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1992-07-29 SP ~ u QUEENSBURY ZGNING BOARD OF APPEALS tEETING SPECIAL tEETING JUL Y 29lH. 1992 INDEX Notice of Appea1 No. 2-92 lake George Association, Inc. 1. Use Variance No. 77-1992 Karen & Richard Cunningham Hair Designs 15. Area Variance No. 68-1992 Char1es O. Sicard 25. THESE ARE NOT OFFI CIAll Y 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. ~EENSBURY ZONING BOARD OF APPEALS SPECIAL tEETING JULY 29lH, 1992 7:30 P.M. JEMBERS PRESENT THEODORE TURNER, CHAIRMAN JOYCE EGGLESTON, SECRETARY MARIE PALING FRED CARVIN CHARLES SICARD EXECUTIVE DIRECTOR-ROBERT PARISI SENIOR PlANNER-lEE YORK TOWN ATTORNEY-PAUL DUSEK STENOGRAPHER-PAM WHITING OLD BUSINESS: NOTICE OF APPEAL NO. 2-92 IAICE GEORGE ASSOCIATION, INC. APPEAL BY IAICE GEORGE ASSOCIATION FROM A DECISION OF THE ZONIIG ADMINISTRATOR (DAVE HATIN) DATED FEBRUARY 20, 1992 IN THE MTTER OF lHE FRANK PARILLO APPLICATIOfI. IAICE GEORGE ASSOCIATION RECEIVED NOTICE OF DECISIOfI ON APRIL 2, 1992 STATING THAT THE BOAT lAUNCH MAY COITI..E AS A PREEXISTING NONCONFORMIIIG USE AS THERE HAS BEEN NO CESSATION OF USE. SECTIOfI 179-80 DISCONTIIlJANCE STATES: -IF A NONCONFORMING USE IS DISCONTI"ED FOR A PERIOD OF EIGHTEEN (IS) CONSECUTIVE JDßHS, AJRTHER USE OF lHE PROPERTY SHALL CONFORM TO lHIS CHAPTER OR BE SUBJECT TO REVIEW BY THE ZONIIIG BOARD OF APPEALS. - PROPERTY LOCATION: CORNER OF BAY ROAD AND ROUTE 9L TAX MAP NO. 23-1-19 MR. TURNER-Before we get to that, Paul, would you care to make a statement, in reference to what we ta I ked about? MR. DUSEK-Yes. There's one underlying issue in this case that I recommended to Ted that we just briefly touch upon before you do anything else tonight. As you get into this lake George Association, Inc. appeal of the Zoning Administrator's decision, or Dave Hatin's decision, one issue that has been raised, and was raised at the last meeting, that I feel should be considered by the Board is the raising of a potential conflict of interest, as far as I'm concerned, your attorney on many matters, including this one in the past, as far as the Ireland versus Town of Queensbury action goes, and the fact that, of course, I do advise and counsel all kinds of Town officers from time to time, including Mr. Hatin, as well as having counseled him in the past, in connection with this particular matter. Although they did not brief this in the letters to you, it was mentioned in, I think it was Mr. West's letter, at least as a last statement in the end, and I just thought it was an important enough issue for you to evaluate, and I think you have to make that decision, first of all, whether you feel comfortable with me as your counsel in this matter, or whether you think that another attorney should be retained to assist you in connection with this. My personal feelings are that I see mYself as Town Attorney to the Town of Queensbury. I see myself as advising and counseling the various agencies and departments on a regular basis, and in the past, in the areas where I've seen conflicts directly is obviously like, for instance, the two agencies will go at it, that I represent both, and they're going at it among themselves. In a case like this, Dave Hatin's decision is being appealed, and I confirmed this with Dave tonight. I don't see myself as representing Dave before you tonight. I see myself as counseling you as the Town Attorney, and as counsel to this Board. I see myself as experienced in this matter, and having worked through the history of this thing. I don't see mYself in a conflict situation. However, if you feel uncomfortable, or you feel that because of mY involvement with Dave Hatin that you would rather have somebody else to advise you, I also think it's perfectly within your rights to request another attorney, and I think that can be done, and I think there's time to do it. There's nothing that would prohibit you from so requesting, and I just wanted to put this out on the table, as we got started tonight, because the issue was raised. I gave it a lot of thought. I don't see a problem in advising you in connection with this thing tonight, but I wanted to give you people the opportunity to make that decision for yourselves. too. MR. TURNER-Okay. Does anyone have any comments? I don't have a problem with him sitting as our counsel. MRS. PAlING-I don't. MRS. EGGlESTON-I don't either. Paul's always done well. MR. SICARD-No. MR. TURNER-Okay. That's decided, as far as I'm concerned. 1 ---- MR. DUSEK-Mr. Chairman, for the record, too, cou1d I ask Mr. Hatin if he has any difficuHies with this? MR. TURNER-Yes. Do you have any difficu1ties with that? DAVE HATIN MR. HATIN-No, none whatsoever. MR. TURNER-Okay. Fine. MRS. EGGlESTON-A 1etter from John Richards to David Hatin, Director, BuiJding and Code Enforcement, "With respect to OUr conversations on February 19th, 1992, regarding Frank parino' s marina/boat 1aunch, I have reviewed the minutes of the Zoning Board meeting, as wen as the affidavits that you have submitted, and have determined that there has been no cessation of use over the period of time in which we had previous1y thought there had been an 18 month 1a:pse in the use of the boat launch. I more specificaHy refer to Mike MuHer's resolution in which he states that a use variance was not required for the continuation of the boat 1aunch. In this, Mike specificany states criteria that proved there had been no 1apse of use of the boat 1aunch, as we11 as stating that a discontinuance of the boat launch alone could not be separated out from the entire nonconforming use, but actuany was an integra1 part of that use. Therefore, I fee1 that I must over turn mY origina1 decision a150 and concur with the resolution approved by the Zoning Board on December 27th, 1989, and anow the boat launch to continue to be used. I trust this wiH answer aH your concerns. II And this is a letter to the Zoning Board of Appea15 from Attorney John Caffry, "On behalf of the lake George Association, Inc. (llGA"), I am submitting this letter to the Zoning Board of Appeals as requested at the June 3rd meeting. This submission re1ates sole1y to the issue of 1aw presented by the lGA's appeal. The issue of the 18 month discontinuance of the use of the boat launch is not before the Board at present. We are not presenting new evidence on the issue of discontinuance for the very reason that it is our position that Mr. Hatin (and the ZBA itself) may not 1ega11y reconsider the origina1 decision that there had been a discontinuance. There must be an end to this case. Mr. PariHo had his "day in court" in 1989, and should not be permitted to re-argue his case again, and again and again and again. I. Once the original decision by Dave Hatin was appealed by Mr. PariHo to the ZBA, Hatin 10st an jurisdiction over the matter. When an appeal is taken from a Town Zoning Officer's action to the ZBA, this creates a stay against a11 proceedings in furtherance of the action appealed from. Town law 267-a(6), former1y 267(4). Furthermore, the appeal to the ZBA transfers aH of the officer's authority to the ZBA. Town law 267-b(1), formerly 267(5). See, Cupo v. McGoldrick, 278 A.D. 108, 113 (1st Dept. 1951), Ooca1 rent administrator has no jurisdiction over a matter current1y on appea1 to State rent administrator). See a15o, Jones v. Schenectady Boys C1ub, Inc., 276 A.D. 879 (3d Dept. 1949). II. An administrative decision, once made, is genera11y considered to be fina1 and cannot be changed. See, Evans v. Monagham, 306 N.Y. 312, 324 (1954). A pubHc officer may not revoke a determination, 'however much they may have erred in judgement on the facts, even though injustice is the resuH.' Cupo, supra. A mere change of mind is insufficient to revoke a decision, where there is no showing of iHegaHty, irregu1arity or fraud. Id. Mr. Hatin's decision was finaL subject on1y to reversa1 by the ZBA, which refused to do so in Ju1y, 1989. III. Mr. PariHo's aHeged new evidence is not grounds to re-open the case. A matter can be re-opened on the grounds of new evidence on1y when the evidence was not previously discoverab1e with due dnigence. Pezenik v. MiJano, 137 A.D.2d 748, (2d Dept. 1988). In this case, Mr. Parino had a fun opportunity to present his case to Mr. Hatin. He was represented by counse1 at that time. Had they been dHigent, much of the evidence they presented onb a few months 1a:ter cou1d have been discovered and produced to Mr. Hatin at the time. This would seem especiany true since Pari110 had owned nearby property for years and was familiar with the marina and the peop1e there. He had an additional opportunity to present this before the ZBA in July, 1989. Furthermore, much of the aneged new evidence upon which he relies merely dup1icates prior evidence. Redundant evidence is not sufficient to re-open a previous1y decided case. Rosenstock v. Rosenstock, 139 A.D.2d 164, 169 (3d Dept. 1988). Acro Chemical Co., Inc. v. V01z, 231 N.Y.S.2d 45 (1962) (Zoning Board of Appeals cannot reverse itseH where appHcant presents new witness on issues previously decided). Nor has there been any change in the neighborhood or the existing facts which wou1d merit a rehearing. lie The facts aH existed in Ju1y, 1989 and have not changed since. According1y, both Mr. Hatin and the ZBA may not change their determinations in this case. Even if he had the power to do so, Mr. Hatin had no basis to reverse himse1f in 1992. At the December, 1989 ZBA meeting, he stated that, 'my opinion stiH stands', despite having seen much of the aHeged new evidence. (12/27/89 ZBA minutes page 4). That night Mr. Parillo's attorney submitted various evidence, most of which he admitted had previously been submitted. (12/27/89 ZBA minutes pages 6 and 7). At that time, PariHo again could not get the necessary vote for a reversaL Between that time and February, 1992, the on1y new evidence submitted was ten 1991 form 1etters on the issue. These are no different in substance from the prior evidence and are redundant. They were not sufficient new evidence to re-open the matter. IV. Any request to rehear or reconsider the case is barred by the doctrine of res jUdicata. Where a Zoning Board of Appea1s has denied an app1ication, the decision serves as a comp1ete bar to a rehearing absent a materia1 change of fact. Jensen V. Zoning Board of Appea1s, 130 A.D.2d 549 (2d Dept. 1987), motion for 1eave to appeal denied, 70 N. Y.2d 611; Kennedy V. Zoning Board of Appea15, 145 A.D.2d 490 (2d Dept. 1988). Mere1y because an appHcant tries to furnish additiona1 proof at a second hearing, he is not entitled to a different resuH. Jensen, supra. There have been no changes in the underlying facts since July, 1989, on1y an attempt to muster more cumu1ative, redundant evidence. After Ju1y, 2 1989, there was no legal basis for a reversal, other than by a unanimous vote by the ZBA. Under the recent amendments to the Town law, even that option has been removed. It is respectfuily requested that the ZBA declare Mr. Hatin's February 29th, 1992 decision to be null and void. II Attorney Thomas S. West, to the Queensbury Zoning Board of Appeals, RE: Parillo/lGA Appeal No. 2-92. liAs you are aware, we represent Mrs. Ireland, the Joshua's Rock Corporation, and the Dunham's Bay Association in connection with the Parillo matter. This letter shail constitute our submission in response to your request that we articulate, in writing, our position concerning the merits of the appeal. FACTS The facts are not in dispute. In 1989, Frank J. Parillo purchased the marina in the Dunham's Bay Wetland. In June of that year, David Hatin, the Town's Director of Building Code and Enforcement, advised Mr. Parillo that, although the marina constituted a nonconforming use, the public boat launching activities which had been discontinued for more than 18 months prior to his acquisition of the marina would be an illegal use without a variance. Mr. Hatin' s opinion was based upon the fact that, at the request of certain local residents, he had been asked to view the nature of the operations in 1988. In addition. he was personaily familiar with the fact that the public boat launching facilities at the marina had been discontinued for several years. Mr. Pariilo appealed that decision to the Queensbury Zoning Board of Appeals (the "ZBA") which came before the ZBA in July of 1989. At that time, Mr. Parillo's attorney essentiaily conceded that the public boat launching activities had been discontinued. As a consequence, the ZBA voted unanimously to affirm the decision of the Building Inspector. Contemporaneously, it was agreed between the Town Attorney and Mr. Parillo's attorney, that no enforcement would be taken on the then operating boat launch, so long as Mr. Parillo promptly applied for a variance. A variance application was perfected shortly thereafter. Importantly, at no time did Mr. Parillo seek any judicial review of the initial ZBA determination confirming Mr. Hatin's original determination based upon Mr. Hatin's own personal knowledge and observations of the boat launch during preceding seasons. Thereafter, extensive proceedings progressed before the ZBA relative to the variance. During the course of the variance proceedings, it became obvious that Mr. Parillo would not be able to meet the variance standard, given the identified environmental impacts to the unique and highly valuable Dunham's Bay wetlands and the lack of an economic hardship to Mr. Parillo. As a consequence, Mr. Parillo and his attorney requested reconsideration of the July determination upholding the original determination of the Building Inspector. Following a vote to reconsider (with one negative vote), the matter came on to be heard before the ZBA in December of 1989. During the December meeting and in preceding meetings, Mr. Pariilo offered testimony by various individuals and letters that certain persons had launched their boats at the marina. After hearing all of the evidence during the December 27th, 1989 meeting, Mrs. Eggleston asked Mr. Hatin if he had found any cases of the boat launch being open to the public. He responded as follows: 'At that time, there were posts in the ground, blocking the launch for the general public's use. That had been there from previous knowledge of mine, before I even became Director of Building and Code Enforcement, when I used to use mY boat at the lake during the '70s and early '80s. I knew the launch was closed then, because I used to launch mY boat there. Knowing that that Summer, and concerned residents had heard that the boat launch was going to open back up and asked me to take notice, particular notice, I think it was July of '88 of the launch, which I did and noticed that there were signs that said No launching. I knew there had at least been a year up to that point and, as far as I know, they were there from the Spring of that year. So, therefore, that's how I can prove that there was at least an 18-month gap. I saw no public launching, no, I guess you could say, person collecting money or fees to launch boats at that time'. Mr. Sicard then asked Mr. Hatin if he had changed his opinion at all, to which he responded: 'No I haven't. My opinion stiil stands. I have seen letters go back and forth, and my opinion still stands.' Thereafter, the ZBA voted 5 to 2 that no application was required for a use variance by Mr. Parillo, because there was no cessation of the boat launching activities by the public for more than 18 months. litigation then ensued. This Board is weil aware of the fact that the Appeilate Division reversed a lower court determination and specifically declared that both the original vote to reconsider the matter and the ultimate vote on the merits were nullities because neither was passed by a unanimous vote of the ZBA members present at the time the vote was taken. As such, the lower court order was reversed and the matter was returned to the status of the original July determination, being the controlling determination. Thereafter, Mr. Parillo made an attempt to have the Court of Appeals review the Appellate Division decision. That request was denied. Notably, at no time has the Supreme Court litigation been resolved through the entry of a final judgement. Shortly after the Appellate Division reversal, this Board voted unanimously to reconsider the July 1989 determination. Perplexing is the fact that the parties to the litigation were not provided any notice regarding those meetings. Evidently, several meetings occurred whereby the vote was taken and rescinded and reinstated again. Ultimately, we requested that the ZBA decide the merits of the reconsideration, in late 1991, which it declined to do. Instead it tabled the matter. Therefore, the best of our knowledge, the matter remains tabled and pending before the ZBA. Evidently, Mr. Parillo engaged in further colloquy with the Town concerning this matter. Ultimately, and again without notice to any of the parties to the litigation, Mr. Hatin, on or about February 20th of this year, decided to reverse his original 1989 determination. Upon hearing about this event, the lGA perfected the appeal, which is the subject matter of this letter. ARGUMENT It is important to stress what this appeal involves and what it does not. This appeal only involves the question of the legality of Mr. Hatin's unilateral reversal of his 1989 determination while this matter was both pending in court and pending before this Board. The merits of the reconsideration are not involved with this appeal. For several reasons, Mr. Hatin's conduct was iilegal and should be nullified by this Board. First, it is clear under Town law that the pendency of the motion to reconsider the original July 1989 determination (adopted last year and tabled over our objection) divests Mr. Hatin of the power to reconsider the matter on his own. In effect, the adoption of a Motion to Reconsider the effect of reinstating the original appeal from Mr. Hatin's 1989 determination. Pursuant to Town law 267(4), an appeal stays ail proceedings in furtherance 3 of the action appeaJed from unJess the officer makes certain findings not reJevant here. As such, Mr. Hatin's re-determination shouJd be declared a nu11ity by this Board. More important1y, Mr. Hatin is barred from reconsidering this matter under the principJes of res judicata. The principJes of res judicata and coJJateraJ estoppeJ appJy equaJJy to quasi judiciaJ determinations of administrative agencies. Ryan v. New York TeJ. Co., 62 N.Y.2d 494 (1984). They aJso appJy to determinations of zoning boards of appeaJs. Jensen v. Zoning Board of AppeaJs of ViJJage of OJd Westbury, 130 A.D.2d 549, 550 (2d Dept. 1987). Here, the Queensbury ZBA affirmed Mr. Hatin's decision twice--once in JuJy of 1989 when it voted unanimousJy to confirm it and again in 1989 when it faiJed to reach the unanimity requirements of Town law 247(6) in both the motion to rehear and the uJtimate reconsideration on the merits. As such, Mr. Hatin is barred by the doctrine of res judicata from attempting to reverse the Zoning Board of AppeaJs. Of equaJ importance is the fact that the AppeJJate Division, Third Department, dec1ared that the unanimous vote of the ZBA is required to overturn Mr. Hatin' s 1989 determination. As such, Mr., Hatin and this board are bound by that judiciaJ determination of what procedure must be fo11owed to pursue the reconsideration issue further. That determination is the Jaw of the case which Mr. Hatin cannot overruJe by his uniJateraJ conduct. Mr. Hatin's reconsideration was i11egaJ on those grounds as we11. In addition, Mr. Hatin and the ZBA are barred from reconsidering this issue under the doctrine of administrative finaJity unJess substantiaJ, materiaJ new evidence is presented in support of the reconsideration. See, Charter land Development Corp. v. Hartmann, 178 A.D.2d 600, 601-602 (2d Dept. 1991); Jensen v. Zoning Board of AppeaJs of the Vi1Jage of OJd Westbury, 130 A.D.2d at 550-551. A review of the evidence presented to Mr. Hatin in support of his new determination demonstrates that it is the same evidence and simiJar evidence to that which was presented to the Zoning Board of AppeaJs in the FaJJ of 1989. At that time, Mr. Hatin reaffirmed his decision in view of the same kind of proof, a position which he Jater supported by an affidavit in court. The fact that his most recent decision is based upon the same factors that were reconsidered in 1989 without the requisite unanimity is evidenced by his Jetter of February 20, 1992, which refers back to Mike MuJJer's resoJution made during the December 27, 1989 meeting. A mere improvement in the quaJity of proof is insufficient to overcome the res judicata and administrative finaJity estabJished in this proceeding. Jensen v. Zoning Board of AppeaIs of the Vi11age of OJd Westbury, 130 A.D. at 55!. As such, Mr. Hatin's determination shouJd be reversed. During the June 3rd hearing, we aJso raised the issue that it is uncJear whether Mr. Hatin continues to have the power to address these issues in view of the fact that the Town now operates with a Zoning Administrator. We aJso indicated that Mr. Dusek's invoJvement with this matter on behaH of both the Town (representing Mr. Hatin in meetings with Mr. Pari11o's attorney) and the Zoning Board of AppeaJs appears to raise a confJict of interest. We decJine to offer any briefing on these issues, but raise them for your consideration. Thank you for your consideration of this matter." And this is Attorney John H. Richards, to the Queensbury Zoning Board of AppeaJs, in his PreJiminary Statement, "David Hatin's first Jetter was issued on June 27th, 1989. Since that date, Tom West and the other hunch opponents have sought at every juncture to prevent or nun ify a fun and fair hearing of the facts. Throughout the judiciaJ proceedings, they never chanenged the substance of the Zoning Board's December decision. Instead, they have continuany put the Board in a situation of having to make JegaJ decisions which no Board, however experienced, shouJd be asked to make. A process that it meant to encourage fact finding and factuaJ evaJuation by the Board has instead degenerated into wastefuJ and time consuming sparring between Jawyers. Frank Pari110 has been ready, at any time, to prove once again that the use of the Jaunch is part of a continuing nonconforming marina use on the property. The current appeaJ by the lGA recites that Dave's Jetter of February 20th, 1992 was not supported by substantiaJ evidence, and that there has been no change in the evidence, yet at the June 3rd meeting John Caffry stated that he was not prepared to present any evidence on the matter, and in fact requested an adjournment of his own appea1. It is time to stop this abuse of the zoning process, hear what must be heard, and put an end to this proceduraJ nightmare. ANALYSIS OF THE FACTS There is no need, in this repJy, to repeat the Jong history of this matter from Mr. PariJJo's point of view, nor to correct the numerous conc1usions and distortions set forth as facts in Tom West's Jetter. One bJantentJy misstatement, however, must be noted. Tom quotes Dave Hatin's statements at the December 27th, 1989 meeting at Jength and states that these were made after hearing a11 the evidence offered at the meeting, West's Jetter et. too. In fact, a reading of the minutes of that meeting demonstrates that Dave made these statements before attorneys for either party addressed the Board and before any evidence or facts were introduced. As I had corrected Tom on this point at the June 3rd meeting, I am surprised that he continues to assert this position without reviewing the minutes. The pertinent fact to remember in the present appeaJ is that this is not a continuation of the appeaJ from Dave's June 1989 Jetter. Frank Pari110 is not the Appenant and the proceeding does not invoJve the June Jetter. This is a separate and distinct proceeding arising from the Jetter Dave issued in February 1992. With this in mind, common sense dictates that the Jetter was properJy issued, and if appeaJed, shouJd be heard by this Board on its merits. REVIEW OF THE ARGUMENTS In its efforts to pJunge this appeal into a new procedural bog, the lGA has caned upon a mixed bag of cases, ranging from tenant eviction, Cupo v. McGoldrick 278 A.D. 108 1st Dept. 1951, to divorce, Rosenstock v. Rosenstock, 139 A.D. 2nd 164 3rd Dept. 1988. The opponents have sought to avoid a review of the facts through theories of res judicata, such as same case, conateral estoppeL administrative finality, and no newly discovered evidence. An anaJysis of the case authority cited in support of these theories reveals, however, that none arise from a buiJding or zoning inspectors action. An involve a hearing in one form or another and at Jeast, Jensen v. Zoning Board of Appeals of the Village of Old Westbury 130 A.D 549 2nd Dept. 1987, involved re-submission of an identical area variance application. They are not on point and not reJevant to this situation. David Hatin is not a hearing officer, judge or quasi judiciaJ board. He is an administarial officer charged with the responsibiJity, among other things, to make a determination as to whether a use compJies with the appJicable zoning requirements. He does not hold pubJic hearings to make his determinations. In fact, his June 4 r 1989 1etter apparent1y had its genesis in a 1988 te1ephone can from Tom West's wife. See minutes of June 3rd, 1992 ZBA meeting at 7/8. This responsibi1ity carries with it the obvious1y responsibi1ity and authority to modify or correct a determination that the inspector reaHzes was incorrect1y given. As Dave notes in his February 1992 1etter, his 1992 determination is based on information he had received after June 1989. This 1ogica1 power of the Bui1ding or Zoning Inspector to modify an ear1ier determination has been repeated1y affirmed in the area of bui1ding permit revocations. See E.G. Parkview Associates v. City of New York 71 N.Y. 2nd 274 1988, Perata v. City of New York 107 A.D.2d 320 1st Dept. 1985. It inc1udes an interpretation and new interpretation of whether certain proposed construction win constitute the extension of a preexisting nonconforming use. See A1bert v. Board of Standards and Appea1s 89 A.D.2d 960 2nd Dept. 1982. The Town of Queensbury Ordinance itse1f a110ws the Zoning Administrator to issue Stop Work Orders for zoning vio1ations, Queensbury Code 179-110. There is no authority and no practica1 reason to so hamstring an administrative officia1 as to prevent that officie:1 from correcting or rep1acing a determination issued without a pubHc hearing and based on incomp1ete information. The vehic1e to object to any revised or subsequent determination is an appea1 to the Board of Appeab. The lGA has made such an appea1, and Frank Parino is funy prepared to submit evidence in support of Dave's determination. We ask that this evidenciary hearing be a110wed without further de1ay or the appea1 dismissed." And I apo1ogize if I s1aughtered any 1ega1 words or any other words. MR. TURNER-Okay. If you gent1emen don't have any prob1em with what you've addressed in the 1etters, I'm going to accept those as your statements, un1ess you've got any new evidence. With that in mind, I'll open the pub1ic hearing. PUBLIC HEARING OPENED NO COJIENT PUBLIC HEARING CLOSED MR. TURNER-I guess I'm going to, Pau1, wou1d you read that Section that you've puned out there, in reference to this matter. MR. DUSEK-Before I do that, Mr. Chairman, I don't know if I missed it or not, but I believe there were two other 1etters that were submitted by the attorneys, and I just wanted to make sure they were considered part of the record. One was a second 1etter dated July 15th by Mr. Caffry, a second 1etter by Mr. West, dated Ju1y 15th as we11. MR. WEST-I think, so 10ng as it's agreed that they're part of the record, we wou1d waive that. MR. TURNER-Do you want to waive that? A11 right. MRS. EGGlESTON-I don't have them anyway. MR. TURNER-They're not in the fi1e. MR. DUSEK-They're not? Because I have two here, which I believe to be copies, cc to myself. Maybe then they shou1d be read into the record, because they do contain, in fairness to Mr. Caffry and Mr. West. It's up to you guys. MR. TURNER-They waived the reading. MR. DUSEK-Wen, the other way of handHng it, perhaps, is to 1et the attorneys summarize what's in the responses, just so that if they, my on1y inc1ination, here, is to be fair, because apparently you guys have not seen those 1etters, and you ought to have that as part of the. MR. WEST-Yes. I don't think we have any prob1em waiving the reading into the record, but I think it's important for the Board to read them, if they're going to make their decisions. MR. TURNER-Read them into the record. MRS. EGGLESTON-Okay. The first one is from Attorney Thomas West, to the Queensbury Zoning Board of Appeab, "This 1etter win serve as a reply to the submission of Mr. Richards on behalf of Mr. Pari no. First the ad homonym offered by Mr. Richards in his Preliminary Statement and Analysis of the Facts shou1d be rejected by the Board as being inappropriate. For example, contrary to the first paragraph of Mr. Richards Pre1iminary Statement, it has never been the burden of the launch opponents to challenge the substance of the Zoning Board's December decision. The launch opponents have every right to re1y upon the correctness and soundness of the Ju1y 1989 determination of the Zoning Board which was based in part upon Mr. Hatin's persond know1edge of the abandonment of the public boat launch and Mr. Pari no's failure to contest that fact. Having failed to reach the required unanimity to consider that issue in the fan of 1989, the Ju1y determination stands as the Jaw of the case. The second paragraph of Mr. Richards Preliminary statement identifies the red issue. Mr. Parino is trying to, once again, prove his case after he has a1ready had two bites at the app1e, one in Ju1y of 1989, and another over the course of the fan of 1989, 1eading up to the December 1989 vote by the Zoning Board. In that 5 regard, and contrary to Mr. Richards statement, under the heading anaJysis of the facts, Mr. Hatin's affirmation of his prior determination in December of 1989 did occur after he heard considerabJe evidence over the course of severaJ meetings during the faH of 1989. ARGUMENT PrincipaJ to Mr. PariHo's argument is the aHegation that Mr. Hatin's originaJ determination was administariaL A determination by a buHding inspector concerning whether or not someone is in compJiance with Jaw, or in this case whether facts demonstrate an abandonment of a prior nonconforming use is anything but administariaL Such determinations are part of the Code Enforcement process which is highJy discretionary, in and of itseH. It is undisputed that Mr. Hatin's originaJ determination was based upon his own personaJ knowJedge of the facts, and his officiaJ investigation at the request of severaJ peopJe, incJuding my wife. The case is cited by Mr. PariHo for the proposition that a municipaJity may correct an iHegaHy issued buHding permit are simpJy inapposite. Parkview, for exampJe, invoJved revocation of a buiJding permit foHowing an error made in the permit issuance process. The case invoJved a buHding in New York City, and the court reHed upon the administrative code of the City of New York which provides the Commissioner of the New York City BuiJdings Department the authority to revoke permits which have been issued in error. Parkview Associates v. City of New York 71 N. Y. 2d 274 281 1988. likewise the Perata case invoJved a situation where the buiJding permittee actuaJJy expanded and modified the buHding from the approved pJans to create a two famHy dweHing in a singJe famHy zone. These and other cases cited on behaJf of Mr. PariJJo's cause have no reJevance to a situation where a buiJding inspector's determination was appeaJed to and affirmed by a zoning board of appeaJs. For all of the reasons cited in our originaJ Jetter memorandum, and in the Jetter memorandum submitted by Mr. Caffry on behaH of the lGA, once this matter was appeaJed to the Zoning Board of AppeaJs, Mr. Hatin Jost jurisdiction to consider the matter further, particuJarJy when the matter is currentJy pending before the Zoning Board of AppeaJs on reconsideration and is stiH pending in court. Moreover, because Mr. PariJJo has aJready Jost on two occasions, the Jatter of which incJuded the same kind of proof offered to Mr. Hatin in support of his 1992 determination, both Mr. Hatin and the Zoning Board are barred from further reconsideration of the issue. AccordingJy, we respectfully request that this Board decJare iHegaJ Mr. Hatin's 1992 determination regarding the use of the pubHc boat Jaunch in connection with the operation of Mr. Parillo's marina." And this one is from Attorney John Caffry to the Zoning Board of AppeaJs, "In repJy to John Richards Jetter of JuJy 8th, I submit the foHowing on behaH of the lake George Association ("lGA"). Mr. PariHo and his attorney Mr. Richards made certain decisions in June and JuJy of 1989 as to how to present their case to Mr. Hatin and the Zoning Board of AppeaJs. Given their Jack of success at the time, they apparentJy feeJ that these were the wrong choices. However, rather than Jive with the effects of their decisions, they have repeatedJy attempted to re-open, re-argue and re-appJy the matter, aH to the continuing detriment of nearby residents, the Dunham's Bay WetJand, and the best interest of the Jake. The residents and the lGA have been forced to go to considerabJe time and expense to respond to these attempts to proJong this matter. We respectfully request that the ZBA put an end to it and reverse Mr. Hatin's February 1992 decision. RepJy to PreHminary Statement: Mr. Richards attacks the lGA for putting the Board in a situation of having to make JegaJ decisions, apparentJy on the theory that the Board is not quaJified to do so. The lGA has every confidence that the Board can make the right decision in this matter, with appropriate JegaJ advice if necessary. Mr. Richards aJso compJains that this case has degenerated into wastefuJ and time consuming sparring between Jawyers. He aJso caHs the case an abuse of the zoning process and a proceduraJ nightmare. I whoJeheartedJy agree with this characterization of the case. However, Mr. Richards may recaJJ that it was he who faiJed to properJy investigate his case when it first went before the ZBA in JuJy of 1989, thereby necessitating repeated attempts by him to re-open the ZBA' s originaJ decision. Had he done his job properJy in the first pJace, he couJd have presented his new evidence then and the entire matter couJd have been decided then and there. It may aJso be recaHed that it was Mr. Parillo who withdrew the appHcation for a variance in 1989 and has repeatedJy attempted to re-argue the issue of the grandfathering of the boat Jaunch rather than proceed with a normaJ variance appJication Jike any other Jandowner. Mr. Richards aJso seems to faiJ to recaJJ that rather than going before the ZBA for a rehearing in 1992, it was he who went behind the ZBA's back and the pubHc's back to get Mr. Hatin to vacate his originaJ decision. Mr. Richards aJso raises the issue of whether or not lGA shouJd be prepared to present evidence on the question of the boat Jaunch's aHeged use during the period in which it was abandoned. For the reasons outJined in mY Jetter of JuJy 1st, and as further set forth beJow, we beHeve that the Board's prior decision was finaJ on the issue and it may not be re-opened. Thus, it wouJd not be JegaJ for the Board to hear any such evidence at this Jate date. Even if it were proper for such evidence to be heard, the present appeaJ by the lGA is not the vehicJe for that. This appeaJ appHes strictJy to the JegaJ issue of whether Mr. Hatin had the authority to issue his February 20th, 1992 Jetter reversing his prior decision. The proper vehicJe for the hearing of new evidence, if any, wouJd have been for the ZBA to adopt a resoJution to rehear the matter of Mr. Richards originaJ 1989 appeaJ and scheduJe a hearing upon pubJic notice thereof. However, at the present time, under the current state of the Jaw, the ZBA cannot do this. The JegisJature has amended the Town law to take away the ZBA's power to unanimousJy vote to rehear or reverse itseH. However, if there is to be any rehearing of the facts, the lGA' s appeaJ is not the pJace to hear it. RepJy to anaJysis of the facts: Mr. Richards differs with Mr. West over what evidence Mr. Hatin heard at the December 1989 meeting of the ZBA. What Mr. Hatin heard or didn't hear that night, before making his statement, is irreJevant. As Mr. Richards himseH stated at that meeting, most of the evidence presented that night had previousJy been submitted by him at a prior ZBA meeting (12/27/89 ZBA Minutes Pages 6 & 7) Therefore, even though Mr. Hatin' s statement was made at the outset of the December meeting, none of the evidence presented that evening couJd have changed anything. RepJy to review of the arguments: The cases cited by Mr. Richards in support of his argument have no appJicabHity to the present situation. The case Jaw of the New York courts is quite cJearJy in lGA' s favor. As Mr. Richards recognizes in his Jetter, the 6 1992 Hatin decision was based upon new evidence supplied after June 1989. All of the cases he relies upon are based upon errors in interpreting the original application information. In each of them. the court upheld the authority of the City to revoke a building permit which had been illegally issued. Each of those cases was decided upon the evidence before the City at the time of the original decision. Unlike the Parillo case, they did not involve an effort by the applicant to introduce new evidence. More importantly, not one of them had involved the matter which had already been appealed to a ZBA and had been upheld by the ZBA. If there were any appeals in those cases, they came after the revocation. As set forth in my July 1st letter, an appeal to the ZBA takes away the building inspector's jurisdiction to change his mind, assuming that he had appropriate grounds to reverse the original decision in the first place. Furthermore, all of these cases involved the revocation of a building permit erroneously issued for what turned out to be an illegal use, permits which it was entirely outside the powers of the City to issue. The Parillo case involves a decision to allow an illegal use to go forward. Mr. Richards also cites Queensbury Code 179-110 that empowers a Zoning Administrator to issue Stop Work Orders for zoning violations. The Parillo case does not involve a Stop Work Order, and that Section is entirely irrelevant. Mr. Richards claims that none of the cases cited by lGA relate to a building inspector's decision, and that his client got no hearing. One of the cited cases did relate to a decision by a rent administrator. Administrative doctrines apply across the board, whether it be a matter of zoning rents, welfare and nursing homes. More importantly, there was a hearing conducted by the ZBA in July of 1989. At that time, Mr. Richards had every opportunity to present his case in any manner he chose. The lGA cited cases, including particularly the Jensen case, showed that the doctrine of res judicata clearly applies to cases where zoning boards of appeal have held hearings. It is rather odd that Mr. Richards states that there was no hearing when it was he who relied upon all types of procedural arguments regarding the nature of that hearing and the court case that went to the Appellate Division. The Appellate Division held that it was a validly conducted hearing. Furthermore, Mr. Richards ignores the legal authority cited by the lGA which show that once Mr. Richards and his client appealed the matter to the ZBA, this took it out of Mr. Hatin's hands. There is no doubt that the doctrine of res judicata, applies to ZBA determinations, as was held in the Jensen case. It is to be applied to the ZBA in the same manner as it is to be applied to a court. The doctrine is construed broadly so that once a matter is finally determined by the ZBA, it is a complete bar to further argument of the issues which were raised at that time, as well as any other issues which could have been raised at that time. Skylekillfield Corporation v. Nyeburg Realty Corporation 250 N.Y. 304, 306 1929. Thus, once the matter went before the ZBA, it was final. Finally, Mr. Richards complains that he did not receive my letter until July 6th. Enclosed is an affidavit of mailing which shows that it was mailed to him on July 1. If he had required additional time to make up for the post office delay, I would have gladly agreed to it." MR. TURNER-Do you have any response to this letter? MR. RICHARDS-I'd love to respond. MR. TURNER-I know you would now, but I mean, do you have a written response. MR. RICHARDS-MY understanding was I wasn't authorized to make any additional reply. MR. TURNER-All right. MR. DUSEK-Mr. Chairman, on those two letters that I just gave you, I don't, on some of mY correspondence here that was sent to me, I wrote little notes to myself. Are there notes on those by any chance? MRS. EGGLESTON-Yes, on the side. MR. TURNER-Yes. MR. DUSEK-I don't know that anybody can read them, but I was just wondering if Mr. Caffry and Mr. West, by any chance, had clean copies for the record. I'd rather have. MR. TURNER-Yes. MR. DUSEK-Actually, Tom, on yours there is nothing written. So, I have no problem leaving this with the ZBA, if that's all right with you. MR. TURNER-Okay. The next step I'll take is this, and I'll say to all three attorneys, I think this appeal that's before us tonight is not in the right jurisdiction, and I'll tell you why. The appeal, such Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of any ordinance, adopted pursuant to this Article. It shall also hear and decide all matters referred to or upon which it is required to pass under any such ordinance, and, Paul, you have a case there, case law. MR. DUSEK-Well, yes. Maybe I can give just a little bit of background. As I got into this, on behalf of the Zoning Board of Appeals, and started reading through all of these cases, and reading the memorandum, I kept thinking to myself, this is a heck of a legal issue for this Zoning Board of Appeals to decide, and in fact probably, I think it's Tom West's letter of July 1st says it. It says, this appeal only 7 involves the question of the legality of Mr. Hatin's unilateral reversal of his 1989 determination, and that thing kept ringing true to me, that's the issue in this case, can he do it or can't he do it, and there's arguments raised on both sides, which I don't want to comment on, those particular arguments at this point, and as I got to thinking about it, I went back to the Ordinance and I saw that it does say, as Mr. Turner just suggested, and it says it in the Old Ordinance as wen as the new one, that the Board of Appeals shall hear and decide appeals from, and then it says, and review any order, requirement, decision, or determination. So, they should be reviewing the order, requirement, determination, or decision. It does not authorize them in the law anywhere that I can see, to review his authority, as to whether or not he can or can't do something. There's a case in the case notes, in 267, Hilbert v. Haas 54 Misc.2d. 777, where a Zoning Board of Appeals had brought, it says, Town Zoning Board of Appeals has broad powers, but the ability to consider and determine an appeal based on the failure or refusal of a proper administrative official to respond to a request for an interpretive determination as to whether the use of a certain property as a marina constituted a nonconforming use was not within its powers, and its decision on that appeal constituted a nullity. So, the court in that case said that, the administrative official wouldn't decide, and then they carne to the ZBA. The court said the ZBA had no authority because there's nothing for you to review. You have to be rev1ewing a decision, an order, or whatever, and I guess as I thought about it more, it seemed to make sense because the Zoning Board typically, and if you read the cases and you look at everything that comes before them, they're constantly, basically, re-looking at the issues and the facts as they relate to the Zoning Ordinance, that have been reviewed by the Zoning Administrator, and the courtS give them deference, in many instances, because they're so familiar with the Zoning Ordinances of their own towns, but it's the facts, the Zoning Ordinance, they're looking at. I could not find any cases, right on point, where they actually had the authority to overturn, or to control the authority of the underlying individual. In fact, the case that I mentioned to you, it seems to indicate just the opposite, and nObody seems to have addressed that issue, as I can tell directly in any of the papers, but it just seems to me that the proper resolution would be to challenge Mr. Hatin by way of an Article 78 in court. MR. TURNER-Yes. MR. WEST-I'd like to preface my comments by saying that I hope this legal issue doesn't lead us back to court over this issue that pops up at the last minute, which is very similar to what happened the last time. In terms of the language of the Ordinance itself, I think it's clear that you have the power to review decisions from administrators and administrative officials in the Town. It's clear that what Mr. Hatin did in February of this year was render a decision, which as we've noted in our extensive correspondence, was affirmed by this Board on at least two occasions. I think the case that you referred to, from what I heard you say about it, stands for the proposition that if an administrative official refuses to act, that you can't take an appeal to force an administrative official to do something which is discretionary in the first instance, and that's very similar to the doctrine of the law that says that enforcement is highly discretionary, and you can't go to court to force a police officer to write a traffic ticket for somebody because you saw him going 55 in the 30 mile an hour speed zone. That kind of enforcement activity is discretionary. Rendering interpretations of the Ordinance is discretionary, and I would agree with that case, that you can't go to the Zoning Board of Appeals to force an administrative official to do a discretionary action, but it's clear that when the Town law and your own Ordinance empowers you to review decisions of administrative officials, such as Mr. Hatin in this case, that with that power is the right to review all aspects of that decision, including the legality of it, and so I think the legality of Mr. Hatin's decision is squarely before this Board and should be decided, one way or another, so that if we have to go to court, it's not just for the purpose of sending it back to this Board to decide the legalities, and then maybe we have to go to court again. What I'm saying is lets be pragmatic, decide the legal issue that's been presented to you. I agree with Mr. Caffry. You are capable of doing that, with the assistance of counsel, and lets see where we are. MR. TURNER-Mr. Caffry. MR. CAFFRY-Again, to review what Tom said, I wish that Paul could have brought this point up with us before hand so we could have read this case and seen what it said and seen if we agree with him or not, but from what he says, I don't think it applies here, for the reasons that Tom said. We certainly did consider, when we first became aware of Mr. Hatin's decision, do we run right to court to challenge it, or do we go to the Board of Appeals, and the Ordinance says you have to appeal a decision of the Zoning Administrator to the Board of Appeals. So, that's the route we took. If we had just sued Mr. Hatin, Mr. Dusek would have gone before the judge and said, they didn't exhaust their administrative remedies by appealing this to the Board, and the judge would have thrown it back here anyway. So, I really think it ~ up to this Board to decide this, one way or the other, whether or not Mr. Hatin's decision was correct, and we say it wasn't, basically, because he was bound by the decision that this Board made in July of '89. Once it was appealed by Mr. Richards to this Board, it was out of Mr. Hatin's hands. at that point. I also say the Board really has to look at the practical effect of this. You can't just have applicants coming back again, and again, and again. These things have to have some finality to it, and they've already had several shots at it. You reany have look at, do you want to encourage this kind of thing, and that's the whole reason that the courts have the doctrine of Res Judicata. They don't want to keep hearing cases over and over again either. So, we'd just ask you to pass a resolution overturning Mr. Hatin's decision, and lets put end to this thing. 8 MR. TURNER-Okay. Mr. Richards. MR. RICHARDS-I don't want to start discussing some of these issues on the sur repHes, strictlY on what Paul raised. like John and Tom, I haven't seen this case, recentlY, to review it, so I can't reany comment on that specific case. I can say that one of the reasons we're having such a problem, everyone finding authority on this, is that, in my opinion, the right of a building inspector to correct a problem or issue another letter is presumed, and what the statute provides for doesn't question his legal right to do it, but it does anow someone, 'like the lGA in this case, perhaps, who questions the merits of what he's done, to appeal that to the Board. I said that in.!!!l. letter, that you're being asked to make a legal decision that you shouldn't have to make, and that the proper forum is an evidenciary hearing before this Board, because their right is presumed. MR. DUSEK-Wen, I can't comment any more than what I just did earlier. I mean, the counsel for the other parties have indicated that they feel differentlY on the issue. It seems to me that there are a number of ways tnat the Board could proceed at this point. One, you could agree that you don't have jurisdiction, and that would be the end of that. Two, you could give the parties, in an attempt to avoid what has been indicated, I think, and what the counsel has said, potential for further litigation, perhaps, and I hate to impose on the Board, but perhaps another week or two adjournment where this issue could be dug into a Httle further might yield an answer that this thing could be disposed of, in terms of whether there is anything to be said on that point. The last option, of course, is to go right to the merits of the, wen, actuany, there's four options. The third option is to go right to the merits of the lega'lity issue and did the Zoning Administrator have the right to change his decision or not, and then the last option, of course, is to get into the fun blown merits of the decision that was made by the Zoning Administrator. If I understand Mr. West and Mr. Caffry correctlY, though, they're position would be that you don't get into that fourth step until such time as you resolve the first question, and that is whether or not he could do what he did, because if you say that he could not decide this case, for whatever reason, that he could not have issued this decision, and there are a number of potential reasons you could give for saying that he had no authority. On the other hand, there's a number of reasons you could give to say he had some authority, but if you answered that first question and say, for instance, he did not have any authority, wen then that, obviouslY, would put an end to this. If you said he did have authority, then you'd have to go on to the second stage of the hearing and finish off the rest of the case, in terms of reviewing that entire decision. Those, are, as I see it, the options. I am troubled, as I indicated in the beginning, here, that I think the Board is being asked to get into legal areas of !!! judicata, and things that attorneys and judges read a lOt of case law and, I mean, have a lOt of legal training, and it just seems to me that, I just wonder if that's the right way to go, but that's, in the first instance, that'll be your decision, of course. MRS. EGGLESTON-Can I ask you a question, Paul? In this, where you cited this Number Two, the first sentence is, and I'm just trying to understand your theory, here. I'm not disputing you. I'm trying to understand it. Such Board of Appeals shall hear and decide appeals. Does that not make a decision, on what your? I know there's more to the sentence, but does not that first part say, such Board of Appeals shall hear and decide appeals. Does that not mean, make a decision? MR. DUSEK-Well, I think you can decide an appeal by determining whether or not you have any jurisdiction to decide it to begin with, and that's a decision. MRS. EGGLESTON-Okay. Then I' n go a 'little further. It goes into what the vote must be, if we were to reverse any decision, requirement, order, or determination. If it didn't mean you could do that, why does it go into that explanation of what vote would be necessary in order to do it? MR. DUSEK-Wen, there's no question, I think, that you can actuany review the decision itself and decide whether or not you agree that they can, in fact, have a boat launch there or not have a boat launch, but that's not what the attorneys are asking you to do. They're saying, don't do that. Decide, in the first instance, the legal issue of whether Mr. Hatin can do what he did. They don't want to get into the actual decision itself. MRS. EGGLESTON-Yes, but in this case the appeal regards the bui'lding inspector. It doesn't regard whether the boat launch is in use or not. MR. DUSEK-Right. MRS. EGGLESTON-The appeal is regarding the building inspector. MR. DUSEK-His authority, that's correct. MRS. EGGLESTON-So, that's what you're dealing with when it says, you shall hear and decide the appeal, and then the concurring vote, it teHs how many you have to have if you were to reverse any of this certain appeal that we're now talking about. 9 MR. DUSEK-I guess, I' n expla in how 1 see that. I read what you, exactly agree with you. I mean, it obviously canes before you, and it says, you shan hear and decide the appeals, but then it goes on to ten you what kind of appea1s you'n hear from, and then it says, and, which means you've got to do both of these. So, not on1y do you hear appeals from, but you also have to, and review any order. So, it's the order that you're reviewing, the requirement, the decision, or the determination made. It doesn't say that you review his authority. MRS. EGGLESTON-So, you're saying the word "authority" would have to be there in order for that. MR. DUSEK-To have the jurisdiction to do the review. Otherwise, I mean, where does your authority end, if it's not expressly described in the statute, and I would think that the Board can only do what it's authorized to do in the law. MRS. EGGLESTON-Yes, wen, see I'm not an attorney. That's why I asked you this question. Thank you, Paul. MR. TURNER-Fred, do you have any? MR. CARVIN-Not at this point. MR. TURNER-Charlie, any questions? MR. SICARD-No. MR. TURNER-Mr. Caffry, do you want to, just briefly, if you win. MR. CAFFRY-I don't read, in the Statute, any limitation upon the reasons the Board can apply to reverse a decision. It could be for lack of authority. It could be from this interpretation of the Ordinance. It could be on actual issues. I don't see that the Board has no jurisdiction to apply that, and for the reasons Tan said, the case that Paul is talking about doesn't seem to reany apply here, as to enforcing Mr. Hatin to do sanething he doesn't want to do, as opposed to reversing a decision he's already made, and again, ~'d reany just rather have a decision on the merits of our appeal, here, because if we did wind up in court on it, and if you ruled you have no authority to do anything, and we have to go through court on that, the judge is just going to send it back, and you're going to have to make a decision on the merits anyway, and it just would save everybody a lot of trouble, if we had a decision on the merits here tonight. MR. DUSEK-The only thing I should comment on, what Mr. Caffry just said, and that is that, if, in fact, they're right, that the issue should be decided by the Board, this legal question in the first instance, then he's right. It would be nothing more than going to court and coming back again, because the court would say, you should have done that, and that's if he's right. If l:.!!!. right, however, the court win say, no, it doesn't go back to the ZBA. The court win make the decision as to whether or not there is any jurisdiction of Mr. Hatin to do what he did, or any authority for him to do what he did. So, it's not necessarily a foregone conclusion that we're going to run the loop. It depends on whether or not the court agrees with what I've just indicated, or what Mr. Caffry and Mr. West are indicating, which, I'n ten you, this is a very complicated case. It's very involved, and that's why I think, as part of my initial recommendation, and I realize this is hitting these counse1s cold tonight on this point, it seemS to me in everyone's interest to avoid the potential of litigation, to have the issue researched to see if we can come to any kind of legal conclusions. I noticed that John and Tom don't seem to want to do that, but I think it saves everybody a lot of time and money if we do check this thing out, if you guys feel that strongly about it, that it's not correct. I'm not adverse to looking at further authority. I did the best that I could in researching this thing out and trying to find what I think is the right answer and right advice to the Board. However, there could be other authority out there. There could be another point that's being missed, and I think it certainly behooves everyone to try to get to the right answer in this case, because otherwise we do keep going through the loops of the litigation system, and I think that it's certainly worthwhile to try to avoid that. MR. CAFFRY-Whatever research I would do, I would not change mY opinion, that I'm not going to find anything to change my opinion. It's the Board's job to interpret the Ordinance, to interpret the law on legal issues, as they apply from building inspector, or whatever his title is at the moment, and that runs the whole gamut. I don't see any limitation from the Statute as to what issues, in effect, the Board is acting as a court, here. They're an Appellate Court from Mr. Hatin, and there's no reason that they can't address this issue, one way or the other, on the merits of whether or not he should have done what he did. MR. WEST-Yes, Paul, I certainly don't want to not do something, if you think it's necessary, but I just can't see where it's necessary. I think it's such a straightforward issue. Mrs. Eggleston has read the Ordinance. It gives them the power to act as an Appellate Tribunal to review what happened below. That gives them the power to decide whether or not there were errors of law or errors in fact. That's part of the Appellate process, only where the Statute very narrow1y limits an Appellate Board, such as the jurisdiction of the Court of Appea1s, for example. Does an Appellate Tribunal have limitations 10 on it as to what it can do, and in your recitation of what that case inv01ved, I don't remember the name of it, but I've got the citation written down, it just, it dea1s with forcing somebody to do something that's discretionary, which is totany different from the facts at hand. Here we have a determination by the Zoning/BuHding Administrator that there was not a cessation or abandonment of a nonconforming use. He made that after 1engthy, 1engthy proceedings that have been reviewed ad nauseum before this Board on many, many occasions, and to say now that they can't decide whether or not, whi1e that matter was pending before them, it was Iega1 for Mr. Hatin to go back and re-decide that, is to Hmit administrative proceedings and administrative appeaIs beyond what's been known in any bOdy of Iaw. I mean, if we say the DEC Commissioner cou1dn't decide issues of 1aw on Staff decisions, it wouId say, the Department of Taxation and Finance couIdn't on appeaIs. I mean, that's just unheard of in administrative practice. MR. DUSEK-We1I, insofar as those matters of Iaw re1ate to the Ordinance and to the app1ication of Iaw, in terms of, Iike, proving an area variance, or proving a use variance. That makes aII together sense. They wouId review the items of 1aw, but here you're asking them to actuaI1y review whether or not another pubHc officiaI has authority to do what he did, and it just doesn't seem to fan within the gambit of they normany do. If you 100k through the cases, I don't see anything there, in terms of, this ~ of situation arising, where they have actuany reviewed the authority. In fact if, 1ike I say, the one case that I find here Iooks Iike they backed away from it, and they actua1Iy cited in the case, they refer to the fact that that's what the Ordinance gives them the power to do, and it says they're without that power in that case. MR. WEST-Wen, but there was reviewing it non decision, a refusa1 to give an interpretation. Here there is an appeaI from an actua1 decision. MR. DUSEK-And we're not reviewing the decision, but rather chanenging the authority of the individuaI who made the decision. MR. WEST-Yes, we are. We're saying the decision is iIIegaI because of a11 of the principaIs that have decided, some of which go to his authority, some of which go to the continuing power of this Board. The Town law provides that whi1e that matter is pending before this Board, the administrative officia1s beIow it are stayed from hearing the matter further and taking further actions. That reIates to the powers of this Board. I don't want to review an the arguments again, and if the Board directs that we submit something further on this issue, we, of course, win comp1y with the Board's directive, but to me it is so cIear, that you have the authority to decide the IegaI issues before you, that I don't think that's necessary. MRS. EGGLESTON-What's so confusing is one of you uses Dave Hatin's, what he did, one of you uses the word "decision", which does fan into this category, and one of you uses the word "authority" which isn't specificaIIy written here. MR. CAFFRY-He made a written decision, on February 20th. The question is, was that a vaHd decision, and I think the Board has the authority to hear an appeaI from that. If we'd been given a chance to meet with Mr. Hatin February 20th, if this wasn't done in secret, we wou1d have presented the arguments to him at the time. He wouId have said, no, I disagree, and we wou1d have appealed to you. We never had that opportunity to present that argument to him at the time, so it's come to you in this fashion, but I think it's within the Board's authority to hear an appeaI, in that the Town law, State Town law has no Hmitation on the issues, or the reasons why you can reverse. I just think it wouId save everybody a 10t of time if we had a decision on the merits, rather than passing it aIong, and if Mr. Richards or Mr. Dusek feeIs that it shouIdn't have been, then they can bring that up in court as one of the issues, if they want to go to court. We just think this thing's gone on a 10ng time, and we'd just Iike to get it over with. MR. TURNER-Wen, it's certainIy gone on a 10ng time, but I think, even though it has, at this point in time, one more stay of this thing, untiI this researched and we get some fina1ity to this, is not going to hurt anybody, and I wou1d move to tab1e it unti1 Mr. Dusek has a chance to research Mr. West, Mr. Richards, and Mr. Caffry, in respect to what we just were taIking about, and the particu1ar case is cited, or some other cases which might determine our position in respect to this matter. MR. WEST-If you're going to decide that way, Mr. Turner, can I suggest that Mr. Dusek put his position in writing, and that we be given an opportunity to rep1y to that, so that we at 1east know what we're taIking about, what we're shooting at? MR. TURNER-The motion win estab1ish the fact that Mr. Dusek win put his remarks in writing, forward them to the attorneys inv01ved for their review and their response. 'lITION THAT MR. DUSEK WILL PUT HIS REMRKS IN WRITING, FORIfARD TlEM TO TIE ATTORNEYS INVOLVED, FOR THEIR REVIEW AND THEIR RESPONSE, Introduced by Theodore Turner who moved for its adoption, seconded by Joyce EggIeston: DuIy adopted this 29th day of JuIy, 1992, by the f0110wing vote: MR. CARVIN-This is just a motion to tab1e? 11 MR. TURNER-Just to table, until we get a determination. MR. CARVIN-Okay, and this is to determine whether we have the authority to render a decision in this case? MR. TURNER-Yes. AYES: Mr. Carvin, Mrs. Eggleston, Mrs. Paling, Mr. Sicard, Mr. Turner NOES: NONE MR. WEST-What is the adjourned date, Mr. Turner? MR. TURNER-I think we're going to have to, what do you think, Paul? MR. DUSEK-Wen, I can certainly, my position, I've stated it, and it's easy enough to put it into writing. Today is Wednesday, well, maybe to make it easy, so we work in round numbers, what if I had it done within the week, and then they, in turn, responded within a week? Is that reasonable, a week from now? MR. WEST-You're talking about, your letter would be due on the 5th, and ours would be due on the 12th? MR. CAFFRY-I'm going to be out the week of the. MR. DUSEK-When would the Board be looking at another potential meeting on this, in any event? MR. TURNER-I guess we're going to have to see what the schedule for this han is, first. The Town Board has a meeting the first Monday, right? MR. DUSEK-Right. MR. TURNER-And third Monday's. How about the 12th? That would be a Wednesday, August the 12th. MR. DUSEK-I think that's the week Mr. Caffry said he's going to be out? MR. CAFFRY-Yes. MR. TURNER-You're going to be away. MR. CAFFRY-So" I'm really 100king at the 21st or whatever. MR. DUSEK-The 19th is the regular scheduled Board meeting. MR. TURNER-Yes. That's the third Wednesday of the month. The 26th? MR. CAFFRY-How about if you do something by next Wednesday, and we did something by. MR. RICHARDS-Mr. Chairman, I had two days to respond to mine. MR. TURNER-Paul, can we get it done so we can meet the 5th? MR. DUSEK-You want to meet on August 5th? MR. TURNER-Yes. MR. DUSEK-That would be one week from now. MR. TURNER-Yes. MR. DUSEK-If you want, rearrange a few things, I should be able to get something out by Friday afternoon, late. MR. CARVIN-Well, let me ask you this, Ted. If, in an the research, that it's discovered that we do not have the abi1ity or the authority to hear this, would that prec1ude the reason for the meeting? Do you know what I'm saying? MRS. PALING-Yes. There'd be no reason. MR. CARVIN-I'm just saying that if, an you guys going through your legal books and what not come up and find out that we do not have the authority, why have a meeting? 12 MR. DUSEK-Weìì, I think if the counseì aìì agreed, I don't think there'd be any need for a meeting. MR. CARVIN-Weìì, I think that if it is determined that it is within our rights to hear this, then I think that you shouìd get a hoìd of us and then we can scheduìe a meeting. MRS. EGGLESTON-You mean agreement by alì of the parties combined? MR. CARVIN-Yes. MR. TURNER-Yes. MRS. EGGLESTON-That's not going to happen. MR. CARVIN-Well, if it comes back that we have no authority in this particular case, then I think you're just. MR. TURNER-There's no point. MR. CAFFRY-I can research it, but I'm positive you do. MR. CARVIN-Weìì, you're positive we do, and the other side's positive that we don't. I mean, because I don't mind coming here every Wednesday untiì the cows come home, but I mean, I agree that this thing has gone on. I was not privy and part of the '89 decision, and certainly had very Jittìe input in the '92 decision, but I'm ìooking at the stack of paper, here, getting higher and higher, and it seems to me that we're just batting this thing back and forth, over a lot of ItechnicaJities". MR. CAFFRY-Pauì, if you get me something by Monday, I can respond by Friday, and then we can go on the next regular scheduled Board meeting. MR. CARVIN-Yes. I mean, if you guys can determine among yourselves that we do have the power, and then we can set it up for the 5th, but to come back on the 5th and find out that we don't have, and then we go through this whoìe rigmaroìe. MR. DUSEK-Welì, I think they're looking at a potentiaì, not for the 5th, if John needs untiì the Friday of the 7th. They'd be looking at the 19th Board meeting. Wouìd that be aìì right with everybody? You wouìd normalìy be here anyway. MR. TURNER-What's our scheduìe? MRS. EGGLESTON-Yes, what does our scheduìe ìook like, Bob? MR. PARISI-It's pretty light. MR. TURNER-light? How ìight? MR. TURNER-There are just three or four items. It ìooks Jike it couìd have aìì fit, I think, on one meeting, probabìy, or we could put everything we have now on the third Wednesday, or vice versa, or you can do this on the third Wednesday and put everyone that has a regular application on the fourth. MRS. EGGLESTON-Not untiì twenty after twelve again, like ìast week. MR. PARISI-Exactìy. MRS. EGGLESTON-Okay. MR. CARVIN-Weìì, I'm counting about four or five tabled cases from a coupìe of things. I mean, is that primariìy the thing, or are these new cases that are coming in? MR. PARISI-There are a coupìe of new cases. Some of the tabìed items haven't come back to us yet. MR. WEST-Wouìd it be fair to say that the only thing you're going to do is reaììy decide, A, the legal issue of whether or not you can decide this, and then B, if you decide you ~ decide this, decide the legal issues that are before you? MR. TURNER-Yes. Right. MR. WEST-That's only a decision. It doesn't need any more comments by the lawyers or public. MR. DUSEK-Yes, I think that's a good point that once we get by this issue that I've raised this evening, if that were gotten by, or if it isn't, actuaììy. Ifit isn't, it's going to be a very easy decision, if you agree, and it's not going to take a whole ìot of time. On the other hand, even if it turns out that you shouìd go ahead, or you want to go ahead, everybody's aìready given everything there is 13 to give, I think, on the other issue of the authority question, and so it' n just be a matter, that night, of deciding that, as your counsel taIking it over with you, and reviewing the points, and I think that, I don't think it would be that bad of a session, I guess. That's what mY reaction is, either way. MR. CARVIN-Okay. So, if it is decided that we have the authority to hear this, then the only decision that we win render, and barring any new input, is whether Mr. Hatin was in his right to make that Ietter of February? MR. DUSEK-That would be my thought, and then at that point, though, once you make that decision, that'll determine whether there' n be any further proceedings. MR. CARVIN-It's back in their court, and they can figure out which way they want to go with it. I've got no problem with that, as Iong as we don't Iet this thing keep Ieading on. MR. TURNER-Is the 19th all right, the 19th, our regular meeting? MR. WEST-If I understand it, Paul, you're going to get your Ietter out by 8/3? MR. DUSEK-I'n have it, if you'l1 take a fax, I'll have it faxed to you no Iater than the afternoon of 8/3. MR. WEST-AII right, and the private parties have to respond by 8/7, the end of that week? MR. CAFFRY-I would think that John Richards could do the same thing, because we're basicany al1 responding to Paul. MR. WEST-That's what I mean. When I say private parties, I mean, John and John and Tom. MR. RICHARDS-Okay. So, 8/7, the three of us have to submit whatever we're going to submit? MR. TURNER-Yes, 8/7. MR. RICHARDS-Okay. MR. DUSEK-Maybe I should just add, if necessary, maybe I should pIan to get a response out, because it could be that whatever you guys put in those memos may cause me to rethink things, so if that's the case, I'd Ii ke a chance to get a responding memo out ahead of time so everybody knows where I'm at at that point. MR. TURNER-AII right. MR. DUSEK-How about if I get it out by the 12th, and that way everybody has everything one week in advance of the 19th? MR. CARVIN-Yes, I'd Iike to make sure that we get copies before we come in on the 19th. MR. TURNER-Yes. MR. CARVIN-So that we don't waste time. MR. DUSEK-I would propose that counsel provide copies of their respective Ietters and responses directly to the Planning Office so the PIanning Office, in turn, can make sure they get to the Board. For instance, tonight, I'm not sure what happened on those two Ietters, except that if you sent them to .!!!l. office and you expected me to distribute them, that wouldn't have happened, because I thought they were mine. Rather than tie up the Board, I can go over that with you afterward, but I just wanted to caution you as to, I didn't perceive to be in the job of distributing the Ietters, and it might be better to. MR. WEST-Why don't you just c1arify what the fax number is for the Board, and for you. Maybe that's the problem. MR. DUSEK-Okay. Wen, I' n go over that with counsel, rather than tie the Board up, but I just thought I'd mention that. I think if everybody, though, gets their Ietters directly to the Board, you '11 be sure to have them at the same time we an have them, and then also you '11 have them no Iater than one week before the 19th. MR. WEST-Paul, could you just put in your Ietter where we can send them, the fax numbers and all that stuff? MR. DUSEK-Yes. MR. TURNER-Okay. We're all set. 14 ~ '- USE VARIANCE NO. 77-1992 TYPE: UNLISTED SFR-lA KAREN & RICHARD CUNNINGHAM HAIR DESIGNS OWNER: SAtE AS ABOVE 371 RIDGE R(MD ADDING 4 TO 5 PARKING SPACES. TAX M\P NO. 109-1-5 LOT SIZE: 60 FT. BY 200 FT. SECTION 179-790 KAREN & RICHARD CUNNINGHAM, PRESENT MRS. EGGLESTON-And I'll put on the record that we are rereading this application because it's revised from the original appHcation of a week ago. At our meeting of July 22nd, the original appHcation was tabled so that the appHcant could bring in copies of EarHown Ietter for our fiJe, and to come back with more information as to the scale used, the parking Iayout, the use of the vehicles, and more instructions. MR. PARISI-Excuse me. Can I make a comment at this point? MR. TURNER-Yes. MR. PARISI-After the meeting Iast week, I Iooked at this personally and I went to the site, and the pIan that's being promulgated by the appHcants now is really a resuH of a mitigation that I took part in, sort of on behaH of everyone. I want you to know, essentially, that the proposa1 would eHminate any parking in the EarHown right-of-way. The employee parking that's being proposed is going to go in an area which is going to remain permeable. There isn't going to be any pavement, and it's going to be in an area where there are only going to be employees parking there. There's going to be, essentially, a chain put up, a Httle sign that says employee parking only, so that they'll be coming and going, essentially, once a day. So that the customers are not going to be spilling over a Iong the right-of-way and Ridge Road. and into the EarHown property, which was the concern that was raised. As far as access, pulling out of this proposed area where they want to park, keep in mind that it's not going to be accessible to the pubHc. It's only going to be a place for their employees to pull in, park and Ieave their car there, essentially, for the day. When the day is over and the parking Iot is empty, that's when they're going to pull out. So, they really will have access because it's going to be kept away from the pubHc, just so that the pub1ic parking is Ieft open, the eight spaces that currently exist in the front. I just wanted to clarify that. MR. TURNER-Are they going to park parallel to the property line? MR. PARISI-Yes, I believe they're going to be parking parallel to it. MR. CUNNINGHAM-North and south. MR. TURNER-North and south. MR. PARISI-Okay, the applicants are also aware that if this creates a problem for the building in their rear Iot, that's essentially a separate issue which may resuH, and they're aware of this, in that building not being rentable. MR. TURNER-Right. Okay. Would you care to make some comments? MR. CUNNINGHAM-First of all, we'd Iike to present the copy of the Ietter from Earltown. MR. TURNER-Okay. Yes. We read that into the record the Iast time. MR. CARVIN-Could I ask you a couple of questions? All right, I'm Iooking at the original map that you submitted. How many parking spaces are in the front currently? MRS. CUNNINGHAM-I would say eight, comfortably. MR. CARVIN-Okay. Are they Iined at this point? MRS. CUNNINGHAM-No. We are going to do that, because of this, we feel that we have to do that. MR. CARVIN-Okay. So, of the eight, approximately four of them are normally occupied by employees? Is that a fair assessment? MRS. CUNNINGHAM-Yes, approximately. MR. CARVIN-Okay. Now, the access to the rental unit, is that via a driveway? MRS. CUNNINGHAM-That's a driveway also owned by Earltown. MR. CARVIN-This here? In other words, I just want to make sure I understand. I was going to go out and Iook at the property because I thought I had some time on this. MR. CUNNINGHAM-This is, primarily, just our Iot here. 15 r '] MR. CARVIN-Okay, but the garagei! on your property, is that correct? MR. CUNNINGHAM-Right after our property 1ine starts Ear1town'sproperty. There's approximate1y, probab1y a good five to six feet, then the driveway comes down through and it circ1es into this garage to the back. MR. CARVIN-Okay. So, the doors to the garage are on this side? MR. CUNNINGHAM-Right. MR. CARVIN-Facing the Ear1town property? MR. CUNNINGHAM-Right. MR. CARVIN-So this, current1y, is a11 grass, is it? MR. CUNNINGHAM-Yes, it is. MR. CARVIN-Okay. Do you have a right-of-way? MR. CUNNINGHAM-At our variance meeting, upon buying this property, we were quoted that this driveway was grandfathered to the property. MR. CARVIN-Okay. So, in other words, you wou1d sti11, you wou1d have access to? MR. CUNNINGHAM-At this point, I reany don't know where our 1ega1 standings are, as far as, if you're ta1king a deeded right-of-way or? MR. CARVIN-Wen, I guess, I mean, if the garage doors are facing this way. For some reason, I thought Ear1town was back here. MR. CUNNINGHAM-No, actuany they own a sixty foot easement going between Mrs. Chartier's property and our property. MR. CARVIN-Okay. So you have rough1y eight spaces in the front here, and how many spaces are you intending to put up? MR. CUNNINGHAM-We're proposing four to five in through here. We have a 56 foot 1ength. MR. CARVIN-Okay. How wou1d you access it, again through this way? MR. CUNNINGHAM-No, actuany the emp10yees win come through onto our parking 10t through here, and pu11 in going from north to south. MR. CARVIN-Okay. Has any thought been given to putting four spaces behind? MR. CUNNINGHAM-Yes, that was our origina1 proposa1 we had. David Hatin had Pat Crayford come to the site, and because there's on1y a 20 foot space between the two buHdings, David quoted that it wou1d be a fire code safety, I guess, or something, you must have 40 feet between the two bui1dings? MR. TURNER-Yes. MR. CARVIN-We11, we're not moving the bui1dings, right? MR. CUNNINGHAM-No, we're not. MR. CARVIN-So, what difference does it make. You're going to have to have an access road in here, right? MR. CUNNINGHAM-Wen, basicany, it's not going to be an access road. This is going to be an parking area. MR. CARVIN-We11, what I'm saying is you've got, what, 26 feet to the property 1ine? MR. CUNNINGHAM-That's correct. MR. CARVIN-Okay, and how wide, I mean, the car spaces have got to take up at 1east 12 to 15 of that, right? MR. CUNNINGHAM-Right. So, what we propose is they wou1d come in and pun in. The parking 10t wou1d be basicany empty when they enter work. Then when they 1eave work, again, the parking 10t win be basica11yempty. So, what they'11 do is they'11 back out and come out and face the traffic. 16 MRS. EGGLESTON-Through here? MR. CUNNINGHAM-Through the existing parking lot. MRS. EGGLESTON-But didn't he say there's going to be a chained fence here? MR. CARVIN-Here. MRS. EGGLESTON-But, what, you'H take it down to go in and out? MR. CUNNINGHAM-Exactly. MR. TURNER-Yes. When they go in there and park they're going to have to take the chain off and unhook it and go in and park their vehicle and come back. MR. CUNNINGHAM-And come back, and basicany they'd have to come around the front to enter the salon anyway. MR. CARVIN-But there is at least 20 feet between the house and the garage here? MR. CUNNINGHAM-That's correct. MR. CARVIN-An right, but it would be conceivable to put an access road of eight or ten feet up along the side here, and then create a parking area in the back for four cars? MR. CUNNINGHAM-LeH, that was our first proposal, but we were guided to use this parcel of land here. MRS. EGGLESTON-By? MR. C~NINGHAM-By David and Pat. MR. CARVIN-See, because I don't want to deprive you of the front parking. MR. CUNNINGHAM-le'd just as soon use this, because therefore we are using the back of our property, nobody has to look at. MR. CARVIN-IeH, also, I think if people see, I don't care about a fence or roadblock or whatever. My guess is that if people see four or five parking spaces, and you've got people that are off that day, that you're going to have customer parking up through here. To be very honest with you, I have a problem with this in a residential area. In other words, you're expanding a nonconforming use. I would like to try to minimize the actual parking area, because when and if your shop should perish, it goes back to a residential area, and therefore, I'd hate to see a big area like this covered with blacktop. MR. CUNNINGHAM-No, it would not be covered with blacktop. What we propose is putting stone in here, and then if we ever do decide to sell or return it to residential, then you bring in some fill and. MR. CARVIN-My personal feeling is I'd like to try to keep as much of this as residentiaL in other words, lawn, and if you had a small access to the area in the back here, it would be better. MR. CUNNINGHAM-Again, we're proposing this on the suggestion of Queensbury Officials here. We proposed the uses in the back. As far as something coming up in the future, as far as, and thi ngs di dn' t work out. MR. CARVIN-I was going to say, have this swing in. MR. CUNNINGHAM-Change the building over to this side. MRS. CUNNINGHAM-He just made a suggestion, Robert, the man. He said this will already be in effect. People come in, this will already be a driveway. They could just follow and park right there. There's no need to use this anymore. This alleviates all the problem. He could just drive in. MR. CARVIN-See, my problem is I have a real problem, businesses tend to expand, which is good, and your business has grown considerably over the years. Wen, this is in a residential area, and your variance, at this point, is only on the life of your business. So that, if your business should go out of business or you should move, that this reverts back to a residential area, and if we keep expanding, 1 feel, if we keep expanding nonconforming uses by putting another five or six parking slots up the side, it would probably lead to one of two things, either more employees or more customers. MRS. CUNNINGHAM-Ie can't have more employees, because we only have four stations, and there's no more room in our building. As far as more customers, the problem isn't our customers. The problem is the 17 neighbor next door who is concerned, now, about too mëtny cars, and this was her original property. She was not concerned with this issue when she sold the property. She did not care, and never said, wen, I'd only 1ike six cars. Now, that there was no taIk to us. I think that should have been an issue at the time. If everyone knows businesses expand, why wasn't it said, this is the mëtximum you wiII get. Don't go beyond this. It's gotten beyond this, and now we're stuck with the problem. MR. CARVIN-Yes. I don't want to re-open an issue that probably should have been addressed when this variance was granted. As I sai d, I don't want to deprive anybody. I know where you're coming from, I guess, is what I'm trying to say. MRS. CUNNINGHAM-We can't now mëtke a statement to our customers and say, now, we'd 1i ke 25 percent of you people to go away. MR. CARVIN-Wen, I aIso am Iooking at the safety issue. I mean, obviously, if you can free up three or four or five parking spots up front, it wiII more profitabTe to your business. MRS. CUNNINGHAM-Right, and as far as the driveway, I don't want my tenants to use this backyard. I think this is ridicuIous. Mrs. Chartier used that driveway for years, and no one complained. Just because she is the type of person she is, now we have to have even our tenants, I mean, this is ridicuIous. MR. CARVIN-Now when you say driveway, which driveway are we referring to? MRS. CUNNINGHAM-When you went onto the driveway issue of where the tenants were going to park, that's a whole separate issue that Mrs. Chartier opened up here, Iast week, which has nothing to do with this situation. She's gone on to something e Ise to just confuse us and add more scare in everyone's mind, that, oh dear, dear we've got another prob Iem. She'11 probab Ty think of one after that. So, once we do solve these two problems, there wiII be more. I mean, unfortunately, you'll know us weII. MR. PARISI-Excuse me. If I might just point something out, it would be possible, with the way the Iot is configured, even after we put in the empIoyee parking, which won't be paved, by the way. It'll stin remëtin permeabIe. It mëty sti11 be possible to have a driveway which goes right up between the beauty shop and the house, right up the middIe of the Iot. I think that's very possibIe. A1so, I don't see what in the Zoning Ordinance would precIude them from doing it, even now. I don't think they need a variance to do that. MR. TURNER-To park in the back, you mean? MR. PARISI-Yes, without using EarItown's, coming right up the center. MR. CARVIN-WeII, no, I don't think they have to go through EarItown. MR. PARISI-ExactIy. MR. CARVIN-What I'm driving at is that the parking Iot, and again, I have not Iooked at the property, because this, obviously, has been pushed up on the docket, but it would seem to me, and maybe you can correct me if I'm wrong, but the automobiTes would be more out of sight behind the buiIding than aIong the side of it. In other words, what I'm trying to prevent, I guess, is, if we have, I don't care if it's paved or crushed stone. If we have a Iarge parking arM on the side, eventua11y that wi11 become fiIIed with customer cars. MR. PARISI-Okay. I'll te11 you why I don't think so, and I don't have an axe to grind in this. I've driven by this shop severaI times since the issue was raised, and each time I've driven by, they've been fun to capacity. So that they either practica11y had cars in the right-of-way, or the parking Iot was completely fu11. So, this is not an expansion. If they can't park on Ear1town which, admittedIy, they probably can't, there is the inevitabIe probIem of a pub1ic safety hazard here. My thinking here is to remove the pubIic safety hazard simpIy by a110wing their empIoyees only to park adjacent to the beauty shop, with a chain, with a TittIe sign, and have those eight spots that are aIready presentIy paved in the front, be for customers only. As I'm saying, they're aIready over 100 percent, it Iooks to me, as far as parking right now. So we have to deaI with that, one way or another, I think. I don't think this constitutes an expansion. I think the business is the way it is, and it's up to us to do something that wiTT, Iets say, mitigate this in the form of a pubIic safety consideration. MR. TURNER-You couldn't park in the back anyway, I don't think, could you because of the? MRS. CUNNINGHAM-The fire, isn't there a fire code? MR. TURNER-No, not so much that, but just because of the ground. Isn't that a11 day back there, it's aII kind of wet back there? MR. CUNNINGHAM-No. 18 MRS. CUNNINGHAM-Not behind the house. Twenty feet away from the house, I wou1d say. I mean, David came and 100ked at it and fe1t that it was better where we were, because he thought it was the simp1est answer. He had suggested that there were other reasons why it might not work in the back. That was our first thought, that it was something about a fire code in the house. The two houses were not far enough apart for a fire truck to get through, a fire code of some sort. MR. TURNER-Yes, but how far is it, 20 feet? MR. CARVIN-Twenty feet, and it's a preexisting structure. I mean, they're not moving the house. I mean, certain1y you cou1d put a driveway through there with very 1itt1e difficu1ty. MRS. EGGLESTON-Of course, if you wanted to expand your shop and you have your parking area back there, you never cou1d do that. MRS. CUNNINGHAM-WeH, I don't think, I think on the amount of 1and we have, I mean, I don't know. I never knew, eight 'years ago, we were going to be here needing any more parking either, but I know what you're trying, think I have, and I understand that. I don't know what to te11 you. I don't think you wou1d approve of an expansion, wou1d you? MRS. EGGLESTON-Wen, I must say, as I 100ked at this, I went out and 100ked at this site. I didn't see a prob1em with where you wanted this parking. I thought the pJace was so wen kept, I think that anything that you have wi11 be done with taste, and that reaHy is what you 100k at, is what effect it's going to have on your neighbors. If you're going to make it a junkyard, then forget it, but if you keep it nice, and not on1y that, I don't know what e1se you cou1d do with it. There's that big tree there, and if you made a driveway up through there, this is on1y 26 feet wide. The cars wou1d be going right up beside the shop, and peop1e coming and parking and coming down into the front of the shop to get in, I'd think you'd have a potentia1 traffic hazard of maybe a patron getting hit. MRS. CUNNINGHAM-What's your suggestion? MRS. EGGlESTON-I think where you're asking is a reasonab1e request, and I don't have a difficu1ty with it. MR. CARVIN-Is that tree going to remain there, or is that going to be removed? MRS. EGGLESTON-It wou1d have to come down. MR. CARVIN-It wou1d have to be removed. MRS. CUNNINGHAM-We have shrubs a10ng the side of our parking 1ot, and we wou1d continue those shrubs up through. So, that it wou1d be, and I don't fee1 that we have a prob1em with the neighbors. I fee 1 we have a prob1em with one, and hopefu11y this wou1d put us in a 1ega1 area that wou1d be our own area. I mean, I think there's on1y so much we can do with this piece of property. I don't think there's much more. I don't know. We've agreed to make it an emp10yee parking 1ot, and we, after 1ast week, have a1so decided we are going to change one person on one day because it is too fined, which is Wednesday. We're going to ask him to change days. That win eHminate that one congested day, but pretty much we've got it pretty much ba1anced out, and this shou1d take care of, this wiH take care of the prob1em, and we win take that other property, Ear1town, and we wiH put it back to grass so there won't be any confusion, and tomorrow, if this is passed, we win put a sign there that says no parking and hopefu11y we won't have any prob1em there. MR. TURNER-Okay, because I'm going to raise a question that Mrs. Chartier caned me tonight, and she said that somebody was in that right-of-way, today, parked. MRS. CUNNINGHAM-Yes, they were. Wen, we asked you what you wanted us to do. There wasn't reany a decision made, and we wou1d Hke to take care of that tomorrow, if this is passed. We reaHy have not known what to do. We weren't abso1ute1y certain of our 1ega1 rights. I mean, at one point, we thought, wen, we'H go and fight to park in Ear1town's property, and then we reaHzed, this is ridicu1ous. We're fighting for property that we don't own. I mean they cou1d, tomorrow, decide to put a road there. MR. TURNER-Yes. MRS. CUNNINGHAM-So, this prob1em wi11 have to be re1ieved for her, I understand that. MR. CARVIN-Is there anything wrong with the tree? Is the tree diseased? MR. CUNNINGHAM-Actua11y, it's starting to have a disease. I think it's got the same disease that Stan's tree that is now dead, sitting on his property has. So, actuany, I think, eventuany, if we don't take care of the prob1em, it's going to have the same prob1em as Stan's tree has. MR. TURNER-Any further questions of the app1icant? We 1eft the pub1ic hearing open? MRS. EGGLESTON-Yes, we did. 19 MR. TURNER-Okay. I'll now open the public hearing. PUBLIC HEARING OPEN NO COIIENT PUBLIC HEARING ClOSED CORRESPONDENCE MRS. EGGLESTON-This is a letter from Mrs. Chartier, RE: 77-1992, Cunningham "The property under consideration is 60 feet, fronting on Ridge Road, depth is 200 feet. On the property there is a house 60 feet long situated in the rear, and in the front an approximately 40 foot square house, fronted by a 50 foot parking lot. There is very little empty space on the lot. The variance requested is for permission to park against the side of the house on the north. This would be in addition to the 50 feet on the front. The variance under which the applicants are conducting their business was granted in September 1984. At that time, the applicant's answer to question regarding cars backing out on Ridge Road. Applicants responded by stating they planned a small macadam area for three or four cars only. They agreed to maintain the residential appearance of the property, and to cut down only those trees necessary to conduct business. Applicants stated they would plant tall shrubbery to shield the cars from neighbors. On that basis, the commitments made by the Cunninghams to the Town of Queensbury, the neighbors and I did not object. In the year following the granting of the variance, the Cunninghams covered a very large area with cinders, not macadam, from the building to Ridge Road. All trees were cut down on the front of the property as well as on the north side, and cars were soon parked over the entire area. In the subsequent several years, the parking area was enlarged until the entire frontage was made parking space. Three years ago, the Cunninghams appropriated the residential zoned vacant lot of 60 feet owned by Earltown. The Earltown vacant lot is north of Cunningham and between my property and Cunninghams. Without permission, the grass and lawns of that Earltown vacant lot were replaced by cinders, and for three years customers and employees have been parking in that area each day. My property has sustained monetary damages by the customers and by the Cunninghams. My wooden post and bar fence has been knocked down on three occasions, and approximately 40 feet of a heavy chain link fence has been badly damaged. The area has entirely been deprived of the residential look. My neighbors and I felt it necessary to plant high shrubbery on our properties to shield us from the sight of parked cars. Hair Designs, for three years, has been using 120 feet of space for their cars, while only owning 60 feet. On January 7th, 1992, the Town of Queensbury, by letter, ordered all cars to cease parking on the Earltown lot. Rather than cease the parking, the use accelerated, and currently is still in use to this date, in defiance of the law. The Cunninghams are now requesting further permission to park more cars along the side of the front house. The Board should be advised that cars are and have been parked in that area without permission to this date. In view of the abuses of all the terms of current variance, the neighbors and I are opposed to the granting of a further variance. We have sustained loss of property values as well as quality of life, as a result of these facts above mentioned. We have a large investment in our homes and believe the Town should consider our needs and wishes. Some of the neighbors have questioned if the current variance could be withdrawn, consi dering the many abuses of the privilege." MR. CARVIN-Is Mrs. Chartier on the south side? MR. CUNNINGHAM-She's on the north side. MR. PARISI-Could I ask a question regarding the letter, please? I keep hearing reference to the neighbors. I'm curious as to how many of them signed the letter. MR. TURNER-None. MR. PARISI-None. Okay. MR. TURNER-She represented the neighbors without qualifying any representation. MR. PARISI-I "m just curious as to who these neighbors are, because I I ve been out there, and I haven't heard anyone complaining. MR. TURNER-She's talking about the neighbors across the road on Meadowview lane. MRS. EGGLESTON-She mentioned the Knoblauchs, in specific. MR. TURNER-Knoblauchs, Johnsons. MR. PARISI-Well, mentioning them and having them sign this document. I mean, I keep hearing it as though it's fact, and then it isn't. MR. TURNER-We raised that question, I think, the last time. Anything else? Any discussion? 20 MR. CARVIN-I just think that, if we make a motion to grant the parking, I'd certainly want it to be for an area sufficient enough to only hold four cars. I have a problem with 26 feet on the side, especially with north to south parking. I think that there's going to be, they're going to be removing a tree, whether it's diseased or not. I'm not a tree person. They've, apparently, removed a number of trees up to this point, and I think that eventual1y they're going to have to put a road, possibly, into that garage, which again would cut down on that 26 feet, because if you have four cars, and the average Iength of a car is, what, 15, 18 feet, you're cutting down that access to that garage considerably, and as I've stated before, I would feel more comfortable to see the parking behind the house, if that's possible. MRS. EGGLESTON-Behind the shop, you mean? MR. CARVIN-Behind the shop, yes. MR. PARISI-I would Ii ke to make a comment regarding that, just from a traffic standpoint. It's much safer to have parking Iots that are contiguous, rather than having parking Iots that are so jOined by col1ector roads. I've been on the site, and I would say that that might become a traffic hazard, if you spIit it in sort of a dumbbeH fashion, where you have part of the parking in the front, and part in the rear, with a coHector in between. The site visibiIity would be very poor, coming from behind the beauty shop. MR. CARVIN-Again, what happens, Bob, is if they Iose the access to the garage from EarItown, how are they going to get there? MR. TURNER-They're not going to get there. MR. CARVIN-They're going to have to expand to the whole, now you've Iost the whole 26 feet, and now you have a 26 by 60 parking Iot, which will hold considerably more than. MR. PARISI-Where the driveway would be is where the cars actually, where they make their K turn, that's where they would be puHing into anyway. So, that would be dear, in this parking scenario, because they would be parking paranel to Earltown's property. That would have to be dear, or they wouldn't be able to back up, in fact. MR. CARVIN-Wen, that's what I'm saying. I just think that the 26 feet is going to, they're going to have to remove a tree, and I'm just not real positive that 26 feet is sufficient enough, and then eventually they may have to expand it to the garage anyway. MR. PARISI-I think what you can do to mitigate that is to Iimit it to four cars, rather than five. There'd be a Iot more space in between them, and more space to maneuver. MR. CARVIN-WeH, I think we tried to do that before, and an of a sudden they said four or five in the original, and now they've got eight, and none of them are marked. I mean, so how do we determine? MR. PARISI-Well, maybe you need to ask them to mark the spots, including the ones that are in the front. MR. TURNER-I think I asked them if they were going to Iay out the parking, layout the parking Iot, and I think I heard them say yes. MR. PARISI-But I could teH you that whatever stipulations you make, I' H go out there and see that they're enforced, personally. MR. TURNER-Yes. MR. CUNNINGHAM-I would Hke to say something on that original variance. We did not quote that there was only going to be three to four parking spots in the front of our business, and at that time we have two fun time employees pIus ourseIves. So, it doesn't even comply to what we had at that time. MR. CARVIN-In other words, the whole idea of a business is to expand, and as I said, I don't want to reaHy get into the virtues of, or drawbacks of the original variance, but you're asking for, 1 feel, an expansion of a nonconforming use, which has the potential, I mean, if you're a businessman, you want to expand your business, and if you can expand your business by expanding your parking, that way you can get more people in, at a particuIar time. Now, I'm not a beautician or a hair styHst, so I don't know how many people a good hair sty1ist can handle in the course of an hour. I mean, I've seen movies where they're sitting under dryers and they're in the chairs, and I suppose a good one could probably handle two or three people. I mean, am I wrong on this? MR. CUNNINGHAM-No, you're exactly right. MRS. CUNNINGHAM-But the problem is that we are facing a problem now. It's not that we want more room so we can advertise and get more people. The problem is we already have an existing problem which needs to be taken care of. 21 MR. CARVIN-I agree, and I'm trying to work with you, and that's why I'm saying, I have a hard time on the side. MRS. CUNNINGHAM-As far as the driveway to the back house, I think that, ìike Robert has pointed out, the issue is our business tonight, and if that's a separate issue, we wiTT have to handTe that at another time. I'm not saying I may not ask you to put that driveway in there. I'm saying that that's not reaHy what we're here for tonight. We're here for our business, that we've been Tiving under a Tot of stress over this, and we want that part finaìized. As far as the other part goes, maybe there's another avenue we can take. We have a TittTe Tiving space on the other side. Stan Juckett's property is for saTe. Maybe we couTd seTT a foot or two, and we couTd bring the tenants in on the other side of the property. I don't know, but I reaHy don't feeT that the issue is the tenants. I think that issue wiH come up. I'm sorry to have to say that I think that's our next probTem, but I reaHY think we have to contend with one probTem at a time, if you can understand what I'm saying. MR. CARVIN-Yes, I can, and that's why I'm trying to, in my mind, it stiTT comes back that it's a business in a residentiaT area. MRS. CUNNINGHAM-Okay, and you're sticking to that issue aTone. MR. CARVIN-Yes, and again. I agree with Bob that there is a safety probTem here. I mean, certainTy I wouTd rather see cars in front, off the street, and I'd certainTy ìike to find a pTace for your empToyees, you know, three or four empToyees. I have no probTem with that, but I just have a probTem on the side. I think, Number One, that it's too confining of an area, and that eventua11y that whoTe area, that whoTe 60 feet of the Tength of the shop, if I'm reading your dimensions right, couTd conceivabTy become a parking area. MRS. CUNNINGHAM-No, it can't, because it's onTy ~ feet. MR. CARVIN-WeTT, four feet. MRS. CUNNINGHAM-A11 right. I don't think that you can get any more than five cars in there, unTess you stood them on end. There's just no way. I mean, you can waTk it. Maybe you shouTd come and Took, but they've seen it. There's not a big enough area to fit more than what we're asking for. MR. CUNNINGHAM-ATso the fact that we are Tooking at other empToyees parking in there. We've aTready specified the fact that we wiTT be having a change, and to specify that is just empToyees onTy. MR. CARVIN-We11, that's why, during the discussion here, that if a motion .1!. made, I wouTd want that very, very expTicit. MRS. CUNNINGHAM-WouTd want that foTTowed through. MR. CUNNINGHAM-Without a doubt. MRS. CUNNINGHAM-I think, for some reason, Mrs. Chartier has made us Took as though we're very dishonest peopTe, and I can understand how you feeT. She has made accusations against us, and we don't have a Tawyer here to say whether we are or whether we're not, and I'm not going to waste your time teTTing you, but I feeT that, I think from what she is saying, there are concerns there. As far as the tan shrubs versus sma11 shrubs, I don't know. If that's a contingency, we'11 put tan shrubs in. I mean, I don't care what kind of shrubbery goes in there, and I certainTy wiTT accommodate what I need to do. I don't know what eTse we couTd say to that matter. We've agreed upon an empToyee Tot. That's aTT that we can say at this time. MR. TURNER-WeTT, she agreed, initiaTTy, to your first variance request. MRS. CUNNINGHAM-Right. MR. TURNER-She knew there was a beauty shop going in there. MRS. CUNNINGHAM-Correct. MR. CUNNINGHAM-She aTso knew that aTT those trees in the front were coming down. MRS. CUNNINGHAM-They were pine trees. They couTdn't have stayed there. I mean, I don't have a picture of what the property Tooked ìike, but we had someone here Tast week saying how much nicer it Tooked. It was not an acceptabTe Took before, and as far as taking many trees down, I think, did we take one? We took the three down in the front. MR. CUNNINGHAM-We took the three down, and then one of the mapTes had a disease, so we had to take that down. 22 MRS. CUNNINGHAM-Right, but we've opted that we would Ieave the tree and just work around it, but that would just give us Iess room. It wouldn't be impossible to do that, but. MR. PARISI-I'd Hke to just, if I may, interrupt. It might be possible that one of the concerns was regarding c1earing the Iand. It's within your purview to suggest what we might can, Iets say, a Iandscaping or a replanting pIan, which I could oversee. I just wanted you to be aware of that, if plantings and Iandscaping are seen as an issue. MR. TURNER-AII right. let me ask you a question. Mr. Juckett's property is for sale. Has he approached you in reference to the purchase of that property? MRS. CUNNINGHAM-I think if you review what a hair dresser makes an hour for what, Stan, being a friend of ours, is a very nice person. It would take us many, many hair cuts to payoff a piece of property Hke that, and we are not, we just don't have, we have three chiJdren to send to conege. We just don't have that accessible money, and we don't want a piece of property with more problems, another piece of property that Mrs. Chartier's against alreacly. We fee 1 it's just too much over there, as far as the negativity on having another property variance the same way. It's much too expensive for us to afford, in that, I just don't think for what, we're not a big enough salon that we need that much more. If we were going to expand, and we were going to get six more people to work for us, it would be a wonderful idea, but we're not going to do that. So, I appreciate that, but I think we're at our peak performance only because of the size of the buiJding. like you could say, where are an the people. This buiJding's tiny, and that just kind of shows, and I do feel that if we were Iooking for an expansion, I don't reany think, I think we would be right back here, and I don't think you people are going to say, sure, put a second story up, but I don't know. MR. PARISI-I've got a question for the Cunninghams. Since you began, I see the beauty shop is 28 by 34 feet, eight years ago. Was that the dimension of the building then? MRS. CUNNINGHAM-Yes. MR. PARISI-AII right. So then they actually haven't expanded the exterior dimensions. MR. TURNER-No. MR. PARISI-AII right. MR. CARVIN-I understand the reason that this was moved up tonight because there was a Iawsuit or something? MRS. CUNNINGHAM-Yes, there is. MR. CARVIN-Can you expand upon that? MRS. CUNNINGHAM-It's a citizens arrest for extending our parking without a variance. We thought, and were told by our Iawyer, that with permission, Hke he stated. If you have a party, and you ask the Rogers across the street if some of your friends can park there, and they say yes, do you need a variance? If I go jogging and I park my car on your property, and I Ieave it there, I can get sued for Ieaving mY car on your property, with your permission. He convinced us that we were within our legal rights. Then we discovered, through talking, that because we got permission from Mack Dean here, that Mack Dean suggested for us to get permission from Earltown. That was fine, as Iong as there was no compJaints. That was never explained to us untiJ a few days ago. So, an this time we thought that it was okay that we use this property, if we have written permission that it's okay. We never thought it was inega1. See, the original complaint from Mrs. Chartier was we were parking on her Iawn. So, we came up here and he said, well, get permission from them and stone it and make it nice, Hke the rest of your property, which we did. That has gone on for three or four years, and now she found a legality which she's suing us for. MR. CARVIN-Okay. Was that suit instigated prior to this submission, or since you've submitted? In other words, since you've applied for the variance, in other words, was this suit in existence prior? MRS. CUNNINGHAM-This suit came on July 7th, which was the day Mrs. Chartier cried hardship for putting in a sewer, because I considered saying to the Board, I don't want to be Hke her. I don't want to go against Mrs. Chartier's hardship. I don't want to be that type of neighbor, and then I thought, wen, it's going to Iook as though I'm trying to make favors, and I didn't want to do that, but I feH as though maybe it would help her understand that we should work together, and that if she's having a hardship, I'm not against her hardship, but we are, too, and she's very much against ours, and I think the whole, she has a confHct of interest. She's holding paper on our mortgage, and yet she wants us to deny our customers service, and that's a little hard to do. MR. TURNER-Yes. 23 MRS. CUNNINGHAM-It's hard to control it, because you can have a whole parking lot, and you could have someone come into buy shampoo. You ha ve someone come into ma ke a n a ppo i ntment. I ca n 't say to mY customers, don't come in here and make an appointment with me. It's just an impossibiHty to. One day it might be fun, and the next day it may. I mean, three people might drive in to make an appointment. Sometimes husbands come to see their wives. I can't ten them that they can't do this. MRS. EGGLESTON-If you got this variance, you would not park on the EarHown property. Is that the, that's the bottom line? MR. CUNNINGHAM-That's right. MRS. CUNNINGHAM-I see what you're saying. MRS. EGGLESTON-Yes. If you were granted the variance, you would not use the EarHown right-of-way, under any conditions. MR. CUNNINGHAM-We're trying not to use the Earltown property, at this point right now, but because we're working at the same time, we cannot be leasing this area. We've tried through different situations. We've written notes to our dients explaining the circumstances, and not to use that, but when they come in and they find out the parking lot's fun, they have no other option avai1able to them. They see this parking lot, and therefore they use it. MR. CARVIN-See, again, that's just one more argument, because if they see the big space on the side of the place, I'd still like to see it in the back. MR. CUNNINGHAM-Again, there's a chain, and there's a sign that says employees only, and after a period of time, the same clients still come in. After a period of time of these people coming in, eventually, they get the idea. MR. CARVIN-Okay. What would it be, the last employee in chains it up, or closes the gate? MR. CUNNINGHAM-Well, basically, yes. It would be that way. MR. CARVIN-Yes, because it sounds good on paper, in other words, to put a chain across it, but if somebody comes in at 10 o'clock and somebody comes in at 7 o'clock, do they get out in the winter time and take the chain down, and all of a sudden, the chain is. MR. PARISI-Excuse me. I would suggest, for the purposes of enforcement and a1so for darity, that the chain be put up, after one person puns in, they put the chain back up. It could be a plastic chain. It doesn't matter, but it should be up an the time. It shouldn't be a question of, is the chain up, or is the chain down, how much of the time is it up or down. MR. CARVIN-What I'm saying is that, in the real world, it looks good to legislate a chain up, and what happens is, the first cold weather that somebody doesn't put the chain up, and then you've got somebody else parking. MR. PARISI-Wen, that's why I'm stipulating that the chain should always be up. If someone puns in, they put the chain back up. It's only for employees, and this is the only way to make it absolutely so. MR. TURNER-They've got to identify where their customer parking is and employee parking is, and that's all there is to it. MR. PARISI-And they also need to put lines in the front, paint some lines, where there presently aren't, and perhaps even plant some shrubbery. MR. TURNER-Yes. MR. CARVIN-Well, if we can put all this into the motion. MR. TURNER-Yes, we can condition it. MR. CARVIN-Okay. MR. TURNER-Okay. A motion's in order. We've talked about it. flJTION TO APPROVE USE VARIANCE NO. 77-1992 KAREN & RICHARD CUNNINGHAM HAIR DESIGNS, Introduced by Joyce Eggleston who moved for its adoption, seconded by Theodore Turner: And grant them reHef from Section 179-79 D of the Zoning Ordinance, which wi1l grant them the right to add four parking spaces four employee parking only on the northerly side of the property, adjacent 24 to the shop in the area on the map designated 56 feet by 26 feet by 23 feet. In granting this motion, I believe it will take care of an existing problem with neighbors and with a controversial right-of-way belonging to the Earltown Corporation. The applicant has stated that if granted this variance, they will not use the Earltown property for parking purposes, whatsoever. I don't believe there would be an adverse effect on the neighborhood character. As a matter of fact, the character Qf the neighborhood should be improved by providing the parking necessary to provide for the business on the lot, and applicant has demonstrated that in order to stay in business, the current customers must not diminish. I believe it to be a reasonable request, and I don't believe it would have an adverse effect on services or facilities. That the applicant will very distinctly divide, by means of a chain, the parking area designated for the employees only, and that for customers only. The parking area for the addition of the new four spaces will remain a permeable area, and shrubs will be added to maintain the residential character of the neighborhood. Duly adopted this 29th day of July, 1992, by the following vote: MR. TURNER-Identify the customer parking in the front with lines, lines to indicate the parking areas that they have to park in. Can you do that? MRS. CUNNINGHAM-For the customers? MR. TURNER-For the customers. MRS. CUNNINGHAM-If it's on pavement, yes, we'll do it for the customers, right. MR. TURNER-You can line it so they know where they've got to park. Then they won't be all over the place. MR. CUNNINGHAM-The reason why, we've been waiting to hook into the sewer line. This is why haven't laid pavement. This is why we have crushed stone there. last year we laid our pavement, and the finances only allow you to do this so much of the time. MRS. CUNNINGHAM-Well, is it a priority for us to pave this area, or stone this area? MR. TURNER-Well, if you're going to line it, you're going to have to stone it. MRS. CUNNINGHAM-I mean our new area. MR. TURNER-No, I don't want you stoning it. MRS. EGGLESTON-No, keep the permeable area. AYES: Mrs. Paling, Mr. Sicard, Mr. Carvin, Mrs. Eggleston, Mr. Turner NOES: NONE MR. TURNER-We've got one other item of business. AREA VARIANCE NO. 68-1992 CHARLES O. SICARD GLEN IAICE ROM, GLEN IAICE WR-]A MR. TURNER-This requires a SEQRA Review, and this is not to prolong the agony of the evening. MOTION TO MICE THE PLANNING BOARD THE LEAD AGENCY IN THE SEQRA REVIEIf OF THE VARIANCE NO. 68-1992 CHARLES O. SICARD, Introduced by Theodore Turner who moved for its adoption, seconded by Fred Carvin: Duly adopted this 29th day of July, 1992, by the following vote: AYES: Mrs. Paling, Mr. Carvin, Mrs. Eggleston, Mr. Turner NOES: NONE ABSTAINED: Mr. Sicard MOTION TO GO INTO EXECUTIVE SESSION TO DISCUSS LITIGATION IN A "'TIER BEFORE THE BOARD, Introduced by Theodore Turner who moved for its adoption, seconded by Fred Carvin: Duly adopted this 29th day of July, 1992, by the following vote: AYES: Mr. Sicard, Mr. Carvin, Mrs. Eggleston, Mrs. Paling, Mr. Turner NOES: NONE 25 tlJTION TO COtE OUT OF EXECUTIVE SESSION, Introduced by Theodore Turner who moved for its adoption, seconded by Charles Sicard: Duly adopted this 29th day of July, 1992, by the following vote: AYES: Mr. Carvin, Mrs. Eggleston, Mrs. Paling, Mr. Sicard, Mr. Turner NOES: NONE On motion meeting was adjourned. RESPECTFUllY SUBMITTED, Theodore Turner, Chairman 26