currently doing exactly what we propose to do, and there has been a precedent set. I can show you Mr. Cartier's objections. MR. CARTIER-May I make a comment, you may not want to cite me as a precedent here, because if I recall that case, I voted no on that. MRS. MARTINDALE-But it went through with the Board. MR. CARTIER-All right. MRS. MARTINDALE-May 17th, 1988, there was a lot of mumbo jumbo going on, and, lets see, less than five ac res. MR. TURNER-That didn't come to us. That went to the Planning Board. MR. CARR-Why didn't it come to us? MR. MARTINDALE-Because no one raised a stink about it. That's why it didn't come to you. MR. CARR-Okay. MRS. MARTINDALE-There was a stink raised, because Eleanor Bowman, and she sti 11 objects today because he put up another horizontal greenhouse and she's complaining about that. MR. CARR-Well, if he should have had a variance. MRS. MARTINDALE-He never applied for a variance. The Planning Board allowed it to go through. He had five acres. MR. CARR-If he never applied for a variance and a variance is necessary, he has an illegal use, is that correct, and he has to apply for a variance and obtain it. MRS. CRAYFORD-I would prefer to check into it and see what he received and when he received, too. MR. CARR-Right, well, that's just it. MRS. MARTINDALE-You've already checked into it, Pat. MRS. CRAYFORD-I don't remember exactly what he received and what he didn't receive. MRS. MARTINDALE-On February 3rd of this year, you, Dave Hatin, and myself were in your office, and you specifically told me that on May 17th, 1988, George Ryan was permitted, under site plan review, to have greenhouses. I went and got his file, and it says, under stipulations, he could have ~ greenhouse, one greenhouse in back of his stand, and it had to be perpendicular to the road, and I went into this with you, and it had to be 170 to 180 feet off the road. To date, it is to the left of, and there's another greenhouse which I asked you about it on February 3rd, I told you I was making an official complaint. You ignored my complaint. You and Dave both specifically said, he had a right to put it up there. I said, he does not, not under site plan review. Harry Hansen was there, and I was very upset over this and Irving Martindale selling vegetables all last summer, because he is not a Transient Merchant. He does not have five acres. He has two and a half acres. The Town has set a precedent for anybody to sell whatever they want to, in this Town, not just under site plan review, because if Irving went for site plan review, he would definitely have to have a variance, and he'd have to prove hardship and all the other things, because with two and a half acres, you can't sell. You can't even have a produce stand. MR. TURNER-Have you got the minutes there? MRS. MARTINDALE-Yes. I have it from the George Ryans. MR. MARTINDALE-Bob Martindale. What's the sense of going through site plan review, if three or four years later you can do something totally contradictory to site plan review and get away with it? MRS. MARTINDALE-Eleanor Bowman has said that Mr. Ryan plants lettuce up there and he doesn't even pick it or sell it. He goes out to Menands or Greenwich or wherever he wants to go. He brings in all of his produce, 99 percent of it. MR. MARTINDALE-I wouldn't say 99 percent. You don't want to be quoted on that. 11 - MRS. MARTINDALE-No. I don't want to be quoted on 99 percent, but she says, you can see it. Whatever he has there, the lettuce and whatever. It just goes right up to the top. I've watched it all sUßll1er long. He does not pick it. He does not utilize it. We have seen him down in Menands, where we have bought things in the beginning, when we didn't have tomatoes ripened at the time. When we went to Hands melons, he was there for Hands Melons. He buys more than 75 percent of his produce. MR. MARTINDALE-And apples. He has cider and apples. So, that's, he can't grow apples on site. So he has apples. He has potatoes in bags. He doesn't have enough land to grow potatoes. MRS. MARTINDALE-Mr. Martindale has done the same thing. Jessie Styles has done the same thing. MR. CARR-A lot of people have done a lot of things, but maybe, it may all change, and I'm sure the Building Department's going to be very aware of it this year. MR. MARTINDALE-If it doesn't change, then that's unfair to us. MR. CARR-Well, if it doesn't change, then you do it too, because they aren't. MR. MARTINDALE-Everyone else can do it. MR. MARTIN-Jim Martin, here. I think we're getting a little far a field, here, of what the, and I think we're talking about enforcement issues, here. If there's an applicant who's got some misplaced greenhouses or is not in conformance with a prior site plan motion, that's an enforcement issue. We're way out of the ball park, here. MR. TURNER-Exactly. MR. MARTINDALE-Who do we talk to to enforce it, then? MR. MARTIN-Mr. Hatin. MR. MARTINDALE-If she's not enforcing what we say, then who do we talk to? MR. TURNER-I don't think she's said that. I think she's said she's going to look into it. MRS. CRAYFORD-Dave and I have been trying to find time to thoroughly research this. We're not just going to send a letter to George on your hearsay. MRS. MARTINDALE-The Town was up there last October. MRS. CRAYFORD-I'm just saying, we're trying to research this thoroughly. MRS. MARTINDALE-The Town was up there last October when he was doing the new greenhouse. They were up there, right on site. MRS. CRAYFORD-I'm just saying. We are researching this, believe me. MR. MARTINDALE-Okay. That's good. MRS. MARTINDALE-Well, anyway, under site plan review, here, George Ryan, having less than five acres, was granted permission to do exactly what we're doing. The Town has set a precedent. MR. MARTINDALE-The Planning Board. MRS. MARTINDALE-Okay, the Planning Board. MR. CARTIER-Some of us. MRS. MARTINDALE-With 10 acres, going through site plan review, it is supposed to be allowed in Agricultural Use, under this. MR. TURNER-We're allowing it. MRS. MARTINDALE-No. I'm saying under George Ryan, he didn't even live in the Town. He came from outside the Town, bought property in the Town of Queensbury, went through site plan review, May 17th, 1988, and he was granted permission to do exactly what we having 10 acres or more, or five acres or more have asked to do, and a precedent has been set for George Ryan. MR. CARR-No. If it's an improper granting of a right, okay, under Zoning Law, it never becomes proper. he is acting improperly, until they go back and do it right. So, no, he may have been allowed, and I'm just assuming everything is correct, and he should have had a variance and he's acting improperly 12 _....,r now, that he's not doing it of right. He would have to go through, and I'm sure that's what Pat and Dave are looking into, to find out whether or not he is acting properly. If he's not acting properly, I have every confidence in Pat that he will get a letter, and told to cease acting the way he is, and conducting that business. MRS. MARTINDALE-What would he have to cease, selling the vegetables he didn't grow? MR. CARR-Yes, if he's selling vegetables he doesn't grow on the property, yes. If his greenhouse is improperly placed, then he may be forced to move it. That's an issue before the Town Board, the Town zoning, the Town planning, whether or not the Town Attorney. I mean, believe me, I know Pat will take the time to look this up and to find out, and she'll probably look it up for Mr. Martindale, Sr. MRS. MARTINDALE-We've already gone through it in her office. MRS. CRAYFORD-Dave and I have not just let this go. It takes a lot of time, and we have to be very careful about this. MR. MARTINDALE-That's what I'm saying, you're working on it now. MR. TURNER-All right. Do you have anything else. MRS. EGGLESTON-I will just say, though, it's very disheartening when others can do what you can't. It's a matter of fairness, and it's not right, but if they're going to correct it, then. MRS. MARTINDALE-It's not only a matter of fairness, it's discrimination. MR. TURNER-All right. I just read the minutes. I don't know what George came in under, but evidently he claims that's Highway Commercial, because I just caught a glimpse of it in the minutes, there. If it was Highway Commercial, he might have come in under a retail business. I don't know what he came in under. MRS. MARTINDALE-No. Highway Commercial was only the first little strip of his property. The Planning Board told him that he had to be 170 to 180 feet behind. That put him on his own residential property, which was UR or SR at that time. MR. TURNER-SR. MRS. MARTINDALE-It is now UR, according to Pat Crayford, and she told me when I was in her office February 3rd, and you can't even have a produce stand under that zoning. MR. CARR-Well, if he had it before the zoning, that's. MRS. MARTINDALE-It wasn't allowed without a variance previous to that, either. MR. CARR-Okay. Well, then that's what we're going to be looking into. MRS. MARTINDALE-I have the SR zoning right here, which Pat gave to me. MR. TURNER-Do you have anything else? MRS. MARTINDALE-All I say is that I want a reasonable use of my property which is Agricultural Use, and under Agricultural Use, selling what has been allowed in the Town, and under site plan review for George Ryan, what we're asking is not unreasonable, and as a New York State producer, we should be allowed to sellon our own property and make reasonable use of it. MR. MARTINDALE-It's not like we're buying truck loads of produce. We are not going to Greenwich. We're not going to Menands. We're not going allover the place to buy our vegetables. We are growing our vegetables. MR. TURNER-Fine, but you didn't say that the last time around, because the last time around, the motion read you want to bring stuff in from Fort Ann, off site. MR. MARTINDALE-Right, but we're growing it. MR. TURNER-You're not growing it there. That's what I'm saying. The definition says you have to grow it on site. MR. MARTINDALE-If we plow up our own land, now, and grow it on site, then we can sell it. MR. TURNER-If you plow up your own land. You grow it there on site, then you can sell it there. MR. MARTINDALE-Okay. 13 -- -' MRS. MARTINDALE-And are you saying that we can't augment and bring it in from off the property, which we grow under New York State producer? Are you saying we can or cannot bring it in? MR. CARR-Cannot. MR. TURNER-Cannot. MRS. MARTINDALE-Cannot. MR. MARTINDALE-Okay. MR. MARTIN-I just want to ask, specifically, does that apply, for our future action here now, does that apply to sap? MR. TURNER-We're going to make a motion to. MR. CARR-Well, if they grow it on site. MR. MARTIN-No. I mean the augmentation of bringing sap from off site. MR. CARR-Well, yes, it would have to be. MR. MARTIN-Okay. I just want to make sure, because it's going to. MR. CARR-They would have to. It's not that they can't do it. They can't do it without a variance, lets just put it that way. MR. MARTIN-Right. MR. CARR-They have to go through that process to get that. MRS. MARTINDALE-And you're saying that the fact that we sold, under your definition of Agricultural Use, we're not grandfathered in because we sold cows and everything, it doesn't distinguish between cows or produce or whatever. MR. CARR-As far as I'm reading this, okay, you can put a cow on that property tomorrow. MRS. CRAYFORD-No. They have to go through site plan review. MR. CARR-Well, it is. It's a farm. It's Type II Site Plan Review. MRS. MARTINDALE-No. It isn't, okay. This is where I'll argue again. MR. TURNER-Mrs. Martindale, can I read you something? This is testimony at the Warren County Planning Board by your husband, I believe. They've got Frank Martindale, but it's Francis Martindale as the applicant, stated that this whole application came about over the fact that he wanted to put a walk in cooler in a barn that he owns so that he could keep the vegetables that he raises fresh. He stated that the Town of Queensbury looks at them as transient farmers. He went on to say that he owns the property. He has eliminated the animals from this piece of property for 18 months. So, he must come back and ask permission to put the animals back on his own property that he has owned for years. He stated that this property has been in the family for 200 years. He also stated that he makes maple syrup there, but because he has not done it in 18 months, he must come back to ask permission to do so. Now, when you were here the last time, you told me you didn't make any maple syrup there. MRS. MARTINDALE-We had taken sap from the property. MR. TURNER-But you didn't make it there. MRS. MARTINDALE-No. I told you that we had always used that property for agricultural use, and that is part of the process of making maple syrup. It had all been grandfathered in under. MR. TURNER-All I'm trying to say is if it's gone by 18 months, which he says it has, then it's not grandfathered. You lost your rights. MRS. MARTINDALE-It is grandfathered in. You're reading your Ordinance wrong. MR. TURNER-I'm reading your husband's statement. MR. MARTINDALE-Yes, but that's what we were told, what she told us. 14 c /\ -/ MRS. MARTINDALE-What she told us, but I have read the Ordinance, since, and if you look under Nonconforming use, please. Would you read that, Mr. Carr, Nonconforming use, under Article II, Word Definitions. MRS. CRAYFORD-What she's getting at is the animals and the produce are conforming use, so the 18 months does not come in here. MR. CARR-Right. MRS. MARTINDALE-They are. They're a conforming use. MR. CARR-I think I agree with that. MR. MARTINDALE-So, the 18 months doesn't mean anything. MRS. CRAYFORD-No, it doesn't. MR. MARTINDALE-But the reason why he said that at the meeting was because that's what we were told by the Zoning Administrator. MR. CARR-Okay, but the question came up with site plan, okay. Right now, you haven't used it for 18 months. It is an allowable use. It is an allowable use with Type II Site Plan Review. It says right here. You're in an RR, what? MRS. MARTINDALE-RR-3A. MR. CARR-Okay. The following uses are permitted in Rural Residential zones, permitted, accessory, site plan review, Type I, Type II, agricultural use and farming. So, it's a permitted use with Site Plan II. MRS. MARTINDALE-But this is for somebody who is not grandfathered in. MR. CARR-But you aren't grandfathered, because once. MRS. MARTINDALE-Just wait a minute. Under Type II, if somebody like George Ryan were to come in and buy a piece of property in RR-3A, that's never been farmed, he would have to go through Type II Review because he has never done it before. Under Nonconforming Use, your own definition, please read it MR. CARR-Nonconforming, any use which is lawfully in existence within a given zoning district on the effective date of this Chapter which is not an accessory, permissible or conditional use for that zoning district. MRS. MARTINDALE-Okay. Type II is a conditional use. MRS. CRAYFORD-Not conditional. MRS. MARTINDALE-Yes, it is. MR. CARR-Type II is a permissible use. Type II is a permissible use. MRS. MARTINDALE-Any use which is in existence within a given zoning district on the effective date of this Chapter, but which is not a permitted accessory Type I or Type II use. Type II is the other. So, that tells us that, if it's not a Type II use, we are grandfathered in. It is a conforming use if we have been doing that in the past. MR. CARR-No. MRS. MARTINDALE-Yes, it is. MR. CARR-No. Grandfathering talks about 18 months. MRS. MARTINDALE-No, no, no. Read that again. MR. CARR-Okay. You want this nonconforming use. How come there's two nonconforming uses? MRS. MARTINDALE- Because one is ill ega 1. We're not ill ega 1. It's a conformi ng use because we were grandfathered in. MR. CARR-Okay. Any use which is lawfully in existence on the effective date of this Chapter, but which is not an accessory permissible. Well, how can it be lawfully, okay, never mind. MRS. MARTINDALE-Okay. We were farmers. That land has always been agricultural use. So, it's saying that if it's not a permitted, not a Type I, not a Type II, or an accessory use, this is the Type II, 15 /'\ A ~ under the new one where somebody moving into the Town, buying land, they would have to go through site plan review. We don't have to because we were a conforming use prior to the existing of this Ordinance. This is what that's saying. If it's a Type II. it was preexisting. MR. CARR-If it's not a Type II, which was existence. MRS. MARTINDALE-If it ~ a Type II, this is what it's saying. MR. CARR-No, is not, is not. Any use which is in existence within a given zoning district on the effect date of this Chapter, October 1st, 1988. Was there anything going on on that property? MRS. MARTINDALE-Yes. MR. CARR-What? MRS. MARTINDALE-Farming. MR. MARTINDALE-There were animals. MR. CARR-Okay, there were animals? MRS. MARTINDALE-Yes. MR. MARTINDALE-Yes. MR. CARR-Okay. So, we've got a use which is in existence, but which is not a permitted accessory Type I. Okay, but you've got a conforming use? MRS. MARTINDALE-We've got a conformi ng use. The reason the Type II is in there is if somebody new comes into the Town and has 10 acres and wants to go about it, then, they have to go through Type II Site Plan Review, but if you're already grandfathered in, that 18 months has no bearing on it, and I can show this right here. MR. CARR-Have you got an answer for this one? MRS. CRAYFORD-No. I don't have an answer for that one right now. MRS. MARTINDALE-Under 179, Discontinuance, if a nonconforming use, that is not a nonconforming use, is discontinued for period of 18 months, any further use of the property shall conform to the Chapter. It's not. It's grandfathered in. MR. CARR-Okay. I think I might agree with you. MRS. CRAYFORD-I would just say that I have always made the determination that if the use was not, that land was being used agriculturally, because you had animals on there, on October '88. MRS. MARTINDALE-Right. MRS. CRAYFORD-And then all the animals left, afterwards, and now you want to bring them back on? . MRS. MARTINDALE-Right. MRS. CRAYFORD-I don't have an answer for you. MRS. MARTINDALE-It's right here in the Ordinance. MR. O'CONNOR-Mr. Chairman, I think we're getting back into the problem area that we got here with. MR. TURNER-Yes. MR. O'CONNOR-The question before the Board is the question that was presented by the Planning Board. and you had it in your minutes of February 19th. It was Question Number One, Is the sale of fruits and vegetables grown off site a permitted use. That's the question that you really are addressing. The problem that you have is that the applicant will take everything you say verbatim, even if you give a quick answer to a question that is a side light, and not the direct question, and later use it as the gospel quote that she wants to go forward with in her action. You do not have a petition for an interpretation, here, as to whether or not a Type II Site Plan is required, and now you're talking and discussing that. I think if that is an issue that the applicant has. the applicant has to file a separate application, and ask, specifically, the question of the Board, is a Type II Site Plan review requested or required for whatever activity they propose. because if you go through the minutes, and I've spent some time, even though I haven't made the prior appearances, if you go through the minutes, you'll find that that's where you run into all the problems that you get into. It's a pyramid that 16 '-- keeps going up. Mrs. Martindale has tried very hard to go through all the different laws which are very complicated and very difficult and not easy to coordinate, but you can't quote the first sentence and forget the last six sentences. You can't quote one section and forget the rest of them. I understand some argument and some question on nonconforming use, because I don't even think that's an issue. The uses that are here are permitted uses, and the question is, if you abandon a permitted use, or you don't have a permitted use in existence and you wish to start it up again, do you then need Type II Site Plan Review, or even Type I Site Plan Review. I understood that if you do not have the use actively going on on the property and you wish to introduce it to the property, you have to go for Site Plan Review. Now, we have an exception, in Highway Commercial, for change of tenants, if it's just a change of tenants. MRS. CRAYFORD-Same use replacing same use. MR. O'CONNOR-Same use, there's no Site Plan Review required, but I don't think you have that exception for other zones, where a permitted use has ceased, and Mr. Martindale, if you look at the minutes of the County Planning Board, announced to the world that everything had ceased for a period of 18 months. MRS. CRAYFORD-But I don't think that 18 months come into play. MR. O'CONNOR-Well, I'm just saying, but he has announced, admitted on record that there was not a use there, maybe for a different purpose or for a different reason, but that's a side issue. I think the issue is, and I didn't mean to try and be too directive, but I think the issue before the Board is its answer to that question, Is the sale of fruits and vegetables grown off site a permitted use, and then I think you have to go down to Five, also, as Mr. Martin suggested, and answer, again, the question, If sap is brought to the site from off site, is that a permitted agricultural use, and re-address those two issues. MRS. EGGLESTON-My thoughts, we were coming here tonight to determine the word "augment". Did we say to them, if they sell beets, or if they grow beets, they can sell beets, but if they don't grow beets on the land, they can't augment another supply of beets from another source. That's the point I thought we were here, and to see if we understood what Bruce, if we were all of the same mind of Bruce's motion. We're passed all this. We already made a motion, what they could or couldn't do. I thought our decision here tonight was to elaborate on the word "augment", and to define it, did you mean, Bruce, to augment the vegetables was, you had to sell it on your land, in order to supplement that supply, or did you mean, if you sell vegetables, you can augment those vegetables wi th other vegetables, but not 1 i ke in kind, specifically. That's my thought of why we were here tonight, and that's what I've thought about all weekend. MRS. CRAYFORD-I agree with you. MRS. EGGLESTON-And then I get here and we're all into this whole thing again. MRS. CRAYFORD-And, tonight, if all of you agreed that there was a question, then you would have to have a motion to rehear. MRS. EGGLESTON-Yes. Is that not your impression of why we're here? MR. CARR-Well, I think that was one of the reasons why we're here. MRS. EGGLESTON-That's the reason. MR. CARR-That is the reason, and I would say, though, upon what I was looking at, I think I got it wrong that night, and I'm not willing, then, to compound it by making a false statement about what augment means, from a basis that was false to begin with. MRS. EGGLESTON-Well, what do you propose we could do, rescind your clarification of our interpretation? MR. CARR-My intention was to introduce a motion rescinding the prior motion and making the correct motion based on all the research, not just trying to figure out, on one night, what happened. MRS. CRAYFORD-But you have rehear that to do that. MR. TURNER-You have to rehear it. MR. CARR-Probably. MRS. EGGLESTON-And we'd have to start from scratch again. MR. CARR-Well, I think we have reheard it tonight. MRS. CRAYFORD-Mr. Dusek said you have to advertise. MR. TURNER-He's got to .advertise, yes. 17 MR. CARR-I think everybody knows the way it's going to go. I mean, maybe I'm surprised. Maybe the rehearing will be shot down, and that's fine, but I'm just saying, I'm not, just for the sake of time or whatever, I'm not going to build on a bad decision that I made a month ago, and just let it snowball. I just won't do that. I mean. I'd rather go back, say I did it wrong, and do it right now. MR. O'CONNOR-I would offer, Mr. Chairman. that it would probably be a better service to the applicant and not just to those who oppose what the applicant appears to be asking to do, that you actually send them out with a correct interpretation. If you send them out with an interpretation that I think is not backed up by research and by law, they're going to be a year away from getting any real progress, because that's going to throw them into an Article 78 that they can't win, and I'm not trying to beg the issue. I think the applicant might be well served to stipulate that the Board be allowed to reconsider, even by tonight, it's interpretation, and give the interpretation that the Board wants to stand behind. I think the Board is authorized to do that, upon the application's stipulation. If they aren't, then I would ask the Board to follow the procedure for rehearing of the issue, and some members of the Board clearly think that the interpretation that they put forth, at this point, can't be sustained. MR. CARR-And also, Mike, just to go back to what you said before, it's for those reasons that we're trying to help the applicant get it all straight, now, tonight, even though what we said, as to Site Plan Type II is going to be Pat's call, and if it needs an interpretation, then obviously it has to come back, but I would rather try to get this resolved tonight so at least everyone's kind of on the same wavelength of where we go, even if it means research on the issue of what is a nonconforming use, as opposed to a permitted use that's been discontinued. MR. O'CONNOR-I agree. I think we have a real problem with the Ordinance and what is practice. and I think the Town Board has to visit this, also, and maybe redo part of the Ordinance, and they ought to be able to do it within a month or two months, and get it done. It is going to effect other than just the applicant, and there ought to be some middle ground, some compromise that everybody can live with and enforce. I think the big problem you have is that you interpretation is not enforceable. MR. TURNER-Absolutely. MR. O'CONNOR-And you're just going to create a nightmare. MR. TURNER-Yes. MR. O'CONNOR-The fellow who puts up a geranium plant in a pot then could become a Suttons for vegetables. MR. MARTINDALE-No, because they don't have enough acreage. MR. CARR-Well, that's why I asked, Mike. I mean, where, if we say you have to grow it on the land to sell it. how does that create the nightmare? Is that what you're saying? MR. O'CONNOR-No, no. That resolves the problem, but when you say that you can augment or you can supplement, you're going to have some people use that to their advantage outside of any fair interpretation that you're trying to give for an agricultural use, a three acre agricultural use. So, I think we've got an Ordinance problem, but I think you have a decision problem with the interpretation that you gave last month, or gave in February. MR. MARTIN-Again, I'd like to stress, beyond the scope of just this one application, what you're handing down for the Town to grapple with in each and every application that comes within an agricultural district, now, and the kind of references to precedent that are ungrounded or maybe not even relevant, just a nightmare of issues. MR. MARTINDALE-I'd like to say one thing. In order to be a precedent, doesn't the other applicant that is trying to do what we want to do have to have a similar situation to us, in order to set a precedent? MR. CARR-Well. yes, I mean, you look at the facts to see if you're near one or not. MR. MARTINDALE-Okay, and when I said something, I could grow one Christmas Tree then sell some, but for somebody like he said to have a geranium and become a Suttons, okay, in order for that person to become the Suttons, and grow that one geranium, he has to have at least 10 acres, or we have 40 acres, okay, and he'd at least have to have other acreage in New York State, which we have 400 acres. MR. CARR-Well, that was just an example. I mean, I don't think anyone really took it as. MR. MARTINDALE-Right, but everyone on the Board has taken that example to heart, because he's trying to make it say that if I grow one geranium. I can grow a thousand, but you have to have certain guidelines to do that. MR. CARR-Well, yes. I think what he was saying was with the word "augment", if all other factors being equal somebody grew one geranium on it, then augment means they could bring in 90,000. 18 MR. MARTINDALE-Yes, but they'd have to grow them. MR. CARR-That's what I'm saying, all other factors being equal. I think that's a given. I don't want to get into nit picking about, everything's got to be exactly the same. I think, IT\Y feeling is that we've got enough information before us to make a decision. How that decision wants to be made by the Board is up to them. MRS. EGGLESTON-Could we just back up a minute and maybe these people sit down, and you just talk, tell us about how you went wrong last time, what area you think you put judgement on that was wrong. I'd like to hear that, and then how you think, tonight, what we should do or help here, about. MR. CARR-My whole decision on that February meeting was based on IT\Y reading of Agricultural Use, without paying strict attention to punctuation, honestly, and IT\Y reading was that, including the sale of products grown or raised directly on such land meant it doesn't exclude bringing in products to sell on the land. I was looking at this as saying this expanded, okay, agricultural use, and what could be done there, rather than reading it what I believed to be properly, because of the punctuation, as just being a limiting and a minor expansion of the major use that is allowed on this property. The major use is the management of land for agricultural purposes. Under those uses are the raising of livestock, truck gardens, horticulture, and orchards, and under orchards, that says, including, it's just saying as an incidental to the management of this land, including the sale of the products grown or raised directly on such land. That's one phrase, okay. Reading that, okay, I read that to mean, well, gee, they're saying you can sell those directly, you can sell products, I was reading this to say you can sell, One, and Number Two, you can sell products grown on the land, and saying, they aren't excluding products not on the land. So, under Number One, you can sellon the land, all right, all these types of products. That's not the way this reads. I didn't read it all together. I read it piecemeal, okay. Because of IT\Y reading it piecemeal, I think I misinterpreted the intention of the Statute, and now, upon further reading, and reflection, this is one phrase. In an agricultural use parcel, you can raise all these things, and it also includes the sale of the products grown or raised directly on the land, one thing. It doesn't say, including sale of products. It says, including sale of products grown and raised on the land, okay. That's where I went wrong. So, then I was thinking, yes, you can augment it because it's not excluded, but I believe that I was wrong then, and it should just be limited to the sale of products grown and raised on the property, because there's no commas in between the whole phrase. MRS. EGGLESTON-No. That's right, there isn't. That's why I questioned you about, it's kind of a tricky sentence really. That's why I asked you to thi nk about that part, because I can see where someone could read in there maybe a little differently. MR. CARR-Right. MRS. MARTINDALE-Under Commercial Use Definition, 179-7. MR. CARR-Commercial Use or Agricultural Use? MRS. MARTINDALE-Commercial. We have already established that Agricultural Use means Comercial Use also, for commercial purposes. MR. TURNER-No. I totally disagree with you there. MRS. MARTINDALE-It says for Commercial purposes. MR. TURNER-Wait a minute. Let me just say something. You raised that question before and I didn't get a chance to respond to it. MRS. EGGLESTON-What number, Ted? MR. TURNER-179-63. MR. CARR-That's commercial purpose. MR. TURNER-You refer to Class A. MRS. MARTINDALE-And C. MR. TURNER-And C, all right. Any parcel in excess of 10 acres of land used for the raising of agricultural products or the keeping of poultry, fowl, livestock, small mammals or domestic animals for commercial purposes, including the necessary farm structures and storage of farm equipment. I interpret that to read that you have to own a poultry farm, a livestock farm, or mixed uses there, with the proper structures to house those animals. I don't read it like you read it. MRS. MARTINDALE-Let me get that out again and see what you're saying. You were reading agricultural use? 19 -- MR. TURNER-Class A. MRS. MARTINDALE-Okay. 179-63. MR. TURNER-Yes, 179-63. MRS. MARTINDALE-For the raising of agricultural products, and what do you consider to be an agricultural product? MR. TURNER-It could be vegetables and fruit, whatever. MRS. MARTINDALE-Which we have fruit. MR. TURNER-Okay. MRS. MARTINDALE-And sap, which is agricultural. We had animals. MR. TURNER-Yes, but they're gone. MR. MARTINDALE-But the hay was still on the property, and all the other stuff. MR. TURNER-That hasn't got anything, the animals are gone, the use is gone. MR. CARR-But Ted, the question was, is raising of livestock agricultural use. MRS. MARTINDALE-Right. When my husband spoke for the Warren County Board, he meant that when we went to put animals back on in the spring of 1991, Pat Crayford told us, that we had bought land and other things, that we had had sheep on the property before. We had bought land. So we had little calves that we were going to put on the property. She told us we couldn't because, and when he referred to that, it was because Pat Crayford had indicated to him that he could not bring these animals back on site, which I had shown you here tonight, and I tried to show you at the last meeting. Under Agricultural Use, when we had the animals on site previous to that, when the Zoning went through, we were grandfathered in. In 1991, it was different, when she told us we couldn't, 18 months at that point, but not at the time of the zoning, and I said we are grandfathered in, under bringing the animals back, because you'd have to go through Type II Site Plan Review if you hadn't had it there previously. It was not a nonconforming use at that time. This is getting back to the animal aspect of it, but animal aspect, it doesn't define differently. If we're grandfathered in, we had produce on the site at that time. MR. TURNER-That's fine, but it says for commercial purposes. MRS. MARTINDALE-And according to your definition for Commercial. MR. CARR-Commercial Use. MRS. MARTINDALE-Use. MR. CARR-Not commercial purposes. MRS. MARTINDALE-What's the difference? MR. CARR-There is a difference. MRS. MARTINDALE-Where's your definition of Commercial Use? MR. CARR-No. Commercial Use is how you're using the land, okay, what are you doing on the land. You're agriculturally using the land. Commercial purpose is trying to, you might sell it off the property, you might sell it on the property. You're trying to make a living from it, okay. Commercial Use is, how are you going to use the land, commercial, and that's where you get into the retail stores and stuff like that, the Highway Commercial, the Plaza Commercial, okay. Commercial purpose is not synonymous with Commercial Use. MRS. MARTINDALE-I don't see such definition under Commercial purpose. How would you arrive at that? MR. CARR-Well, I think you've got to look at the intent of the Ordinance. I mean, you're right. Commercial purpose is not defined here, but I think you've got to look at the whole intent of an agricultural use. That's the primary use allowed on your property with site plan review, maybe. I mean, that's the primary use. Incidental to that use, you would be allowed to sell your product, commercially, for the product grown on that land, but it's not a commercial use, okay. MRS. MARTINDALE-I just don't understand what you're getting at, because if you use your Commercial Use under Transient Merchant, it specifically says, retail stand. So, it's retail, and that is part of the use commercial purpose. 20 -- ",--,I MR. CARR-Right, but it's not the primary use of the land. I mean, when you're defining uses, okay, you're talking about, what's the primary purpose of the land, agricultural use, comrrercial use, okay. When you get into comrrercial purposes, they're incidental to the primary use of the land. Well, that's how I'm interpreting it. MRS. MARTINDALE-Right here under Commercial Use, it definitely says, retail stand. MR. CARR-I know. MRS. MARTINDALE-And it's under the same application with Transient, which is. MR. CARR-Well, you aren't a Transient. Maybe you are. I don't know. MRS. MARTINDALE-We are. We're both. We're producer and Transient and Site Plan. MR. CARR-But Transient has nothing to do with what's before me right now. Does it really? I mean, if you're allowed to be a Transient, you're allowed to be a Transient. I have no say over that. MRS. MARTINDALE-The way this Town, up to us, had been enforcing the law, and they're discriminating if they start with us. They have allowed retail sales of vegetables, produce, fruit on-site, without site plan review, and we are being discriminated against if you start with us, because as I said, George Ryan, under site plan review, in 1988 went through this same type site plan review and was allowed to do exactly what we're doing, and I'm saying that you're discriminating if you don't allow us to do it, because it's the same thing. MR. CARR-No. It's not the same thing. That's like saying, I saw Jim Martin speeding, officer. give me a ticket, because then you're discriminating against me, and he got away with it. means, they better do a better jOb and catch the people who are not living up to the Ordinance. Don't It just MRS. MARTINDALE-No. He owned property, and he was allowed, for the past four or five years, to do exactly what we are. MR. CARR-Mistakes happen. One guy is going to be looked into, and mistakes happen. It doesn't mean you get rights because a mistake happened to somebody else. MRS. MARTINDALE-It doesn't mean we get rights if a precedent has been set, this is what you're saying? MR. CARR-It's not a precedent if it was a mistake. MRS. CRAYFORD-We haven't deliberately been allowing him to do it. We just weren't aware of this whole Ordinance. MRS. MARTINDALE-You were aware of it, Pat, because I had discussed it with you several times. MRS. CRAYFORD-Since you, yes, but I'm saying before. MRS. MARTINDALE-And you refuse to take action. MRS. CRAYFORD-I haven't refused to take action. I told you, we are working on it. MR. TURNER-Okay. Any further discussion? What do you want to do with this? Do you want to rehear it? MR. CARR-I would make a motion to rehear and set a public hearing, unless the applicant waives it. MRS. EGGLESTON-What kind of a vote do we have to have? MR. CARR-It's got to be unanimous. MR. TURNER-Unanimous, unanimous of everybody present. MRS. EGGLESTON-Even though they weren't here for your initial motion? MR. CARR-It's got to be unanimous. So, yes, they've read the minutes. MR. TURNER-They've read the minutes. They're aware of it. MRS. CRAYFORD-Now, what are you going to rehear, exactly? MR. CARR-Rehear the motion made on the night of February 19th. MRS. CRAYFORD-Excuse me. Just that particular motion, or? 21 -'\ ~-, MR. CARR-Motion's One and Five. MRS. CRAYFORD-Okay. MR. CARR-Or, as it applies to Questions One and Five. IIJTION TO REHEAR JlJTIOI RE(JIEST FOR INTERPRETATION NO. 1-92 MADE ON FEBRUARY 19TH AS IT APPLIES TO ~ESTIONS OlE AND FIVE, Introduced by Bruce Carr who moved for its adoption, seconded by Charles Sicard: Duly adopted this 30th day of March, 1992, by the following vote: AYES: Mr. Carr, Mrs. Paling, Mrs. Eggleston, Mr. Sicard, Mr. Carvin, Mr. Turner NOES: NONE ABSENT: Mr. Shea MR. TURNER-We will rehear the two articles that are in question. MRS. CRAYFORD-When would you like to rehear that? MR. TURNER-We can't do it at the next two meetings. We'll have to do it the 29th? MRS. CRAYFORD-The 29th. MR. TURNER-The 29th. MR. MARTINDALE-What are we supposed to do with the produce that we've already started to grow because we were allowed to at this last point? MR. SICARD-Are you growing anything on the property? MR. TURNER-Where are you growing? MR. MARTINDALE-In order to have tomato plants anywhere, you've got to start them some place, and you can't start them outside right now. You've got to start them in a greenhouse, or in a house. So, if we started 3,000 tomato plants, because we thought we were allowed to do this, from the last meeting, now, what are we supposed to do with them if we can't do it at all? MR. CARR-Well, what ~you going to do with them? MRS. MARTINDALE-We were going to augment our sales. MR. MARTINDALE-Augment our sales in Fort Ann, if we couldn't augment in Queensbury, we might have only planted 1,000 tomato plants. MR. TURNER-You sell in Fort Ann also, is that what you're saying? MR. MARTINDALE-We sell in both places. MR. TURNER-Okay. MR. MARTINDALE-But we wanted to sell in Queensbury, too. So, we started them all because you said we could do it. Now, what are we supposed to do with them? MRS. EGGLESTON-Well, didn't we say they could get a summer stand? MR. TURNER-They can have a portable stand up to 100 square feet. MRS. EGGLESTON-Yes. Okay. MRS. MARTINDALE-Without going through site plan? MR. TURNER-No, you still have to go through site plan. MRS. EGGLESTON-Do you, Pat, if you have a portable stand? MRS. CRAYFORD-A portable stand up to 100 square feet requires site plan review. Don't ask me why. I don't understand up to 100 square feet would require site plan review, but it's in there. MR. MARTINDALE-But anything after doesn't? 22 MRS. CRAYFORD-That's what I'm saying. I don't understand that. MR. MARTINDALE-So, if it's over 100 square feet, it doesn't go through site plan. MR. CARR-We aren't going to get into defining it tonight, because we don't have it before us. I mean, you can't just come in and say, okay, make a decision off the top of your head. I mean, if you're asking us a question, we will research it and come up with the correct answer, but I'm not going to say you're right, I mean, you can have 1,000 square feet and go for it, because Mike would be in court tomorrow. MRS. CRAYFORD-If it's over 100 square feet, then I would say it needs a variance. MR. MARTINDALE-Okay. MR. O'CONNOR-I think, also, again, you folks are asking for immediate answers, and I represent somebody who has an interest different than you, but you still have to be a permitted use for the zone, or you're going to have that itinerant stand, regardless of whether it's 100 square feet or less than 100 square feet or more than 100 square feet, and I think that that's the way it's going to be interpreted now, and maybe it hasn't been in the past, but that's the way it's going to be interpreted now until the Town Board changes its laws. So, you're getting mislead a little bit, or you're hearing what you want to hear when you say, can I put an itinerant stand on this property. The sale of produce from off of this site is not a permitted use. You're going to need a variance for this property, even for an itinerant stand. That's my interpretation. I'm not the Board, and I'm not trying to presume you, but I'll tell you what my argument is ahead of time, so that we're not, three months from now, coming back and doing the same argument. I would also suggest to, and I think you can, maybe the Board will correct me, you can waive the requirement of the Board going to a formal rehearing, and ask the Board for it to reconsider its interpretation this evening, as opposed to rescheduling it and coming back after a publ ic hearing and going through the same argument that we went through tonight and having the Board then tell you what they're interpretation is, and I suggest to you that it might save you time. I know it'll save me time, but it's up to you. It's your rights I'm talking about you potentially waiving or not waiving, and maybe the Board will correct me as to whether it feels comfortable with the applicant waiving that and saying, all right, reconsider your February decision tonight, as opposed to the formal hearing. I think the only one that can object to that is the applicant, and you certainly can do that. MR. CARR-Or any aggrieved party. I mean, if the applicant is the one we're acting against, yes, it would be the applicant, but if somebody else doesn't like what we do on rehearing, they could argue non notice. MR. O'CONNOR-Well, at the three or four notices that have been put out for this subject to be discussed, I think there's only been two parties that have appeared, the applicant and the Martindales who live across the street, represented by my office. MR. CARR-Yes. I mean, I'm comfortable if the applicant waives and you waive, Mike, that we won't get hit with a. MR. O'CONNOR-I am willing to waive on behalf of Irving Martindale and his wife. MR. MARTINDALE-Willing to waive what? MR. CARR-Okay. Right now you're entitled to new notice to rehear this argument. MRS. MARTINDALE-For augmenting or what? MR. CARR-Yes. MRS. EGGLESTON-Actually, we're starting over, aren't we? MR. CARR-Well, we're going to rehear whether the decisions made February 19th, as to One and Five, were correct. At that rehearing, we can determine they were incorrect and rescind those motions, okay, and then make new motions, all right. You can waive that tonight, and we can do it tonight, or you may want to take some time to get all your research together, okay, to decide what is the best course of action for you. MRS. MARTINDALE-I think we should hear from Richard Maguire. He said that we should have time. MR. CARR-Then, in that case, I would say you wouldn't. I'm not going to advise you. You do what you want to do. MR. O'CONNOR-I would make one suggestion. Maybe I'm reading the Board wrong, and again, I don't presume what the Board's thoughts are. They've just said that they're going to give it another hearing. They 23 -- -- haven't said, necessarily, how they're going to decide it, but I think if you read what YOU't'p saying, logically, you're going to come with what I argued. The benefit to yourself, and I'm not speaking out of both sides of my mouth, or trying not to speak out of both sides of my mouth, the benefit to yourself is that the Board decides tonight that you cannot augment or supplement produce from off premises. You may want to quickly file a variance, so that you get on the May meeting, and if you wait until the next time that you have a hearing, you're then going to be talking about a June meeting before you get on for a variance. MRS. MARTINDALE-We, the applicants, would like to wait and hear from the Agricultural Commissioner. MR. MARTINDALE-So, we're not waiving it. MRS. MARTINDALE-We're not waiving it. MR. MARTINDALE-We're going to rehear it. MRS. MARTINDALE-We're going to rehear it. MR. CARR-Now, as to that, can they file a variance application anyway? MRS. MARTINDALE-Yes. MR. CARR-For the May hearing? MRS. MARTINDALE-Yes we can, according to Lee York, before, we could. MR. CARR-Yes. So, you may want to protect yourself, do everything. MRS. MARTINDALE-Yes. We will. MR. TURNER-Okay. That issue's settled. MRS. MARTINDALE-Okay. Thank you. MR. TURNER-Before we leave, do you want to read that? We've got a letter from Martin Auffredou, in reference to the Scheibel application. MRS. EGGLESTON-This is a letter from Martin D. Auffredou to Pat Crayford, RE: Debaron Associates Area Variance application "Dear Pat: Since under Department of Health Regulations a holding tank is not permissible for new construction, we must reconsider our proposal and perhaps amend the application to include a new type of septic system. Although the Department of Health will not approving a holding tank for the parcel, it has agreed to work with us and make suggestions for a type of system which is permissible under their regulations. In light of this development, I must request that the above application be tabled without date until we can resolve the issue of the septic system. If the Board will not table this application without date, please contact me and I will attempt to provide a date when we can continue the hearing. As always, thank you for your cooperation." MR. TURNER-I don't have a problem with it. MR. CARR-Three months. don't think we should carry it on our agenda. MR. TURNER-The only thing is, if you let it ride too long, then the people that are involved with the application lose sense of the notice and they're gone. They're not going to get re-noticed on that. MR. CARR-I think we should make the motion that if we ajourn it for three months, and when they have to pay for re-notice. MR. TURNER-Lets have it published in the paper, that's my thing. MRS. EGGLESTON-Yes. MR. CARR-I mean, yes, if they want it, make them pay for it so everybody's well aware. MR. TURNER-Right. MRS. EGGLESTON-Right. IIJTIOrt TO GRANT THE REQ,lEST BY THE APPLICANT IN REFERENCE TO DEBAROII ASSOCIATES AREA VARIANCE APPLICATION, Introduced by Theodore Turner who moved for its adoption, seconded by Joyce Eggleston: And that the appl icant will pay for the rehearing notice in the paper and the notice to the neighbors. 24 -, -' Duly adopted this 30th day of March, 1992, by the following vote: AYES: Mr. Carr, Mrs. Paling, Mrs. Eggleston, Mr. Sicard, Mr. Turner NOES: NONE ABSTAINED: Mr. Carvin ABSENT: Mr. Shea On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner, Chairman 25