1992-06-03 SP
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~EENS8URY ZONING BOARD OF APPEALS
SPECIAL ŒETING
JUNE 3RD, 1992
INDEX
Area Variance No. 45-1992
Robert D. Rowe
1.
Notice of Appea1 No. 2-92
By the Lake George Assoc., Inc.
RE: Frank Pari110 app1ication
3.
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.
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~EENSBURY ZONING BOARD OF APPEALS ŒETING
SPECIAL ŒETING
JUNE 3RD, 1992
7:36 P....
ŒMBERS PRESENT
THEODORE TURNER, CHAIRMAN
JOYCE EGGLESTON, SECRETARY
MARIE PALING
CHARLES SICARD
FRED CARVIN
ŒMBERS ABSENT
BRUCE CARR
ZOrtING ADMINISTRATOR-PAT CRAYFORD
STENOGRAPHER-MARIA GAGLIARDI
AREA VARIANCE NO. 45-1992 TYPE: UNLISTED RR-3A ROBERT D. R(IΠ(liNER: SAlE AS ABOVE 313 WEST
tDlNTAIN ROAD 3RD HOUSE SOUTH OF SHERMM AVENUE ON WEST tDlNTAIN ROAD ON WEST SIDE OF THE ROAD. TO
COrtSTRUCT A HOUSE ON A PARCEL LESS THAN RE~IRED 300 FT. LOT WIDTH ON M ARTERIAL ROAD MD LESS THAN
THE RE~IRED 75 FT. FROM THE SHORELINE SETBACK. (WARREN coum PLANNING) TAX MAP NO. 123-1-34 LOT
SIZE: 4.63 ACRES SECTION 179-30. 179-60
ROBERT ROWE, PRESENT (7:36 p.m.)
MR. TURNER-We'll read the resolution tabling the application for further information, I believe.
MRS. EGGLESTON-"Tabled with the consent of the applicant untH June 3rd, to bring further information
for the Board", and in the meantime, we have a Warren County Planning Board who recommended approval
by default because a quorum could not be established.
MR. TURNER-Mr. Rowe, did you bring the new information?
MR. ROWE-Yes, I did.
MR. TURNER-Do you have some copies?
MR. ROWE-There's one.
MR. TURNER-That's the one that's in the file, I guess. Do you care to add anything?
MR. ROWE-Well, the intent of the law was to cut down on the driveway on West Mountain Road. We agreed
to have one dri veway. So, that's requ i red by the 1 aw, and you're 300 fee t a ve rage. I f they wou 1 d
a110w me the same permit that the SR-20 and SR-15, they can use the square feet to determine the lot
size. If they would allow me to do the same thing, I could meet their requirements real easy.
MR. TURNER-Do you remember that we requested that he bring the average lot width?
MRS. EGGLESTON-We did, unless there's something on this thing I don't read. Do you see average lot
wi dth on here?
MR. TURNER-He's got to have 300 feet for each lot. Look at the definition of Lot Width, Page 17929.
I '11 te 11 you, the other ones that have been here, that have been turned down have been based on road
frontage, not lot width.
MRS. EGGLESTON-Yes.
MRS. CRAYFORD-Ted, may I tell you how l've been making my determinations on this?
MR. TURNER-Sure.
MRS. CRAYFORD-I've been using the mean average of the lot width, in other words, a third of the lot
would have to be 300 foot wide.
MRS. EGGLESTON-If you can do that, does that mean that he wouldn't need a variance, that you can give
him the permit?
MRS. CRAYFORD-Right. That's what l've been doing. Yes.
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MRS. EGGLESTON-So, did you 100k at this one, and it doesn't meet?
MRS. CRAYFORD-Not the way I've been doing it, no.
MRS. EGGLESTON-Okay.
MRS. CRAYFORD-It's unfortunate we don't have a definition in our Ordinance.
MRS. EGGLESTON-Yes.
MR. TURNER-Okay. Mr. Rowe. if you don't have any further comments, we're going to ru1e on it, here.
MR. ROWE-One more thing. Is it possib1e to use square footage? I mean, they a110w, you, in your SR-20,
SR-15, Jaws contradict one another.
MR. TURNER-WeB, unfortunate1y, we've had occasion to review these doub1e the 10t widths many times
here and we've a1ways turned them down if they don't meet the criteria, and based on the decisions
that we've made before, they've a1ways been made on the road frontage of the 10t. Anyone want to discuss
any part of this further?
MR. ROWE-The way that 1aw is written, you onJy needed 50 foot from the road, as 10ng as you meet 300
feet. You don't need 300 feet, you need 50.
MRS. CRAYFORD-Forty feet.
MR. TURNER-Forty feet for the driveway, for opening on the highway, but that's a different scenario.
That's if you've got a 10t that funne1s down, and you don't have the road frontage. You've got a 10t
that you've a1ready met the road frontage, except now you want to subdivide it.
MRS. EGGLESTON-I don't know how we can he1p him.
MR. ROWE-The Town of Queensbury isn't cJoser to changing some of those 1aws?
MR. TURNER-They're working on it. That's a11 I can teJ1 you.
MRS. EGGLESTON-Have you seen their proposa1? Is this the right one, Ted?
MR. TURNER-February the 12th. They've taiked about it since. In fact, they've taJked about, I think,
1ast night. and I don't know where they are with it, and I can't share any information with you.
MRS. EGGLESTON-You've got to get after them. I mean, Mr. Brandt's in your neighborhood up there.
Does he offer you any hope?
MR. ROWE-He said they're trying to change the 1aw.
MR. CARVIN-What's the time frame on that house, to be bui1t? Do you have a time frame yet?
MR. ROWE-No.
MR. TURNER-You've got to get your other permits, and if you don't get them.
MR. CARVIN-P1us you've got to get a lot of fin in there. I 100ked at that h01e that you've got to
fiB in.
MR. ROWE-Fi11 is no prob1em.
MR. TURNER-Okay. If there's no further discussion, a motion's in order.
ÞlJTlON TO DEft AREA VARIANCE NO. 45-1992 ROBERT D. ROIŒ, Introduced by Joyce Egg1eston who moved for
its adoption, seconded by Marie Pa1ing:
Based on precedent that has a1ready been set by the Zoning Board. We've had many of the same
circumstances come before the Board and we have tried to be fair to everyone and stay consistent in
our decisions. In this particu1ar case, it wou1d 1eave two nonconforming lots. one 175 foot and one
178.95, and the requirements are 300 foot road frontage per Jot on an arteria1 road. Based on our
previous actions, I think it wou1d be detrimenta1 to other peop1e in the neighborhood, and other
residents of the Town of Queensbury in genera1. This wou1d aJso deny re1ief 75 foot from the shoreJine
setback, based on the fact that DEC has not given any permits or any approva1 to this project.
Du1y adopted this 3rd day of June, 1992, by the f0110wing vote:
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MR. CARVIN-I just have one question on the motion. If this is denied, does that prevent him from coming
back with an aitered pian, where it wouid have 300 feet?
MR. TURNER-No. He can come back with a different pian.
MR. CARVIN-Okay.
MR. TURNER-It has to be different than what he's presented here.
MR. CARVIN-Aiso, if they shouid change the iaw?
MR. TURNER-If they change the iaw, then he won't need it.
AYES: Mr. Carvin, Mrs. Eggieston, Mrs. Paiing, Mr. Sicard, Mr. Turner
NOES: NONE
ABSENT: Mr. Carr (7:51 p.m.)
NEil BUSINESS:
NOTICE OF APPEAL NO. 2-92 lAKE GEORGE ASSOC., INC. APPEAL BY lAKE GEORGE ASSOCIATIOI FROM A DECISION
OF THE ZONING ADMINISTRATOR DATED FEBRUARY 20, 1992 IN THE MATTER OF THE FRANK PARILLO APPLICATION.
LAKE GEORGE ASSOCIATION RECEIVED NOTICE OF DECISION ON APRIL 2, 1992 STATING THAT THE BOAT lAUNCH MAY
CONTINUE AS A PREEXISTING NONCONFORMING USE AS THERE HAS BEEN NO CESSATION OF USE. SECTIOI 179-80
DISCONTINUANCE STATES: -IF A NONCONFORMING USE IS DISCONTINUED FOR A PERIOD OF EIGHTEEN (18) CONSECUTIVE
JlJNTHS. FURTHER USE OF THE PROPERTY SHALL CONFORM TO THIS CHAPTER OR BE SUBJECT TO REVIEW BY THE ZOItING
BOARD OF APPEALS. - PROPERTY LOCATION: CORNER OF BAY ROAD AND ROUTE 9L TAX MAP NO. 23-1-19
JOHN CAFFREY. REPRESENTING THE LAKE GEORGE ASSOCIATION, INC., PRESENT (7:51 p.m.)
MR. CAFFREY-My name's John Caffrey. I'm the attorney for the Lake George Association who fHed this
appeai that's here tonight. I'm rather new to this case. but I have reviewed the entire record. So,
I'm famHiar with it. We're not even reaHy sure if we shouid be appeaHng this to the Zoning Board,
since it's our position that Dave Hatin had no jurisdiction to do what he did, considering there's
stiH a iawsuit over this very issue pending, but we thought the prudent thing to do wouid be to bring
it before the Board and see if it can't be resolved here tonight, one way or another. As I understand
it, this started back in June of '89, when the issue first came to Mr. Hatin's attention, that the
boat iaunch at Mr. pariHo's marina had been re-opened, after having been dosed for a few years.
Mr. Hatin had discussions with Mr. PariHo and his attorney at the time, and rendered a decision that
the use had been abandoned and that it wouid require a variance. Mr. Pariilo and his attorney appeaied
that to this Board, in Juiy of '89. It was heard by this Board. They had a fuH and fair chance to
present their case and present any evidence they had at the time, and the Board upheid Dave Hatin's
decision and said they had to come back and apply for a variance, and so they did fHe an appiication
for a variance, but they never pursued it fully. They pursued, instead, trying to reverse Dave Hatin's
decision that this Board had upheid. and what they shouid have done, if they didn't like that in the
first place, was they should have taken the Board to court. They missed the boat. They didn't do
that on time. So, they tried to come in through the back door, and the Board uitimately voted to reverse
itself, in December of '89, at which time the iawsuit was brought, and the courts uHimateiy ruled
that the decision was not properiy reversed. So, as I understand it, the matter is stili, was remanded
by the courts back down to this Board, and is stiH pending before this Board, and should have come
back before this Board. Instead, Mr. PariHo and his attorney. they, again, go through the back door.
They ignore the Board, on no notice to my dients, who were party to the iawsuit. or anybody eise who
was party to the iawsuit, and they get Dave Hatin to reverse his decision when the matter reallY belonged
before this Board. Again, this decision was made February 20th. My dients didn't get notice of it
untH AprH 2nd, and so we fHed this appea1. They're daiming that there's new evidence. and aH
of that, to justify this reversa1. but I think, in the first place, again, that Dave didn't have the
jurisdiction to reverse himself at that point. That it was not his decision anymore. It was taken
out of his hands, and it's presently before this Board and before the courts. The second thing is
that he says there was new evidence, but if you read the record dosely, in December of '89, Dave came
before the Board. said he was famHiar with the evidence that had been presented in October of '89
and he stood by his decision. The evidence that was presented that night in December, according to
Mr. PariHo's attorney, was pretty much the same as what was presented in October, maybe a Httle
different form, but it was pretty much the same type of information. Likewise, he says there was new
evidence since '89. and there are a few ietters in the file dated 1991, but again it's really the same
kind of information, a couple of extra people said that they iaunched their boat there from time to
time. It's not anything new and different- that the Board didn't reaHy here before. So, even if Dave
had grounds to vacate his originai decision, which I don't think he had that authority, there wasn't
sufficient evidence to change it. There's no change in the circumstances, because we're talking about
history. We're not talking about what's going on there now. So that there was no justification for
Dave to reverse his position in February '89. particularly in the manner in which it was done, coming
through the back door, with no notice to any of the involved parties at ail. On the subject of notice,
I reviewed
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the 1ega1 notices of the pubHc in the newspaper, and wou1d have to object to its form, because it
doesn't properiy state the issue which we appeaL It says the appea1, but our appea1 was basicaHy
the jurisdictiona1 issue of whether Dave had the basis to appea1 it, and the notice, instead, says,
it cites the definition of nonconforming use, discontinued for 18 months. We're not here, tonight,
to argue that issue on the evidence. That's not the'1ega1 issue, and it's rea11y too 1ate to do that.
So, it wou1d seem to me that the hearing wou1d have to be re-noticed with the proper statement of the
issues, so anybody concerned with that issue wou1d have the abHity to appear on it. I a1so note in
Dave's 1etter to the Board, May 29, he states that he's avaHab1e if the Board wishes to discuss it
with him, and I wish he was here tonight. I wou1d Hke to be ab1e to find out exact1y what went on
with this February action, and we wou1d hope the Board cou1d have this matter on again, so we cou1d
have an opportunity to discuss it with Mr. Hatin, at the time. As far as the 1ega1 issue of
jurisdiction, I have 100ked into the case 1aw, and I think there's pretty good support for the arguments
that I'm making, here, and there's nothing that I'm aware of that says that the Zoning Administrator
can go and reverse himseif in that manner, when the matter is a1ready up before the Zoning Board and
a1ready been before the courts. I haven't had an opportunity to discuss that with Mr. Dusek, but I
think it's reaHy pretty c1ear on that point, that Dave did not have the authority to do what he did.
I mean, he was to1d that by Mr. Dusek, but if that was the case, I wou1d beg to differ with Mr. Dusek,
and just to conc1ude, I think that, back in 1989, Mr. PariHo and his attorney had their chance to
present a11 their evidence. Every time they get shot down, they can't just keep going back and dragging
something e1se out of the c1oset, and saying they have new evidence and trying to get the who1e matter
re-done over and over. We cou1d be doing this for years, and I think they had their chance in '89,
and that shou1d have been the end of it, and it's unfortunate that everybody has to keep going on and
on with this case. If anybody has any questions, I'd be g1ad to answer them.
MR. TURNER-Does anyone have any questions? None? I guess not. Mr. Richards?
JOHN RICHARDS
MR. RICHARDS-Thank you, Mr. Turner. My name is John Richards. I'm an attorney for Frank J. PariHo.
I don't know if it's reaBy for Mr. Caffrey, who wasn't a party in the 1awsuit action, or myseif, for
that matter, to exp1ain the ro1e of the court decisions, or what re1evance they have to this proceeding.
I think perhaps the Town Attorney is the one to step in, there. Certain1y, I don't be1ieve they're
at aH re1evant to why we're standing here tonight. Mr. Caffrey has raised a question about a 1etter
that Dave Hatin issued in February of '92, which he has said over and over is based on new evidence,
and which is backed up by some of the references in there, as weB as other references we're prepared
to give tonight. The new evidence is very substantiaL and we're ta1king about new, this wou1d be
after Ju1y of '89. Some of it wou1d be evidence upon which this Board based its decision in December
of '89, but there is additiona1 evidence on top of that. There's no res judicata, as they've used
in their appeaL There's no question that this is a totaBy different stance by the zoning specter.
I don't beHeve that there's any 1aw that says that when he's given new facts, or a change in facts,
that he can't change his opinion, because it's not cast in stone, and we're prepared to go ahead, as
I thought that that was the question, here, to give you aB kinds of information to confirm the use
of that 1aunch. I'd Hke to point out one thing that John said, which is just that there were a few
1etters thrown in the condition of the boat 1aunch. AH there had to be one 1etter to constitute,
not on1y new evidence, but sufficient use to prove that that 1aunch is not discontinued. We had many
more than one 1etter, and we have a11 kinds of things we're prepared to address to the court, but perhaps
we ought to get to the discussion question, now, rather than take up your time, at this point.
MR. TURNER-Okay. Mr. Caffrey, are you prepared to go forward with this, at this point?
MR. CAFFREY-On1y on the 1ega1 issues I raised in my appeaL We are not prepared to present witnesses
or anything 1ike that. It was not my understanding that that was the issue. I didn't appea1 on that
issue, and we got no notice that he was p1anning to present witnesses tonight, and, again, I don't
think that that's pertinent anyway, but, again, even if it were, we're not prepared with any notice
that that was going to be presented tonight, that we wou1d need time to Hne up the witnesses that
we have, potentiaHy, avaHab1e. As to the effect of the1awsuit, Mr. West, who has been invo1ved
in this case a11 a1ong, and he is in a position to address that, I be1ieve, as his associate 1itigated
the case. So, he can discuss the status of the suit.
MR. TURNER-Is it your request, then, to tab1e this matter?
MR. . CAFFREY-I wou1d request to tab1e the matter. If you intend to hear witnesses, we wou1d request
that it be tab1ed so that we wou1d have time to prepare witnesses. Again, I don't fee1 it's necessary.
I think the Board cou1d just overru1e Mr. Hatin on the 1ega1 issue, without getting into new witnesses.
I wou1d a1so that Mr. West have an opportunity to be heard on some of this.
MR. TURNER-A11 right. I'll acknow1edge Mr. West, then.
TOM WEST
MR. WEST-Thank you very much, Mr. Chairman. I'd 1ike to state, at the outset, that what has happened
here, with Mr. Hatin's reversa1 of his prior determination, is probab1y the most outrageous thing that
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I've seen in 15 years of practice by any municipaHty or administrative agency, and iet me expiain
why. John Caffrey. for a newcomer, did a pretty good job of expiaining the history, and I think some
of you have been invoived with this from the beginning, and you recaH that the issue of whether or
not there was a cessation or termination or abandonment of the nonconforming use came before this Board
in Juiy of 1989. Mr. Pariiio and Mr. Richards were given a fuii and fair opportunity to present whatever
evidence they had. They did not present any meaningfui evidence. In fact. I think the record wiH
reveai that they iargeiy conceited that the boat iaunch had not been opened as a pubiic boat iaunch
for severai years. and that's reaHy irrefutabie fact. in this case. Mr. Hatin based his originai
determination based upon his own personai observations, and that's cieariy refiected in the record,
but the iegai reasons are reaHy what outraged me about the way this has been handied. First of aH,
I'd iike to recaH for this Board what I said in December of 1991, just iast year. when this Board
debated whether or not to reconsider this issue at that time, and I raised the question of notice.
I said, at that time, that you aiways iearn something new every day, and I went on to state that I
had just found out that evening, December 4th, that there were previous motions by this Board to
reconsider this matter, without any notice to the pubiic, and in particuiar. the peopie who have been
invoived with this from Day One, and we taiked about the pubiic notice issue. and I'd iike to state,
right now on the record, that I object to the fact that Mr. Hatin, and I beiieve with the cooperation
and consuitation of the Town Attorney Mr. Dusek. embarked upon the process, in February, to try and
usurp the power of this Board and reverse themseives, without any notice to us that that process was
going to be engaged in. It's exactiy that kind of dosed door process that has been condemned by the
Open Meetings Law and the courts on countiess occasions, and given this history, at the absoiute minimum.
we were entitied to notice that that was going to happen. To this day. my ciients, Aiegra Ireiand
who's here tonight, of the Joshua's Rock Corporation and the Dunham's Bay Association. have never been
provided notice of Dave Hatin's decision. Nobody even had the common courtesy to send us a copy of
the decision and teH us what had happened. and in fact, but for the pubiic notice, which I agree with
John Caffrey is defective, we wouidn't have even had notice that you were going to hear this appeai
tonight. Fortunateiy for aH of us, the Lake George Association has been acting as a watchdog and
heard about this reversai, got some of the papers, got them to John Caffrey's attention so the appeai
couid be taken. So, I think that's our first grounds. We object to the underiying determination.
We object to this meeting being heid without proper notice to aH the parties. Let me aiso address
the other iegaJ issues, in terms of the merit of the Lake George Association's appea1. First of aH,
this is the type of case that res judicata was made for. Res judicata is a iatin term. It means very
simpiy, thing decided. It's a doctrine that the courts impose to say that when something's decided,
it has certain finaiity to it, and it can't be re-decided again. I think the decisionai iaw in this
state makes it very ciear that once a decision has been made on a matter by an administrative tribunai,
that has finaiity. and we aH know that the Town iaw provides a procedure for deaiing with the JuJy
1989 determination. We had to go aii the way to the Appeiiate Division, and then to the Court of Appeais
to speH that out very cieariy for this Board, and in case everybody forgot, I'H mention it again,
you have to have a unanimous vote to reconsider a prior decision of this Board, and then you have to
have unanimity to overturn the prior decision of this Board. There's nothing in the iaw which says
that somebody can go scurrying back to the BuHding Inspector and ask him to reverse this if you're
not satisfied with the fact that you didn't get unanimity. So, I think res judicata is a soiid reason
why Mr. Hatin's determination is aiso iHegai, in addition to the notice reason. Aiso, I wouid point
out to your attention that pursuant to Section 267 of the Town Law. there is a stay whHe matters are
pending before the Zoning Board of AppeaJs. Now, again, I wasn't put on notice of much of what happened
in the second ha1f of 1991. but it's my understanding that this issue came before this Board on severai
occasions and uitimateiy in December of 1991, when we tried to get you to decide it, you tabied it,
and you said, no, we're not going to decide it now, but we're going to tabie it indefiniteiy, and when
you tabie it, I even said, why don't you rescind your decision to reconsider it, and put it back to
iimbo, but instead this Board decided to retain jurisdiction over that matter, and I think that's a
very criticai fact. Under Section 274 of the Town Law, that means that a stay is in effect. So, even
if res judicata didn't appiy. and even if we were provided with proper notice. Mr. Hatin did not have
the power, under the Town Law, to decide that. I wou1d aiso note, for Mr. Dusek's purposes primarHy,
that it's our position that the court action is stiH pending, that the court action was resoived by
an order of the iower court, which was reversed on appeai, and a judgement has never been entered.
So, as far as I'm concerned, that court action is pending, and the court sti1i has continuing
jurisdiction over this matter. The court has spoken. as to how this matter shouid be handied, and
if necessary we'H go back to the courts again for them to teB us how it shouJd be handied in the
future. I think there are severai other reasons why Mr. Hatin's conduct is iHega1. I'd iike to caH
to your attention the Doctrine of Administrative Finaiity. That a1so fiows from the decisionai Jaw
of this state, and it basicaiiy says, when an administrator reaches a decision, unJess there are grounds
to reconsider that decision, meaningfui new evidence, not just one ietter, as Mr. Richards wouid impiy,
that that decision stands. and under that Doctrine. I think you have to go back and you have to iook
at Mr. Hatin's statements on the record, in December of 1989, after we iistened to aH of the new
evidence that was urged before this Board. and we iistened to Mr. Muiier's commentary on that evidence,
as part of his motion, which Dave Hatin, I understand,reiied upon in deciding to reconsider this,
and Dave said some very simpie words. my opinion stiH stands. I've seen 1etters go back and forth,
and my opinion stiH stands. He aiso went on to sign an affidavit in the court proceedings. noting
that he had made up his mind. So, that's an additionai reason why Mr. Hatin's decision cannot be
reversed by himseif. He has no power to do that. I wou1d aiso raise the issue that the BuHding
Inspector in the Town of Queensbury does not have the power to make these decisions. It's my
understanding that since the issue was origina1iy decided by Mr. Hatin, the Town Code has been amended,
and you now have a Zoning Administrator. In
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most towns that I'm famHiar with, the Zoning Administrator makes these kind of determinations from
which appea1s are taken to the Zoning Board of Appea1s. I haven't had a chance to 100k into that'issue
th~roughiy, bu.t because I'm quite confident that this case may end up in court again, 1'm going to
ralse aH my lssues on the record. I wou1d a1so raise another issue, and that is that to the extent
that the Town Attorney has been acting to consu1t with and give advice to the Bui1ding Inspector, Dave
Hatin, in connection with this case, and represent the interests of the Town, it's improper for him
to act as the counse1 for the Zoning Board of Appea1s at the same time. The who1e purpose in having
an appeHate tribuna1 is to get an independent and fair shake on the appeaL If the same attorney
counse1s the Town Staff peop1e and counse1s the Zoning Board of Appea1s, you cannot get that kind of
fair shake. I think aH of the foregoing demonstrates why I opened my statement by saying that this
is the most outrageous thing I've seen in 15 years of practice. We came here. We have had a 1egitimate
dispute. The Town Law is very expHcit, as to how this issue shou1d be re-decided, if it's to be
re-decided at aH. The onlY procedure to be foHowed is to process it through this Zoning Board, not
to go through the back door, as was reaHy done on two occasions. The first occasion when the Town
Attorney dec1ared the first meeting a nu11ity, and the courts didn't a110w that to stand, and now with
the second attempt of Dave Hatin to reverse his prior decision. On behaH of .mt cHents, I urge that
you annul Mr. Hatin's determination, on the grounds that it's il1ega1. Thank you.
MR. TURNER-Thank you. Mr. Dusek.
MR. DUSEK-I think I should be heard at this point. if I may. Mr. Chairman. Mr. West has got up rather
indignatious1y and se1f-righteous1y and says that he's outraged. We11, I think at this point. I guess
I cou1d say I'm a 1itt1e outraged myse1f. First of a11, this Board, and I know there's some new members
on this Board that aren't aware of this, but when I gave certain opinions to the Board, which is what
Mr. West is referring to, and where he says I unHateraHy deciared a nuHity. and he uHimate1y made
these references in the court papers as weH, that upset me great1y, because my capacity at that time
was Town Attorney advising the Zoning Board. not making decisions on behaH of the Zoning Board, nor
have I ever made decisions on behaH of the Zoning Board. I mere1y reported what I found or gave an
opinion as an expert. as a 1awyer, on the 1aw that you were considering at that time. So, that's one
thing I think we have to get straightened away. The second thing is. as far as this notice business
goes, and I think it's important that we 100k at this issue, Mr. West tries to make us beHeve that
something was done wrong, something was i11ega1, something was terrib1e here in terms of the way notices
were provided. Under Town Law, Section 267, when a Zoning Board reconsiders a matter, or votes to
reconsider a matter. they don't have to give any notice. There's nothing in the 1aw that says you
have to notify the pubHc that you're going to reconsider the vote and then set a pubHc hearing.
Now. once you do decide that you want to reconsider it and you set a pub1ic hearing. yes, then you
must give notice, and then when you ho1d that pubHc hearing. that gives everybody a right to know
that you are reconsidering the matter and 1et everybody have their input. and 1et them decided whether
or not they should, so you can hear both sides of the argument, but just mere1y to take a vote to say,
maybe we ought to reconsider it. there's no requirement that notice be given. So, any imp1ication
here that this is something terrib1e, that something went wrong, I object to that. The other thing
is, as far as the c10sed door session is concerned, with Mr. Hatin. Mr. Hatin 1istened to some arguments
and he did what he thought was the right thing to do, that's aH. There was nothing here, again,
terrib1e or secretive about it, a1though Mr. West says that the on1y way the Lake George Park, or the
Association found out about this is through somehow being a watchdog. I've got to beg to differ. I
very up-front and honestiy to1d Mr. West, on phone caBs, that something was going on, and I advised
him of the fact that Dave Hatin was changing his decision. If it wasn't Mr. West, it was his other
associate, but I'm pretty sure it was yoU, Tom, that I had mentioned to you the fact that I beHeve
Dave Hatin was changing his decision and doing something. So, I think you had some notice of that.
In any event, though, putting that aside for the moment, I think what has to be done here, and what
is the most important thing that has to be done is I think we ought to just put aside the showmanship
and everything and take a look, as a matter of fact, at the 1ega1 issues and the facts that are reaHy
before us, and try to sort this thing out. This is very confusing. It's very invo1ved. This thing
has been up in the courts and it's been back down again, and there are issues that are sti11 outstanding
with the courts, and if I may. I'd 1ike, at this point. just to give, at 1east as 1 see it, where this
matter stands, in terms of, where we are and the issues that 1 think that have to be decided, and I'm
doing this at the risk, I suppose, of being, once again, said I'm, in some fashion, acting uni1atera11y,
but I think 1'm just simp1y reciting what I beHeve to be the situation, and I think that Mr. West
and Mr. Richards can correct me if they think that I've made any misstatements. In summary, and this
is for the benefit of aB the Board members, as I go through the record, I notice that this matter
began, actua11y before Ju1y of 1989. when Dave Hatin made a decision that said that you can't use the
boat 1aunch up at the PariHo boat 1aunch. Mr. PariBo and his attorney appea1ed to this Board in
Ju1y of 1989, and this Board heard that case and they said, yes, we agree with Mr. Hatin. You can't
use the boat 1aunch. Later, Mr. PariHo .came back. through his attorneys, and fHed for a variance,
saying, okay, if the Board said what they said, that we can't use it, we'B ask for a use variance.
During the time that Mr. PariBo's attorney was making a presentation for the use variance, it's my
recoHection that it became apparent that he was not on1y making a case for a use variance. but a1so
trying to teH this Board that there was something new in the facts, that Dave Hatin did not have before
him, that the Board did not have before them in Ju1y of 1989, upon which to make a decision. At that
point, the who1e thing was stopped. The Board took a 100k at just the issue of whether or not there
was a nonconforming use. of whether or not there was a continuous use, just 100king at the facts that
gave rise to Dave Hatin's decision. At that point, the Board made a decision. They said, you know
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what, we think there ~ an existing nonconforming use, and therefore we don't think it's necessary
to go on any further, and that's our decision. After that, an Articie 78 was brought by the Lake George
Association, together with, I think it was Mrs. Ireiand, maybe, who chaHenged that December decision
saying, weB, that's aB fine and good, Board, but you can't do what you did, because you shouid have
voted by unanimous vote, if you were going to reconsider your decision, and then voted unanimousiy
to undo your Juiy decision. In handiing that case. it had been lIlY position, and I beiieve at one of
the meetings I had stated. that I feit. in lIlY opinion, that the Juiy meeting had been a nuiiity because
of notice probiems. Judge Dyer agreed with the Town's position. that the Juiy meeting was a nuHity
and the December decision of the Board was fine. At that point. there was an appeai fHed to the
AppeBate Division. The AppeHate Division reversed Judge Dyer and said, no, the Juiy decision was
okay. What the Zoning Board did in the first instance was fine. You made a decision. and even if
it wasn't void. there was nobody withstanding to attack that. So, they upheid the Juiy decision.
They said, no. you can't do what you did in December. At that point, appeais were fiied to the Court
of Appeais. The Court of Appeais uitimateiy turned down the appeai fHed by John Richards on behaH
of his c1ient, Mr. PariHo, and the reason they turned it down was they said that the order was not
finai. the case was not over yet, and they weren't going to consider this matter. So, this means,
as Tom referred to. that the case is stiH out there in iimbo. in terms of an order. Nobody has gone
to Judge Dyer, not Tom West, not John Richards. not the Town. to ask Judge Dyer for a finai order,
finaHy determining this case, based upon the AppeHate Division's decision, and I'm not quite sure
what the reason is for that. Maybe the other attorneys want to speak to that, but that is a matter
of fact. That case is out there in iimbo right now. and once somebody goes back to Judge Dyer and
gets an order, it seems to me that it may be possib1e to appeai that order, back to the AppeHate
Division, or possibiy direct1y to the Court of Appeais at this point. So. that's something that's
up in the air, but I beiieve that if that appeai goes through. it'H be based upon the contents of
that iawsuit, wherein the issue of the Juiy hearing is at stake and uitimateiy when the courts decide
that, it wouid seem to me that they'H be deciding whether or not the Board's Ju1y hearing is va1id
or invaiid. So, that's one issue that's outstanding there. The second issue that's outstanding, at
this point. is the fact that I beiieve this Board, in December. made some motions to rehear the case,
and they may have been by unanimous or not unanimous vote, and I can't recaH, off hand, whether or
not they're stiH outstanding. but that's another issue that I think shouid be reso1ved. The third
thing is, the issue of Dave Hatin's decision, and that, of course, is appea1ed and brought before the
Board this evening. Now, there may be some points. here, that have to be considered, as to whether
he cou1d, in fact, make that decision. I don't know the answer to that. I don't purport to know the
answer to that, but I do know enough to know that that's, obvious1y, another issue. So, there seems
to me there's at 1east three major issues, here, that's before the Board. pius, obvious1y. the overa11
issue, and that is, what is the correct thing for the Board to do at this point, and I think that's
what is before the Board this evening. is how do we go from here, and it seems to me that there's a
10t more information that shou1d be gotten from both Mr. Richards, Mr. West, and Mr. Caffrey, as to
what their respective positions are on the issues that I just cited. as weB as whether they fee1 them
re1evant to tonight's hearing or not, I think we shou1d hear from them on that, and aiso whether they
think that there's anything further that have to add to what I just said, or whether there's any other
issues that are outstanding. So, that's lIlY two cents on the subject, at this point.
MR. TURNER-Mr. Caffrey, do you want to respond to Mr. Dusek's remarks?
MR. CAFFREY-I wou1d just say that I wou1d agree with Mr. West. For the record, I want to raise aH
the same objections he raised on behaif of lIlY c1ient, the Lake George Association, and. it may be the
on1y sensib1e thing to do at this point is tab1e it unti1 Pau1 can sort out what his advice to the
Board may be on the 1ega1 issues and come back here at your next issue and see. because I think that's
rea11y the thresho1d decision on the appea1 I fi1ed, which as I understand it is the on1y matter pending
before the Board tonight. It's the on1y thing on your agenda, is the appea1 I fHed, and Pau1 is here
to advise you on which way to go. So, that's the status of the 1awsuit I have.
MR. RICHARDS-Mr. Turner and the Board, we're prepared to address any of the factua1 issues discussed.
I don't want to stand up here too much 1onger, to go through anything at this point, other than to
just note that when Mr. West said that Dave Hatin made the statement, after hearing a11 the evidence,
I recaH very distinctiy that was made at the outset of the hearing, before anything was said in
December. He's correct in that aspect.
MR. TURNER-Okay. I'm ready to tab1e it, untH they get it sorted out. I wou1d move to tab1e it untH
we get it sorted out.
MR. WEST-Mr. Chairman, if I cou1d just be very brief, I think that the 1ega1 issues are very rea1.
I'd iike an opportunity to submit a Letter of Memorandum or something iike that, and if they choose
to have Mr. Dusek provide them advice, before you go forward with any evidence. I wou1d note if I
cou1d. I beiieve that, contrary to Mr. Richards' 1ast statement, I think there was pretty extensive
discussion in that meeting before Mr. Hatin spoke upon to give his reconsideration, and it was in the,
as I reca11, and lIlY memory is fai1ing me on this case because it seems to go on forever, that the 12/27
meeting. it was that Specia1 Meeting that was he1d between Christmas and New Years, just to make the
decision, basicaBy aH the proof had been put in, in previous meetings, and that was, essentiaHy,
decision night, and the parties were given an opportunity to make their arguments and uitimate1y Mr.
Hatin, after hearing that and seeing aB the 1etters and recaHing his own persona1 observations,
recaHing
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the fact that my wife had asked him to make a persona1 visit to the site in 1988, personany observed
that it was dosed and barriers were erected to pubHc boat 1aunching, etc., he said he's sticking
to his guns. So, I think the record wiH speak for itse1f. Again, these issues are rea1. The 1ega1
issues are comp1ex, and we'd iike an opportunity to address them.
MR. TURNER-Mr. Richards, wou1d you a1so care to respond and bring forth whatever you?
MR. RICHARDS-My memory's pretty c1ear on that one aspect.
MR. TURNER-No, but I mean, do you want to submit any papers to this Board?
MR. RICHARDS-Certain1y, I wou1d iike to have the same opportunity as John Caffrey or Tom West has.
MR. TURNER-Okay. You wi11 get it.
MR. DUSEK-Mr. Chairman, cou1d I make a suggestion. that you set a date by which papers shou1d be
submitted to the Board?
MR. CAFFREY-I'd iike a chance to respond. You might want a date for them to submit and then a date
for me to rep1y, as there wou1d be in any appea1.
MR. TURNER-Okay.
MR. WEST-John, how about if we cou1d agree to a crisscrossing procedure, each party submits its first
round, and then a week or two 1ater you have a rep1y, rather than doing a brief rep1y. In response
to that suggestion, I don't disagree that there shou1d be an opportunity for a reply and the standard
practice at the DEC is to have an parties submit briefs on a given date, and then an parties get
an opportunity to reply a coup1e of weeks 1ater, and that gives everybody an opportunity to speak their
piece several times.
MR. RICHARDS-I don't mind giving you a chance to rep1y to mine, and I don't want to bog this down.
but I'd iike to see his first, if there's no prob1em with that. I'm wining to compress the time as
much as possib1e to get this before the Board.
MR. WEST-Mr. Chairman, I cou1d get very technica1 and say I'm not an appeHant. I get to stand with
him and listen to John Caffrey's appea1 and reply to him, but the simp1er thing to do is just, everybody
submit a brief on a given date, and two weeks later we rep1y.
MR. RICHARDS-When did you want to hear this, Mr. Chairman, and we'H just make the deadHnes before
then.
MR. TURNER-We've got a fuH agenda this month. How much time is it going to take you to process this
paperwork?
MR. CAFFREY-When's your Ju1y meeting?
MRS. CRAYFORD-Ju1y 15, and July 22nd.
MR. CAFFREY-So, if everybody were to fHe something by the end of this month, and the repiies were
done within a week, then they wou1d, you would have everything at 1east eight days before your meeting.
How wou1d that be?
MR. DUSEK-Whatever's fine with the Board is fine with me.
MR. RICHARDS-I don't know why they cou1dn't submit in two weeks, give me a· week to reply, and then
a fina1 week.
MR. TURNER-The only problem with doing this in a regu1ar meeting is that this is such a hot issue.
as you can understand, and everybody's here. It's going to be time consuming. It's going to take
up the who1e meeting. So, I'd rather have you get your paperwork together, get it back and forth,
and we'11 set a special meeting, just for this.
MRS. CRAYFORD-Would you care to shoot for 29, the 1ast Wednesday?
MR. TURNER-Yes, Ju1y 29th.
MR. DUSE~That'11 be the meeting date?
MR. TURNER-That'll be the meeting date.
MR. DUSEK-And when wou1d be the time the papers are due your Board?
MR. TURNER-They have unti1 the first of Ju1y.
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MR. RICHARDS-Again, I'd 1ike to have a chance to review theirs with my c1ient. Just give me a week
after that.
MR. TURNER-All right.
MR. DUSEK-Am I to understand, then, that the papers of the appeBant would be submitted by July 1st,
and then the papers responding would be one week later?
MR. TURNER-One week later.
MR. DUSEK-Then I guess there'd have to be a time for reply, right, on top of that?
MR. WEST-And I stiB have a question, am I an appeBant or a respondent, because I didn't make the
appeal. Interested party?
MR. CAFFREY-I would say, if I could just then have a chance to reply to Mr. Richards within another
week, which would be July 15.
MR. RICHARDS-That's fine for me, and I'd submit with Mr. Caffrey.
MR. DUSEK-So then, just to make sure that we aB know the time taMes, July 1st is when the initial
papers are due the Board from the appeBant. July 8th, the response papers from Mr. Richards are due,
and then July 15th would be the reply, if any, that the appeBant may wish to give to Mr. Richards'
papers, and when the dates are given, that means that's the dates they are to be fHed with the Town,
that's not the maHing dates. They should be in the Town on the 1st, the 8th, and the 15th. Those
are actuaBy received on those days, I think, for the Board. Now, the next question is, is rightfuBy
raised by Mr. West ear1ier, and that is, whether the Board wants me to receive a copy of the papers
as weB.
MR. TURNER-Yes.
MR. DUSEK-Okay.
MR. RICHARDS-Are you going to submit any papers?
MR. DUSEK-I don't think so. I've got to think about that, I suppose. How does Tom and John feel about
it? I suppose, depending upon what John says, and Tom says, maybe I do want to say something. I don't
know. Tom and John, do you have any problem if I feel I have to submit something, that I submit it
by July 8th.
MR. CAFFREY-I think you should do what you think is appropriate, under the circumstances, especiaBy
given your one objection I raised.
MRS. EGGLESTON-So, if you were to reply to either one of their papers, you would do that within a week
after, so we would have everything before?
MR. DUSEK-WeB, I' B teB you the reason why I'm a 1ittle concerned is that I consider myseH as an
attorney to the Board, and so, therefore, it does not seem that I should, necessarHy, be involved
in the submission papers, and that's why I have mixed feelings about even asking for any time. So,
I may very well not submit any papers, because I'm your attorney and it just seems to me that I ought
to just wait along with you for ail the papers to come in to you.
MR. TURNER-Ail right. Why don't we do it that way. Okay.
MR. CAFFREY-Can I just clarify one other thing. It's my understanding that what we're submitting papers
on is the legal issues raised in my notice of appeal fHed by the Lake George Association. That's
my understanding. Is that yours, John?
MR. RICHARDS-I believe, yes.
MR. TURNER-That's the issue we've got in front of us. Right. Okay.
IIITION TO TABLE NOTICE OF APPEAL NO. 2-92 BY LAICE GEORGE ASSOC, INC., Introduced by Theodore Turner
who moved for its adoption, seconded by Charles Sicard:
For information from Mr. Caffrey, the LGA, and Mr. Richards, who's representing Mr. Parillo. The meeting
is scheduled for July 29th, at 7:30 p.m. in this room.
Duly adopted this 3rd day of June, 1992, by the following vote:
AYES: Mrs. Eggleston, Mrs. Paling, Mr. Sicard, Mr. Carvin, Mr. Turner
9
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NOES: NONE
ABSENT: Mr. Carr (8:37 p.m.)
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Theodore Turner, Chairman
10