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1994-04-21 SP ,r-" - ORIGINAL QUEENSBURY ZONINC BOARD OF APPEALS SPECIAL MEETINC APRIL 21ST, 1994 INDEX Area Variance No. 19-1994 Joel & Bonnie Holden l. Area Variance No. 17-1994 Thomas Corbett 4. Use Variance No. 14-1994 Double A Provisions 6. Area Variance No. 15-1994 Double A Provisions 15. Area Variance No. 22-1994 Pyramid Company of GF 15. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. QUEENSBURY ZON I NG BOARD OF APPEALS SPECIAL MEETING APRIL 21ST, 1994 7:30 P.M. MEMBERS PRESENT THEODORE TURNER, CHA I RMAN FRED CARVIN CHRIS THOMAS ANTHONY MARESCO DAVID MENTER MEMBERS ABSENT LINDA HAUSER ROBERT KARPELES EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY STENOGRAPHER-MARIA GAGLIARDI NEW BUSINESS: AREA VARIANCE NO. 19-1994 TYPE II UR-10 JOEL & BONNIE HOLDEN OWNER: SAME AS ABOVE 21 COTTAGE HILL ROAD APPLICANT PROPOSES TO ADD A SEVEN (7) FOOT BY TWENTY-FooR (24) FOOT OPEN PORCH, EIGHT (8) FEET FROM THE PROPERTY LINE, ON THE FRONT OF A PRE- EXISTING, NONCONFORMING HOOSE. SECTION 179-17C, REQUIRES A SIDE YARD SETBACK OF TEN (10) FEET, SO APPLICANT IS SEEKING RELIEF OF TWO (2) FEET. TAX MAP NO. 91-4-12 LOT SIZE: 0.16 ACRES SECTION 179-17C JOEL HOLDEN, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 19-1994, Joel and Bonnie Holden, Meeting Date: April 21, 1994 "APPLICANT: Joel and Bonnie Holden PROJECT LOCATION: 21 Cottage Hill Road PROPOSED ACTION: Applicant proposes to add a seven (7) foot by twenty-two (22) foot open porch on the front of a pre-existing, nonconforming house on a 0.17 acre lot. CONFORMANCE WITH USE/AREA REGULATIONS: Section 179-17C requires a side yard setback of ten (10) feet, so applicant is seeking relief of two (2) feet. The same Section requires a front setback of thirty (30) feet, so applicant is seeking relief of ten (10) feet. REASON FOR VARIANCE REQUEST AND BENEFIT TO APPLICANT: Applicant wants to have a porch, and needs a variance to make it line up with the house and to make it a reasonable width. FEASIBLE ALTERNATIVES: Making the porch twenty (20) feet long instead of twenty-two (22), or shifting its location on the house, would eliminate the need for a variance from the side setbacks. There do not appear to be any real alternatives for the front setback. IS THIS RELIEF SUBSTANTIAL?: The applicant does not appear to be asking for an excessive amount of relief. EFFECTS ON THE NEIGHBORHOOD OR COMMUNITY: There do not appear to be any adverse impacts on the neighborhood. No public conment has been received. IS THIS DIFFICULTY SELF-CREATED?: The difficulty seems to relate to the original size of the lots and siting of houses in this area in relation to current zoning. PARCEL HISTORY: The house was built in 1950. There have been no previous variances. STAFF COMMENTS AND CONCERNS: The 32 foot distance indicated on the plan is actually the distance to the road, rather than the property line. The distance to the property line is actually 27 feet." MR. TURNER-Okay. There was a suggestion made by Staff that maybe - 1 - you reduce your front porch by two feet. Could you do that and not seek a variance in that respect? MR. HOLDEN-Yes. We were looking at that, but when over to the end of the house, over 22 feet, cut it it would be right in front of the window. we were going back 2 feet, MR. TURNER-Right in the window. How still, do you still need that much window extend beyond that part? close could you come, and relief? How far does the MR. HOLDEN-The twenty-two feet would be in the middle of two windows. MR. MENTER-Is it the left side setback or the right side setback? MS. CIPPERLY-That's the left side. The existing house is eight feet. MR. TURNER-Has anyone else got any questions? MR. CARVIN-I haven't seen a map of this, Ted. MR. TURNER-The basic problem is that that's really the first subdivision the Town of Queensbury has ever built. MR. MENTER-I have a question. You're proposing to put the porch as you face the house on the left side. MR. HOLDEN-As you face the house by the road? MR. MENTER-Yes, on the left, the far left side of the house? MR. HOLDEN-As you're facing the house on the right side. MR. MENTER-Okay. So that's incorrect. That drawing, I think, is incorrect right there. MR. CARVIN-It should be the mirror image from over here? MR. MENTER-I think what he's proposing, no. This is Cottage Hill. What he's proposing to do is start at this corner of the house and come back 27 feet that way. MR. TURNER-Is that correct? Now where are you starting? All right. There's Cottage Hill. Are you starting from this side? MR. HOLDEN-From this end. MR. TURNER-Okay. MR. THOMAS-The driveway side. MR. HOLDEN-And there's two other windows here. MR. MENTER-It would be right on this corner, right? MR. TURNER-Yes, right. MR. THOMAS-There's 22 feet, right across, like that, right here. MR. MENTER-What's the length of the house, front of the house? MR. THOMAS-Thirty-four and a half, thirty-five. MR. MENTER-So, you've got 35 overall. Now, you're taking off 22. So the end of your deck is going to be 8 foot plus 35 minus the 22, which is (lost word), that's your setback over here, which is going to be 20 feet, on this side. I don't know what it does to t.he setback on this side. You should have 20 feet over here. - 2 - MR. TURNER-There's the property, so you've got eight. MR. THOMAS-The heavy line's the property line. MR. TURNER-That arrow's wrong. MR. THOMAS-Yes. See, from there to that mark is about 21 feet. MR. MENTER-Yes. Thirty-five minus twenty-two would be thirteen, plus the eight is twenty-one. So you've got twenty-one setback on this side, and on the other side you've got, what did you say, eighteen? So you're okay. I mean, your side setbacks are fine. It's just the front setback that's an issue here. MR. TURNER-Yes, you're right, Dave. MR. CARVIN-Okay. So the side is okay then. MR. TURNER-Yes. MR. THOMAS-It's just the front, it's the 20 feet. You need a 10 foot variance. MR. CARVIN-Just from the front, then. MR. TURNER-Yes. MR. CARVIN-He's building it from right to left, right? MR. THOMAS-Yes, from the driveway side. MR. CARVIN-Over, yes. MR. TURNER-Sue, the map was drawn incorrectly, the drawing here. It's from the right to the left, looking at the house. MR. MENTER-From the right front corner of the house. MR. TURNER-He doesn't need any relief at all on the side. He just needs the relief from the front. MR. MARTIN-All right. It's still a 22 foot wide porch? MR. THOMAS-Yes. MR. TURNER-Yes. Thank you. feet's the only issue. Okay. Okay. No further questions? Ten I'll open the public hearing. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. TURNER-Any further discussion? No discussion? order. Mot.ion's in MOTION TO APPROVE AREA VARIANCE NO. 19-1994 JOEL & BONNIE HOLDEN, Introduced by Theodore Turner who moved for its adoption, seconded by Fred Carvin: The applicant proposes to add a seven foot by twenty-two foot open porch on the front of a preexisting nonconforming house on .17 acre lot. This would grant the applicant relief from the front yard setback of a required 30 feet, and grant him relief of 10 feet. The applicant, in order to put a porch on his house, with the size of the lot, 60 foot wide, and the applicant would need a variance to do pretty much anything in the front yard, due to the closeness of the building to the road. This is a preexisting subdivision, built in the late 1940's, when there was - 3 - a lot of land in Queensbury, and there wasn't any problems such as lot sizes, and no Ordinance to deal with. Is the relief substantial? No. There's no effect on the neighborhood or the community. The difficulty is not self created. This is the minimum relief to alleviate the specific practical difficulty. Duly adopted this 21st day of April, 1994, by the following vote: AYES: Turner Mr. Menter, Mr. Maresco, Mr. Carvin, Mr. Thomas, Mr. NOES: NONE ABSENT: Miss Hauser, Mr. Karpeles , AREA VARIANCE NO. 17-1994 TYPE II UR-l0 THOMAS CORBETT OWNER: SAME AS ABOVE 592 DIXON ROAD APPLICANT PROPOSES TO EXPAND A PRE-EXISTING, NONCONFORMING RESIDENCE ON A PRE-EXISTING, NONCONFORMING LOT. SECTION 179-17C REQUIRES A SIDE YARD SETBACK OF TEN (10) FEET, APPLICANT SEEKS RELIEF OF FIVE (5) FEET. TAX MAP NO. 91-5-13 LOT SIZE: 7,200 SQ. FT. SECTION 179-17C ROBERT BALOGH, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 17-1994, Thomas Corbett, Meeting Date: April 21, 1994 "APPLICANT: Thomas Corbett PROJECT LOCATION: 592 Dixon Road PROPOSED ACTION: Applicant proposes to construct a 12 ft. by 24 ft. addition to a pre- existing, nonconforming house. The addition would provide a diningroom and screened porch. CONFORMANCE WITH USE/AREA REGULATIONS: Section 179-17C requires a side setback of ten (10) feet, applicant seeks relief of five (5) feet. REASON FOR VARIANCE REQUEST, AND BENEFIT TO APPLICANT: Applicant would like more room, and it is difficult to add on, considering the lot size of 7,200 square feet and width of 60 feet. FEASIBLE ALTERNATIVES: The applicant does not believe there is a feasible alternative. Making the addition narrower would yield an unusable room. Interior layout requires this design. IS THIS RELIEF SUBSTANTIAL?: The relief is 50% of the required setback. EFFECTS ON NEIGHBORHOOD OR COMMUNITY? There has been no comment from the neighbors concerning this project. IS THIS DIFFICULTY SELF-CREATED?: The small lot size and setbacks used when the house was built in 1950 are the difficulty in conforming with today's regulations. PARCEL HISTORY: The house was built in 1950, no other variances have been granted. STAFF COMMENTS AND CONCERNS: No further comment." MR. TURNER-Okay. Do you have any further comment to make, in respect to the application? MR. BALOGH-Not really. MR. TURNER-This is the same subdivision. MR. CARVIN-Bob, do you have a floor plan of the house, the existing house? MR. BALOGH-No, I don't. It's a short ranch. MR. TURNER-How does the proposed dining area, is the kitchen in the area near the diningroom? MR. BALOGH-Okay. Right, in the front is the livingroom, on the same end is the diningroom. Right behind that is the kitchen. So this would be adjoining the kitchen, and right now they've got (lost word) through the back with the sliding glass door. MR. TURNER-Any thought given to putting it in the back? How - 4 - would it work out, as far as the floor plan? MR. BALOGH-I guess it could be physically done, but it would take lot of the yard up, a lot of space in the yard. MR. TURNER-The roof pitches that way anyway, front to back. MR. BALOGH-Right, the pitch of the addition would be the same direction as the main house. MR. TURNER-Yes. MR. MARESCO-You said the kitchen is right there. So the kitchen will go right into the diningroom. MR. BALOGH-Right. MR. MENTER-Would that proposed porch be, how does that work back there? Would that be in addition to the existing porch, or, how does that tie in? MR. BALOGH-Well, there is a little existing patio, no back, no rail, no anything, you know, we're just going to close that up. MR. TURNER-That's not too big, six by twelve. Okay. Any further questions? MR. THOMAS-Yes. The only one I've got is, there's an existing eight by eight storage shed. Where is that going to go? MR. BALOGH-We were going to move it towards the back yard. MR. TURNER-Yes. You're going to incorporate that in the back yard some place? MR. BALOGH-Yes. MR. TURNER-Probably in that far corner. MR. BALOGH-Right. now. We want it pretty far away from where it is MR. TURNER-Okay. hearing. No further questions? I'll open the public PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. TURNER-Okay. Motion's in order. Any discussion first? Is everybody satisfied? I don't have a problem with it. MR. THOMAS-I'm all set. MR. TURNER-I'll do it again. MOTION TO APPROVE AREA Introduced by Theodore seconded by Chris Thomas: VARIANCE NO. Turner who 17-1994 moved for THOMAS CORBETT, its adoption, Applicant proposes to construct a 12 ft. by 24 ft. addition to a preexisting nonconforming house. This would provide a dining room and screened in porch. The applicant seeks relief from Section 179-17C, which requires a 10 foot side yard setback, and seeks relief of 5 feet. Feasible alternative, due to layout of the house, it's the most feasible spot to put the addition which incorporates that dining room and also takes into consideration the back door and the porch area. The pitch of the roof kind of - 5 - determines the aesthetic look of the house, the layout of the house as proposed. Yes, the relief is substantial, but there's no effect on the neighborhood or the community. There's no public opposition. It's not a self-created hardship, since, again, this is a subdivision that was built in the 1950's, and this is the minimum relief to alleviate the specific practical difficulty. Duly adopted this 21st day of April, 1994, by the following vote: AYES: Turner Mr. Menter, Mr. Maresco, Mr. Carvin, Mr. Thomas, Mr. NOES: NONE ABSENT: Miss Hauser, Mr. Karpeles USE VARIANCE NO. 14-1994 TYPE: UNLISTED CR-15 DOUBLE A PROVISIONS OWNER: BEN ARONSON 64 MAIN STREET APPLICANT SEEKS TO EXPAND A PRE-EXISTING, NONCONFORMING USE AND HAS FILED A USE VARIANCE PER SECTION 179-79(D), WHICH STATES THAT ANY NONCONFORMING USE MAY BE INCREASED ONLY BY VARIANCE GRANTED BY THE ZONING BOARD OF APPEALS. (BEAUTIFICATION COMMITTEE) 4/11/94 (WARREN COUNTY PLANNING) 4/13/94 TAX MAP NO. 134-6-1, 14 LOT SIZE: 0.61 ACRES, 0.21 ACRES SECTION 179-79(D) FRANK LEO, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Use Variance No. 14-1994, Double A Provisions, Meeting Date: April 21, 1994 "APPLICANT: Double A Provisions PROJECT LOCATION: 64 Main Street SUMMARY OF PROJECT: Applicant proposes to build a sixty (60) by thirty-two (32) foot addition to a pre-existing, nonconforming structure. CONFORMANCE WITH USE/AREA REGULATIONS: Section 179-79(D) requires a Use Variance for increase of any nonconforming use. An associated Area Variance is also on the Agenda. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE If THE LAND IS USED AS ZONED? The applicant believes the expansion is necessary to conduct the business. No financial information has been provided to substantiate this assertion. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? The applicant operates a Light Industrial use in a Commercial Residential zone, and is unique in the neighborhood. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? Comments both in favor and against this project have been received. Those in favor note the well-kept condition of the property. Adverse comment from a neighbor, Mrs. Myrtle Lily, directly west of Double-A, expressed strong concern over problems with parking and truck use. She noted that currently there are often 8-10 tractor trailers, plus employee parking and customer parking, with numbers ranging from 20-50 vehicles, with summer being the busiest time. She has had trouble with trucks using her driveway, her lawn, and knocking over her mailbox three times. She noted that while the troubles have decreased in recent months, an expansion of the building would eliminate area currently used for parking, and possibly increase the amount of business being done on the property. Mrs. Lily's concerns were expressed via a phone conversation, because she was leaving town, and not able to attend the meeting. 4. IS THIS THE MINIMUM VARIANCE NECESSARY TO ADDRESS THE UNNECESSARY HARDSHIP PROVEN BY THE APPLICANT AND AT THE SAME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEALTH, SAFETY AND WELFARE OF THE COMMUNITY? The applicant states that this is the minimum variance necessary to satisfy their needs. PARCEL HISTORY: According to the Town Assessor's Office, the business started in 1984. Since that time, the following actions involving variances have occurred: Area Variance No. 1287 - Approved for a 24 ft. by 30 ft. addition - 6 - for cold storage, requiring side and rear setback relief. Area Variance No. 29-1992 - Approved placement of a freestanding walk- in freezer (14 ft. by 22 ft.) to the rear of the existing building with less than required rear setbacks. Area Variance No. 94-1992 - Proposal for placement of a cooler adjacent to existing freezer and cooler. Permeability will be less than the required amount. This was tabled and withdrawn by the applicant December, 1992. At that time, the applicant had plans to purchase an additional parcel to the rear, which would help alleviate the lack of setbacks and permeability. The rear parcel, No. 134-6-14 was purchased, the house torn down, and the lot was covered with gravel. While the setback situation was improved, the permeability was not. A Use Variance should have been applied for at that time, to expand the nonconforming use into the CR parcel, but this was not done. STAFF COMMENTS AND CONCERNS: It appears that when it was decided to utilize this property for this business, the eventual need for expansion was greatly underestimated, since this is the fourth time the applicant has appeared before the Zoning Board in seven years, each time with a sizeable expansion proposed. The activity has already encroached on an additional parcel beyond the original area utilized by the nonconforming use. It can fairly be concluded that the expansions have brought an increase in activity and truck traffic to the site and the neighborhood. In reviewing the files, documentation was found for Mrs. Lilly's concerns about the trucks. A former Zoning Administrator wrote to the applicant in 1989 asking his cooperation in controlling the problems caused by the trucks, and noted that a Town street sign has also been knocked down by the trucks. The existing warehouse is 6,306 square feet, requiring 7 parking spaces, plus 1 for each company-owned vehicle. The retail space totals 1,776 square feet, requiring 18 parking spaces. The proposed additional warehouse space, 1,920 square feet, would require an additional 2 spaces. This means 27 spaces, plus those for company-owned vehicles. Considering that much of the site cannot be used for parking due to the need for loading dock access, it does not appear possible to meet the requirements." MR. THOMAS-And the Warren County Planning Board, dated April 13th, 1994, "At a meeting of the Warren County Planning Board held on the 13th day of April 1994, the above application for a Use Variance to construct an addition to the pre-existing business was reviewed, and the following action was taken, Recommended to Approve, as long as the neighbors have no objections. Thomas Haley, Chairperson" MR. TURNER-Mr. Leo. Frank, we've got growing problems? MR. LEO-Yes. We've got growing problems. MR. TURNER-Where is it going to stop? We're running out of land, in that area. MR. LEO-In that area. I'll probably buy some more. MR. TURNER-Does Ben have an option on Mr. Whittemore's property? MR. LEO-He's got an option on Mr. Whittemore's, and with Mr. Fish's in the back. MR. TURNER-Okay, but no movement yet? MR. LEO-No movement. He also purchased the property street from him, which is a sizeable lot also. parking problems, we could put the employee parking street. across the If we have across the MR. TURNER-Do you propose to demolish the building across the street, then? - 7 - MR. LEO-No. MR. TURNER-You're going to utilize it in what way? MR. LEO-The building that's across the street is a house that he has rented out. MR. TURNER-Okay. MR. LEO-I believe the lot behind is about 360 deep. MR, TURNER-When you say across the street, Main Street? MR. LEO-Across Main Street. MR. TURNER-This would be an addition to the cooler? MR. LEO-The addition that we're putting on is just for storage of flour and can good. MR. TURNER-Okay, drygoods. MR. LEO-As far as more traffic, and think there will be, because most of stored like, down on Broad Street and just wants to pull it all into the running here to pick this up, running more trucks, and I don't the stuff he has he has it his other warehouse, and he same warehouse, instead of there to pick that up. MR. TURNER-All right. Tractor service comes in the Second Avenue, Second Street, and backs up to the loading dock. Do you unload in the front? MR. LEO-They come in Main Street, and they go around towards Second Street. MR. TURNER-They don't come in Second? MR, LEO-You've got a big sign there saying do not go into the driveway, and stuff, but we really have no control over, some of these tractor trailers. As far as his own trucks, they don't go anywhere near the place. MR. TURNER-Does anyon~ else have any questions? MR, MENTER-The parcel that was purchased, I guess, to the rear of the property, that is what is now vacant parking right behind the store? MR. LEO-Yes. MR. MENTER-Okay, and that was in 19? MR. TURNER-'92. See, they came for a variance, and they had an option on the property in the rear, and the owner was in Florida, and they couldn't make contact with him. So, we tabled the application, pending the outcome of the deal with the property owner to the rear, and then they finally made a deal, and that happened, so they didn't need the variance for that part of it. MR. LEO-Well, we never put that addition on. MR. TURNER-I know you didn't. MR. LEO-This is approximately the same size addition. MR. TURNER-But you have changed something there since. MR. LEO-Right. MR. TURNER-You've changed the loading dock in the back, - 8 - MR. LEO-The loading dock in the back. MR. TURNER-You said you couldn't move the cooler, before, but you moved it and changed it to a loading dock, right? MR. LEO-We didn't move the cooler. MR. TURNER-Yes, you did. loading dock. You had a cooler in front of the MR. LEO-It's still there. MR. TURNER-Is it there? Then I must have missed it the other day when I looked at it, because there was a truck sitting right there. MR. LEO-There's a freezer towards the front. Qkay. in the back, and there's a cooler The loading dock sits right in there. MR. TURNER-No. There was a truck backed up to the dock right here. There was a cooler before you had right here, or something right here before. MR. MENTER-I didn't notice them either. MR. TURNER-There was something here before, remember? There's the dock I'm talking about. There was a truck back there. MR. LEO-The original building comes through here. cooler here, which is still here, okay. This was platform back here. There was a just an open MR. TURNER-Okay. MR. LEO-What we did is we made the open platform out, but the cooler still sits here. MR. TURNER-Okay. Is this a new business he's getting into, or has he been into it? MR. LEO-No. He's been into the business. MR. TURNER-No, into this aspect of the business? MR. LEO-Yes. Right. Most of the stuff he has out in the truck right now, when you first walk into the building, he's got all the drygoods in there. Like I said, he's got them stored down in Albany. It's all spread out. Anytime he needs anything, he's got to go here or go there to get it. So, if he can put it all in one building, it'll solve a lot of problems. MR. TURNER-But Mr. Fish has not decided to sell you the building to the? MR. LEO-Well, we have an option on it. MR. TURNER-I know you have an option, but you said you haven't moved on it. MR. LEO-We haven't pushed him, he hasn't asked. MR. TURNER-You're not pushing? MR. LEO-Not as of yet. MS. CIPPERLY-Excuse me. I'd like to clarify, too, that the current end of his property, toward the Fish's, is also the zoning boundary between the Commercial Residential and Commercial. - 9 - MR. TURNER-Yes. MS. CIPPERLY-So to assume that he can expand into that would be incorrect. MR. CARVIN-Yes. to expand, I'd south. That was going to be ~ point. like to see him go on east, as If he was going opposed to the MS. CIPPERLY-The other thing which is in my notes on the Area Variance is he's also supposed to have a 50 foot buffer between the rear of his property and a residential use. MR. TURNER-Yes. Do you have any questions? MR. CARVIN-Not at this point. Lets here from the public. MR. TURNER-Okay, Frank, I think I'll open the public hearing, we'll let the public talk, and then we might get you back. I'll now open the public hearing. PUBLIC HEARING OPENED CHARLOTTE SMITH MRS. SMITH-My name is Charlotte Smith. I live at 71 Main Street, and the noise that comes from this business at night time already is causing many sleepless nights. The trucks roll in, anywhere from, say eleven o'clock at night, two or three o'clock in the morning, and they try to back into the dock, and they have problems backing in, and they go back and forth, back and forth. They finally get parked, then they bring out the ramp from the dock to the truck, and it's dropped there, and it goes, crash. Then you can hear them talking, the people who are doing the unloading and the truck driving, you can hear them talking. Then when the trucks get ready to leave, there's the revving of the engines to get out of there. Then when they get just about to our house, there's a little bump in the road which they have to go over, but at that time, if they're going to stop and get gas, they're getting ready to put their air brakes on, so you've got that added noise also. The refrigeration units. If a truck comes in, say, eleven o'clock at night, and they're not going to unload until five o'clock in the morning, that refrigeration unit is left running all night long, and we get a constant drone, drone, drone. Now I'm not talking about in the summer when the windows are open. I'm talking with the windows down in the winter time, with storm windows on, and you can still hear all this noise. MR. TURNER-How far away do you live, Mrs. Smith, approximately, three, four hundred feet? MR. SMITH MR. SMITH-About three houses on the other side, just above it. MRS. SMITH-To the west, we can see them kitty corner. MR. TURNER-To the west and on the north? MRS. SMITH-To the west and on the north. MR. TURNER-Okay. MRS. SMITH-And I'd like a guarantee that there won't be more truck traffic. MR. TURNER-I don't think we could, but, you know, how do you put up with the traffic that's on that road anyway? - 10 - MRS. SMITH-We already have to put up with it. MR. TURNER-I know, but I'm saying. The whole deal is, they're not the Lone Ranger in this thing. There are other people there involved in it, too. There's traffic up, that's a horrendous corridor. Okay. Thank you. Anyone else wish to be heard in opposition? Okay. Public hearing's closed. PUBLIC HEARING CLOSED CORRESPONDENCE MR. THOMAS-A letter from the Town of Queensbury Committee for Community Beautification, "QCCB has reviewed the request for a Variance and have the following recommendations:" It shows neither approval or disapproval. "Frank Leo, agent for Double A Provisions, attended the meeting. Additional property was purchased for the proposed addition. There is a green area at the front corner of the lot. With the existing building. graveled parking lot and the proposed addition, and the nature of work done at this location (loading docks in the front and deliveries to the rear, etc.) there isn't an area available for additional plantings. There are letters in the file from adjoining neighbors attesting to the fact that the property is always kept attractive." A letter from Randolph Whittemore and Helen Whittemore, to the Zoning Board of Appeals, dated January 12, 1994 "Gentlemen: This letter is to state that we have no objection to Double A Provision's request to add on to their present property at the boundary line. Mr. Aronson's buildings are kept very well and would not be a detriment to our home." A letter from James C. Fish, owner of Jim's Glass Service, dated February 24, 1994 Gentlemen: This is to inform you that we have no objection to Double 'A' Provisions building an addition that extends to the existing fence line." MR. CARVIN-I'll tell you. I've come down there in the morning, and they try to back these trucks in here, and it's just ties that, I mean, it's a bad road to begin with. MR. TURNER-It's terrible. MR. CARVIN-I mean, I would rather see them move this way. MS. CIPPERLY-Mrs. Lilly, who I mentioned in my notes, lives directly west, and she's the one that was having trouble with the trucks. MR. TURNER-Any thought, Mr. Carvin has suggested you tie this addition into the existing building on the west side, right here, if you put it right here? You're coming in here with your trucks, supposedly, right, and back here? MR. LEO-This addition here has no refrigeration in it. MR. TURNER-Yes. Right. MR. LEO-This is a built-in cooler and this is a built-in freezer. You have through the freezer and through the cooler to get into this area here. See, there's a walkway right down from this dock into this dock. So you can run straight into here with this, but to go through these, to get to a building here, is almost impossible, and to put it here, we're going to be almost right by the road. As far as more noise back here, there's going to be no way we can back into, the only door into this building is the door on inside the building. There's no outside doors. There's no loading dock or anything like that going with this building here. As far as truck traffic, any more, there will be no more. than what's already there. We're taking everything out of this section, here, which is, it's real low. I can't get (lost word) trucks and stuff through here, because this is down on street - 11 - grade, this part of the building is way down low, you walk right in. So, as far as putting stuff there, you're going to have to take it by hand, and stack everything. As far as more trucks and stuff, you won't see any more trucks. MR. TURNER-Okay, but the only inconvenience that would provide you is that you'd have to go outside to get to this building to access it. MR. LEO-Right. We're going to have to close all this off to get around somehow to get to it, right. What we did, when the trailers come in, the ones that come almost every day, they automatically pull right into here, okay, and they wait here, and we unload them here and here. The ones that come from out of town, we've got no control over. They go allover the place. Mrs. Lilly's driveway is right here. A lot of what they ~ doing is coming and going straight to her driveway. We've got signs and everything else, asking them not to go there. MR. CARVIN-Okay. Well, that's part of the problem, because you put so much building. I mean, the more building we put on here in this limited space, the worse that situation's going to get. MR. LEO-It's a growing business. MR. CARVIN-I know, but he may have outgrown this spot. MR. TURNER-Yes. He's getting to where he's outgrowing it. MR. CARVIN-I like to see business grow, but. MR. LEO-But I can almost as far as making this complex any bigger, I think he's gone his limit here anyway. MR. TURNER-I think he's at his limit right now. MR. CARVIN-I was going to say, I think he's one bridge too far. MR. MENTER-Yes. What comes property right to the back within its zone. I mean, changes the character of that into play is the property, Fish's now, has a hardship in operating you have no buffer there, and it piece of property. MR. CARVIN-Absolutely. MR. LEO-Okay. Well, the piece of property after that, which also belongs to Jim's Glass, that's supposed to be zoned light commercial, or something. MR. TURNER-No, he got a variance. MR. MENTER-He's pr obab 1 >' preexisting. MR. TURNER-No. He got a variance for that. MR. LEO-Yes, but as far as Mr. Fish having any problems, you know, if he's going to sell the property, Mr. Aronson's going to buy the property. There's no question about that. MR. CARVIN-But there's always the possibility that Mr. Aronson doesn't, and then what's Mr. Fish do? It is a residential zone, and certainly this corridor is going commercial, and I don't have a problem with that, and certainly if he could buy this and expand this way, I wouldn't have any problem with that. MR. LEO-We'd rather go this way anyway. We can't make him sell. MR. CARVIN-Yes, well, until those two events happen, we're still confronted with, this is the space that we've got. You've got a permeability problem. You've got a traffic pattern problem. - 12 - You've got neighbors now that are starting to complain. MR. LEO-Well, as far as the trucks going up and down the street, everybody. MR. CARVIN-I'm not saying that, but 1 know for a fact that going to work, because I go by your building every day, that when these trucks are turning around at seven o'clock or eight o'clock in the morning, they tie traffic up, which is already bad, and again, I realize that's not your fault, but it's just because you've got limited space here. MR. LEO-Yes, like I said, as far as putting this on, it's not going to create any more traffic coming in. MR. CARVIN-No, but it's not going to eliminate any either. MR. LEO-Well, it's not going to eliminate it anyway. MR. CARVIN-Yes, but how do you get around the permeabiiity? I mean, I think you've gone over the permeability. MR. LEO-Well, this is all graveled lot. There's no blacktop to this lot. We're not going to blacktop it. MR. CARVIN-I mean, I still think I would be more comfortable, if we were to look at it, that we put it on this corner, because that gives you still your buffer. It gives it a little bit of noise abatement in the back here. MR. LEO-So, what, more or less, of property that we bought is parking lot? you're telling me, is this piece really no good to us, except the MR. TURNER-No, but you have to realize that when you bought it, that residential was next to you, and you had limited use, right away. When you came with the proposal in December of '92. MR. LEO-Right, we were going to propose to put it here. MR. TURNER-Right. So with the addition of that other property, that provided the 50 foot buffer, right away. MR. CARVIN-As if the purchase over here, if you bought this and expanded that way, and I don't think there'd be anybody that would have a problem with it. MR. TURNER-Yes. MR. CARVIN-But now realize you may have that gets purchased. you're crowding into a residential, and I an option, but that's not a guarantee that MR. TURNER-There's nothing over here that, you say he's renting this building across the street? MR. LEO-He owns this property right here. He's renting the house out. He owns the property. MR. TURNER-Right, I know, but he has no intentions of doing anything across the road that's related to this building? MR. LEO-Not as far as, no. See, then we're across the street and we're in the same boat where we are, having stuff stored allover the place. We want to keep everything on the same parcel. You build a building over there, then you're back to the same problem, you've got trucks going back and forth across the street. MR. TURNER-No, no, no, not if you put the drygoods over there, - 13 - and you keep the meat separate. MR. LEO-Yes, but everything goes on the same truck. MR. TURNER-I know. MR. CARVIN-I think we're building a Rube Goldberg situation here. We just keep adding bits and pieces. MR. TURNER-Yes, I know. MR. CARVIN-And again, I don't know if anybody's given thought of redesigning this whole building so it becomes more efficient. MR. LEO-Well, it's hard to redesign this refrigeration, the way the building's built. building, the MR. TURNER-This building has block walls. It has two and a half inches of foam insulation, and it's all prepped just for that use right there. MR. CARVIN-All right. They've got a loading dock here. I don't have a floor plan. I mean, fine, you put your addition here, and you put your loading dock here, I mean, and you're still within the thing. MR. TURNER-Yes. MR. MARTIN-I'd just remind the Board, too, bear in mind your considerations for a Use Variance. We have absolutely no documentation on file as to the financial impact, or the need for this expansion. I mean, these are all site plan concerns that we're talking about building positioning. We have yet to see any documentation regarding the financial need or impact of this expansion. MR. CARVIN-I think we're looking at the character of the neighborhood, at this point. I mean, because at this point, it just would alter the character of the neighborhood. MR. MARTIN-Well, that's an Area Variance consideration. MR. MENTER-I think Jim's right. The primary thing is if there's no. MR. TURNER-By the Use Variance, he has to meet the criteria for the whole Use Variance, not just one, not just two, but all of them. Do you want to consider tabling this and consult with Mr. Aronson? MR. LEO-Yes. MOTION TO TABLE USE VARIANCE NO. 14-1994 Introduced by Theodore Turner who moved seconded by Chris Thomas: DOUBLE A PROV I S IONS, for its adoption, Tabled by the applicant. Duly adopted this 21st day of April, 1994, by the following vote: AYES: Turner Mr. Maresco, Mr. Carvin, Mr. Thomas, Mr. Menter, Mr. NOES: NONE ABSENT: Miss Hauser, Mr. Karpeles AREA VARIANCE NO. 15-1994 TYPE: II CR-15 DOUBLE A PROVISIONS OWNER: BEN ARONSON 64 MAIN STREET APPLICANT PROPOSES A SIXTY (60) BY THIRTY-TWO (32) FOOT ADDITION TO A PRE-EXISTING, - 14 - NONCONFORMING STRUCTURE. SECTION 179-24C REQUIRES A SIDE AND REAR SETBACKS OF TWENTY (20) FEET. APPLICANT IS PROPOSING TO CONSTRUCT THE ADDITION ON THE PROPERTY LINES, YIELDING NO SIDE OR REAR SETBACKS, SO SEEKS RELIEF OF TWENTY (20) FEET FROM EACH. SECTION 179-24C ALSO REQUIRES THIRTY (30) PERCENT PERMEABILITY, WHICH WILL NOT BE MET BY THE PROPOSED PLAN. (BEAUTIFICATION COMMITTEE) 4/11/94 (WARREN COUNTY PLANNING) 4/13/94 TAX MAP NO. 134-6-1, 14 LOT SIZE: 0.61 ACRES, 0.21 ACRES SECTION 179- 24C MR. MARTIN-Ted, what do you want to do with the Area Variance? MR. TURNER-We'll table both of them, and then they'll still be, they won't have to re-apply. MR. MARTIN-Well, we haven't had the public hearing opened yet on the Area Variance, either, technically. MR. TURNER-No. That's true, but without the approval of the Use Variance, the Area Variance isn't going anywhere. MR. MARTIN-We'll just re-advertise the Area Variance, should that come up again. MR. TURNER-Okay. All right. MR. CARVIN-I think the applicant should be assessed of what the criteria is, and have financial documentation, when we re-open this. MR. TURNER-Yes, he's got to have it. MR. CARVIN-And also some alternative plans, I guess. MR. TURNER-If you come up with a different plan, bring that back, and bring the documentation, on the financial end of it. MOTION TO TABLE AREA VARIANCE NO. 15-1994 DOUBLE A PROVISIONS, Introduced by Theodore Turner who moved for its adoption, seconded by Chris Thomas: Tabled by applicant. Duly adopted this 21st day of April, 1994, by the following vote: AYES: Turner Mr. Carvin, Mr. Thomas, Mr. Menter, Mr. Maresco, Mr. NOES: NONE ABSENT: Miss Hauser, Mr. Karpeles AREA VARIANCE NO. 22-1994 TYPE: UNLISTED ESC-25A PYRAMID COMPANY OF GF OWNER: SAME AS ABOVE AVIATION ROAD APPLICANT IS SEEKING TO SUBDIVIDE ONE (1) FIFTY-SIX AND FIFTY-SEVEN HUNDREDTHS (56.57) ACRE LOT INTO TEN (10) LOTS FOR FINANCING PURPOSES. RELIEF WILL BE NEEDED FOR EACH LOT FROM SECTION 179-27.1, WHICH REQUIRES LOT SIZE OF TWENTY-FIVE ACRES, LOT WIDTH OF EIGHT HUNDRED (800) FEET, FRONT SETBACKS OF FIFTY (50) FEET, SIDE AND REAR SETBACKS OF THIRTY (30) FEET, AND PERMEABILITY OF TWENTY (20) PERCENT. THE APPLICANT ALSO SEEKS RELIEF FROM SECTION 179- 66C, PARKING REQUIREMENTS, AND SECTION 179-70, WHICH REQUIRES FRONTAGE ON A PUBLIC STREET. (WARREN COUNTY PLANNING) 4/13/94 TAX MAP NO. 98-1-5.2 LOT SIZE: 56.57 ACRES SECTION 179-27.1, 179-66(C), 179-70 BOB STEWART, REPRESENTING APPLICANT, PRESENT STAFF INPUT - 15 - Notes from Staff, Area Variance No. 22-1994, Pyramid Company of GF, Meeting Date: April 21, 1994 "APPLICANT: Pyramid Company of Glens Falls PROJECT LOCATION: Aviation Mall, Aviation Road PROPOSED ACTION: Applicant is seeking to subdivide one (1) fifty-six and fifty-seven hundredths acre lot into ten (10) lots for financing purposes. CONFORMANCE WITH USE/AREA REGULATIONS: Some form of relief will be needed from Section 179-27.1 for each lot. This section requires lot size of twenty-five acres, lot width of eight hundred (800) feet, front setbacks of fifty (50) feet, side and rear setbacks of thirty (30) feet, and permeability of twenty (20) percent. The applicant also seeks relief from Section 179-66(C), parking requirements, and Section 179-70, which requires frontage on a public street. The applicant has prepared a detailed description of required relief. Staff has reviewed this document and agrees with the descriptions. Rather than repeat them, staff is willing to let them stand as the record. REASON FOR VARIANCE REQUEST, AND BENEFIT TO APPLICANT: In order to secure financing for the expansion of the mall, lenders are requiring that each segment of the project be on a separate parcel. Granting of this variance would allow applicant to proceed with the project. FEASIBLE ALTERNATIVES: Apparently, there are no alternative methods of securing funding for this project. IS THIS RELIEF SUBSTANTIAL?: The relief is substantial in view of the number of nonconforming lots being created, the non-existent or minimal setbacks, the lack of road frontage, proper lot size, etc. However, the applicant maintains that this situation will only be in place during the construction period, after which the parcels will be merged and the site will be conforming. EFFECTS ON THE NEIGHBORHOOD OR COMMUNITY: There is no anticipated effect on the neighborhood due to the creation of these lots. The approved Site Plan will be followed, with no changes proposed. In the event there is a default on these lots, there are some areas described below in Staff Concerns, which could affect the community or require further variances. IS THIS DIFFICULTY SELF- CREATED?: This difficulty appears to be created by the lending institutions. The applicant would have preferred not to have to undergo this process. PARCEL HISTORY: The Mall site was zoned Enclosed Shopping Center by Resolution of the Town Board on December 17, 1990. Prior to that it was zoned Plaza Commercial- lA. STAFF COMMENTS AND CONCERNS: Simply put, staff has concerns about relieving the applicant from all requirements for access -- to parking, the road, utilities, water and sewer -- and would prefer to see some easements or agreements among the lots to provide this access. While this is predicted to be a temporary situation, some provision should be made for the possibility that the lender could actually end up with a piece of real estate that is unusable without extensive relief from the Zoning Code or legal problems in utilizing the site. Staff's level of concern about this project is tied directly to the predicted temporary nature of this subdivision. A time period could be placed on the area variance to insure that this is, indeed, a relatively temporary use. If an extension of that period was needed, the Board would have the opportunity to extend it. For the record, the Tax Map parcels involved in the total project include: 98-1- 5.2- 98-1-2 98-1-5.1 98-5-4.1 99-1-4. These parcels are either under Pyramid ownership or in some stage conveyance. The concept proposed in this application is becoming more common in the development and finance industry. Similar cases are known to have occurred in the Town of Guilderland and the City of Saratoga Springs." MR. THOMAS-The Warren County Planning Board, dated April 13, 1994, "At a meeting of the Warren County Planning Board held on the 13th day of April, 1994, the above application for an Area Variance to subdivide a 56.67 acre into ten separate lots in order to secure financing for the 105,000 GLA expansion of the Aviation Mall was reviewed ~nd the following action was taken: Recommendation to disapprove. Comments: It is in conformance now. Dividing it into ten parcels is not a good idea. Also the - 16 - '- legal ramifications of segmenting this property and the impact of any futu1-e changes or modifications to the site plan might be in conflict with the individual property owners. The Board is also concerned about the open-ended request for any other Variances not specifically mentioned." MR. TURNER-Mr. Stewart. MR. STEWART-Mr. Chairman, Members of the Board, for the record, my name is Bob Stewart, and I'm here tonight representing the Pyramid Company of Glens Falls. With me is Michael Piazzola of the Pyramid Company who is the Project Manager in this application, and also with him, is Mr. Dave Bagardis, who is the surveyor who has laid out the subdivision map and plan that you've seen, and they're here in the event that they are requested to answer any questions that perhaps I cannot. Under the law, it was required that the application be long and detailed, specific, complicated, and even boring, but I don't think there's any law that says ~ comments tonight have to be the same. I'm going to be quite brief, because I sense that this Board is probably pretty well aware of what's involved here, but I'll stop and slow down and answer any questions that you may have. I don't mean to be cavalier about this, but I don't want to bore you to death either. The basic thing I think you must understand is that there is a site plan in place which specifies exactly how this property can be developed and of course there's a Zoning Ordinance in Queensbury that says it can only be developed as one overall enclosed shopping mall. The rules that control it are clear cut and precise, and the Mall meets all of those rules, has all of the permits in hand that they need to go forward, and do not need any variances from this Board, and, frankly, we wish that we didn't have to be here tonight to take your time. What has happened, pure and simple, is the complexities of financing, and it's new. It didn't exist a few years ago. When this Mall was initially developed, the Teachers' Annuity, which is a long range, permanent lending organization utilizing primarily Teacher's pension funds, financed the long range construction of this Mall, and they are still the financing agent, and will continue to be in the future. When, however, a new expansion within the Mall is planned, as is the case today, the permanent lender does not loan the money -for the construction. As a matter of fact, it's my understanding that the charter of Teachers' Annuities does not allow them to become involved in the temporary construction financing. Commercial and industrial type construction these days, and for a good many years, has always been done in two stages. First, banks that involve themselves in the type of commercial short-range construction, they come in. They lend the money. They see the project through, until the buildings are up, the tenant is in, and that portion of it is stabilized. At that point, the temporary lender comes in. He pays off the construction lender, and then his mortgage goes on over all, and it's done as a two stage basis. That's not unusual. As a matter of fact, when Caldors ~\ as built, some years ago, in this Mall, it was an extension after the permanent financing had been placed, and we didn't have to come back for any of this type of a variance. The reason that it's different now is that the banking industry went through some difficult times in the past few years, specifically the Savings and Loan disasters we've all read about, and there was some serious mistakes that had concerned the banking industry. Bank examiners are very, very tight now in reviewing what banks do, and everybody is now very cautious. As a result, the construction or the temporary lenders say, fine, we will come in and loan you the money to put up the building, but we want some security to show the bank examiners that we're going to be doing a good job here, and so we want a mortgage. Now, we realize, if we want a mortgage of the whole site, that's possible, but it would be second to Teachers', whose mortgage is up front, and we want something more than that. We want a first mortgage on something. Specifically, we want the footprint of - 17 - .., the building on which we're going to put this new building. We want that piece of land underneath it, and we want the building, as it goes up, secured by a mortgage in which ~ hold first position, and Teachers backs down and agrees to give us first position, and here we have about three phases of construction which would involve three parcels upon which construction would take place. In addition, the lenders have noticed that there is new parcels coming in around the periphery that we're acquiring so that we'll have enough land for all the parking requirements and so on that the site plan requires, and they've noticed that Teachers, when they put their mortgage on years ago, their mortgage didn't cover these parcels, because Pyramid didn't own them at that time. So they say, ah ha, there are a few other parcels there that Teachers doesn't have a mortgage on. Give us a first mortgage on those, too, sort of a belt and suspenders. We want a mortgage out of everything. Teachers has agreed to this. Teachers realizes that the temporary lenders need some security if they're going to put this kind of money down. So, they have agreed to subordinate their mortgage on these small construction pieces to the temporary lender, and they've agreed that the temporary lender can also have first mortgages on these peripheral parcels around the edge. The understanding is, when the building is done, Teachers will then payoff the temporary lender, and then Teachers mortgage will back up to first place, and we will go on just as we always have. Again, the important thing is that Pyramid doesn't need any variances to build and operate the Mall as it's approved by the site plan, and even more important, that they can't deviate one inch from that site plan, whether you give them the variances or not. The variances have nothing to do with how they can use that property, only how they can finance it. That being the case, we have applied for these variances. The Staff has examined this thoroughly, and the Town Attorney has turned it upside down, also. L took the position that, since the site plan controls what can be done, that that should be it. I didn't think that we needed any conditions other than that. Mr. Dusek felt that he did want additional conditions to make it crystal clear, and to state over and over that no matter what variances that this Board should grant tonight, that under no circumstances will it effect the way the property can be used and developed, and he and I have worked together on a proposed resolution that gives him all of the language the deed required in that regard. It also goes on to say that once this project is complete, and the temporary financing is done and concluded, and the Pyramid financing has come back on, that at that point, the variances will disappear, it will be taken off. The subdivision will be taken off, and we'll be back with one large piece, operating as a single Mall, and secured by a single mortgage with the Teachers Annuity. So that's the basic concept of it. What, if any, questions can I answer, or can the other gentlemen with me answer? MR. TURNER-What's the time frame for construction? MR. STEWART-The time frame for actually we're starting now, getting the site ready. construction of J.C. Penneys in terms of moving earth, is, and MICHAEL PIAZZOLA MR. PIAZZOLA-September 21st. MR. STEWART-To start or to finish? MR. PIAZZOLA-To finish. MR. STEWART-To finish. All right. When that is done, there's another necessary link that goes behind that. When Penneys is done, then there'll be another extension of the Mall, bringing the corridor to the new Penneys, and that will be accompanied by some smaller stores, and that wing will be approved. So that's - 18 - sort of a Phase II. Any judgements about when that will be done? MR. PIAZZOLA-November 15th. MR. STEWART-Finally, the third phase that's allowed under our site plan is a new department store, which we've referred to as Department store B. We don't anticipate, with the complexities of building Penneys, that that will go up this year, and it's contemplated that that will, however, go up next summer, and that is it. That is our three phases. MR. TURNER-Is that a definite, or is that just a? MR. STEWART-Well, I think it's definite, as far as weather, and storms, and strikes. MR. TURNER-No. Is it definite, you're definitely going to build the other store? MR. STEWART-Well, as to that, I'd rather have Michael answer you on that. MR. PIAZZOLA-Mr. Turner, to try to answer your question, the Mall expansion is now proceeding, and we're building the J.C. Penney store with the anticipated opening date of September 21st of this year. At which time, once J.C. Penney closes the store they're in and moves into their new store, we can start construction, in earnest, on this other parcel, if you will, which is the old J.C. Penney, which will become ten or twelve new Mall shops. At that point in time, we'll have a new J.C. Penney. We'll have new Mall shops. We're right now negotiating with a handful of Department Store B tenants, we call them. We have approval to do 65,000 square feet there. However, we can't start construction in the dead of winter there, and construction will most likely start next spring, for either a summer or fall of '95 opening for that store, but without having the lease in hand, I really can't commit to a definite time frame, but, based on the fact that there is a construction lender there, and we're paying interest on a construction loan, it's in Pyramid's best interest to try to close the door on this whole expansion as quickly as possible, and that's what we're aiming for. We're aiming to get this thing up and open as soon as we possibly can. MR. TURNER-So what you're saying is then the financing will be on the total proposed expansion, or just on what is proposed this year? MR. PIAZZOLA-The financing has to, if you will, leap frog from one parcel to the next, and the financing will be in place, most likely, until that fourth Department Store is open. MR. TURNER-Temporary financing. MR. PIAZZOLA-Temporary financing, and as Bob has said, once that final piece of the puzzle is satisfied, once that last piece of the construction loan is discharged, these variances will automatically expire. MR. TURNER-Will automatically expire. Yes. MR. PIAZZOLA-By virtue of the resolution that Mr. Dusek and Mr. Stewart put together. MR. TURNER-So we're, again, going back, we're talking to the fall of '95, is that correct, for the total expansion to be done, to be accomplished? MR. PIAZZOLA-The inside date would be spring of '95. MR. TURNER-Spring of '95. ... - 19 - MR. PIAZZOLA-And the outside date would be the end of '95, and again, I wouldn't want to be held to those dates. MR. TURNER-No, I'm not. I just want to get a picture. MR. PIAZZOLA-That's the general picture, and again, don't have a lease in hand for that fourth Department be reticent to give you an exact date, but I know what dates are on the J.C. Penney and the new Mall Shops. because we Store, I'd the exact MR. CARVIN-Would you feel there's a high degree of confidence that you will have a lease, and that this will be completed by the end of '95? MR. PIAZZOLA-Without having lease in hand, I'll tell you I'm as confident as I can be. Knowing that we're on the record, I have to say that, but we do have a high degree of confidence, because we have a sophisticated leasing team back in Syracuse, and being the Mall Manager and also the Project Manager, they call me every week to take somebody on a tour, a potential tenant for that fourth Department Store. So, there's a big push on. Pyramid Company's a large corporation, as you all know, and this is the Number One priority for the Pyramid Companys right now is to get the Glens Falls expansion up and open and completed. MR. MENTER-The construction financing, those on project completion, more than time frame. note. are typically based They're more like a MR. PIAZZOLA-That's correct, and again, your lending institution has reviewing capacity, and what they want to do is they want to make sure that you have a construction schedule, and, so, hypothetically, J.C. Penney would be open on September 21st of this year, and the construction lender has a reviewing engineer. They have a reviewing attorney, and they're there every week making sure that construction is progressing in accord with the schedule that you've worked out with both the tenant and the developer, and they don't necessarily, it's not necessarily limited by time. It's limited by time based on the date that you give them as part of the construction schedule. So, I can tell you that the timing is September 21st for J.C. Penney. MR. MENTER-So, in a sense, then, you're bound to that schedule. MR. PIAZZOLA-Absolutely. You pay severe penalties if you don't make that schedule, because the bank expects to have their money back from you with interest at a certain date, and it's going back into circulation with somebody else imminently. MR. THOMAS-The only thing, well, reading this whole thing, why ten separate lots? Why not five, why not twenty-five? MR. STEWART-Let me try to answer that. The ten lots come out this way. First of all, we start with one huge lot. That's right there. There are three footprints for the three proposed new wings, or additions. That, plus the original, now you're up to four. In addition, there are six peripheral pieces, one that the Town sold us recently, for a very high price, and four that are being picked up, two from Mr. Wood, and two from this corporation, but they'¡"e scattered around the outside, and the reason the bank has eyed those additional peripheral properties, even though nothing is going to built on them, they're dedicated to parking or roads, is because they don't have, at the present time, a Teachers mortgage on them. Teachers mortgage went on some years ago, when those parcels weren't part of this whole. Now they're coming in, and they don't have a mortgage on them, and again, like belts and suspenders, the banks are indicating, A., give us a mortgage on those little pieces now, because that just makes us feel a little more secure. I'm not sure why they want them. Frankly, they can be used for nothing but parking, - 20 - but bank attorneys love to say, give me that and your first born son, and anything else they can get their hands on, in this case. There is one other comment I think should be made, and that relates to the County Planning Board's disapproval. The Staff of this Board has required submitting the application for review to the County. I was concerned that the County clearly understand what lies beneath all of this, because it is sort of a complicated concept. It's something new here in this area, at least it hasn't (lost word). So every day, the moment it got up there, I called twice a day, left messages with Staff, call me and meet with me so I can talk with them and make sure they clearly understood it. They have an arrangement where the Staff meets with the Board before the public meeting and tells them what's going on and the Board pretty much makes up their mind, or so it appears, as a result of Staff's comments. Staff would not meet with me, and would not even give me the courtesy of a single phone call back, and that's fine. That's their prerogative, but when we got up there the night of the meeting, they and the Board expressed confusion. They didn't clearly understand what we were all about. The one comment, for example, I don't see any reason why you have to divide one big piece into ten. Obviously, if anybody had read the application, they would see what the problem was. They may not have agreed with it, but they certainly would understand, and it was obvious to me that they just hadn't taken the time, nor had Staff told them what this was all about, which was sort of annoying, in view of the fact that I was calling every day, telling them why I was calling, and asking for them to meet, unlike your Staff whose turned me inside out for weeks over this thing, but I just wanted you to know, and as a matter of fact, Mrs. Bitner, the last comment before the resolution, said, I think it should be in the record that we're not disapproving because we disapprove of it. We're disapproving it because we really don't understand it and we wish we had an attorney here to give us some advice, but we don't have an attorney to help us, so we just don't know what we're doing. That was the essence of that decision, and I think you should know that. MR. TURNER-Anyone else? Do you want to hear what the public has to say first? Okay. We'll turn it over to the public hearing, and then we'll get back. I'll now open the public hearing. PUBLIC HEARING OPENED NO COMMENT PUBLIC HEARING CLOSED MR. TURNER-Any discussion? MR. CARVIN-Well, I think they've addressed all the issues. I think, you know, my concern was the longevity, whether we were opening up a real Pandora's Box here. MR. TURNER-That was my question. I just wanted to know where the construction dates were going, and what was coming first, the chicken or the egg, or whatever you want to call it. MR. CARVIN-Yes. I, very briefly, have read over the proposed motion, and maybe Paul, is there a time frame on this, Paul? Is a termination date in here? MR. DUSEK-Maybe I can review that part with you. In fact, we were meeting out there because they had trouble with the language still, and we hashed it over again. When this matter first came to me, it was clear to me that there were two issues, essentially, here. One was, which is the obvious one, of course, do you grant the variance or don't you grant the variance. That's issue Number One, and of course that's strictly this Board's decision. If you didn't grant the variance, then there's no other concerns. If you granted the variance, however, then I - 21 - saw a second issue. The second issue being to, that if it's true that all they needed this for was financing, and it was only for the temporary financing, I saw the second issue being that, how do we limit it sufficiently so that nothing bad can happen in the future. So, one part of this resolution really deals with conditioning the variance so that we tried to avoid, to the best of ~ ability, and we brainstormed this thing to make sure we tried to cover every possible contingency, so nothing "bad" could happen, and what do I mean by "bad" happening. Well, you're creating subdivisions, and as the Staff pointed out, well, what if all of a sudden one of these people buys a lot and it's landlocked, or they buy a lot and they say, well, we don't have any parking, so we want a variance, for whatever reason, put in underground parking or something, you know. We didn't want to open up the door so that somebody who bought a lot there, if that happened, through a default in financing or something, that they came back to this Board and said, you've got to give us a variance. So the thought was, and it starts on Page 9, Paragraph 16. That paragraph says, it is the intent and a condition of this resolution, that any subsequent owner of all or any of the parcels described shall be subject to the benefits and burdens of the site plan approved by the Town of Queensbury Planning Board. Now this language, in and of itself, says, okay, if somebody did come in, they're going to be bound by whatever that site plan shows. In other words, parking is here. The buildings are here. They can't come in and say, we're going to put a building on top of a parking lot because that's not allowed. So whatever's shown on that map, they're obligated. Also they get the benefits of that map, the parking, the traffic flow and everything else, and I give Bob Stewart credit for coming up with that language, because that, to be quite honest with you, that language impressed me in being able to say in very few words, to put a cap on what's going to happen here as far as future owners go, the benefits and burdens of the site plan. I wanted something additional to that, though, and I wanted it clear, in terms of the next condition, that the variance had to have a provision in it which required that should a conveyance occur, through default or whatever, that the future owners would get easements or rights to use the parking, the common mall area, the access, the egress, utilities, signage. In other words, that owner, when he becomes occupant of that store, if somebody should acquire that, they're going to have all the rights to use everything, just as if the Mall had always gone on. Well, now if they come in here and try to seek a variance for parking or signs or anything else, they're going to be pretty hard-pressed, because nothing's really any different than all the other Mall people that are in the Mall over there, and also they've gotten all the rights. They can't say, well, golly, gee, I don't have any parking because these people are required to give them parking, and they're required to give them the same type of parking that they would have if they were in existence from the same ownership. In addition to that, we had the time issue, because my thought here,.agaip, was, anhd I think staff also raised it, and I know Ted ralsed lt, that.t e, well, if this is all we need for financing, and.w:'re ~frald of potential problems in the future,. ~ow can we.llmlt th~s.from a time perspective? Now, normally lt s very trlcky to llm:t your variances, in terms of timing, because they usually.ru~ wlth the land. However, the courts have held that, in certaln lnstances, time limitations are permissible, as long as they're structured properly, and it was ~ opinion, in this particular case, that it was appropriate to put a time limitation of sorts on it, and therein started a whole bunch of problems, which is why I just handed out to you this other second handout, where we tried to reach an agreement as to how those time provisions should work. It basically says here that, and there's two resolve clauses. One is a resolve clause that you acknowledge that the Warren County Planning Board did what they did, but you're still going ahead with it, basically. The second one, though, is the one that deals with the timing, and it says, it is hereby resolved that the foregoing variances shall terminate upon the happening - 22 - of the following events. So it's saying, if all three of these things that are listed here happened, then the variance is over with, and what has to happen is, One, all the construction financing has to be satisfied or discharged and no default occurring. Well, I think that makes sense, because until the construction financing, the whole purpose of this is to protect somebody who may buy under that construction financing because of a default. They want to be able to have a subdivided lot. Like, lets say they don't payoff the financing on J.C. Penney Store and somebody, and the bank takes it over and they sell it off. Well, at that point, you've got to recognize there's going to be a subdivision there and somebody's going to own the J.C. Penney Store, but the earlier conditions we talked about will allow them to have access, parking, common areas, everything would stay the same. So they shouldn't be back in here looking for variances from this Board, and they shouldn't be changing anything over there. They'll just occupy the building as a separate parcel, but should that not happen, then that one condition will happen, that the financing is over. No default has occurred, then you drop down to the second one, which says that the proposed ten lots are under common ownership. Well, if everything goes right, it'll stay under common ownership of the Pyramid Companys. The third condition is, is that the mortgage, the permanent mortgage now comes back in through Teachers, and takes over the entire parcel again, and so now there's no need for the construction financing. There's been no default. It's all under common ownership. This variance then goes away. Now, to make that absolutely crystal clear, because ~ concern was I didn't want to open the dooi for the developer to say, well, I've decided I want to have different permanent financing on different buildings, and I'm saying, I said to Bob, I said, that's not what was said here. What was said here, and he didn't argue that, but I'm saying, I don't want that to even happen as a possibility. I want to give you only what you're asking for, temporary financing. That's why we added this additional clause. Now this is going back to the form resolution that I gave to you, on Page 11, and it says, nothing contained herein shall be construed to provide the owner with the right to maintain separate permanent mortgages on the parcels, once temporary financing is satisfied and/or discharged, and the owner, or any subsequent owner, holds title to all subdivided parcels. With that language in place, I think that helps to clear up that what we'ie trying to do here, only give them the subdivision for the temporary financing. The Town recognizes that, hey, if something goes wrong on the temporary financing and there's a default, yes, we'll have a subdivision out there, but we'll have it restiicted. If nothing goes wrong, we're going to get rid of this variance in the end, through this time frame. Now you'll notice there's not a particular date in here, and the reason for that is because I feel that a time frame should be geared to something that, first of all, it's very hard to come up with a date, but secondly, I feel the time frame should be geared to something that makes sense, not just an arbitrary date, because I think that could be challenged in the courts, but rather is tied to a particular happening of an event, which, in this case, is the construction financing getting all resolved. From what we've heard tonight, it seems to me that there's a very good shot that this whole thing will be over probably the end of '95, maybe '96, unless there's a default, and we don't know if that'll ever happen. Hopefully, it won't, but I think that with the restrictions that we put into this document, and it being made clear throughout the document in a number of places, that this whole thing is subject to these conditions, that you're making this finding with these conditions in place, then I think the Town is protected. I hope I've helped clear up the confusion, as opposed to adding to it. It's a little complicated trying to explain it, but that was the goal when we tackled the thing on the conditions. One thing I probably should do on the handout I just gave to you, you might have trouble reading that Paragraph B in full, that says, the proposed ten lots are under common ownership; the subdivision creating such - 23 - lots having been dissolved by Planning Board condition or action or having been abandoned by the applicant. My proposal would be that the Planning Board should have, attached to their approvals, if it gets that far, a condition that that subdivision will lapse as well, at the end of the financing. So that's why we put that language in there. What would happen on this handout, too, everything that you see that I kind of bracketed, here, would go in on Page 11, in place of the top paragraph, and I guess as I'm realizing that your Page 11 like mine is at this point. Let me show it to the Board members. Right at the top here, on Page 11, there is a first one, two, three, four lines would all come out, right to the point of the word "nothing". That would all come out, that top part of that paragraph on that handout I just gave you would all go in there, instead, and then that "nothing" clause there would stay, and when I read it to you I also added, I changed the word "is concluded", right here, I changed that to, "is satisfied and/or discharged" to use better terminology. The word "concluded", quite frankly, Bob Stewart and his people have a problem with, and I admitted that that word is probably not as accurate to say, the mortgage is satisfied and/or discharged. So, I had no problem substituting this terminology, and it's consistent, also, with what's on the separate handout I gave you. So then, really, what you end up with is that entire resolution, with Page 11 doctored up, with the handout. MR. TURNER-Do you have any question on the resolution? MR. CARVIN-I'm assuming the applicant has reviewed this proposed motion? MR. STEWART-We have. MR. CARVIN-And are satisfied with all the conditions, and wherefores, and whys, of which there are numerous? MR. STEWART-Yes, but frankly Pyramid, who's now going to have to sit down with some bank attorney who's going to say why this has to be split, we'd just as soon have a (lost word) with no conditions on it at all, but the Staff and Paul won't let us get away with that. So we agreed that we will accept those conditions as being fair. MR. CARVIN-Okay, and, Paul, you feel that these will protect the Town, and the spirit of our Zoning? MR. DUSEK-I learned a long time ago that there's no absolute guarantees in life, but I believe that what we've done here is tie this down as tightly as you possibly can tie it down, with, One, the conditions in the beginning so that the thing can't change, even if the ownership of the parcels should change, and also, we've tied it down that if the financing comes to a conclusion, we're going to get rid of this whole thing, so that, twenty years from now, some other problem that we haven't thought of doesn't come up. So I think, my opinion was that this was the trickiest part of this resolution, should the Board decide to approve it. So I took the time to really study it, and I believe that we've got this as restricted as you can get. MR. CARVIN-Okay. This may be a little off the beaten path, but, with the amount of new construction, the Wal-Marts and the K- Marts and so forth, do you think that this is something that we may be confronted with in the future? MR. DUSEK-Quite honestly, I think it's very possible, because, apparently, it's been explained to me, many of your permanent financing, or financiers, are not doing the construction financing for some reason, and when that happens, obviously, then the, especially if you have an existing one. When a new one's coming up, like the K-Mart and a Wal-Mart, you probably won't have that problem, but when you have an existing building that's - 24 - seeking to expand, and if the permanent financier won't give you the money you need, and they have to go to some outside source, to take that construction risk, then you might see more of these. MR. CARVIN-Okay. Is it a situation that the Town Board should look into, to give us some latitude here, to create a new variance, if there were, that would be applicable to something like this? MR. DUSEK-Actually, to be quite honest with you, I think this is the proper mechanism to handle it as it is right here, because, see, your Board can condition a variance, like we did here, so that the Town is protected. I don't really think we want to put in statutory language for this, at least not yet, until we see if there's a constant trend for it, but at this point, it seems to me that it's unique. The applicant can typically, as I think he's done here today, demonstrate why he needs it, and you can balance the equities, and, at this point, I think that this is the way to handle it, to be quite honest with you. MR. CARVIN-Well, the only reason for the question is that I know we have had a similar case on an individual, Kelly Carte came in with some bank financing problem, where he had a lot that had thirty-two acres, but the bank wanted a chunk, and there was some convoluted thinking there. It got turned down. MR. TURNER-The thirty-two acres was primarily vacant, 1.67 acres he wanted to subdivide, with a house on bank wanted that lot with the house on it. and it had it, and the MR. DUSEK-Was that a permanent financing? It must permanent, as opposed to a temporary situation? have been MR. TURNER-Yes. It was permanent. MR. CARVIN-I was going to say, it's not substantially different, I don't believe. I mean, it was a case very similar, only it was on a personal basis. It wasn't a Mall. It was an individual owner looking for financing. MR. DUSEK-And he wanted to finance the balance of the lot without the house that was on it? MS. CIPPERLY-The bank had said that they did not want, the value of the house, compared to the value of the land. The house was insignificant, and they didn't want the house on that parcel. MR. TURNER-The value of the land. MR. DUSEK-The only thing I was said there, though, see, there you are creating a permanent situation, and creating something ~. Whereas, here, you're creating something temporary, hopefully, and also you're not creating anything new, though, other than what exists right there. In other words, here nothing's going to change, under the way this is set up. In the situation you're describing to me, it sounds like the rest of the land was going to change, and you were going to create a situation exactly what you didn't want to create under the Ordinance, where you have a nonconforming lot that you could have avoided. Here, there's nothing you can avoid. The place is built out. MR. CARVIN-What I'm saying is that we might have been able to give a temporary situation in that case, so that the whole lot would still, because that was the first time that I think I've ever been confronted with that type of financing. As it turned out, I think the turn down was passed, but it had to go to the Adirondack Park, and they threw it right out. MR. I'm DUSEK-Well, you see, the thinking it out right other thing there now, is it sounds though, too, as to me like that - 25 - person had some flexibility to build a proper lot, because it was vacant land they were working with. In this case here, this parcel is built out according to the Ordinances, and the only thing that's making it need a subdivision, at this point, is the financing, but it's not changing anything. The case that you're glvlng me, it sounds to me like he was getting ready to build out, and you would be creating a lot that I don't think you'd want. MR. MARTIN-The other thing about that, in terms of your criteria for Area Variance review, is I don't see where this is, in weighing the balance of the benefit to the applicant to the detriment to the neighborhood, I think it's clearly on the side of the applicant. In my personal opinion on this, that that outweighs the detriment to the neighborhood. In that case, the Carte case, I don't know that you could say that. I think the creation of that lot was controversial. MR. CARVIN-Yes, to say the least. MR. TURNER-Yes. acre zone. You were creating a substandard lot in a ten MR. MARTIN-And the neighbors were obviously concerned about that. MR. DUSEK-The other thing is, I think that example, though, does go to, I think, further support what I was indicating to you earlier, that I think this Board is, though, the best agency to deal with these right now, until we, usually when you have new matters that you don't hit very often, and there's a lot of different wrinkles to them, your Board is ideal, because you can vary the Ordinance. You can condition the Variances, and you can set it up so it works. If a problem starts to recur constantly, then it seems to me then it's appropriate for the Town Board to jump in and say we better re-legislate to address the situation. Based on the experience of the Board, they should have the knowledge, as well, to draft the correct legislation. I'd be very concerned, right now, drafting legislation just because, first of all, I don't know if it would fit every situation, and secondly, you might put things in there that just don't work. As we saw right here alone, we struggled with this language for a long time to get something that worked for them, and worked, what I felt would protect the Town. MR. TURNER-Okay. MR. MENTER-I'm going to ask you to speak for somebody else, to be reasonably sure that the lender, this falls into their expectation of what they're going to need? In other words, they're not going to come back and say, well, this is fine, but? MR. STEWART-Well, that's reasonably sure, yes, but when it goes into place, then it goes to the attorney for the lender, and the attorneys have a way they try to show their clients what terrific lawyers they are. They start to go through and turn over rocks. It is possible that somewhere along the line the lender's attorney will say, I'm apprehensive about this one line here, because I think maybe in the future, I think what we worked up with is fair enough for the applicant and fair enough for Town that it's clear what both sides mean. I think a bank lending money under these circumstances is adequately protected, and I fervently hope I will not be back before this Board to say we need a little patch up, but I'd like to keep the door open. I might come back and say I'd like to change one sentence, or one word, and explain to you why, and it's possible if it's that narrow a change, and that change (lost word), you might not have a problem, but I honestly know of nothing at this time that I see coming that I'm apprehensive of, or that I believe will bring us back here. - 26 - MR. MENTER-Paul, what is the easiest way for us to, in effect, like, just a language change that really doesn't make too much difference? MR. DUSEK-Well, if you got into a language change, I'd say have to consider, first of all, how major it was, and if it major, you may have to hold another hearing. we'd was MR. MENTER-Right. MR. TURNER-Yes. MR. CARVIN-That would require a unanimous vote to re-open it? MR. DUSEK-Well, maybe yes, maybe no, and the reason why I'm hedging a little bit is because, first of all, you can always re- open on a unanimous vote. You can always rehear. So YOU have that opportunity to do it that way, but he may be able to come back in, on a simple majority vote, because he could claim change of circumstances, change of circumstances being that the lender wouldn't accept the language. MR. CARVIN-Well, lets cross that bridge when we get to it, I guess. MR. STEWART-If we ever get to that point, it's going to be a very narrow, precise issue, not today where we're thinking about broad range issues. That would be pretty sharp. MR. DUSEK-Let me say this. There is a way to address that concern with the lender, and that is, just simply give him a blanket varian~e with no conditions, but, to me, then that sets the Town up for concerns, and I wouldn't advocate that position, and so the minute we start to protect the Town, we start to infringe on what may happen with the lender, and so what you try to do is you try to protect the Town, yet give them the protection they need, and I think that's what we did, here. We tried to strike a balance that protects both interests, and I think we all know, from reading in the papers, banks and everything are skiddish these days, and I think they're getting very, very tough. Hopefully they won't have a problem with this. 1 think, I agree with Bob. I think a lender should feel fairly comfortable with this, but I'm not their attorney. MR. TURNER-Okay. Any further comment? Do you want to move the resolution? MR. DUSEK-One other point I should mention, which is very important, of course, and I'm sure the Board already understands this, but just so it's in the record, what's been drafted here is totally up to you, to take as it is, to revise any way that you want, to make any changes that you want in it, because this is your baby. MR. TURNER-All right. Lets start out this way. it. You've all read MR. CARVIN-Well, I've read it through, but that doesn't mean I fully understand it. MR. MENTER-Paul personally guarantees it to have no flaws. So, I think we're covered. MR. CARVIN-Well, if it comes back at us, Paul will defend us. MR. DUSEK-Are there any questions on any of the revisions? If you want to take a moment, I don't mind going, real quick, right through this with you and just explain the various revisions real quick, so that you can feel, maybe, a little bit more comfortable with this. Do you want to do that, just take about two minutes - 27 - and just go right through it? MR. CARVIN-Well, I think we can, but I mean, if the applicant has read the document, and I'm sure he'll read along or listen along as we read it, if there's no substantial changes, and if you're comfortable with it, I'm not. MR. DUSEK-Okay. Were you going to propose to read the whole resolution, or did you just want to move it, you know, review it quickly and then move it. MR. CARVIN-I don't know. How does that? MR. TURNER-We don't have to read it. We can adopt the resolution as submitted. MR. MARTIN-When this is typed in, I'm going to have Maria send it up to Paul's Office, and have him review it before it's sent out with the official notices, to make sure that it is proper. MR. DUSEK-You're under no legal requirement to read a resolution of this length at a meeting, especially when you all have the same resolution in front of you. MR. MENTER-I'm comfortable enough with it. MR. TURNER-Yes. MR. CARVIN-Yes. MR. THOMAS-I have no problem with it. MR. TURNER-I guess the only other thing that, maybe it's duplication, but I think I would like to see the supplemental statement as part of the record, and the exhibits, as part of the record, just include it. MR. MARTIN-You mean the statement that Chris read, Ted? MR. TURNER-Yes. MR. MARTIN-Yes. That's already in the record, by virtue of the his reading it in. MR. TURNER-I know it is, but I mean, it should be part of this resolution. MR. MARTIN-You want it attached to the resolution? MR. TURNER-Yes, the Supplemental Statement, and Exhibit A. MR. MARTIN-Do you want to just attach the application, Ted, the whole, we'll just do the application. MR. TURNER-Attach it to the resolution. Okay. introduce it, then. MOTION TO APPROVE AREA VARIANCE NO. 22-1994 GF, Introduced by Theodore Turner who moved seconded by Fred Carvin: All right. I'll PYRAMID for its COMPANY OF adoption, With the following resolution attached, and also attached to the resolution the application with the supplements and the exhibits, as it applies to this application. WHEREAS, Pyramid Company of Glens Falls (the "Applicant") submitted a variance application dated March 30, 1994 (as amended and supplemented, the "Application") and an Environmental Assessment Form dated March 30, 1994 (as amended and supplemented, the "EAF") to the Town of Queensbury Zoning Board of Appeals (the "ZBA") in connection with the proposed - 28 - subdivision of a 56.57+/- acre parcel of land into ten separate parcels, and WHEREAS, the Application seeks variances from 179-27.1, 179-66 and 179-70 of the Town of Queensbury Zoning ordinance (the "Zoning Ordinance") and 280-a of the Town Law (the variances requested in the Application are collectively referred to as the "Variances"); and WHEREAS, the Town of Queensbury Town Board (the "Town Board") previously reviewed the Applicant's proposed 106,000+/- square feet gross leasable area ("SF GLA") expansion to the existing Aviation Mall in accordance with the State Environmental Quality Review Act ("SEQRA") and concluded that the expansion would not have any significant adverse impacts on the environment; and WHEREAS, The "Planning Board") approval for the 1991; and Town of Queensbury Planning as an involved agency granted 106,000 +/- SF GLA expansion on Board (the Site Plan January 22, WHEREAS, the Planning Board, by resolution dated March is, 1994, modified the January 22, 1991 Site Plan approval (including reducing the expansion to 105,000 SF GLA) and found that the potential environmental impacts were previously determined by the Town Board with respect to the Aviation Mall expansion and that the Site Plan modifications did not warrant further or additional SEQRA assessments; and WHEREAS, the Town of Queensbury Zoning Administrator (the "Zoning Administrator") prepared and forwarded to the ZBA a Zoning Referral Form, dated April 6; 1994, which authorized the ZBA to review the area variances described therein, in accordance with the requirements of the Zoning Ordinance; and WHEREAS, a public hearing was scheduled on the Application and notices of the public hearing were duly published, posted, and mailed in accordance with the requirements of the Zoning Ordinance and state statutes; and WHEREAS, a public hearing was held on April 21, 1994 to consider the Variances requested by the Applicant and determined to be required by the Zoning Administrator in connection with the Applicant's proposed subdivision as described in the Application; NOW, THEREFORE, IT IS HEREBY RESOLVED, that the ZBA establishes itself as the Lead Agency for purposes of uncoordinated SEQRA reviews of the Application and EAF; and that based upon the entire record before the ZBA (the "Record") which includes the information in the EAF, the previous SEQRA reviews of the expansion, the Planning Board's Site Plan approval and modifications thereto and the Aviation Mall subdivision Plan submitted to the Town of Queensbury Planning Board by the Applicant on March 30, 1994 (the "Subdivision Plan"), the ZBA determines and concludes that the granting of the Variances constitutes an unlisted action under SEQRA, as defined by 6 NYCRR 617.2(kk); and that no potential negative environmental impacts will result from the granting of the Variances. IT IS HEREBY FURTHER RESOLVED, that the ZBA hereby makes the following findings, determinations, and conclusions with respect t.o Variances described below; 1. the Applicant has advised the ZBA the parcels, as indicated on the subdivision Plan and in the Application, have been created to satisfy lender- imposed requirements in connection with a loan ~ 29 - transaction necessary to finance the construction of the previously approved expansion to the existing Aviation Mall. Specifically, the Applicant's lender requires separate mortgage lien parcels as security for the several phases of financing required to construct the approved expansion. Some of the existing and proposed buildings and parking improvements located or to be located on certain required lots will not comply with provisions of the Zoning Ordinance or the Town Law as described below. The Applicant has requested variances from such provisions so that the parcels described in the Subdivision Plan and the Application will be in full compliance with the Zoning Ordinance and applicable state statutes in order to separate parcels. Parcel numbers in this Resolution correspond to the parcel numbers in the Subdivision Plan and the Application. 2. Parcels 2, 3, 4, 5, 6, 7, 8, 9, and 10 do not satisfy the minimum lot size of twenty-five acres, or the minimum lot width of 800 feet required by 179-27.1(A). 3. Parcels 7, 8, 9, and 10, because they each have a building to land ratio greater than 12,000 square feet per acre, do not satisfy 179-27.1(A). Additionally, those parcels do not satisfy the 500 square foot of land per 150 SF GLA requirement of 179-27.1(A). 4 . Parcels 1, 7, 8, 9, and 10 do not satisfy the front, 30 foot side and 30 foot rear requirements of 179-27.1(C) because they contiguous shopping center buildings. 50 foot setback contain a. The improvements on Parcell are contiguous to the existing buildings located on Parcels 8 and 9, and therefore, parcel 1 does not satisfy the 30 foot side setback. b. The lot lines of Parcels 7, 8, 9, and 10 generally conform to the respective building footprints and as such, said parcels also do not comply to the front, side, or rear setback requirements. Generally, each parcel will have a zero foot front, side, and rear setback. 5. Parcels 2, 4, 7, 8, 9, and 10 do not contain enough permeable surface to meet the 20 percent permeability requirement in 179-27.1(C). 6. Parcels 7, 8, 9, and 10 are each incapable accommodating the number of parking spaces required comply with the 5.0 spaces per 1,000 square feet of as set forth in 179-66(C). of to GLA 7. Parcels 2, 3, 4, 7, 8, 9, and 10 do not have the minimum road frontage required by 179-70 of the Zoning Ordinance and 280-a of the Town Law, and the actual physical access to these parcels will be provided through Parcell. Also, although Parcels 5 and 6 have frontage on Aviation Road, access to those parcels from the public road system will be provided via Parcell, and not via the frontage of those parcels. 8. The requested Variances, assuming the conditions set forth herein, will not produce an undesirable change in the character of the neighborhood. The neighborhood consists of commercial uses. The Application was filed in connection with the expansion of an existing, operating enclosed regional shopping center. Other nearby uses include three gas stations/convenience - 30 - stores, a Burger King restaurant, a Howard Johnson's Motel and Restaurant, and other commercial uses. The variances requested and as conditioned, do not change the configuration or the use of the existing and approved, but not yet constructed, buildings and structures located on the property as depicted on the approved Site Plans. Therefore, the Variances will not have any adverse impact on the character of the neighborhood. Further, the use of the property is and will remain consistent with both the Town Master Plan and the Zoning Ordinance which expressly permits the use of an enclosed shopping center in the ESC-25A zone in which Aviation Mall is located. 9. With the variances conditioned as set forth herein, no detriment will be created to nearby properties. Two of the five zoning districts adjacent to the property (HC- lA and PC-1A) are designated as areas of intense or moderately intense commercial development and as such, will not be negatively effected by the proposed subdivision of the property. As discussed above, the property is located in an area in which commercial uses predominate. The three other zoning districts adjoining the property, MR-5, PR-42A, and SFR-l0 are separated from the Mall by a 150+/- foot wide strip of land owned by the Niagara Mohawk Power Corporation, which includes power lines and natural vegetation, and Aviation Road (NYS Route 254). Therefore, the Variances, if granted with the conditions set forth herein, will not create a detriment to the nearby properties. 10. There is no other feasible method available for the Applicant to pursue and achieve the benefit sought other than the requested Variances. The requested Variances are necessary in connection with the Parcels to be created by the Applicant's subdivision application. That subdivision is necessary to accommodate a lender imposed condition which mandates the legal subdivision of land into those parcels set forth in the Applicant's Subdivision Plan. Absent such subdivision, the Applicant will be unable to secure the funds necessary to finance the construction of the previously approved expansion, and the Applicant will be unable to proceed with the approved expansion project. 11. The requested Variances, as conditioned herein, are not substantial. The granting of the Variances will not change the configuration or the use of the property as previously approved by the Town Board, Planning Board, and local officials. Although the individual lots require Variances as described herein and in the Application, the fully integrated enclosed shopping center as a whole will, upon completion of the expansion, comply in all respects to the Zoning Ordinance, including the density requirements of 179- 27.1, the parking requirements of 179-66 and the frontage requirements of 179-70, and Town Law 280-a. Moreover, the additional buildings and related site improvements which make up the expansion will be constructed as specified on the Applicant's approve Site Plans. 12. Granting the Variances with the conditions set forth herein, will not have an adverse effect or .impact on the physical or environmental conditions in the neighborhood or district. As discussed in paragraph 8 above, the Application was submitted to the ZBA in connection with a 105,000 +/- SF GLA expansion of an - 31 - ",- existing operating enclosed regional shopping center located in an area which supports three gas stations/convenience stores, a Burger King restaurant~ a Howard Johnson's Motel and Restaurant and other commercial uses. Based upon the existing commercial uses in this area, granting of the Variances will have no adverse impacts on the physical or environmental conditions in the neighborhood or district; nor will the expansion create any such impacts. The expansion of the Aviation Mall was previously reviewed in accordance with SEORA by the Town Board. The Town Board~s review of the expansion included consideration of traffic, stormwater, soil, and other environmentally-related reports. Upon completion of its review, the Town Board issued a negative declaration and concluded that the expansion would not have any potential significant environmental effects. The Planning Board subsequently granted the Applicant Site Plan Approval for the expansion in January 1991. The Planning Board recently reviewed and approved a modification to the Applicant's Site Plan Approval which among other changes, reduced the expansion to 105,000 +/- SF GLA. As part of that review, the Planning Board found that no negative environmental impacts would result from the modification of the Applicant's Site Plan Approval. Based upon the Record, the previous SEORA review of the 106,000 +/- SF GLA expansion and of the modified Site Plan Approval, the ZBA hereby concludes and finds that the requested Variances will not adversely effect or impact the existing physical or environmental conditions in the neighborhood or district. 13. The difficulty facing the Applicant is not self- created. The Variances and the subdivision approval which the Applicant has requested is required by the lending institutions as a condition precedent to the lending of funds necessary for financing the construction of the expansion. Absent the requirement to subdivide, the Applicant would not require any of the Variances. The difficulty is not self-created, but rather is imposed on the Applicant by an independent third party, i.e., the Applicant's lenders.. Furthermore, even if the ZBA determined that the hardship was self-created, Town Law 267-6(5) provides that the ZBA would not be precluded from granting the Variances. 14. The Variances with the conditions set forth herein, are the mlnlmum necessary to grant relief from the Applicant's difficulty. The Applicant has established that it has only applied for those variances necessary to satisfy the Zoning Ordinance and state statutes for the purpose of obtaining subdivision approval by the Planning Board for a fully integrated enclosed shopping center, in accordance with the previously granted Site Plan Approval. Except for the relief requested in the Application, Parcels 1-10 comply in all aspects with the Zoning Ordinance. 15. The ZBA is authorized under Town Law 280-a(3) to grant variances from the provisions of Town Law 280-a if enforcement of those provisions would create a "practical difficulty or unnecessary hardship, or where the circumstances of the case do not require the structure to be related to existing or proposed streets or highways...." As discussed in paragraph 10, without the granting of the Variances, including the variances - 32 - from the requirements of Town Law 280-a and Zoning Ordinance 179-70, the Applicant will be unable to obtain the financing required to fund the previously approved expansion. Therefore, strict enforcement of the provisions of Town Law 280-a in connection with the Applicant's proposed subdivision would not only result in a practical difficulty but also create an unnecessary hardship. Furthermore, the applicant has committed that adequate and sufficient access will be provided and maintained on all parcels shown on the Subdivision Plan and the Application through the execution of a Reciprocal Easement Agreement. All the parcels shown on the Subdivision Plan and Application will be part of, and integrated with, the Aviation Mall. The Aviation Mall has been designed and approved for vehicular and pedestrian access from the parking fields, and public roads. The entire Aviation Mall will be accessible from Aviation Road (NYS Route 254). Ample physical access presently exists throughout the mall site and from the mall site to adjacent roads for emergency vehicles to gain access, and such access will continue to exist after construction of the approved expansion. Therefore, the circumstances as they relate to this case do not require any structures within the subdivision to be related to existing or proposed streets or highways or to have direct frontage on or physical access to same. 16. It is the intent and a condition of this Resolution that an subsequent owner of all or any of the Parcels described above shall be subject to the benefits and burdens of the Site Plan approved by the Town of Queensbury Planning Board, the requirements of the enclosed mall zone, other zoning regulations, and the Town Master Plan except as varied herein, as such may be modified from time to time by the Planning Board or other governmental agency with jurisdiction, in the same manner as the Applicant. It is a condition to the ongoing effectiveness of the Variances, that a prOV1Slon shall be included in any instrument conveying a fee interest in Parcels 1 through 10, or any of them, providing that, 1. the grantee's interest in the parcel(s) is subject to all of the benefits and burdens of the Site Plan approval in effect at the time of the conveyance, as granted by the Town of Queensbury Planning Board or its successor, and as subsequently modified by the appropriate Town of Queensbury Board having jurisdiction over site plan approvals; and 2. The grantee's interest in the Parcel(s) include easements and/or rights to parking, common mall areas, access and egress; utilities (sewage, water, lights, etc.), signage, and lor any other rights or easements, so that use of the subdivided Parcel may continue in the same fashion as if the Parcel was still part of the whole and under single ownership as currently exists. If such provisions are not so made, granted herein shall no longer respect to the parcel(s) for which not made. IT IS HEREBY FURTHER RESOLVED that for all reasons the ZBA hereby approves the Application the recommendation of the Warren County Planning then the Variances be effective with such provision was of the foregoing notwithstanding Board. - 33 - ',- IT IS HEREBY FURTHER RESOLVED that the foregoing variances shall terminate upon the happening of all the following events: a. All construction financing by all improvements shown on the approved been satisfied and/or discharged has occurred thereunder; lenders for the Site Plans has and no default b. The proposed ten lots are under common ownership; the subdivision creating such lots having been dissolved by Planning Board condition or action 6r having been abandoned by the applicant. c. There lender is no mortgage or the lien of any mortgage is secured only by the entire site. Nothing contained herein shall be construed to provide the current owner with the right to maintain separate, permanent mortgages on the parcels, once temporary financing is concluded and the owner or any subsequent owner holds title to all subdivided parcels. IT IS HEREBY FURTHER RESOLVED that based upon the Record, including the EAF, the Applicant's approved Site Plans for the 105,000 +/- SF GLA expansion and the Subdivision Plan, the ZBA hereby grants the Variances requested by the Applicant in its Application, subject to the conditions set forth hereinabove. It is the intent of the ZBA to grant all relief required by the Applicant in connection with the creation of Parcels 1 - 10 as set forth in the Application and on the Subdivision Plan, and the construction of the expansion in accordance with the Site Plan, and the ZBA hereby grants all such relief, subject to the conditions set forth hereinabove. This resolution shall take effect immediately, and the Clerk of the ZBA is hereby directed to file a copy of this Resolution with the Town Clerk and the Warren County Planning and Community Development Office. The Code Enforcement Officer is hereby authorized and directed to issue a Zoning Permit in connection with the expansion project. Chairman Zoning Board of Appeals Duly adopted this 21st day of April, 1994, by the following vote: AYES: Turner Mr. Menter, Mr. Maresco, Mr. Carvin, Mr. Thomas, Mr. NOES: NONE ABSENT: Miss Hauser, Mr. Karpeles On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Theodore Turner, Chairman - 34 -