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1992-04-15 ~EENSIIJRY ZOrtING BOARD o.F APPEALS FIRST REGULAR ŒETING APRIL 15TH, 1992 INDEX Area Variance No. 24-1992 Timothy Mousseau 1. Area Variance No. 25-1992 Donald Kruger 2. Area Variance No. 26-1992 Michael C. diPalma 4. Use Variance No. 27-1992 Brian L. & Vicki L. Warner 18. Area Variance No. 28-1992 Brian L. & Vicki L. Warner 19. Area Variance No. 29-1992 Double A Provisions 19. Area Variance No. 30-1992 Roger A. Cutter 26. Area Variance No. 31-1992 Lawrence M. & Elva M. Daniels 27. 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. '- ~EErtS8URY ZONING BOARD OF APPEALS FIRST REGULAR MEETING APRIL 15TH, 1992 7:30 P.M. MEMBERS PRESENT THEODORE TURNER, CHAIRMAN JOYCE EGGLESTON, SECRETARY FRED CARVIN BRUCE CARR MICHAEL SHEA MEMBERS ABSENT MARIE PALING CHARLES SICARD ZONING ADMINISTRATOR-PAT CRAYFORD STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIArtCE rtO. 24-1992 TYPE II SFR-20 TIMOTHY MOUSSEAU OIINER: TIMOTHY a KAREN MOUSSEAU 9 SA.RGErtT STREET TO REMOVE THE EXISTIrtG GARAGE AND ADD A FAMn Y ROOM AND NEIl GARAGE TO HOUSE, MINIMUM YARD SETBACKS CANrtOT BE MET. TAX MAP NO. 108-3-11 LOT SIZE: 8,800 SQ. FT. SECTIOrt 179-20 TIMOTHY MOUSSEAU, PRESENT (7:30 p.m.) MR. TURNER-Okay. Mr. Mousseau, would you care to add to your application? MR. MOUSSEAU-No. It's pretty much all right there. It's on the site plan. The new project is going to be further away from the line than the existing garage is now, and it is really the only place that I can put it because of the driveway and the house plan. MR. TURNER-Yes. One question. I'm looking at the little sketch you've got here. Is that a false front on the garage, over the garage, or is that an addition over the top of it? MR. MOUSSEAU-This is all going to be the roof. MR. TURNER-Okay. That's the roof line? MR. MOUSSEAU-Yes, like it shows here. MR. TURNER-Okay. Does anyone else have any questions? MR. MOUSSEAU-I might add that I've talked to all the immediate neighbors and let them know, and there wasn't any opposition. MR. TURNER-No. That's an old, old neighborhood. Those houses were built on very sma" lots like you say. There's not much direction, any place you go. MR. MOUSSEAU-That's right. MR. SHEA-Mr. Mousseau, one car garage or two car? MR. MOUSSEAU-It's a one car garage. MR. TURNER-Okay. Let me open the public hearing. PUBLIC HEARING OPErtED NO cOl9En PUBLIC HEARING CLOSED CORRESPOIDENCE Letter from Ann and Robert McDonough, "This letter is to inform the Zoning Office regarding the public hearing Wednesday April 15th, 1992, that Robert and Ann McDonough, 5 Sargent Street, have no objection to the proposed variance of Karen and Timothy Mousseau's to add a family room and garage to their home at 9 Sargent Street." 1 - MR. TURNER-Okay. Any discussion on it? None? Okay. Motion's in order. MOTIOrt TO APPROVE AREA VARIANCE NO. 24-1992 TnlJTHY MOUSSEAU, Introduced by Bruce Carr who moved for its adoption, seconded by Theodore Turner: Grant the applicant the relief requested, which would be as follows: This would grant the applicant a setback variance on the north property line of five feet, and a variance from the sum of the total side yard setbacks of 19 feet. The applicant has stated that he wishes to add a family room and garage attached to his house rather than having a small home and the detached garage. The proposed structure win be further away from the north boundary line than the current structures that are located on the property. The request is reasonable for the use of the property and is the minimum relief necessary. Duly adopted this 15th day of April, 1992, by the following vote: AYES: Mrs. Eggleston, Mr. Shea, Mr. Carvin, Mr. Carr, Mr. Turner NOES: NONE ABSENT: Mrs. Paling, Mr. Sicard (7:41 p.m.) AREA VARIANCE NO. 25-1992 TYPE II SFR-lA. DONALD KRUGER (liNER: SAME AS ABOVE SHALLOW CREEK SUBDIVISIOft SHALLOW CREEK ROftJ), OFF BOUER DRIVE FOR COrtSTRUCTIOrt OF A SIII&LE FAMILY RESIDENCE WITH A ±42 FT. SETBACK IN LIEU OF THE REQUIRED 75 FT. SETBACK FROM A STREAM. TAX MAP NO. 75-1-23.2 SECTION 179-60 LEON STEVES, REPRESENTING APPLICANT, PRESENT TURNER-Mr. Steves. MR. STEVES-Thanks a lot. Hi. I'm Leon Steves. As pointed out in the January meeting that we attended on an Area Variance, the stream setback had been changed from the previous Code of 50 to 75. Therefore, we're in tonight for that setback rel ief from the 75 to a 47 so that we can construct the house as shown on the plan. The house size is 30 by 70 and it will be built roughly 40 feet from the road line to allow an area in front of it for the septic, to keep that 100 feet from the stream. MR. TURNER-Okay. Any questions? MR. CARR-The septic will be, I mean, measured on this? It is a 100 feet from the stream? MR. STEVES-Yes. Do you mean from the septic to the stream? MR. CARR-Yes. MR. STEVES-Yes, it is. In fact, the dimensions shown, 30 and the 20 and the 47 or 97, but that's in a straight line increment, and on the hypotenuse of that triangle it is 100. MR. CARVIN-I have a question. Your plan here indicates a dry stream bed. Is it actually dry or is there actually water in this thing? MR. STEVES-At some times of the year, there is water. MR. CARVIN-So, it's not something that's always there all the time, I guess? MR. STEVES-That's correct. MR. TURNER-There's none this year. MR. STEVES-No, it's a dry year. MR. CARR-You looked at other proposals and there's no way, I mean, there is no way to meet the 75 foot on this plan. MR. STEVES-Not unless we attempt to do some moving of the stream bed itself or redesign of the building. Both are probably impractical, if you win, in that we're trying to keep in the same neighborhood character on building. So, that would be difficult to do, and the stream bed is best left alone. MR. TURNER-The fill that you've got piled there, you're going to grade after you've got your cellar up? MR. STEVES-Mr. Kruger has indicated affirmatively. 2 - MR. TURNER-Okay. So, you'll have enough soil to sustain any erosion, once you get the grass planted and get it firmed up? Does that stream bed, actually, when it gets real high, how much does it migrate outside of the stream? MR. STEVES-Do you want to come up and address any of these? DON KRUGER MR. KRUGER-Hi. I'm Don Kruger and I own the property. I only lived there, had the property, like five years, and I've never seen the stream up hardly at all. Now, Dave works for you and I've talked to him about it. and he's lived there for better that 20 years on Bonner Drive, and he said he's never seen it up real high. MR. TURNER-Have you got an educated guess as to how far it ventures out of the stream bed? MR. KRUGER-Five or ten feet. MR. TURNER-Okay, because there was some testimony, before, in regards to that stream. MR. KRUGER-If it was a problem, we'd sink the whole deal and go for something else, but I don't see it as a floodplain problem. MR. TURNER-Okay. MRS. EGGLESTON-I noticed on the Short EAF you say, possibly a permit will be needed from DEC. Has that been determined yet, or is that? MR. STEVES-No. There will be no need of one if we don't disturb the stream bed. MR. TURNER-If you remember, previously. isn't this the lot that had to have the Health Department approval or something. or is it the other lot down at the other end? MR. STEVES-Which approval was that? MR. KRUGER-No. We've got all the Health Department approvals. It's just subject to your Variance. MR. TURNER-Yes, on this lot? MR. STEVES-Yes, this lot as well. In fact, there's a plan over at the Planning Department right now, with Brian Fear's signature on it, for Phase II. MR. TURNER-Yes. I knew that, but I just wanted to address and make sure it was this lot also. MR. SHEA-Mr. Kruger, I recognize it's not germane to this variance application, but does this stream bed then go behind any of the other properties where it may come into play for a future lot approval? MR. KRUGER-No. This is it. We're more than far enough away from the rest of them. This is the only one that there's any encroachment whatsoever on. MR. TURNER-It goes well behind the lot that's in the cul-de-sac down at the end? MR. KRUGER-Yes, better than 100 feet from all of that. MR. TURNER-Okay. Any further questions? None? Okay. Let me open the public hearing. PUBLIC HEARING OPENED NO COMŒNT PUBLIC HEARING CLOSED MR. TURNER-Any discussion on the application? Okay. Motion's in order. MOTION TO APPROVE AREA VARIANCE NO. 25-1992 DONALD KRUGER, Introduced by Joyce Eggleston who moved for its adoption, seconded by Fred Carvin: And grant the applicant relief of 28 feet from the dry stream bed. I believe this to be a mlnlmum relief in order to maintain the character of the neighborhood and accommodate the sewage facilities. It's a preexisting subdivision approved in 1987. There is no neighborhood opposition and I don't believe it would be detrimental to the rest of the neighborhood. Duly adopted this 15th day of April, 1992, by the following vote: 3 --- -' AYES: Mr. Shea, Mr. Carvin, Mr. Carr, Mrs. Eggleston, Mr. Turner NOES: NONE ABSENT: Mrs. Paling, Mr. Sicard (7:50 p.m.) AREA VARIMCE NO. 26-1992 TYPE II LC-42A MICHAEL C. DIPALMA IIlftER: MARGARET E. BLEIBTREY IS THE OWNER OF THE urtDERLYING FEE. APPLICANT IS (liNER OF RIGHT-OF-WAY OYER THE SAŒ RIDGE ROAD (ROUTE 9L) WARNER BAY INLET FOR Art EXTENSION OF AN EXISTING DOCK TO ACCESS DEEPER WATER. (WARRErt COUNTY PLANNING) TAX MAP NO. 20-1-8 LOT SIZE: 10 FT. BY 162 FT. 20 FT. WIlE AT SHORELINE SECTION 179-60 MIKE KUZAK, REPRESENTING APPLICANT, PRESENT (7:50 p.m.) MR. TURNER-I think you ought to read the letter from Mrs. Bleibtrey. MRS. EGGLESTON-Yes. A letter from Margaret and Charles Bleibtrey, "Please see the attached notice of public hearing dated May 18th, 1988. The request for variance by M. diPalma, scheduled for 4/15/92 was previous requested and denied on 5/18/88, by the Town of Queensbury. There is no need for M. diPalma to seek a variance again because the same exact request was made by him in 1988 for the same reason, unable to use dock because of low water, and he has been using the dock extensively ever since. The real reason he wants to extend his dock is to increase his commercial fishing business that he continues to run through our property, despite an order to remedy this violation by the Town of Queensbury. Please be so kind as to inform all Board members of the previous denial, 1988, of diPalma's request for variance to extend his dock. We will strongly object to any dock extension by diPalma since his dock is on our property." MR. TURNER-Okay. Who's representing him? MR. KUZAK-Good evening. I'm Mike Kuzak, and I will be representing Mike diPalma this evening, before you. First and foremost, in so far as the letter is concerned, by Mr. and Mrs. Bleibtrey, I'd like to address a couple of points that are raised in that letter. Their objection to the dock on the grounds that the dock is on the property, in so far as that as an objection to the dock being there and the right-of-way being there, that their deed and Mr. diPalma's deed clearly grants that right, and they took title to that land subject to the right to put that dock in and the right-of-way going across the land, inasmuch as that complaint is raised in the letter, and inasmuch as it's geared toward that type of objection, I would submit that that objection is not material to the Board, at this point in time, and not even relevant. It's a question of title which they took when they bought the house. They bought subject to that existing right-of-way, and I've prepared basically a quick letter, here, in an attempt to summarize some of the issues which concern this application. I do realize, from working on this file, that essentially what this is is a neighbor dispute, and that there were neighbor disputes which have taken place in the past, that have caused emotions to rise regarding this matter, and that that has more to do with the fact that there is the dispute here, right now, before you, than anything else, and I'll just go and say that in my letter I touched on a couple of points of law which I'd like to discuss at this point in time. First of all, there mayor may not have been a question raised by Mr. and Mrs. Bleibtrey's letter, as to whether or not Mr. diPalma had the legal right to even make such an application to this Board without the consent of the Bleibtreys. I'm not saying anything more than this. By warranty deed, as it says in my letter on the second page, Mr. diPalma is the owner of both an easement and a right-of-way across property which is owned by the Bleibtreys. That is clear at this point in time. However, I would submit to the Board that that is a sufficient basis upon which to base an application to a Zoning Board of Appeals. A right-of-way is a type of an easement, and an easement is a property interest, legally recognized under New York State Law, and I I ve discussed that a little bit more in detail, and given some general citations to New York State Law to support the argument, in support of that. MR. CARR-Mr. Kuzak, how would you address, though, that the easement is, it's limited, right? I mean, that's the nature of an easement or a right-of-way. It's limited in nature. It's limited to the lesser of 100 foot dock or what's allowed under the law. The dock is already larger than 100 square feet, so he doesn't have an easement for a larger dock. He has an easement for a 100 square foot dock. MR. KUZAK-Okay. I'll skip to the second point which is raised. MR. CARR-No. I want you to answer that question. MR. KUZAK-That's what I'm going to do. It is. It's answered here. MR. CARR-No. I read your letter, and I don't think that does answer the question, because you're saying that a restrictive covenant is not allowed to be interpreted under the Zoning Ordinance. It's a matter for the courts, and I agree with that, to an extent, but what I'm saying is, we aren't interpreting this restrictive covenant, saying what he can and cannot do. I'm saying that, over a 100 square foot dock, he doesn't have a right to. So, how can he have an ownership interest to ask for that right? 4 -- - MR. KUZAK-Okay. The easement and the right-of-way in this instance is the right to go across the Bleibtrey property to get access to the dock. MR. TURNER-To the 100 foot dock. MR. CARR-And to construct a 100 square foot dock. MR. KUZAK-And to construct a 100 square foot dock in the Lake, in Lake George, and what I'm submitting to you is that the limitation on the size of the dock is a restrictive covenant contained in the deed. and I just put that point in front of you, that basically you have the easement, the right-of-way to go across the property to build a dock out into the water, and what's the size of that dock? Well, it's restricted by restrictive covenant to 100 square feet, and that's what I would submit to you as a correct analysis of the exact nature and the extent of the right which Mr. diPalma has in that deed, notwithstanding the fact that the 100 feet is the limitation, so to speak, on the size of the dock. I would just submit that, as far as the Zoning Board of Appeals is concerned, we're really, I would hope that we're here to decide whether or not the hardship conditions set forth in the Code are met, regardless of what the restrictive covenant says, and if those conditions are met, then I would make application for the variance itself, and 1'm acknowledging, subject to jUdicial construction of that restrictive covenant on the size. MR. CARR-How can it be construed any other way? MR. KUZAK-Well, I'll answer your question. Basically, if this came into the Supreme Court, depending on who brought the action, there would be a complaint. Say it was brought by Bleibtrey, they would say that you cannot build a dock in excess of the 100 square feet, and our answer to that complaint would ask for a jUdicial reformation of the deed on the basis of frustration of purpose, specifically that the water level has declined in Lake George, to the point where it's at it now. Siltation has increased, and you cannot, without grounding the boat out and carving, what is there now is a carved niche in the sand, in the siltation, for Mr. diPalma to get his boat in, and that would be my argument to the court, and the court would say, well, you're right. We can reform it just to the extent to get into the, if he believed our side, he would reform it just to the extent to go out into the deeper water, and that's what I'm saying is the question for the court. The question for the Zoning Board of Appeals is whether the hardship circumstances outlined in the Code are met. and I'm not trying to say it's limited. Please, disagree with me if you feel so. I'm not trying to say that that's exactly it, but I've taken a look at the basic law. I didn't do the Court of Appeals level research on this. but I did look at the basic law and it says that the restrictive covenants are not the concern of the Zoning Board of Appeals, and I'll just tell you truthfully, I sit on Zoning Board of Appeals as Attorney to the Town of Kingsbury Zoning Board of Appeals myself, and we come across this once in a while. It is a balanced question, and I do acknowledge that it's a difficult question. What I would ask for, at this point, is that the Board consider whether or not the variance criteria are met, in this instance, with respect to this application, and at least issue a determination on those grounds, on the grounds of the criteria, and if the decision comes down to, yes, you've met the criteria for the variance and we'll grant it to you subject to judicial determination of whatever the rights are under the deed itself, then that's fine. MR. CARR-And who would foot the cost of the judicial determination? MR. KUZAK-Essentially, if the variance is granted. MR. CARR-I guess my question would be, would Mr. diPalma bring a declaratory action, or? MICHAEL DIPALMA MR. DIPALMA-Could I tell you one thing. Michael diPalma, the owner of the property and the owner of the right-of-way and easement in that vicinity. I know I'm restricted in the deed. I'm just sorry I wasn't here for the first hearing in 1988. I couldn't be. I had obligations out of state. I have since moved to my home there, which I've owned for 14 years. I didn't want to get involved in this guiding business. but Mr. Bleibtrey is a prevaricator and a hypocrite. I have a complaint signed by your Zoning Department in 1988, on information and belief from these people right here, to Burt Martin. I was not here on this date. I was working in the State of New Jersey on the midnight shift. I have it here if you would like to see it. This has been an ongoing problem. I've been here for quite some time. I love this Town. That's why I'm here on my retirement, living in this Town, because I like it. New Jersey used to be like this. It just got too crowded. I know you're having the same problems now, with growing pains. I see it happening. I see what Quaker Road is like now and what it was 15 years ago. I have pictures here. If you people are reasonable, you will see, there's times I have no water there. There was no water at my dock last month at this time. I have pictures here that I took right after Dave Hatin was there last summer. I'm half way out in the mud. I could cut my dock off 30 feet, put a board, walk on the mud, and put steps up, and I would meet these requirements. I don't think I should have to do that. I think we all have common sense. I think if you look at these pictures and see what I have here, I know the decision will be made to extend my dock 20 feet. I have some very good neighbors here. They're here to all testify at how bad it is. Mr. Hope, here, had to pull me out of the mud with his boat. last year. His dock is 90 feet. His building permit 5 "-- right here says he has a 50 foot dock. Now, I go by the If he has a 50 foot dock, or at least it should be here, same thing I did, we", I've got bare ground under there. he wants. I go before you to get what I want, if I can. law. I've worked with the law all my life. why is it 90 feet? We", he might say the I can make it 90 feet. Well, he does what MR. CARR-We", I guess my question, though, would be, who would start the action? Would you put it to the Bleibtreys to protect their interest to start it, or would you stipulate that we granted the relief tonight conditioned on court reforming this contract, or this right-of-way. Would you start the action? MR. KUZAK-Okay. I'" answer that question with two answers. First of a", it would depend on the Bleibtrey's action. If the variance was approved tonight and Mr. diPalma commenced construction, he would undoubtedly face litigation from the Bleibtreys, if they were in the mood to so pursue litigation. It would take an equity action for them to stop that, and my second point, here, is I don't know if a stipulation on the record to commence the action is at all, in the first instance, relevant to the consideration of whether the variance criteria are met, which is what I'm here for. If an action needs to be started by us, to clarify this matter, then so be it. If it is as a result of defending an action, instituted by the Bleibtrey family, then so be it as well. I don't think that that is anything that we would want to stipulate to at this point. MR. CARR-I just thought that when you said that it was going to be left up to the courts, that you were indicating that you were going to go to the courts to have the right-of-way. MR. KUZAK-I anticipate that, eventually, that's where this thing will wind up. It doesn't concern, it's not a Zoning Board matter, I would submit. MR. SHEA-Mr. Kuzak, what is different now, than in 1988, when this variance was denied, other than make up of the Board? MR. KUZAK- There's two points which were not raised, the reason why I asked in my letter to be heard on you was on the two points that are raised in this letter. First of all, that I would like to be heard on the variance criteria, and not necessarily rejected on the deed criteria. I'm not saying that the decision was incorrect. I'm saying that it was incomplete back in 1988. It stopped at an examination of the deed language. I'm saying that that isn't where it should have stopped. It isn't even where it should have started. It should have started with an analysis of the variance criteria itself, and I would like the opportunity to make that argument to the Board, and that argument was not made, from my reading of the minutes from back in 1988, and I don't know why. Perhaps it was because Mr. diPalma was not there represented by an attorney, or not there in person himself. MR. SHEA-Mr. Chairman, do we have the minutes from that meeting? MR. TURNER-Yes, we do. MR. CARR-They weren't as complete as they are now, right? MRS. EGGLESTON-Yes. MR. SHEA-They never got to the merits of the variance, other than discussing the deed, at that time? MR. KUZAK-That's correct. MARGARET BLEIBTREY MRS. BLEIBTREY-What do you mean by the merits of the variance? MR. SHEA-Well, there are two sides to each of these variance applications. MRS. BLEIBTREY-Yes. We discussed that extensively in 1988. CHUCK BLEIBTREY MR. BLEIBTREY-At great length. MR. CARR-The minutes do indicate there was a discussion off tape, with Mr. and Mrs. Bleibtrey. MR. TURNER-Here's a part of the minutes that addresses what you're talking about. Mr. Bleibtrey presented the deed which limits the size of the dock, not to exceed the lesser of 100 square feet, or half the total number of square feet permitted in such zone districts without a license or a permit. Mr. Behr felt that if this is a covenant in the deed, the Board cannot rule on it. However, Mr. Prime said the applicant is asking for something beyond what is authorized. Mr. Muller referred to the Zoning Ordinance, Section 7.011 2B, No dock shall extend more than 40 feet off shore from the mean low water mark, and it was addressed. 6 ...... MR. KUZAK-I would just comment that the elements pertaining to an Area Variance were not discussed in those minutes, and I would also like to argue to you that they have to be considered, and they have to be addressed. The denial in this instance was based on a deed, restrictive covenant in a deed. It was not based on any of the elements. I'm going by the minutes, and the minutes are the official record. I'm going by the minutes as obtained from the file itself, and I would just indicate that the minutes don't reveal that a discussion of the four elements, set forth now, I believe, in, I can't remember the exact Section, if I could borrow the Code Book I could, but there's four elements to an area variance which the Board has to consider. There's no record of those elements ever being discussed. There's a record that, hey, we're here to talk about a variance, but it never got to the question of whether or not there was a variance, legitimate grounds to grant a variance because of the fact that it was cut short on the restrictive covenant contained in the deed itself. To answer your question, what has changed? It's not necessarily a change. I'm more here to say that I would like to have those elements considered by this Board, regardless of the language of the restrictive covenant, and I would respectfully request that the Board consider them at some point. MR. TURNER-Did you read this? That's what it was all about, even though the denial was based on the covenant in the deed. MR. CARR-But I guess my question is, if they're denied, I mean, can't they come back within a year? They can't? MR. TURNER-He's raising the issue that the criteria for the area variance wasn't addressed, but maybe it's a bit overshadowed, but I think if you want to read the next paragraph from the one I just read. MR. KUZAK- To further answer the question of what has changed, I would just point out to the Board the dramatic change in the water level itself, of Lake George, which in effect, as Mr. diPalma raised in a sort of round about way, his shoreline isn't where his shoreline used to be. His dock is on ground now, and if you took into account the square footage of the dock itself, he could actually remove a portion of the dock and extend it back out further, a few feet further than it is already, and I would point that, as far as, if we're looking for elements of change, in terms of what's changed, physically, on the site, I would direct your attention to that as well. It is no secret that the water level is down in the Lake, and it has been down for the past several years, and I don't have control over that. If you ask DEC if they're regulating the height of the Lake, and they'll tell you, no. I'm up there at the Town of Putnam and Dresden, which I also represent, and we had a lot of problems last summer, regarding the water level and its effect on sewage and drainage, as well as people's docks and things like that, and we said, what's gone down. Our water level's down a good two feet, and they say, it's not because of us. We di dn' t pull the cork on the dam or anyth i ng along those li nes, but you go up there, and yet you see the water coming over the dam, and I don't know who's fooling who, but there's a tendency, now, for the water level of the Lake to be much lower than it was several years back, and I would say that, if that condition didn't exist, we would have deeper waters closer to shore. We wouldn't have the siltation that we have now, at this point in time, and insofar as that's concerned, I'd point that out to you for your consideration. MRS. EGGLESTON-Well, I would say that there was a lot of things discussed, if you read all these minutes, including what you're just talking about, about the water levels. Even though the final denial was based on the covenants and the deed, it doesn't mean that all of the issues that you want to re-hash again tonight were not hashed over in 1988, and to me, if there's something wrong with the covenant, or you want to change the covenant, in my opinion, don't ask ~ to do that, ask the Supreme Court or whomever. You expend your money, the applicant's money, and get that changed, instead of asking ~ to do that. MR. KUZAK-Okay. Even though these issues were discussed in 1988, I'll respectfully point out the fact that the water level has gone down further since 1988, and you're asking me for a change in the physical site, and that's what I'll tell you. It's just an example of one of the changes in the physical site itself, since 1988. It was discussed in 1988. Perhaps it's been declining for several years. MRS. EGGLESTON-But from now until 1988 it's going to fluctuate year to year, depending on snow, how much snow we get, how much rain we get. The Lake goes up and down. I mean, it's a known fact. It's never going to change. Some years it's going to be less than others, some years more. That's not going to change, and that was fully discussed in 1988, when they made their decision. MR. KUZAK-Lake's do go up and down, and it is a very good point that you're raising. However, Lake George has decl ined in the past, the past few years, and I will submit that to you. It's a matter of, it's not something I can bring in somebody from DEC to say, measure whatever. It's a matter of common knowledge. This is not a complaint infrequent to our office, that people have to go back before the Park Commission to extend their dock or do things like that. I do a lot of this work. It happens. The Lake isn't going up. It may go up five years from now, but the simple fact remains that, from, I'll just say from my own personal knowledge, the last two to three years it's been going down. MRS. EGGLESTON-But you're asking us to break a covenant in a deed, and I'm not sure we can do that. 7 '-' MR. KUZAK-I'm submitting to the Board, and I'll take a position on this, and I don't mean this offensively. I'm submitting to the Board, as a Zoning Board of Appeals, that you don't have jurisdiction over restrictive covenants and deeds, and they do not bar you from granting relief. In fact, I would submit that the Zoning Board of Appeals is, if my reading of the law is correct, is prohibited from denying the rel ief requested, based upon a restrictive covenant, and I have a citation in there. If it requires further research, we'll do it. MR. CARR-I agree. Besides standing apart, restrictive covenants, you're correct, under Andersen, or whatever, that we are not allowed to look at that. How do you get around their denial, which, again, the first sentence said denied, in '88, because of the dock, and the deed restriction. The second sentence said another difficulty of the dock is the location on Lake George in a shallow creek entrance, and the size of the boat would be limited. That has nothing to do with the deed. MR. KUZAK-I'm not sure I understand your point. Can you please elaborate just a little bit further? MR. CARR-Yes. The resolution was two parts. There's two sentences. One was the deed. One was the physical characteristics of the land and the property and the request. MR. KUZAK-Okay. So, what you're saying to me is they addressed those issues in 1988, based on the conditions existing in 1988? MR. TURNER-Yes. MR. KUZAK-I submit to you that they've changed since 1988, that they've worsened, and that that is a change in circumstances. If we're looking for change in circumstances to hear this, I would argue that that is a change in circumstances, sufficient upon which to base an application for an area variance. MR. CARR-Do you have documented proof? MR. KUZAK-I don't know how to answer this question. Right here, now, I do not have documented proof. I can call some witnesses, if you'd like to hear some people testify as to the steady decline in the water level. We can do that. I can get that before you at this point in time, if it goes to public hearing. I've got to ask just a procedural question. Are we going to public hearing tonight, if this goes further, or will this be set for a later point in time? Was it set for today? MR. TURNER-If we decide to hear it, we'll here it tonight. MR. KUZAK-Okay, and then if you decide to hear it, I believe your format is, people in support of Mr. diPalma's application, and you can listen to what the witnesses have to say. MR. TURNER-Yes. Everybody will be heard. MR. KUZAK-I have not spoken with them, but you can ask them whatever questions you would like, and I believe that would get you some evidence of a steady decrease in Lake. MR. DIPALMA-You're talking about everything, but have any of you seen my area? MRS. EGGLESTON-Yes. MR. TURNER-Yes. MR. DIPALMA-Have you seen it last month? MRS. EGGLESTON-I was there Sunday. MR. DIPALMA-Sunday the water had risen a little bit. MR. TURNER-Yes. MR. DIPALMA-Did you see it last summer, in the middle of the summer? MR. TURNER-No. I didn't go look at it. MR. DIPALMA-I have some photos here, if you'd like to, when Dave Hatin was there. MR. TURNER-Well, lets see if we're going to hear it, first. MR. DIPALMA-Okay. MR. KUZAK-Is there any questions I can answer further, at this point in time? MR. CARVIN-Do you have the same boat that you have today, as in 1988? 8 '- MR. DIPALMA-The same boat. MR. CARVIN-Was it a 21 footer? MR. DIPALMA-No, it's an 18 foot Criss Craft. MR. CARVIN-Eighteen foot. MR. DIPALMA-I have a friend that has a 23 foot boat, and he's there once in a while on the dock, on the other side. That's the same boat, too. MR. CARVIN-Okay. There's just one boat that docks at the dock, or are there other boats? MR. DIPALMA-There's no other boats. MR. CARVIN-Just your boat, and it's a 18 footer. MR. DIPALMA-And the other boat. The other boat's not there that often. From the middle of the summer last year until the end he couldn't bring his boat in. He had to take it out. It's a low water table. MR. TURNER-You're talking about Mr. Stevenson? MR. DIPALMA-Yes. MR. TURNER-He owns a 21 foot boat, according to the last time. MR. DIPALMA-He has a different one since then. About five years ago he got a 23 foot. MR. TURNER-Okay, and the last time, according to this, you had a 19 foot boat. MR. DIPALMA-Eighteen foot. MR. TURNER-Okay. Well, that was the testimony. MR. KUZAK-There's one other point I'd like to touch on, at this point, and it's environmental in its nature. As a result of the decline in the water level since 1988, there is conditions existing on the property which I would classify as adverse environmental effects, in the sense that the natural siltation in the inlet is presently being disturbed by the fact that he can use the existing dock, but when he pulls into it, it carves out, it's soft, it's silt, it carves out a little slope on either side for the boat to fit into so that he can use that dock, basically, to tie his boat up, and I would submit to you that that's something which is, it's not getting any better. It's getting worse, and it is a change from 1988. It's something that, if what my client has relayed to me is correct, is that people he's spoken with at the Park Comtr.ission and the Adirondack Park Agency would prefer if that siltation was not disturbed. They'd like it to be in its natural conditions and not disturbed by the boat, and they'd like to see him go out into a little bit deeper water, if at all possible, and I would submit that as a second difference between 1988 and the present. MR. CARR-Pat, where in the Zoning Ordinance says they can't re-apply? MRS. CRAYFORD-I don't know that there's anything in the Zoning Ordinance. I think it's in Town Law, but I thought they could be heard again with a majority vote of the Board. That was my understanding. MR. KUZAK-And some of the municipalities that I've been before have like an 18 month rule, also. I don't know if one exists here, but you have to wait 18 months to re-apply. MR. CARR-I thought we had one year. thought that was in there somewhere. MRS. CRAYFORD-I haven't seen it in our Town Law. MR. KUZAK-And there's one other point, and in conclusion, I would like to request that the Board hear this variance application and pass on the variance application, at least in so far as the criteria is concerned, that are outlined in the Zoning Ordinance of the Town of Queensbury. I'd be happy to go through those criteria with the Board now, if you wish. MR. TURNER-Let us discuss it, and then we'll. MRS. CRAYFORD-Excuse me. Would you like me to see if Paul Dusek's over there? MR. TURNER-You can, yes. We'll discuss it while she's gone. How do you feel? MR. CARR-I think we should hear it. 9 -- MR. TURNER-There's nothing different. MR. CARR-Just to clear the air. Well, if that's the decision, that's the decision. I mean, if that's the case, then that would be the decision, but I think. MR. SHEA-Well, we have to find out from Paul whether we have to vote, so as to hear it, or whether it's simply a matter of a year's wait and then they're entitled to re-apply in any case, without our vote. MR. CARR-I think, just for our own protection, with any variance we give, we'd have to give it subject to court approval of the right-of-way. MRS. EGGLESTON-See, that bothers me about the, because we've had other things with deed restrictions and we have said we couldn't get into it until the deed things are straightened out. MR. CARR-We said we couldn't even deal with them? MRS. EGGLESTON-Yes. We didn't deal with them. We made them, until they got clarification on the, isn't that right, Ted? We have, on road and different things. don't see this as being any different. MR. TURNER-That's a Critical Environmental Area, now. That's SEQRA Review. MR. CARR-This is a Type II. Could that be right? MR. TURNER-No. I think it's unlisted. No, you're right. It's Type II. Site plan approval shall not be required for the enlargement or extension of his existing docks. MR. KUZAK-It was recoll1l1iended that we submit the SEQRA form anyway, regardless of the fact that the Adirondack Park Agency is probably going to take jurisdiction if this goes further, which is where we're at anyway. MR. TURNER-What's the width of the creek, do you know that? MR. KUZAK-It varies because of the marsh on the other side, on the opposite shoreline. MR. TURNER-Okay, but what is it? MR. DIPALMA-It's about 200 foot. MR. TURNER-At that point? MR. DIPALMA-No, not at my point. The Bleibtrey dock and the neighborhood right-of-way dock which are right next to me, one extends over 100 foot, a little bit over 100 feet, and the other one's out almost 90 feet, and I'm, like, stuck in the middle there. MR. KUZAK-It's important to point out that we're not going to go, if this is constructed, out into the water any further than any existing dock that's already there. MR. DIPALMA-I'll still be shorter than the other docks, but it might help me a little. MR. TURNER-They don't have to address site plan approval, but they have to address SEQRA. That's a Critical Environmental Area. On the map you show the name of the creek as, The Creek. Is that what the name of it is? MR. DIPALMA-That is the name of it, The Creek. MR. TURNER-Okay. MR. DIPALMA-I'm going to rename it. MRS. CRAYFORD-He said it would take a unanimous vote to rehear it, and a unanimous vote to approve it. You can rehear it tonight with a unanimous vote. MR. KUZAK-Is that to rehear, or? MR. TURNER-Rehear. It has to be unanimous. MRS. CRAYFORD-And unanimous to approve. MR. KUZAK-So, am I to understand there's two questions, at this point, first of all whether it's a rehearing and then second of all whether there's been a change in circumstances sufficient enough to justify a new application on it? Would there be two questions? 10 '- - MR. CARR-No. We're treating this as an application to rehear. MR. TURNER-Rehear. MR. CARR-Not a new application. MR. TURNER-Not a new application. MR. KUZAK-Okay. MR. CARR-Well, I guess my concern is if it's always been the policy of this Board to have all, we have the right or not, if it's always been the policy to have all the loose ends tied up. to me, that's not an unsound policy, because I don't want to be granting a variance, only to thrown into court anyway to have it overturned, because then you're wasting everybody's time. whether I mean, have it MR. TURNER-Yes. MRS. EGGLESTON-Well, I can think of a specific incident up on Moon Hill, remember they were fighting over a piece of driveway that went over, and we got out of it until they got that straightened around. MR. KUZAK-I would respectfully submit that any such litigation would not involve the Zoning Board of Appeals, in that your pleadings or whatever would get you out of that action quickly enough, regardless of what's happened in the past. I'm just saying, you don't answer questions pertaining to restrictive covenants. MR. CARR-Right, but we're going to be named as a party, and I think the policy has been, I mean, just to avoid spending tax payers money even just to answer to get us out, because it's not, because Mr. Dusek's a very busy person, as it is. Our policy has always been not to discuss these until all the deed criteria issues have been resolved, especially when it's a hotly contested right-of-way interpretation. MR. KUZAK-Okay. I see your point of view. My position is that this restrictive covenant is not one of the criteria that you have to be concerned with. That's what I'll say. I'll just state it as clearly as I can, by saying that, and that's the position I take with respect to the question of a rehearing. Thank you. MR. SHEA-I would just say, with regard to the water line issue, I think that I'd be surprised if Mr. Kuzak would have definitive documentation here tonight with respect to where the water line has been going over the years, and that it can be definitively stated that the water line is going to stay at that mark. I mean, obviously it's mother nature, and the water is going to change upwards and downwards over five, ten, twenty years, and given that fact, in my mind, it'd be pretty difficult to come up with a fair assessment as to the merits of a variance with respect just to the water line, because what if the water line ends up going up over the next five years. Then all of these docks that we're going to allow to be extended, to reach out to the water, are going to be submerged. That's not our job. Now, that then goes into the realm of the APA and the environmental people and the Park Agency. So, I certainly understand that the water levels do go up and down and they do have an effect on the usage of docks, but understanding that, I would find it very difficult to rehear this variance based on that as the predominant factor in hearing it once again. MR. CARVIN-I agree. MRS. EGGLESTON-I agree. MR. TURNER-Yes. MR. CARR-There's one point, I guess, Mr. Kuzak, I mean, even if you have to go for a contract reformation, I mean, you would have to have documentary evidence of that nature for the court. I mean, they would insist on some expert witness as to what the lake is doing. So that they can say, yes, this contract has to be reformed, because of the impossibility or whatever. The court's not going to by, they aren't going to say, Mr. Kuzak, I know you're telling us from personal experience that it's going down. They're going to want some documentary proof, and I guess that's what we're looking for, too. You can either get the documentary proof together for us and then you're going to have to go to court anyway, or just go to court anyway, or just go to court where you're going to have to do it, and then when you come back to us, we'd be more comfortable because then we would have something in writing from experts as to what the lake is doing. MR. KUZAK-Okay. I can understand why you'd feel uncomfortable with the issue being out there and unresolved. Addressing the point on the evidence, you spoke of expert testimony. That's one type of evidence. I don't have that right here tonight. I do have witnesses who can vouch to the level of the lake and I do have some photographs, here, to submit to the Board, if we get that far, if we even get to that question. That's two other types of evidence. All this evidence is prohibitive of the question of whether there's a change of circumstances, and I would submit that to you. The Board is uncomfortable, I can 11 -- pick that up. I wou1d be uncomfortab1e, if I was on the Board, that there's a deed covenant, a restrictive covenant. However, if the 1aw says that the Zoning Board of Appea1s has no business dea1ing with or effecting, in their decisions, any restrictive covenant, then that's what the 1aw says, and that's how it shou1d be hand1ed, and I'm just going to ask if there's any chance of having you hand1e it in that manner, and I'm submitting to you that, restrictive covenants aside, they're not an issue which you need be concerned with. I wou1d 1ike to be heard on the e1ements of the area variance. If there's not going to be a rehearing on the unanimous vote, which I suspect that there wi11 not be a unanimous vote in favor of a rehearing, I wou1d ask that this app1ication be considered as a new app1ication, based on a change of circumstances, then, that we have the opportunity to submit proof of those change of circumstances to this Board tonight or at a 1ater point in time if the Board wou1d 1ike to take some time to perhaps refer this out to Pau1 Dusek and have him take a 100k at it and see what jurisdiction the Board has over restrictive covenants. I think that the decision, I mean, if you want to put me on the spot and say, what wou1d you do if you were on the Board. If you were going disapprove him, what were you going to do if you were going to approve? To make the approva1 argument, I wou1d say that if the e1ements of the variance criteria are met, then the variance is granted with the proviso that the granting of this variance does nothing to effect the substantive rights of the parties as detai1ed in the restrictive covenant contained in their deeds, and then that way you're not purporting to effect those rights. In effect, you're seeing if there's criteria met to enab1e a variance. If we can get the variance then of course, if has to go to court, it has to go to court. There's something to base the significant investment that this type of Htigation win undoubted1y create. If we took it right out to court, and he invested severa1 thousand donars and say he won and he came here, and there's no variance anyway, this is c1ear1y the best advice I can give my c1ient is to come here, on these grounds, on the 1ega1 grounds that the restrictive covenants are not re1evant. What is re1evant is what's in the Code Book on an area variance, and I'd 1ike to be heard on those e1ements, whether it's rehearing or whether it's a new hearing, based on the change. MR. SHEA-We11, I think that makes some sense. I mean, certain1y the fact that we're here as a service. We're here to he1p both parties, when there are certain1y two sides, and there are two diametricany opposed sides here tonight, and I wou1d hate to see anyone have to go through an of the 1itigation costs on1y to come back here and not get the variance. It is, in my mind, our duty to at 1east hear the issue and either approve or deny a variance for the merit, if an approva1, with certain stipu1ations and conditions, that they can then take into Htigation, shou1d they have to, or choose to, pursue that course of action, but I wou1d recommend, again, in my opinion, that you do not have the evidence tonight, the expert testimony that I wou1d think that you wou1d want, in a rehearing, and my guess is that you wou1d not get a unanimous vote tonight. So, my recommendation to you wou1d be to withdraw, for tonight, and to app1y for a new variance, and that's my recommendation. MR. KUZAK-We're 100king for new grounds, that's on the rehearing question, and I do understand your position, and it is quite c1ear. I do, sti11, propose the question that there is enough evidence here, 1ets 1eave rehearing aside and 1ets just say it's a new app1ication, and what is my basis for the new app1ication. A11 right, we say the water 1eve1's going down. That's one of the grounds which I've proposed to this Board, and you say, we11, we're going to need more testimony on that. I don't know what format to use to get that testimony before you right now, but 1ets put that aside. Lets 100k at the second factor which I raise, which is the environmenta1, how sha11 I say it, harm to the natura1 si1tation in this in1et. MR. SHEA-There, too, I wou1d submit that you're going to need some more ammunition. MR. KUZAK-An I need is a picture for that showing the s1ips cut away for the boat, and I wou1d submit that I can get that evidence before you tonight. MRS. EGGLESTON-Mr. Kuzak, do you not, in your wi1dest dreams, think for every five peop1e you produce that says the water 1eve1 has changed there's not going to be five on the other side that says it has not? MR. KUZAK-No. I'm not quite so naive. What I'm saying is put aside the question of the water 1eve1 and 1ets 100k at the fact that I've proposed a second factor here, which wou1d main1y be the environmenta1 harm, and I'm going to can it a harm because the APA doesn't Hke to see it created by this. Whether it's the water 1eve1 going down, whether it's the water 1eve1 going up and down, 1ets ignore the water 1eve1. Lets 100k at the fact that there's a wedge cut out in the natura1 shore1ine, by the existing use of this dock as. MR. SHEA-Do we have anyone here tonight from the APA or a statement or a document from them? MRS. CRAYFORD-I have a 1etter from November '91 from APA which is quite 1engthy, if you'd want to read it. MR. CARR-For the reasons that Mr. Kuzak has put forth, I guess 1'm not adverse to rehearing it. don't think I want to rehear it tonight because for the reasons Mr. Shea has put forth. I think I do want a 10t more information, from our Town Attorney, I want a position, and probab1y from you, Mrs. B1eibtrey, from yourse1f, or whoever you get, as to the standing issue, on the right-of-way. MR. KUZAK-I'm fine on that. Yes. I understand. 12 , , MR. CARR-Fine, but I want it from our guys and from the other side, too, if they want to do it, because if we're going to hash it out, lets get everything hashed out, on a, like a fair playing fair, where everybody knows what the other side is going to present so they can present opposing arguments. I want to know, Mrs. Bleibtrey, the size of your dock, the size of the one next to it, up and down. I woul d recommend you both take measurements of the docks, both submit a map. I want to know four docks up, four docks down or whatever, what's the measurements on those docks. MR. KUZAK-Sure. I don't see that as unreasonable. MR. CARR-Mr. Bleibtrey, you don't have other witnesses here tonight, and I'd like to give you an opportunity to get your people together, get it all out on the table at once. CHUCK BLEIBTREY MR. BLEIBTREY-My name is Chuck Bleibtrey, the husband of the woman that owns the property, and I would like to know if you're going to hear this or not. As far as we're concerned, this was denied. I feel as though the denial should stand. There has been no change in that property. The water level goes up and down. As a matter of fact, this time of the year, it is drawn down intentionally to make room for the runoff. Every year this is done. Right at this moment, the water is right back up to the normal level. I took pictures Sunday, and I can document the date on the pictures by something that I did there. He was denied in '88. There has been no change in the water level whatsoever. I mean, it's a thing that's regulated and it's kept at a certain level, and the water level isn't the issue here. MR. CARR-Well, I guess, Mr. Bleibtrey, that's what we're trying to do is, I mean, they're saying it has. You're saying it's not. I mean, somebody's got to have some documentation, a letter from somebody who regulates the water. MARGARET BLEIBTREY MRS. BLEIBTREY-Are you going to hear it or not? MR. CARR-Well, we're trying to get to that point. MR. BLEIBTREY-Okay. MR. CARR-I mean, we aren't just going to say no and yes real quick to anybody. My feeling is that it's going to end up in court anyway, but lets give everybody as much opportunity, now, to resolve it, to avoid the litigation which is going to be a tremendous expense to yourselves as well as Mr. diPalma, and get all the information now. MRS. EGGLESTON-I still am of the opinion that, I don't see anything that's changed in the application, and in my mind we'd be setting two precedents, were we to rehear it. We would be breaking the policy that we've had where if there is no change in the circumstances, and if you were to look from one application to the next application, the talk is all the same. The request is the same. The whole thing is the same. It was denied based on all the facts, no matter what Mr. Kuzak says, it's all the facts were discussed, it's in the reading. We'd also be, and again not in agreement with the attorney for Mr. diPalma, I don't agree in the covenant part, which we have already set a precedent, and how many times has the attorney told us, precedent is the most important thing in our decisions. MR. CARR-But a wrong precedent is nothing. MRS. EGGLESTON-Well, we haven't determined they're wrong. MR. CARR-But that's what I want Paul to look into, too. I mean, maybe it's a tabling, now, and not a rehearing vote, but I think we've got to look at those issues. MR. BLEIBTREY-Also, I believe you read from the application that his dock is 60 feet long. Is that right? MR. CARR-Is says 60 by 3. MR. BLEIBTREY-60 by 3. This is the actual shape of it and the length of it. It's 84 feet long and it is not 3 feet wide, it's 12 feet wide at the far end, out in the water, it's 3 foot wide, the ramp going out. So, it's 84 feet already, 324 square feet, that's 224 square feet larger than is allowed. MR. CARR-Well, if that's the case, you have a court action. MR. BLEIBTREY-Right. You asked for a map of the docks. 13 MR. CARR-Right. I want a map of other people's docks, too, I mean, because a lot of our variances are based on what other people have on the lake. A lot of our variances are based on that. So, I mean, I don't want to just say, his is 84. If somebody's got 200 feet, and if the norm is 200 feet, and he's stuck with 84, that's not fair either. MR. BLEIBTREY-Well, there's two long docks in there. All the rest of them are shorter than Mi ke' s. There's only two that are longer, only two, and there's about another 12 or 14 docks down the creek. MR. CARR-Well, that's what I want, I want ~ to measure them and I want ~ to measure them. MR. DIPALMA-I already have. MR. CARR-Good. MR. DIPALMA-That depends on where you measure them from, on the shore, too. MR. BLEIBTREY-Well, I measured it from the end of your dock. MR. CARR-Anyway, I think we've got to get to the point of whether we're going to rehear it, table it, withdraw it. MR. BLEIBTREY-I would like a vote to deny hearing it, because as far as I'm concerned, I think that denial should stand. MR. TURNER-Okay. Thank you. MR. KUZAK-As far as the docks are concerned, we'll go out and have those all measured and possibly prepare a drawing. I would request that, later, at some point in time down the road, if this is reheard or if this is tabled for awhile, I would make an indication that the zone of interest, so to speak, for examining the docks would be those docks that are in the inlet, in the marshy area, as it exists, not 10 houses down where the water level is much deeper and the shallow water problem doesn't exist. This is a problem which is unique, probably, to three or four property owners within that area, and I am speculating when I say that, but I've looked at the site, I've looked at the pictures, and you can see the marshy, the lily pads and such. That's an indication of shallow depth. You go down the road a little bit closer to the lake, you have sufficient depth, and the docks might be a little bit shorter, there, because there's deeper water, in so far as what I'm supposed to do to come back here, I'd like some direction on just how many docks I have to measure. That's really all I'm asking for, here, is I think that the relevant docks are those that are in the marshy area itself, because they are all longer than Mr. diPalma's dock. In so far as the length of the docks are concerned, I've just got to raise the issue because it is an issue in my mind. It's an issue in my mind as an attorney, and as an attorney to other Zoning Board's of Appeal. It is an issue that when somebody has a dock that comes and objects to another person's dock, and they're dock itself, possibly, I'm not saying it does, but the information I've received, is possibly in violation itself. I asked the question, I just asked the question from the records and in the files, and they have a 50 foot dock permit. Yet, their dock goes out significantly further. MR. TURNER-Okay. You asked it. Thank you. All right. Lets move it. MR. KUZAK-It's what I got from the records, by the way. I'm only going on what I received from Pat's office and the Park Commission, and I don't mean that in any way as offense to these people. It's just, I've just got to ask the question. It's in my mind. MR. TURNER-Okay, but lets see if we're going to rehear it. What's your position? MR. CARR-My position is to rehear it, change of circumstances based on water. That may be disproved. MRS. EGGLESTON-Mine is not to rehear it. I don't think anything has changed. MR. SHEA-It appears that the folks can't measure and read a tape, so I would not want to hear it based on, solely, the possibility of the water really being materially effecting the nature of this variance, but given the fact that, in the discussions in the last half hour, we really don't know how long these things are. I mean, we've seen them, but we did not, I did not measure them myself, so based on that, I would agree with Bruce that I'd like to rehear it at another date. MR. TURNER-All right. Lets put it this way, based on the original application, what you've got to rehear it on, do you want to rehear it, based on the original application? MR. CARR-Do I think, are you asking, do you think there's a change of circumstances that might warrant a rehearing? MR. TURNER-Jhat's what you've got to rehear it on? You just can't say, I want to rehear it. 14 MR. CARR-I think there is a change of circumstances that might warrant a rehearing, and if we have to vote on that tonight, I would vote yes. I'd rather be wrong that way than wrong the other way. MR. TURNER-Okay, but it has to be a unanimous vote. If it doesn't go, it's turned down. MRS. EGGLESTON-I would not vote to rehear it. MR. CARR-But couldn't we table it, I mean, I still have the standing issue I would like Paul to look at. MR. TURNER-Well, lets put it this way, you're not going to get a vote to rehear it, okay. So, that'll put it dead. That'll revert it right back to the original decision. MR. KUZAK-Okay, and then on my second proposal, I'd like the Board to consider g1Vlng it's decision as to whether or not this can be treated as a new variance application on the grounds of lapse of time and on the grounds of change of ci rcumstances, if we're not going to do it on water depth, because no one believes that the water depth has changed and it's too variable of a thing, then fine, on the grounds that there's an environmental effect which has been identified by the other authorities, specifica11y the Park Commission and the Adirondack Park Agency, and on those grounds, I didn't see the letter. I'll have to take a look at it, and I wi11 take the time to speak with them on it, the Park Agency and whatever, and it really comes down to if there's no, if they can identify that effect. I think it's relevant. I think it's enough to base a new application on, separate and distinct question from the question which I do understand your answer on. I have submitted new papers, and I would ask that you consider them as a new application, and we can leave the water depth right out of it, if you want. I've identified an effect. MR. TURNER-I think it's the recommendation of our attorney that we vote on a rehearing, and if that rehearing doesn't move, then that's a dead issue. Then it reverts back. MRS. CRAYFORD-That wasn't a recommendation. He just answered the question. MR. TURNER-Okay. All right, but it reverts right back to this decision, here, then. MR. SHEA-Mr. Chairman, I would say, I read the letter from the APA. I think that, based on the content of that letter, that there's certainly some worthwhile things to discuss with regard to the environmental issue. The water is simply .!!1l opinion. The rest of the Board members, and certainly Mr. Kuzak, may have another opinion. but I would say, in my mind, based on the environmental issue, that I think there's more to be heard here. and that we can make a better decision for all involved if we hear more information. The information that's before us tonight doesn't substantiate or negate anything, as far as I'm concerned. It's all hearsay, and someone's opinion, but I think it would be prudent to have some more definitive expert information to go by. MR. KUZAK-That's correct. Mr. diPalma has had correspondence with the Park Commission. in terms of personal visits to the site, and as well as the Adirondack Park Agency. If you'd like to hear, you're saying it's hearsay, I don't know if you. MR. CARR-Not tonight. MR. TURNER-No. MR. KUZAK-What I'm hearing from this Board, just let me clarify this because I'd like to know what I'm supposed to do when I walk out the door, is that if there's a possibility of this being reheard as as new application. I'll have to submit some form of proof of this environmental effect, which was not considered the last time, and some sort of support for or against it from, possibly, the Park Commission or the APA who has jurisdiction over these areas of wetlands and the lake itself, that this is, in fact, an effect which they'd like to see alleviated, and if I can produce that type of evidence, in the form of a letter or otherwise, that I would have grounds to possibly back up a new application. We're not talking a reheard application. We're talking a new application to this Board, as submitted, on those grounds. MR. SHEA-We're not certain, I mean, Mr. Dusek, the Town Attorney, said that, in order for us to hear it tonight, it would require the Board's unanimous vote to rehear. MR. TURNER-Yes. MR. SHEA-But, Pat, did you ask him whether the applicant has the right simply to re-apply after a specified time period, without a unanimous vote for the Board to rehear? MRS. CRAYFORD-No. MR. SHEA-So, we don't know that either. So, maybe Bruce's suggestion to table it for tonight and to get together with Paul Dusek. 15 MR. CARR-Well, no, we can vote to deny the rehearing, and then you'd have to re-apply, if you have the right to re-apply. You aren't going to get the rehearing vote. I mean, I think that's obvious. MR. KUZAK-I think that's clear, too. MR. TURNER-You could withdraw this application right here, take it right away, present a new one with circumstances totally different than what was presented before for us to hear that application. MR. CARR-Well, it doesn't have to be totally different. It just has to be a substantial difference. MR. TURNER-It's got to be somewhat different. Some things are going to stay the same. You're right. MR. KUZAK-I never considered this application to be an application for a rehearing. I considered it an application for a new hearing. If I can table that application and supplement it with materials down the road, I'd be willing to do that. We can take as much time as you want, and I'll do further research on the standing issue. I'm sure Paul Dusek will do further research on the standing issue, and, believe me, if I come across authority which says, that doesn't work for our favor, I'll tell you. I do this, too, and I'm not going to waste your time, but I did look at the law and I did put my citations down there, and they are verifiable. Just, please, show Paul a copy of the letter. I'd be happy to discuss it with him. To save an application fee, because, literally, I would just withdraw that one, resign it, and possibly staple another letter or two to it to re-submit. I never considered this application as anything but a new application, the issue of a rehearing never occurred to me until today when Pat showed me the letter from the Bleibtreys. It wasn't something that I'd considered. I'd always gone by the general rule that after a year or eighteen months has passed, you can re-apply, and I di dn' t think it was even a question, and I understand your precedents. I'll respect those precedents, but I would ask that, at least on the question of whether this can be considered a new application, that I be allowed to explore that further, and the Town Attorney as well. He hasn't been asked that question. MR. CARR-Well, I think he would be able to, I mean, regardless of our decision tonight, which is basically going to be only on rehearing, you would be free to explore those other issues, unless you just withdraw your application now. MR. TURNER-Yes, right. MR. KUZAK-Yes, and then I have to just resign it, retype it, and pay another application fee to get something that I thought I had before you in front of you again. Is that what you'd like to see? Let me just ask that question. MR. CARR-You probably would, because I think we'd probably like to see it re-noticed. MR. TURNER-Re-noticed. MR. CARR-So, you're going to have to pay for the paper fee again anyway. Even if we tabled this, we would want this re-noticed to anybody who's up there in the summer and stuff like that. MR. KUZAK-Sure, and on the grounds, my question to the Board for a ruling, as to whether or not this application could be considered a new application, not a rehearing, that question's not being addressed. MR. CARVIN-My feeling is that there may be some inaccurate material in here. MR. KUZAK-I'd be happy to check that out. MR. CARVIN-Especially with the length of the dock. I mean, there seems to be conflict right there. MR. DIPALMA-I've got to answer his question, because I pay a fee to the Park Commission for my dock, not for a residential dock, but for a commercial dock, because I have a friend on my dock, who I don't charge, who is supposed to take care of it for me, and he did this when I wasn't living there full time. He would watch the place. So, to have somebody that's not a member of your family on the dock, you have to go commercial for the Park Commission. They measured it for payment, and they measured it 60 feet, and I pay what 60 feet is, $150 a year, actually, I should be paying only $25, but that's the length of my dock. MR. TURNER-But that's not an issue. MR. BLEIBTREY-Now, we came down here to hear this thing tonight. Now, for this guy to start withdrawing it and re-submitting it and everything else, you know, this is wasting our time away from my daughter and my son. I don't feel like wasting my life running back and forth, here, because this lawyer is inept. I think it should be denied, as it was before. It's not my fault he doesn't know what he's doing. We've wasted two weeks getting ready for this, and a lot of money, and I didn't think we should have had to do it in the first place, because this guy came, he's a lawyer and he came unprepared. 16 That is not my fault. I don't want to have to come down here again because he doesn't know what he's doing. MR. CARR-Mr. Bleibtrey, we have no control over that. MR. BLEIBTREY-I understand that, but I'm here to hear it. MR. CARR-He has a right to do it. MR. BLEIBTREY-I'm here to hear it, though. MRS. BLEIBTREY-Margaret Bleibtrey. So, you've voted not to rehear this? MR. TURNER-No. We haven't voted anything yet. MRS. BLEIBTREY-Okay. If you do vote not to hear this tonight. You're te11ing him that he can apply for another variance? How many times are we going to have to go through this? MR. CARR-We're not telling him anything. He has a right. MRS. BLEIBTREY-Well, is he going to be allowed to apply for another variance? MR. CARR-Everybody is allowed. MR. BLEIBTREY-Well, then, lets hear it tonight. I have no problem with hearing it tonight. MR. CARR-Well, we have a problem with it because we don't think there's enough information. MRS. EGGLESTON-Yes. There's too many unanswered questions to hear it tonight. MR. BLEIBTREY-I have my information. If the lawyer doesn't have his, that's his problem, and that's the way I feel it should go. You should base your decision on what he presents as evidence. MR. TURNER-It's not going to go that way. MR. CARR-Yes. It's not going to go that way. MR. TURNER-Okay. The issue's closed right now. Lets have a resolution to vote on rehearing. MR. CARR-The motion has to be, vote to rehear. MR. TURNER-Vote to rehear. MOTION TO REHEAR AREA VARIANCE NO. 26-1992 MICHAEL C. DIPALMA, Introduced by Bruce Carr who moved for its adoption, seconded by Michael Shea: Duly adopted this 15th day of April, 1992, by the following vote: AYES: Mr. Carr NOES: Mr. Carvin, Mr. Shea, Mrs. Eggleston, Mr. Turner ABSENT: Mrs. Paling, Mr. Sicard MR. TURNER-We're not going to rehear it. MR. CARR-It has to be unanimous. MRS. EGGLESTON-Now, we're out of it, right? MR. TURNER-Yes. The ball's in their court. MR. KUZAK-Can request a second resolution? MR. CARR-No. MR. TURNER-No. MR. CARR-I mean, we aren't going to make a resolution whether you have a right to re-apply. MR. KUZAK-No. I would request to be heard that this is a new application, and you're saying no? 17 MR. CARR-That's what I'm saying. No, we aren't going to make an application because we have to ask our Town Attorney what your rights are as to a new application. MR. KUZAK-Okay. Can I ask just that the record reflect that? I can deal with that. MR. SHEA-And you should do the same on your own side. You should consult with Paul Dusek and you should make application for another variance and, in that course, you'll find out whether it can be heard or not. MR. KUZAK-No. I don't have a problem with that at an, and as to the suggestions of my ineptness and whatever, I would just point out that my letter is backed up with citations in the law and that I did reasonably rely on those citations, in my presentation before you. Thank you. MR. TURNER-Thank you. (9:03 p.m.) USE VARIANCE NO. 27-1992 TYPE: UNLISTED SR-lA BRIAN L. I VICKI L. VARNER OIlER: SAŒ AS ABOVE VArtDUSEN ROAD TO PLACE A MOBILE HOME ON A PARCEL LOCATED ON THE SOUTHWEST CORKER OF PITCHER ROAD AND VANDUSEN ROAD IN A ZONE WHERE MOBILE HOlES ARE NOT A PERMITTED USE. TAX MAP NO. 125-2-6 LOT SIZE: 37,000 SQ. FT. SECTION 179-19 BRIAN WARNER, PRESENT (9:03 p.m.) MR. TURNER-Who's representing the application? MR. WARNER-Hi. I'm Brian Warner, and due to the nature of the variance, I have two variances here, too, I wanted to have my attorney represent me. He was scheduled to be here tonight, but he's been taken ill with Pluersy, and he instructed me to ask that this be tabled until the next meeting. MR. TURNER-All right. Not to our next meeting, but until next month? MR. WARNER-Right. MR. TURNER-Okay. MR. WARNER-And for both variances. MR. TURNER-Yes. MR. WARNER-Thank you. JUDY KINNEY MRS. KINNEY-My name's Judy Kinney. I'm here to represent Glen Kinney who lives on Pitcher Road. have a letter from him. He lives out of state. MR. TURNER-Don't discuss any of the merits of the case, because we aren't going to hear it. If you want to leave the letters here, we'll put them in the file. MRS. KINNEY-Well, I wanted to leave this lis pen denz. They have a lis pen denz against their property. MR. TURNER-Okay. MRS. KINNEY-And I was instructed to inform you that it is still in litigation. MR. TURNER-Okay. MOTION TO TABLE USE VARIANCE NO. 27-1992 BRIAN L. I VICKI L. VARrtER, Introduced by Theodore Turner who moved for its adoption, seconded by Joyce Eggleston: At the request of the applicant, due to the non appearance of his attorney who was ill. Duly adopted this 15th day of April, 1992, by the following vote: AYES: Mr. Carvin, Mr. Shea, Mrs. Eggleston, Mr. Carr, Mr. Turner NOES: NONE ABSENT: Mrs. Paling, Mr. Sicard MRS. CRAYFORD-May I share that lis pen denz with Paul Dusek before next month? MR. TURNER-Yes. 18 -" MRS. EGGLESTON-It's in the file, Pat. MRS. KINNEY-None of us were notified like we were supposed to be. MR. TURNER-Do you live within 500 feet of it? MR. CARR-Are you the owner? MRS. KINNEY-I'm representing the owner of the house. MR. CARR-Did he get a notice? MRS. KINNEY-No, he didn't, and there's another gentleman who lives exactly across the street. No one was notified. Only the people on VanDusen Road were notified. MRS. EGGLESTON-What is the name? MRS. KINNEY-Glen Kinney. These people live right exactly across the street. MR. TURNER-What's the name? Russel' LaMere. MRS. CRAYFORD-I checked the LaMeres. You were about 700 feet away. MR. TURNER-Okay, but you're aware that it will be tabled until next month, even if you didn't receive one. MR. CARR-Ted, I think it's May 20th, the third Wednesday, right? MR. TURNER-Yes. It's advertised in the back of the paper, too. So, you can pick it up there, even if you don't get a notice. (9:10 p.m.) AREA VARIANCE NO. 28-1992 TYPE: urtLISTED SR-lA BRIAN L. I VICKI L. VARNER (liNER: SAME AS ABOVE VANDUSEN ROAD TO PLACE A MOBILE HOME AS A SECOND PRINCIPLE STRUCTURE 011 AN EXISTING LOT LESS THAN 1 ACRE. TAX MAP NO. 125-2-6 LOT SIZE: 37,000 SQ. FT. SECTION 179-19 BRIAN WARNER, PRESENT MOTION TO TABLE AREA VARIANCE NO. 28-1992 BRIAN L. I VICKI L. VARNER, Introduced by Theodore Turner who moved for its adoption, seconded by Joyce Eggleston: At the request of the applicant, due to non appearance of his attorney who was ill. Duly adopted this 15th day of April, 1992, by the following vote: AYES: Mr. Carvin, Mr. Shea, Mrs. Eggleston, Mr. Carr, Mr. Turner NOES: NONE ABSENT: Mrs. Paling, Mr. Sicard (9:10 p.m.) AREA VARIArtCE NO. 29-1992 TYPE II CR-15 DOUBLE A PROVISIONS (liNER: BENJAMIN L. AROIISON 64 MAIN STREET FOR PLACEMENT OF A FREESTANDING WALK- IN FREEZER (14 FT. BY 22 FT.) TO THE REAR OF THE EXISTING BUILOING LESS THAN THE REQUIRED REAR YARD SETBACKS. (WARRErt COUNTY PLANNING) TAX MAP NO. 134-6-1 LOT SIZE: 25,600 SQ. FT. SECTIOII 179-24 MARVIN DOBERT, REPRESENTING APPLICANT, PRESENT (9:10 p.m.) MR. TURNER-Did it go to the County? MRS. CRAYFORD-Yes. It was approved. MR. TURNER-Okay. Thank you. MR. DOBERT-Marvin Dobert. I'm the agent for Ben Aronson, Double A Provisions. MR. TURNER-Just for a correction in the application, this building did not come before zoning. It came before the new change, but it was there. When did they change that over? MR. DOBERT-To Residential Commercial? MR. TURNER-No, when Rozell had that shop there? After Double A bought it, when did they buy it? 19 MR. DOBERT-'82 it was purchased. The building was built in '83. MR. TURNER-Okay. MR. CARR-Mr. Dobert, we've got to ask you, what is the product that has critical storage and handling? MR. DOBERT-I don't know what the product is. MR. CARR-It's not hazardous. MR. DOBERT-It's edible. MR. TURNER-I've got a question for you. Does that cooler have access from the other cooler? MR. DOBERT-No, absolutely not. MR. TURNER-That's going to be freestanding, right? MR. DOBERT-This is freestanding. MR. TURNER-Why can't it come forward where that car is sitting, right in that corner? MR. DOBERT-The primary reason is that's where the owner instructed me to apply for the application. There's a secondary reason, and this is a technical reason. If you notice, there are some air vents, that's an existing building, it's a large building, and they would have to be treated carefully. You kind of caught me by surprise with that question. MR. CARR-How close are you to the house that would be, I guess, to the south, or right behind the place? They seem to be pretty close to the property line, and if you're only two and a half feet back, do you know how far that house is from that property line? MRS. EGGLESTON-Close. The driveway's right on the border. Just room enough for a car, I think. It's about a car's width, isn't it, because the driveway just goes right between the property line and the house, just room enough for a car. MR. DOBERT-Yes, but the house is also set forward from the corner. It's set quite a bit forward. If we were to measure the back corner of the house and the front corner of the cooler, I would say, 14 feet maybe, I would say, that's a wild guess. MRS. EGGLESTON-Who owns that property, do you know? MR. DOBERT-Yes. To the south, George Parks. He doesn't live there. MRS. EGGLESTON-No. It's empty. MR. DOBERT-Yes. It's empty. He lives in Florida. MRS. EGGLESTON-Ted, I wanted to ask you, didn't we just, Mr. Fish's place, that one house we just turned back to residential. MR. TURNER-Yes. MRS. EGGLESTON-So, is that all residential, those two houses right there? MR. TURNER-CR, Commercial Residential. MR. EGGLESTON-So, just the one would be a residential. MR. TURNER-All of them in the back are the same. MRS. EGGLESTON-Yes. MR. TURNER-You've got about 26 feet from that existing, where it says dock, over to the property line, and that red car that sits there sits right in front of where it says dock, and then there's a set of stairs that goes up into that dock. MRS. EGGLESTON-Yes. So, why couldn't that cooler go there? MR. TURNER-And then the vents come out of the side of the building, there. Yes, they only stick out like about four inches, but you could put that right there instead of putting it back there. MR. DOBERT-I suppose you're right. That's not where he wants it, though. 20 MR. TURNER-I know, but. MR. SHEA-How is this cooler operated, electric or what? MR. DOBERT-Electric. MR. TURNER-Separate compressor. You've just got to run electrical service to the compressor unit. MR. DOBERT-Right. MR. SHEA-And what's the proposed distance from where you want to put the cooler to the back of the existing cooler? I mean, this is going to be freestanding, correct? MR. DOBERT-Right. It'll probably be butted up close, but it's freestanding. MR. TURNER-It looks like it's butted right to it. MR. DOBERT-Yes. MRS. EGGLESTON-Two feet from the line, though, is pretty darn close. MR. DOBERT-Mr. Chairman, the question of the effect on the neighbor is. MR. TURNER-No, but do you know what I'm saying, Marv, is what you're doing you're starting at the back and you're crowding the property line just as close as you can get it, and then pretty soon you're going to, then this is going to be established and then you're going to come in and say, well, we want to put another addition on here, and there you are, and how are we going to justify not denying you. MR. DOBERT-That may be the case, but that was not posed to me. I know that that dock is utilized by tractor trailers, and the primary reason for setting that dock back there out of the way is to allow access for tractor trailers. MR. TURNER-I know, but you've got 26 feet between the dock and the property line. MRS. EGGLESTON-The tractor trailers also load at that loading dock in the front, because you see them there all times of day, and especially in the morning. MR. DOBERT- The existing building was placed very carefully, considering trailers. Now, it happens to be a circular drive, I don't know if this has any bearing on the question, but let me leave it at that. With the type of business that he has, easy access to vehicles is very important. If you crowd the second street, that means the trailers are going to be pulling out into the street in order to back into the. MR. CARR-Marv, do you know on that dock in the rear, how wide is that? MR. TURNER-Eight feet. MR. CARR-Eight feet? MR. TURNER-Yes. MR. CARR-And do the trucks pull right up flush against that? MR. DOBERT-On the back? MR. CARR-On the back dock for loading from the side? MR. SHEA-In other words, are you asking do they go to the westerly side of that dock or the southerly side of that dock, correct, is that what you're asking? MR. CARR-Yes. Do they come up against the southerly, long side of the dock? MR. DOBERT-The back dock is, you might call it an overflow area. It's not an area that's, the primary work is done out in front, for whatever reason. MR. CARR-But when the trucks do, do they pull up along side? MR. DOBERT-Along the side of it, yes. MR. CARR-Okay, so if you've got an eight foot dock and a fourteen foot wide cooler, it's going to be very difficult to pull a tractor trailer up against that dock, because there's going to be six feet out of this cooler, right? 21 MR. DOBERT-No, wrong. It would be very easy for a tractor trailer to back in there, because if the cooler is out further close to the road, Mr. Turner can, I think, bear this out, there's certain ways that a tractor trailer can maneuver, and there's a certain way that it's very difficult to maneuver. One way is for it to pull back and make a reverse back up turn. That's difficult. My opinion, if the cooler is brought out closer to the road, it's going to cause more disruption. MR. CARR-Well, that's my point. It's too wide, because, isn't the point, if this is 14 feet wide, and this is 8, and you've got a tractor trailer that has to pull in here, it's going to take a chance at clipping this piece of equipment. That's my point. How expensive is this piece of equipment? MR. DOBERT-$20,000. MR. CARR-So, it's a substantial investment that you may be, I mean, there's going to be a concern if you put it up against the building, not where they're proposing, but up where Ted's thinking about. MR. DOBERT-Ted, do you follow what he's saying? MR. TURNER-Yes. MR. CARR-I mean, I don't want a 14 foot, $20,000 piece of equipment sticking out six feet further than my dock and having tractor trailers backing in and out of that all the time. MR. DOBERT-Let me just jump ahead. Let me outline the rationale behind this application. I've been involved with this building from its conception. When Ben was in his third generation local business person in the City of Glens Falls, he was operating out of a 1,000 square foot facility, total, and we discussed the possibility of moving up into Queensbury, and this lot came available, and then the resultant changes in the zoning made it somewhat difficult for a commercial venture on Main Street. When it was changed back to Residential Commercial, it kind of put a little bit of a change of the rules, so to speak. Ben has worked very diligently in keeping his business going and one of the things that he's done is to interact with his neighbors, considering the nature of the road where there's 18,000 vehicles at the last count when they put the red light up, 18,000 vehicles going by a day, the nature of that road has changed dramatically, now, with the Super Shop N' Save down in the City of Glens Falls. My business is there on the same street. I talked to the neighbors. I represented Ben and I went to all the neighbors, and I spoke to them, and the greater question of how problems of this nature are going to be handled, I think is important because the people on Main Street realize that the residential nature's gone. Mrs. Smith across the street at 71 Main Street told me that if, they attend the Harrisena Community Church. If they're leaving their house to go through town, they turn right and go around the block and enter Main Street through the red 1 ight. That's how much traffic that there is on that road. So that the nature of the activity on Main Street is very definitely of commercial nature. The next question that came as we discussed this had to deal with the fine tuning of what to do, or how to handle this product that he wants to pick up. I can't tell you the product. When chicken wings came into style here within the last 10 years there was no distributor of chicken wings in Glens Falls, significant, that could receive a pallet load, for example. Chicken wings require special handling, and they're packed in ice where other frozen goods are dry frozen goods. Chicken cannot be packed and stored with the normal frozen goods. We came to the Board, to your Board, we described our difficulty, that we had this opportunity to pick up a new line, and it was very successful, and Ben's business has been very successful. He's distributing in Albany now, and it has to deal with, I think, the cooperation of the Board, the cooperation of the neighbors. We've spoken with the neighbors, and I have some written testimony, if you'd like to see, which would bear this out. Ben is very sensitive to what goes on around the place. If somebody has a complaint, if they notify the Town, or first of all if they went to him, the complaint most likely would be taken care of. So, he's a good citizen of the Town. He's a good neighbor. He's a good businessman, and we decided we'd come to you people with some what of a compassionate plea, so to speak, that he has a chance, here, to utilize just a little bit more, and, Ted, I kind of disagree with you. I don't think that this is an attempt to encroach in a gross manner. That's not Mr. Aronson's style, and I think you'd agree with me on that. Probably the second significant thing that should be considered with this particular piece of equipment is that it's portable in nature. You'll notice that when McDonalds puts a unit in, the walk-in cooler's always out back. The walk-in cooler, in most zoning jurisdictions, are considered to be out structures, like a shed or so forth. It really doesn't become a part of the main building square footage requirement, because they're portable. They're not permanent. This thing could be dismantled and taken apart in a day, and the nature of it wouldn't be modified one single bit. MRS. EGGLESTON-Mr. Dobert, you know your place on Main Street there on the corner, I ask you to think about somebody building within two feet in back of your building. Would you be opposed to that? MR. DOBERT-This is the neighbor that's within two feet of the structure. MRS. EGGLESTON-Yes. MR. TURNER-Yes, but he doesn't live there you said, right? MR. DOBERT-This is Randy Whittemore. 22 ~, MRS. EGGLESTON-Yes. I have a 1etter here. They have no objection to it, but their house is far to the front of where this is. I'm thinking of the house. MR. DOBERT-That's the response, I saw it. I a1so asked that question. So, I went to Mr. Whittemore. MRS. EGGLESTON-Yes. He has no objection. He's written that. My concern is the house direct1y in back, and I'll ask you, again, the question, wou1d you want somebody, wou1d you want us to 1et someone bui1d within two feet of your 1ine? MR. DOBERT-I don't think the question, you're asking a kind of a hypothetica1 question. MRS. EGGLESTON-Yes, it is hypothetica1. MR. DOBERT-You're asking if somebody wou1d want to bui1d next to my property. MRS. EGGLESTON-I'm asking you how you wou1d fee1 if this Board were to allow someone to bui1d within two feet? MR. DOBERT-Then the answer to my question is that I have no objection, as the 1etter indicates. don't think asking me is significant. I think asking the neighbor is very significant. MRS. EGGLESTON-But we can't, Mr. Parks, as you say, is in Florida, he can't speak. He isn't here to speak for this, but because he isn't here, doesn't mean we don't consider his rights. MR. CARR-What's wrong with asking Mr. Dobert that question is we don't know what project wou1d be proposed for the property next to his. I mean, that bears on it. We don't know the re1ationship he has with his neighbors, which a1so bears on it, and I think he's trying to say that Mr. Aronson is trying to be a good neighbor and take into consideration the concerns of the neighborhood and try to mesh them with his concerns for conducting business. MRS. EGGLESTON-It just seems there cou1d may be be another answer because there's so much unused property here, and everything is being squeezed in the corner, so c10se to the 1ines. MR. DOBERT-We11, actua11y, the property is uti1ized. MR. CARR-When you think of the trucks that have to turn around there, and it's better to have them turn around on the property than it is to have them out trying to turn around on the streets. MRS. EGGLESTON-Which they do. MR. CARR-Which they do, but it cou1d on1y get worse. MR. DOBERT-Believe me, this business has done very we1L He used to have the litt1e vehic1es, the 1itt1e curb side type vehic1es. Now he has dock type vehic1es, and in order for a vehic1e to be a dock type vehic1e at four feet, it's a 1arger vehic1e. He's now shipping product into the Capita1 District. He's shipping it into Vermont. He goes up into the high Adirondack areas. MRS. EGGLESTON-Did you design this p10t? Is this your, did you figure this out? MR. DOBERT-I'm not an engineer, so I did not design it. I conceived it, and had it drawn up and approved by qua1ified peop1e. MRS. EGGLESTON-Yes. Is there no possibi1ity that maybe it cou1d go out next to the 32 foot co01er? MR. CARR-Where's the 32 foot co01er? The existing co01er? MRS. EGGLESTON-Yes, right out here. MR. DOBERT-That's where he parks his vehic1es. MR. TURNER-That's a driveway right there. MR. DOBERT-I abs01ute1y wou1d not recommend that. The setback is 30, 40 feet, 50 feet from the street? MR. TURNER-From the street? Yes, it's 50 feet. MR. SHEA-Given the fact that this is a portab1e co01er, are you prepared to tell us that if we can't go in this p1ace, that Mr. Aronson won't be ab1e to pick up this new 1ine? MR. DOBERT-No. 23 MR. SHEA-What about the possibility of this cooler being damaged or catching fire, and lets say that the fire is located on the easterly side of the cooler. How does one get to it, to extinguish the fire. MR. DOBERT-In the same manner that an emergency vehicle would get to any fire on the easterly side of the building now. That building was placed about three feet from the property line in 1940 something. MR. TURNER-Yes. That's old Rozell's Plumbing and Heating. MR. DOBERT-Right. MR. TURNER-The building up front. MR. DOBERT-Yes. It's a preexisting condition. MRS. EGGLESTON-But they'd have to come across the lands of Whittemore to get there. MR. SHEA-Right. MR. DOBERT-Mr. Whittemore, I think the instance of Mr. Whittemore, his situation is the key, the way I see it, and he's the one that is the least, well, nobody's opposed to it, that I'm aware of, and he's the one that's the least opposed to it. He and Mr. Aronson get along very well together. MR. TURNER-He'd be least opposed to it because there's nothing back there, really. MR. DOBERT-I might say, Joyce, and maybe I'm speaking out of line, here. Mr. Aronson is negotiating to buy the property to the south. MR. CARR-The Parks property? MR. DOBERT-Yes. MRS. EGGLESTON-I want him to have it because he does do good and he gives a lot of people work and he is a hard working man and I know a lot of people work there and like it and he's good to his employees. MR. DOBERT-The last time that I was with Mr. Aronson when he approached Mr. Parks, he said, well, young lad, I'll give you first refusal when I decide to sell it. That was his remark. MR. CARR-Honestly, I don't see another location for this because I wouldn't want to see it get clipped all the time, if you put it behind the building. You don't want to put it in front of the building. I wouldn't want to see it on the westerly side of the building. MR. TURNER-If you draw it out to scale, and you put that, hypothetically, 14 foot up next to the cooler here, and abut the dock, that leaves you 27 feet from the property line to there, all right, and then what that does is, he has the tractor trailer that backs in here, he has to back to this dock here. He's got to come in and cut that around like that. He loses five feet of that dock straight back. This is 10 foot right here. MR. CARR-Yes, but I mean, how many times is this going to have to get clipped before it's ruined. MR. TURNER-No. I'm not saying that. I'm just describing what would happen. I'm just saying, you've got 27 feet 6 inches from there to there. So, I'm going to take six inches off and call it 27. Move that out there. The line of site cuts five feet right off that dock, if you're backing a tractor trailer in there. If you come back here like this, you've got to cut the back end over like that to get that in there. There's doors on the side, here, right? Okay. So, he's got to have access to this. MRS. EGGLESTON-Doors on the side of where? MR. TURNER-Right there, on the dock, that dock right there. MRS. EGGLESTON-Yes, but there can't be any on side of this because there'd be no way to access it. MR. TURNER-No. There's no doors there. I'm not saying that. Right here. There's doors here and there's a loading dock, here. MRS. EGGLESTON-Yes. MR. TURNER-So, what I'm saying is, if you stuck it there, I agree with Bruce. A tractor trailer, of course most of them wouldn't hit it anyway because they're good drivers. They might nail that right there. 24 MR. CARR-I mean, $20,000, I wouldn't want to take the chance of somebody coming in here. MR. TURNER-No, and Sunday when I went up there, there was a unit parked right here, Joyce. MRS. EGGLESTON-Yes, there was when I was there. MR. TURNER-And they only had just that little bit of room to get in there. MR. DOBERT-This is a typical case of growing pains. MR. TURNER-Yes, wen, that was IItY question to you, is, looking at what you've got there now, you're going to probably have to fill that space in. MR. DOBERT-When we designed the building, as I said, when he moved out of Glens Fans, he was using 1,000 square feet. We went to 4,000 square feet frozen storage. That's a significant move, not only for warehousing, but for a minus 10 degree warehousing, and I encouraged him to gain the height because of the limitation, and I fought with him tooth and nail on that, when I explained to him the optimizing that's involved with just raising the roof and gaining two or three more pallets. At that the time, he wasn't panetized, and just by gaining that extra height, we were able to get 10 good years out of this building, and it's been a real success story. I can tell you, the questions you asked earlier about the critical packaging. In the same manner that chickens are stored on ice, and has to be separated from other merchandise, there's some merchandise that is, for example a birthday cake, a frozen birthday cake, they can't be jostled, okay. They have to be hand handled. That would be an example of a frozen product that requires critical. Another critical storage has to do with the temperature and humidity conditions. A big box like he has on his main warehouse is kept, the design temperature is minus 10. There's no humidity requirements at all. A little box we can design in some real nice temperature control factors, and the product that he's requiring requires minus 20, the product that he's handling requires minus 20. That's about all the information that I can give you on that. MRS. EGGLESTON-I guess I would have to say, in lieu of no neighborhood opposition, I would have to, and we can't come to any other spot or. MR. TURNER-Marvin, this dock right here, is there a door right there, into that cooler, into those two right there? MR. DOBERT-Yes. MR. TURNER-Okay, and then there's this dock here, and that feeds this cooler, right? MR. DOBERT-Actually, that was just a little utility storage area, right here. This win be sort of the dock, the future dock of the door that serves this cooler and comes right off this dock. MR. TURNER-It comes right here. Okay. Lets open the public hearing. PUBLIC HEARING OPENED NO COMŒNT PUBLIC HEARING CLOSED CORRESPONDENCE MRS. EGGLESTON-This is from Randolph Whittemore, "I have read the notice of this variance and have no objection to its implementation. Further, during the past 10 years, Mr. Aronson has been fully cooperative and a good neighbor." And he's at 64 Main, right next door to the meat market. MR. DOBERT-Joyce, there's a typographical error. It should be 62 Main. Ben's address is 64 Main. MRS. EGGLESTON-All right. MR. TURNER-Okay. No further discussion, motion's in order. MOTION TO APPROVE AREA VARIArtCE NO. 29-1992 DOUBLE A PROVISIONS, Introduced by Bruce Carr who moved for its adoption, seconded by Theodore Turner: I would grant the applicant the fonowing setback relief: From the side yard setback of 20 feet, the applicant would get a relief of 17 feet 7 inches, and from the rear, which is the south setback, the relief granted would be 22 feet 6 inches. This will allow the applicant to place a new cooler needed in his business on the property in the southeast corner. The use of this cooler is necessary for the reasonable use of the property. No other location for this cooler is practical. The location of this cooler will not adversely effect public facilities and services, and the relief granted is the minimum relief necessary to overcome the difficulty. 25 Duly adopted this 15th day of April, 1992. by the following vote: AYES: Mr. Carr, Mrs. Eggleston, Mr. Carvin. Mr. Turner NOES: Mr. Shea ABSENT: Mrs. Paling, Mr. Sicard (9:45 p.m.) AREA VARIANCE NO. 30-1992 TYPE II LI-lA ROGER A. CUTTER OINER: SAME AS ABOVE 37 BOULEVARD FOR AN ADDITION OF A 12 FT. BY 21 FT. FROO PORCH. SETBACK WILL BE 22 FT. IN LIEU OF THE RE~IRED 50 FT. FROM THE FROO PROPERTY LINE. TAX MAP NO. 112-1-7 LOT SIZE: 11,070 SQ. FT. SECTIOrt 179-26 ROGER CUTTER, PRESENT (9:45 p.m.) MR. TURNER-Did the County approve it. Pat? MRS. CRAYFORD-It didn't go to the County. MR. TURNER-It didn't? MRS. CRAYFORD-That's Boulevard. That should have gone to the County. All right. I'll send it next month. It will probably come back no County significant. MR. TURNER-Yes. Right. MR. CUTTER-I went up to the meeting last night and they said I didn't have to be there. MR. TURNER-Yes, but your application wasn't there. MRS. CRAYFORD-No. Sue didn't send it out. MR. TURNER-All right, but it's got to go over to them. MRS. CRAYFORD-I'll send it up to them next month. MR. TURNER-All right. Any questions of Mr. Cutter? MR. CARR-How do you get out your front door now? MR. CUTTER-There used to be, originally, a porch there, when we first moved there. You'll see, if you went there, there's a door on the front. on the side. We don't really use those doors. We have the side entrance we use. The porch has been in the plannings for maybe eight or nine years. I've had the windows for, probably, nine, in the garage, and we just haven't had the time or money to do it. MR. CARR-It's going to be an enclosed porch? MR. CUTTER-An enclosed porch, just to use up until the cold weather, and like I say, basically, I didn't realize the change in, the Light Industrial changed until I did apply for the permit. I didn't realize I had to be here, but basically the size of the house, four of the rooms are bedrooms. I have three daughters and the size of the house is small, and the porch would be a nice added feature. MR. CARR-Now, a lot of the homes in the area, I noticed, they have enclosed porches. MR. CUTTER-Enclosed porches, right. Actually, it would be a lot nicer sitting there looking at, obviously, the Boulevard, than, on either side I'd be either on a driveway or a brick wall from the building on the other side. MR. TURNER-Yes. MR. CARR-Now, do you know, the size you're asking for is 21 by, well 21 is not really significant. MR. CUTTER-12 by 21 is basically because, the set in from the side's because of the pitch of the roof. It's a very steep roof. MR. CARR-And the 12 feet, is that normal for the other homes in the area, would you say? MR. CUTTER-It would be probably pretty average, I would say. MRS. EGGlESTON-I looked up and down the street. Bruce, and it would be in line, yes, and he doesn't have to remove any trees. I think you told me there's two nice trees in his yard. It won't disrupt those. 26 MR. CUTTER-No, there's no problem at all. MR. CARVIN-At this point, do you have any plans to convert the porch into living space? MR. CUTTER-No, really, it's just. like I say, it'd be a gathering place for, like I say, we have three daughters and friends. When we meet, we have no room in the house. MR. CARVIN-Okay. because I'm looking at the 12 foot is 25 percent of the 36 feet, the length of the house, which is, I guess in comparison to the length of the house, a fairly significant porch, and I don't know what the definition between a porch and a deck is. MR. CUTTER-I guess it's like an enclosed porch. like I say, just inside is the living room, and like I say, most of the house is made up of bedrooms, so we really don't have a lot of room. MR. TURNER-Okay. I'll open the public hearing. PUBLIC HEARING OPENED NO COÞlENT PUBLIC HEARING CLOSED MR. TURNER-Okay. Motion's in order. MOTION TO APPROVE AREA VARIArtCE NO. 30-1992 ROGER A. CUTTER, Introduced by Bruce Carr who moved for its adoption, seconded by Joyce Eggleston: And allow the applicant a front setback variance with a relief of 28 feet from the required 50 for the construction of an enclosed porch. The house currently has a front door with no steps or porch leading to it, which may cause a safety hazard. The other homes in the area, with this variance, are all consistent with this setback. The addition of the porch would also be consistent with the architecture of the other homes in the area. The relief requested is reasonable and minimal based on the property's dimensions and the current location of the home. I would also allow this applicant to increase the nonconforming structure and grant him relief from Section 179-79. Duly adopted this 15th day of April, 1992, by the following vote: AYES: Mr. Carvin, Mr. Shea, Mrs. Eggleston, Mr. Carr, Mr. Turner NOES: NONE ABSENT: Mrs. Paling, Mr. Sicard (9:54 p.m.) AREA VARIANCE NO. 31-1992 TYPE: UNLISTED SFR-lA LAWRENCE M. I ELVA M. DlUtIELS «liNER: SAŒ AS ABOVE CLENOON RIDGE FOR CONSTRUCTIOrt OF A PRIVATE GARAGE LA.RGER THAN 900 SQ. FT. TAX MAP NO. 121-1-53.154 LOT SIZE: 1.66 ACRES SECTION 179-7 DEFINITIOrt (GARAGE) LAWRENCE DANIELS. PRESENT (9:54 p.m.) MR. DANIELS-My name's Lawrence Daniels. MR. TURNER-I have a question for you. On your sketch, here, there's two garage doors in the front of your house. You don't show that as a garage. Is that a garage or what? MR. DANIELS-Yes, it's a garage. MR. TURNER-Okay. What's the need for the 900 square foot garage? MR. DANIELS-I've got an 18 foot boat and a 20 foot 6 inch camping trailer, and a classic car. live got no place to put those things. MR. TURNER-Okay. There's a covenant in the deed that says that you can't, the garages have to be attached. in Lots 1 through 49 in Clendon Ridge. MR. DANIELS-I didn't see that in there. MR. TURNER-I've got it right here. MR. DANIELS-So, what do I do now? There's nothing that I can do? MR. SHEA-Given that fact, can you not, if you had to expand to accommodate these vehicles, wouldn't there be a way to attach it to the house? 27 - MR. DANIELS-No, no way, impossible. I'm 171 feet back. 50 feet wide. 102 feet back. It's not bothering anybody. There's no problem with the neighbors or anything. To put another garage on my house would look ridiculous. I don't want to put the stuff out in the yard. It won't look good. Ted, the land that I have, now, it was two separate lots. We've brought it into one. One was in Clendon Ridge. One was in a different one, but they let me put it together. Would that make any difference? MR. CARR-Well, it might depend on which lot you're putting it on. I mean, if the one lot is not subject to the Clendon Ridge restrictions, and that's where it's going. MR. DANIELS-I made sure I was off the line 50 feet. You've only got to be off it 20 feet. MR. SHEA-The part of the property that you wish to locate this on, is that in the original Clendon Ridge development? MR. TURNER-Yes, it is. MR. DANIELS-Is it? I'm not quite sure. MR. CARR-You'd probably have to move it to the other side. Would that cause a problem? MR. DANIELS-There would be no way to get to it, then, see. I've got the driveway there. I've got my blacktop dri veway, and you go down it, there's a dri veway there. On the other side, I've got my pool and everything there. I've got a fence. MR. CARR-Well, the pool's right behind the house. but what about this right down here? I remember, I know there was dirt down here and here's your garage. MR. DANIELS-We're too close to neighbors, then. This all lawn and everything. and my septic system's right here. You're driving across there, and I don't want to get too close to these people here. MR. TURNER-I've got it right here. I'll read it right to you. Said land shall be used for private residential purposes only and no structure shall be erected or altered, placed or permitted on any building lot other than a one family residence and an attached private garage. MR. DANIELS-I guess that's it, then. So, now, if I put my camper trailer, boat, and everything in there, now would they come up and fine me, if I put them in my yard? It's not going to look nice. MRS. CRAYFORD-We don't have an ordinance against that. MR. TURNER-We don't have an ordinance against that. You can have one unregistered vehicle in your yard. That's it. MR. DANIELS-I tried to make it look nice. MR. CARR-Not going to the merits of the issue, just to, I mean, if you've got a driveway down here. what's along the back? I don't recall. MR. DANIELS-Back here? Right down here, from about here back you've got about 150 feet, you've got the pool. MR. CARR-Right, but is it land, trees, or what? MR. DANIELS-Trees, yes. I don't want to take them down. MR. CARR-I mean, because it would seem to me that if you put your garage somehow over on Lot A, whether we approve it or not is secondary, but at least you wouldn't be violating your restrictive covenant. MR. DANIELS-If you go look at a room, you're back yard, you have nothing. MR. CARR-But, I mean, how often do you drive your classic car, your camper, or your boat across the lawn? MR. DANIELS-Yes, but your back window, you don't want to look out and see. MR. CARR-Yes, that would be your choice. Unfortunately, when you've got a restrictive covenant. MR. DANIELS-I wish I'd known that. I'd have never bought the land to begin with. MR. TURNER-It says Lots 1 through 49. MR. CARR-You're Lot 17. 28 MR. DANIELS-Yes. MRS. EGGLESTON-How do we handle this? MR. TURNER-He can withdraw it if he wants to. MR. CARR-Yes, I would withdraw it and not have us act on it, because then it leaves options open. MR. DANIELS-No. All you do is turn me down. There's nothing I can do anyway, right? MR. CARR-No. You don't want us to turn it down, because then you can't come back. MR. DANIELS-Well, I don't want to keep wasting money up here. MR. CARR-No, you don't, but if you just withdraw it, you've wasted the money, but if there is a way around this, or if there's an option, if you would look into it and there is another option, you're free to come back, at that point. If we vote on it and say no because of that, you're dead, and you don't want to do that. MR. DANIELS-I picked the best spot, where it would look good. That's the ideal spot for it. NObody can see it. It's nice and everything. MR. TURNER-Do you keep your classic car in the? MR. DANIELS-Yes. MR. TURNER-In the garage you've got there now? MR. DANIELS-No. It's down at my son's. I can't get any more junk in my garage. MR. TURNER-I noticed there was a lot of stuff there, Sunday, when I went by. MR. DANIELS-I've got a shed there, and the shed's going. I'm going to take the shed out of there, and I've cleaned the yard up, and we'll put top soil in the back yard, but that was the ideal spot. What should I do from here, then? MR. TURNER-Withdraw your application. MR. DANIELS-All right. MR. CARVIN-I don't know the legalities of how to change the covenants. I don't know if you need 100 percent participation of all the folks in Clendon Ridge. You and I are neighbors. MR. DANIELS-I don't know much about this. I figured there'd be no problem. MRS. EGGLESTON-I doubt it would be easy without approval of all, since they bought it that way. MR. TURNER-Everybody would have to agree to it, I would think. MR. DANIELS-See, I've only got three people that live right next to me there. MR. TURNER-Yes, I know, right in that circle. MR. DANIELS-So, who else would I have to get to sign? MR. TURNER-Everybody in Lot 1 through 49. MR. DANIELS-All right. If they sign, it should be no problem, do you think? MR. CARVIN-Well, that changes the covenant allowing an exception, would be my understanding. MR. DANIELS-All right. MR. CARR-But, unfortunately, it sounds as if there were some opposition letters. MRS. EGGLESTON-Yes, there are. MR. CARR-I mean, it's worth talking to the people. MR. DANIELS-Yes. I've got all the lumber sitting there. 29 MRS. EGGLESTON- I thi nk, Ted, didn't we have somethi ng come up on that in the Queen Anne 's, and the question was, you have to go back to the developer, the homeowners association or whoever built the subdivision, to change the covenants. MR. DANIELS-So, everybody that's in Clendon Ridge, I'd have to have them sign it? MRS. EGGLESTON-Yes, they'd have to approve. MR. TURNER-Yes. MRS. EGGLESTON-Not just sign, it would have to be a legal document to go back and change the. MR. TURNER-You'd have to change that covenant that's in the deed. MR. DANIELS-Fine. Thank you very much, then. MR. TURNER-Okay. Let the record show, the applicant withdrew the application. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner, Chairman 30