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1995-01-10 SP n r~jGINAL v QUEENSBURY ZONING BOARD OF APPEALS SPECIAL MEETING JANUARY 10, 1994 INDEX Notice of Appeal No . 1-95 Notlce of Appeal No 8-94 Cheryl Evans 1 . John A. Brock Mooring Post Marina 7. Notice of Appeal No. 2-95 Cheryl Evans 12. 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 ZONING SPECIAL MEETING JANUARY 10, 1995 7:30 P.M. BOARD OF APPEALS MEMBERS PRESENT THEODORE TURNER, CHAIRMAN CHRIS THOMAS, SECRETARY FRED CARVII\! DAVID MENTER FWBEFn KARPELES THOMAS FORD At"'¡THONY MARESCO EXECUTIVE DIRECTOR-JAMES MARTIN PLANNER-SUSAN CIPPERLY SPECIAL COUNCIL TO ZONING BOARD-LEMERY & REID, JON LAPPER STENOGRAPHER-MARIA GAGLIARDI NOTICE OF APPEAL NO. 1-95 CHERYL EVANS APPEAL BY CHERYL EVANS OF MASON ROAD, CLEVERDALE FROM A DECISION OF THE ZONING ADMINISTRATOR STATING THAT BASED ON HIS INTERPRETATION LETTER DATED DECEMBER 21, 1994, THE BUILDING PROJECT PROPOSED FOR THE MOORING POST MARINA, AS PRESENTED IN THE DECEMBER 15, 1994 REVISION, DOES NOT REQUIRE A USE VARIANCE. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. LOCATION: BOX 84, CLEVERDALE ROAD, TAX MAP NO. 13-2-21 IN A WR- lA ZONE AND CEA MR. TURNER-Before we start, there's some question as to Mr. Menter's position on this Board in relation to this project. So, I'll ask Mr. Menter to briefly state his remarks in respect to that matter. MR. MENTER-Yes. Apparently, there's a question as to my impartiality with regard to associations with David Kenny, who is, in another venture, I believe, a partner of John Brock's, and my statement would be this, that my position has, in no way, changed since the outset of these proceedings. I'm not financially involved in any business venture with David Kenny, and I have no problem disagreeing with him. Had I felt that there was any conflict of interest or appearance of a conflict of interest, I would not have participated in any of these proceedings, and I would have excused myself. That's my ::;.tatement. MR. TURNER-Okay. O'Connor. Mr. Thomas, you have a letter from Mr. MR. THOMAS-Yes. A letter dated January 9, 1995, Mr. James Martin, AICP, regarding Mooring Post Marina, "Dear Jim: I wish to confirm my telephone conference with you on January 9, 1995, regarding rescheduling of the above matter. I understand that same has been scheduled for Tuesday, January 10, 1995, at 7:30 PM. It is very unlikely that I will be available to participate in the hearing at that time. I have been involved with the drafting of a solid waste-land use law in the Town of Moreau for Encore Paper Co. for the past year. The Moreau Town Board has scheduled a vote on a resolution on version 8 of that law for 7:00 PM, January 10, 1995. The Town Board meets only once a month for purposes of passing resolutions. This is even more complicated, as one of the council persons, Ann Kusneirz severely broke her leg in December and my understanding is that arrangements have been made to bring her to this January 10 meeting by wheelchair. Until this mornings paper I was not sure that you were rescheduling for Tuesday evening. I have spoken - 1 - '-/ '-.,/ with Tom West who is acting as counsel for a coalition, and he also has a problem with my not being able to participate, particularly on the argument for the necessit.y for the area variance and the argument for the necessity for an area variance for the buffer zone. At the very least, I would ask that t.he meeting be adjourned until 8:30 on the 10th, if not to another date. I note specifically that part of the thought expressed by Chairman Turner was that he wished to have all board members participate. It is my understanding that as of 11:00 AM this morning, Monday, the minutes from last weeks meeting are only one-half completed. It would not seem as though the minutes would be completed in time to allow Mr. Anthony Maresco ample time to read through them and digest them like the other Board Members have digested the proof that was presented and make an intelligent determination on Tuesday. Further, I refer to the comments that we have had as to the possibility of some configuration of buildings that would be acceptable to those that have opposed and those that are presenting same, and I think that that is worthwhile exploring. Would you please advise whether or not the Board would consider adjourning the meeting to another date, if not to 8:30 PM. Very truly yours, LITTLE & O'CONNOR BY: ¡VIICHAEL J. Q'CONI\IOR, ESQ." (~lette1- dated January 5th, addressed to Mr. James Martin, AICP, regarding Mooring Post Marina, "Dear Jim: I believe that the public hearing on the appeal on your determination that no use variance on the above matter, was productive. I do believe that you should make certain additional determinations this matter that may assist all in bringing this matter to a conclusion. One matter that YOU should address - ~hen did this operation obtain the standing ot bei ~ non-conformi n9 use. with non-conformi n9 structures? I would suggest that when the first ordinance was enacted in 1967 it first became a non-conforming use. However, I would acknowledge that on September 19, 1973 when it obtained a 'variance to enlarge a non-conforming use,' it updated its status of a non-conforming use to that date. What was the actual volume of use on September 19, 1973? Kathy Poland provided clear, uncontroverted testimony. SUMMER US~ That from 1971, even through 1985, the use or volume of use consisted of 50 Quick Launch boats, 25 boats at docks, 4 to 5 boats for repairs and 4 to 6 boats for sale. WINTER STORAGE 160 boats The applicant may want to reconsider its proposed construction and resubmit new plans for construction based on that volume. Perhaps with this new testimony of Cathy Poland the applicant may even want to delay the ZBA final determination until after the Lake George Park Commission determination as to what will be permitted Quick Launch by that organization, as certainly the applicant is aware that we are going to ask that the ZBA condition its approval upon obtaining the necessary permits for operation of a Quick Launch frornthe Lake George Park Commission. ?.hould YOU revisit ..l':Q1!.L determination of whether a use v~ri~nce is necessary in view_Qt !:;.he.,uncontroverted testimony of Mrs. pola_nd? 1'1r;3. Poland clearly testified of a maximum Quick Launch usage of 50 boats at the end of her 14 year ownership, as well as a winter storage of 160 boats. It is my understanding that you found that a use variance was not required, as you did not believe there was any proposed expansion of the size of structures being proposed from what was bein~,1 removed, or" any increase in the volume of usage. I believe that Mark Schachner misstated the basis for your finding when he stated that you based same on the fact that there was no change of use. I also think that you should clarify that for the Board, as you were not asked to respond directly to the Board. For the record I still disagree with your finding, as you did not stay with your original November decision that you cannot totally replace non-conforming structures, regardless of their size, with new structures if they are removed other than by cause beyond the control of man. As indicated, I believe there was progress, as the record is being developed clearly now and some of the 'if's' and 'whatnots' have been eliminated. I suggest that you revisit your determination even on your own basis for determination as clearly there IS a significant difference between the requested - 2 - ,,",' --.../ 120 to 140 Quick Launch and 200 winter storage boat facility, and what was or should be considered grandfathered, per the testimony of Cathy Poland. ~houl~_th~Eending area variance and any ?ubsequent___ us~ var iance ----ª..I2El iç:ation of the _ appl icant be resubmitted to the count.,y planning board? We have discussed this, even to the extent that the applicant downsized from Plan B to Plan C by 6' on one building and now he offered a further l' downsizing as Plan D. You indicated that you did not believe that those changes were substantial enough to merit re-submittal. I would resubmit to you that those changes are significant, particularly as the basis for those changes are an apparent acknowledgement by the surveyor of the applicant that the Board was submitted false or erroneous information as to the size of the buildings being removed in the first instance. Further, the staff in transmitting the applicant's applications to the County presented to some degree a 'so what' attitude as to the applications on the basis that they did not believe there was any proposed increase in volume from what was properly grandfathered. Now, you have clear evidence by affidavit and by testimony that the level that should be properly grandfathered was less than what staff initially believed. I hope the staff would revisit their comments for the purpose of giving the Board its opinion based upon the evidence submitted. Very truly yours, LITTLE & o 'COHHOf-~ BY: MICHAEL J. 0 'CONNOR, ESQ." MR. MARTIN-Ted, just for the record, I did not make any new determination since your last meeting. The information presented was in the context of this Board's proceedings. I had no new submission from the applicant to react to. So my determination stands on what I think has been refen-ed to as "Plan C", and I think it's ffiZ opiniont.hat this is best handled by the Board from this point on, rather than by the Zoning Administrator, at this point. MR. TURNER-Okay. Just to clarify one other matter. Mr. Maresco has had the minutes since yesterday, and has read the minutes thoroughly and understands what happened here the last time around. So the statement Mr. O'Connor made at 11=30 is not true, because I had my minutes before 11=30. Okay, Gentlemen. I'm going to open it up for discussion on the Appeal of Cheryl Evans, on the matter that a Use Variance is required, and Jim's determi nation that a Use Var iance is Dot requi ,-ed. Any thoughts? It's open for discussion. MR. CARVIN--I IrJOuld prefer to reserve!JJ..X. comments until some of the other members express theirs. MR. FORD-Well, as the newest member of the Board, I'll start. MR. TURNER-Okay. MR. FORD-I believe that, as I have read, in preparation for serving on this Board, that the court has found that the Zoning Board of Appeals could grant a variance only under certain specified findings, and one such test is that the use be authorized by the variance will not alter the essential character of the locality. Having listened to the arguments of the attorneys and heard the opinions expressed by the residents in the neighborhood, I feel that there is a need to address this issue of essential character, and apply this test. To apply the test, we need an application for a Use Variance. According to Town law, in the State of New York, this Zoning Board of Appeals is charged with "preserving and p,-otecting the cha,-acter of the neighborhood and the health, safety and welfare of the community". I believe that to fulfill our obligation unde,- this law, we should exercise our appellate Jurisdiction and hear an application for a Use Variance. MR. TURNER-Okay. Tony, do you have anything? - 3 - ~ MR. MARESCO-I believe, also, we minutes, and I really digested quite I also believe we should hear an Variance. should, I read through the a bit of it from last week. application for the Use MR. MENTER-Since we're going down the line, I do believe that the building also needs a variance. I think it's inappropriate for the piece of property, but I don't. believe that's a Use Variance. It seems to me like the test of whether it's an increase, expansion or enlargement of t.he business hasn't really been met. As Jim noted, we have had testimony as to the number of boats that had been stored there in the past, and I think that the business has fluctuated, in terms of volume, over the years, and, to me, a lot of the issues that were raised were very valid, but it seemed to me it would be more relative to the building itself, Tather than t.he increase in use of the property. So, my contention would be that there is not a Use Variance required, although there would be, again, the Area Variance. MR. KARPELES-Are you finished? And we're going down the line. i'1P. i'1E1"HER-Yes. MR. KARPELES-I don't feel that any Use Variance is needed. I think it's the same use that's been going on since 1906. and as far as I'm^ concerned, there's no expansion, because expansion i:s any growth of activity which requires the enlargement of a facility, and I haven't heard any testimony that would lead me to believe there's a growth of activity. MR. CARVIN-I'll defer to Mr. Thomas. 1'1F~. TUF<t'-1ER--O kay . MR. THOMAS-I believe that a Use Variance is required. I think that there is an increase in use, as stated in testimony from the public and from the letters that were read. I also believe that the size of the buildings, even though they're not being, not the footprint is being changed, even though t.he square foot is not being increased. The building itself is being changed, and that Tequires a Use Variance, according to the Town law. MR. CARVIN-Okay. Well, I have some notes here, so, hopefully, they'll give me some guidance. I firmly believe that a Use Variance is required. I want to re-emphasize that we are not trying to put a business out of business. He does have a right to exist. I think of all the volumes of testimony that we've heard in the last two dozen meetings, or however many meetings we've had, could be best summed up by one person that indicated that the residents out in Cleverdale are aware of the business. They have co-existed with the business for a number of years. They knew what they were getting involved with when they purchased out there, but they also emphasized that the business also has to co-exist with the residents, and so what the business gives up, basically, is a willingness not to increase its activity or to have, basically, a stand still type of operation. As long as the two of them can co-exist, then everything is fine. I also think Mr. Schachner's analogy of the restaurant has some merit in this particular case, because I don't think anybody is challenging the right of this particular business, or in his analogy, the restaurant, the right to serve food. I think his argument becomes a little bit weaker in that if the restaurant decides to put a drive through window or to increase the size of the building, add extra stories, tiers and whatnot, that that, at that point, brings the community back into looking at the operation as far as the use of that operation is concerned. I think the original buildings \t.Jeì"e pì"otected, as far as the nonconforming use, but because we are basically, not basically, we are building a whole new building, that that preexisting nonconforming protection is lost. I think we have a very, very - 4 - '""" .......-'" strong precedent that this Board heard back, several months ago, with the Harris Bay Marina. I think what we looked at in that particular case was a Marina that was, for lack, or summarizing this thing, they were just looking to add a deck to the building. They were not adding any more boat storage. They were not doing anything significant to the business, with the exception of the deck, and I think the feeling was that because the deck would make the building more attractive, and because the building itself did service some of the public, that there was the potential or possibility that the use would increase and, therefore, a Use Variance was required and necessary in that particular case. I feel that this is a similar situation. I think that we are looking at a building that is going up, that there is an increase in the building. Even though the applicant indicates that they are not expanding or they're not going to be servicing any more boats, I think it's very difficult for this Board to determine exactly how many boats are being serviced out there. I think that there has been testimony that would indicate that there has been a growth of business, without the benefit of Use Variances, in the past. So I think that this is a natural transition, for many cases, for businesses. I also feel that in some cases business growth in residential areas may be acceptable. However, I think that we have the growth of a business in a residential area that is compounded by the fact that this is a critically sensitive environmental area. I think that the growth of a business or a business nature may be more acceptable in Bedford Close, but that may not be very, very sensitive to the lake and other environmental issues. So I think that that requires us to have a little bit closer scrutiny as to the actual use and activity at this particular location. I also think we may have an issue of res judi cata, in that this Board addressed, essentially, the same issues, with some minor exceptions, in 1989, and that Board's finding in 1989 was that a Use Var ia nce I¡.Jas required and that the ultimate resul t of that particular examination was that they did deny the Use Variance at that point. So, to summarize, I think that this is an extension, that the new building is not protected, even though the square footage l]1ay be the same. I think that this is an expansion, and I think that this is something that is involved in a critically sensitive a)'ea, and I think om', in fact, I ,know, om" O)"dinances address this issue very, very plainly, in that a Use Variance is required. MR. TURNER-Okay. Well, my position is that the right to continue a nonconforming use is the right to continue the same use, and not to continue a materially enlarged nonconforming use, or a materially different use which is nonconforming. The use is constitutionally protected as a use which existed at the time it became nonconforming. The nonconforming use must be substantial, existing and lawful, which it is. It's been there since 1906. It's p)"ogressed f'"om 1906 to what it is ,today, and I thi nk, 0J..'i.. position is that a Use Variance is nQt required, and my position is the reason it's not required is that there's no expansion. This is a replacement in kind of the buildings which existed there, and if you look at the maps, and you look at the layout of the buildings, they almost sit on top of the existing buildings which were there. I think, again, if the numbers are maintained at the levels that are indicated, as to the use that is there, that this will not have an adverse effect on the neighborhood, t.he storage and the Quick Launches. That.'s fJlY.. position. Okay. So, we'll have a vote. MARK 5CHACHHER MR. SCHACHNER-Mr. Turner, can I ask a question of one member? MR. TURNER-Yes. MR. SCHACHNER-Obviously I agree with some others, but I do only have one quick question and disagree with of one particular - 5 - '--- member, and I don't mean to pick on that member. It was act.ually the first member who expressed his opinion, Mr. Ford. I just wanted to ask, and it really doesn't have to do with t.he Mooring Post, but you're aware that one of the criteria for a granting an (-~r ªª. Var ia nce, as opposed 't.o a Use Var lance, under State lal¡.J, is, the fi nst cr iter ia under State lal¡.J for granti ng of an (¡rea, Variance is whether an undesirable change will be produced in the character of the neighborhood. I"'IF:. FORD-Yes. MR. SCHACHNER-And that's the I didn't understand exactly feel that's an important neighborhood, and that's a \/aì" iance. finst. criteria for an Area Variance. your comment, other than to say you criteria, the character of the specific criteLla for an Area MR. FORD-As I understand it, it is also one of the tests, one of the three or more tests for a Use Variance. MR. SCHACHNER-Absolutely. MR. FOF<D-And from t.he testimony I heard, I felt it was an issue that should be addressed, under the Use Variance application. MR. SCHACHNER-Okay. You've clarified for me. Thank you. MR. TURNER-Okay. Motion's in order. ~OLION REGARDING NOTICE OF APPEAJ... NO. 1-95... CHERYL EVANS..., Introduced by Fred Carvin who moved for its adoption, seconded by Theodore Turner: That the interpretation by the Zoning Administ.rator, as far as the matter of the need or lack of need of a Use Variance in the building project for the Mooring Post Marina is incorrect, and that in order for the Mooring Post Marina to proceed with it's project, that a Use Variance is required. After extensive public hearing and examination, that there is significant indications that the project proposed by the Mooring Post Marina would constitute an extension, an expansion of a nonconforming use or a structure containing a nonconforming use, in a Critical Environmental Area, which is expressly outlined in Section 179- 79, which indicates that a Use Variance would be required. Duly adopted this 10th day of January, 1995, by the following vot.e: MR. lAPPER-Mr. Chairman, before there's a vote, I guess recommend that that be elaborated on a little bit more, of the n3asons. L would inter 11¡:3 MR. TURNER-Yes. 1'1F~. CAF<VH' -O kay . AYES: Mr. Ford, Mr. Maresco, Mr. Carvin, Mr. Thomas NOES: Mr. Menter, Mr. Karpeles, Mr. Turner I'm. TURNEP-Four to three. It's carried. A Use Variance lS required. Okay. With we'll go on to the next one. The Appeal that said is upheld. and done, MR. CARVIN-I don't know if we can, Ted. MR. TURNER-Why not? MR. CARVIN-The Area Variance without the Use? - 6 - - ........; MR. THOMAS-Yes. You don't want to hear that. MR. CARVIN-Well, no, he hasn't applied for a Use. MR. TURNER-No. He hasn't applied for a Use. MR. CARVIN-So we can hear the Area Variance without the Use? MR. TURNER-This is actually part of the, the buffer zone is also part of the Area Variance. MR. CARVIN-I would think that the Area is going to be contingent upon t.he Use. MR. TURNER-Yes. Right. MR. CARVIN-I mean, seeing as how we don't have a Use Variance, I don't. see how we can have an Area Variance when we just expressly recommended that a Use Variance be required. MR. LAPPER-You're saying you don't think an Area Variance is r ;(~~qu ired? MF~. CAF-~VIN'-No. I'm sayi ng that I don't thi nk we can hear. the Area Variance without a Use Variance being. MR. LAPPER-I guess, I don't agree with that. determined that an Area Variance is required appealed by the applicant, that determination. I think that Jim and that's been MR. CARVIN-Okay. So we can hear the appeal. MR. LAPPER-You can hear the appeal, determine whether it is, and then Mrs. Evans also appealed the one issue about the buffer zone. That should be detenni. nee!, so that the appl icant kno~'-Js what to apply for. MR. CARVIN-Okay. I'm sorry. I stand corrected. We are not hea)- i ng t. he ª-2.,Pea 1. We ')- e hea ring the appea I of t. he appea.1.. MR. LAPPER-Right. MR. TURNER-Okay. Jim's made a determination that an Area Variance is necessary, and they've appealed his decision. So we've got to hear that appeal. The same with the buffer zone. MR. MARTIN-It's just the appeal tonight, not the Area Variance itself. MR. TURNER-Not the Area Variance, just the Appeal. Okay. going to hear the Appeal on the Area Variance. IrJe're NOTICE OF APPEAL NO. 8-94 JOHN A. BROCK-MOORING POST MARINA APPEAL BY JOHN A. BROCK FROM A DECISION OF THE ZONING ADMINISTRATOR STATING THAT, BASED ON HIS INTERPRETATION OF SECTION 179-83A, DESTRUCTION, THE PRE-EXISTING STATUS RELATING TO THE AREA NONCONFORMITIES IS LOST, AND THAT THE PROPOSED STRUCTURES REQUIRE AN AREA VARIANCE, AS THEY DO NOT MEET THE REQUIREMENTS OF SECTION 179-16C, WATERFRONT RESIDENTIAL-IA REGARDING SOME SETBACKS AND PERMEABILITY. LOCATION: BOX 84, CLEVERDALE ROAD TAX MAP NO. 13-2-21 IN A WR-IA ZONE AND CEA MARK SCHACHNER, REPRESENTING APPLICANT, PRESENT MR. THOMAS-"The Queensbury Zoning Board of Appeals has reviewed the following request at the below stated meeting and has resolved the following: MOTION TO JABLE NOTICE OF APPEAL NO. 8- 94 JOHN.A. BROCK - MOORJNGYOST_MA8INA, Introduced by Theodore Turner who moved for its adoption, seconded by Fred Carvin: - 7 - --~ Duly adopted this 4th day of January, vot.e: 1995, by the following AYES: Mr. Ford, Mr. Menter, Mr. Karpeles, Mr. Carvin, Mr. Thomas, Mr. Turner NOE S : NONE AE3SENT: ¡VIr. Maì"eSCO" MR. TURNER-Mr. Schachner. MR. SCHACHNER-I think at one of the earlier meetings about this whon I thought we miÇ!ht get to this r:'ippoal, I stateel t.hat my' remarks on this Appeal would be very brief, and they will be. I think our Appeal document pret.ty much speaks for itself, and 1 think Mr. Thomas just read it accurately. It's our contention that under New York State law and the Town of Quoensbury Zoning Ordinance, since the use of these buildings at this location was grandfathered as a preexisting nonconforming use, so are the physical limits of that use grandfathered, in terms of setbacks, and it's our position that, therefore, we have "the preexisting setbacks" as a matter of right, and since the ronovation project, in all respects, not only conforms with the existing setbacks, but in fact, increasos those setbacks on most dimensions, that we do not require an Area Variance. I can graphically depict that on a drawing, if necessary, but I don't believe that's in dispute, that our setbacks are, in all cases, greater than the pì"ee:o<isting ones. If anyone does disput.e thiJt, when I'Je should probably put it in the record further and take out a drawing, but I think that's beyond dispute. I think that's clear, concise and factual presentation. The preexisting setbacks have now been increased by the proposed plan, and, therefore, we submit that we do not need an Area Variance. If the factual premise is not. secure in everybody's mind, then I will graphically depict it, but 1 think it's clear. 1'-1R. MENTER-I think you're ~3afe thwre. ¡VIR. TLJRNER~Ye~c~ , it is to me. MR. SCHACHNER-Thank you. MR. TURNER-Okay. Mr. O'Connor, any remarks? MR. O'CONNOR-Mr. Chairman, for purposes of your record, I'm Michael O'Connor. I would disagree with what Mr. Schachner has said and agree with what Mr. Martin has indicated. You're talking about two new buildings. I don't see any place within our Ordinance that excepts new buildings from the setback requirements. There is no provision in our Ordinance to say that if you are more nonconforming than the prior building, you have an exemption or you have any standing at all. MR. SCHACHNER-Did you say "more nonconforming"? MR. O'CONNOR~More nonconforming, or less nonconforming than the prior building. I meant less nonconforming. You also have t.o take a look at the fact that, in this particular area, you talk about just Area Variances, you had areas, with t.he prior buildings, where there was no nonconforming. I don't have the map before me, and I don't know if you brought your map along with the prior buildinÇ!, but everybody would look at the prior buildings like fingers, if you would. There are alleyways between each of those buildings where there is no building standing that is nonconforming, but even if Mr. Schachner's argument had some validity, it would not have a validity to the area between the buildings or an extension of the area between the buildings which now do not conform. I don't think there's any question in the world that you need an Area Variance. If you - 8 - '- --- accept the argument that's made, you're giving some type of super standing to nonconforming buildings, not buildings that's not built within our Ordinance. I go way back to one of the earlier versions of our Ordinances. There was an exception that said that, based upon a ruling of the Zoning Administrator, Mr. Martin would have loved this. I think this is back in the days of George Liapes. If you could argue successfully that you were changing to a less nonconforming use, you didn't need to come to get a variance. You had some standing. They never said that in our Ordinance on Area Variances. MR. MARTIN-Just, if I might, I was the one who made the determination, and I'll clarify my position. I think the Ordinance sets forth, very distinctly, those events which occur that allow the nonconformity to continue or have a lawful right to the nonconformity. Those events did not occur in this case. So, therefore, it was my determination that the preexisting, nonconforming status with the setbacks is clearly lost. MR. TURNER-Mr. West. TOlvl IrJEST MR. WEST-Good evening, Members of the Board. First of all, I'd like to commend you for your decision on the Use Variance. I know that it's been a long and difficult proceeding for you, but I can tell you that, as somebody that's practiced law in the zoning context for a long period of time, I think you made the right decision. On the subject of the Area Variance, I think it's very clear and it's particularly clearer in light of your Use Variance decision. Again, as Mr. O'Connor stated, there's nothing in the Code that authorizes a replacement. Once you recognize that provision, if you're going to replace buildings, nonconforming structures with new structures, they have to conform to the setback requirements, or they have to get an Area Variance from those setback requirements. I think if you look at some of the language in Section 179-79, it emphasizes that point. They say, for example, that even where they allow expansion for single family dwellings, they say that all setback provisions of this Chapter shall be met, and in Paragraph D, I think the basis of the Use Variance decision is if there lS an increase or expansion, it says, in no case shall any increase or expansion violate or increase noncompliance with minimum setback, and it violate or increase. IrJe have a violation of i:.rle 30 foot setback on the road front. We've got two roads here. So we've got two setbacks, and I think that's pretty clear. I think the system that's being advocated by the applicant, by the Mooring Post and Mr. Schachner here, is to say that, once they establish nonconformity, they can do anything they want, within the footprint or the outside dimensions, I guess is what they're saying, that the old buildings, is really to argue for sort of a black hole of zoning, to say that there's no requirements apply, and I think that is a type of interpretation that this Board should not allow. It will set very damaging precedent that will allow other nonconforming buildings to be replaced and altered, willy nilly, without any kind of zoning over sight that is intended under this Ordinance. Thank you very much. MR. TURNER-Okay. Anyone else wish to be heard? MAN IN AUDIENCE-Could I ask for clarification? Right now the issue is whether or not an Area Variance is necessary? I'm. TURNER-·Yes. MAN IN AUDIENCE-From the discussion I've just heard, it's been imposing on the setbacks. Is the setbacks the only thing at issue? I also heard ¿¡, reference, previously, to changes in the character of the area. - 9 - '-.....~- MR. TURNER-No, setbacks. MAN IN AUDIENCE-Setbacks is the only issue? MR. TURNER-Yes. MR. MAF<TIN-Well, I should add for the record, one other .issue is permeability. That is an area requirement. MR. TURNER-Permeability is an issue. Yes. MR. MARTIN-Which in this case I think the standard lS 65 percent, in the Waterfront Residential zone. MR. TURNER-Sixty-five percent. MR. WEST-Mr. Turner, just to clarify for the record, and perhaps it would respond to this gentleman's concern. The only lssue here tonight is the appeal on the technical issue of whether or not a variance is required. If a variance is required, the character of the neighborhood will be an issue, if it requires a variance, if that helps your question. MR. TURNER-Okay. Anyone else? Mr. Schachner. MR. SCHACHNER-Thank you for clarifying that, Mr. West. Just three very brief comments on this issue. First, Mr. Martin has drawn our attention to Section 179-83, entitled "Destruction", and I lcJ.Jnt to submit for the purposes of Z.01.!r consideration and for the purposes of making this formal on your record, that we I¡,Jill also contend, lcJe do. also contend ,;:),nd lcJill contend that the circumstances that lead to destruction of the preexisting buildins.m fall withi.n t.he phrase "beyond the contì"ol of man". That':,'; the phrase th.:::¡t ends the clal.J.se "cie:::3troyed IrJholl} or in part by fire, flood, wind, hurricane, tornado, or other acts [H'-)yond the control of man". It may be clear in some, peopl",,':::s minds that that's only referring to acts of God and nature, etc. Tt,'~'3 not clear in 1])':. mind, and lc,¡e do submit for your '(E"cord, and will contend elsewhere that t.he circumstances that lead to t.ruction of these buildings were, in fact, beyond the control of man. My second point is that Mr. West has directed our attention to Section 79 Sub B, and he's only read a portion of that. Section ,tal ki ng about, he read "in no case sh¿J1 1 any i.ncrease or expansion violate or increase noncompliance with the minimum setback requirements". He didn't read the last four words, "of the shoreline restrictions". I don't think they're at issue here. So I don't think that Section's at issue here, and m)/ .l.a:3t. comlìl('1nt 1S t.hat, agai n, fOì" purposes of your, consideration, and for your formal record, the exact same contentions we have with respect to our preexisting setbacks appl ies to OU'¡" pì"ee;.<Í:3ti ng permeabi 1 i t.y . Simi laì" t.() the setbacks, our permeability, under the renovation proposal, will only be increasing, meaning will only be getting better, so that the nonconformity will be decreasing, and we maintain that, therefore, we don't require an Area Variance on permeability either, for the exact same reasons. Thank you. MR. TURNER-Dr. Evans. ROBEF-;T EVAI'''¡~) DR. EVANS-Just one quick clarification. I would disagree with ¡VIr. Sc;hachneì", in re~;kHds to the "bc~yond the contn)l of man". I think, in defense of Mr. Martin and his Department, I think that there's, we wouldn't be from Plan A to Plan C already if there were not misinformation provided, in terms of square footage, on the application, and I think that, unfortunately, permits were issued, that we, as neighbors, would have been notified. Square footage would have been proper, and misinformation might not have been given to the Town originally. We'd never be in this - 10 - -' ..-' circumstance. So in defense of Mr. Martin and the Department, I think that, certainly, Mr. Brock in his application could have provided information which was statistically accurate, and we spent weeks and weeks debating the square footage, and I think if this would have been done properly, perhaps the Town would have made, perhaps, another decision, in regards to control beyond man. The neighborhood would have been notified, and we wouldn't be where we are today. So I think that there were some control of man decisions here that might have occurred. MR. TURNER-Okay. Mr. O'Connor. MR. Q'CONNOR-I purposely wasn't referring to Section, but if you look at that 179, both Mr. West and Mr. Schachner have looked at, look a little bit further, and it says, any enlargement or extension shall be in compliance with the Area requirements of the Ordinance, and you have ruled, by majority rule here, that this is an extension or an enlargement, and that ruling in and of itself says that there is a requirement of an Area, it must comply with the Area dimensional requirements of the Ordinance. If it doesn't, you need an Area Variance. MR. TURNER-Anyone else? MR. SCHACHNER-Just to finish your obviously, our contention we're e)(t.ension. sentence, for the record, and, neither an expansion or an MR. TURNER-Okay. The public hearing's closed. PUBLIC HEARING CLOSED MR. TURNER-Okay, Gentlemen. Any discussion on the issue? MR. THOI"IAS- It's since this is a setbacks of the and simple. my contention that an ~'1rea Va,- iance ).s_ needed brand new building, and it does not meet the zone, then an Area Variance is required. Plain MR. CARVIN-I couldn't have said it any better. MR. TURNER-He said it all? MR. CAF<VIN-Yes. He said it all. MR. TURNER-Okay. Bob? MR. KARPELES-I don't agree. I don't think an Area Variance is necessary. I agree that Article 179-83D should apply in this case. I think the intent is there. It's a very unusual circumstance it was destroyed on. I think it should be allowed to be rebuilt. I think the setbacks are all improved. The permeability's improved and the area's improved. I don't think an Area Variance is necessary. MR. MENTER-I believe that, with the change of the preexisting status, with regard to area, is lost, need an Area Variance. building, the and it does MR. MARESCO-I think an Area Variance is the building is changing and I think definitely needed. required an A,-ea also, because Variance is MR. FORD-I agree that an Area Variance is needed. MR. TURNER-Yes. I also agree. So with that said, a motion's in or deT . ~OrION TO DENY NOTICE OF APPEAL ,NO. PQ.$T MARINA, I nt roduced by Clw is 8-94 Thomas JOHN è. BROCK-MOORING who moved for its - 11 - '- adoption, seconded by Fred Carvin: It has been determined that a Use building on this property. Since the setback requirements of the 'r'equirec! . Variance is required for a new the new building does not meet Ordinance, an Area Variance is Duly adopted this 10th day of January, 1995, by the following vot.e: AYES: Mr. Maresco, Mr. Menter, Mr. Carvin, Mr. Thomas, Mr. Ford, Mr. Turner NOES: Mr. Karpeles MR. TUF<NER-Okay. An Area Variance is required. denied. Now we'll go to Notice of Appeal No. 2-95, in respect to the buffer zone. The (~4Ppeal i.s Che1-y 1 Eva me, NOTICE OF APPEAL NO. 2-95 CHERYL EVANS APPEAL BY CHERYL EVANS OF MASON ROAD, CLEVERDALE FROM A DECISION OF THE ZONING ADMINISTRATOR REGARDING THE MOORING POST MARINA, STATING THAT, BASED ON HIS INTERPRETATION LETTER OF DECEMBER 19, 1994, AND SPECIFICALLY SECTION 179-72, BUFFER ZONES, A 50-FOOT BUFFER ZONE IS NOT REQUIRED FOR THE PROPOSED PROJECT. ACCORDINGLY, AN INTERPRETATION BY THE ZONING BOARD OF APPEALS IS REQUESTED. LOCATION: BOX 84, CLEVERDALE ROAD, TAX MAP NO. 13-2-21 IN A WR- 1A ZONE AND CEA MICHAEL O'CONNOR, REPRESENTING APPLICANT, PRESENT MR. THOMAS-The Appeal was tabled January 4, 1995, to be heard January 10, 1995. MR. TURNER-Mr. O'Connor. MR. O'CONNOR-Mr. Chairman, again, for purposes of your record, I'm Michael O'Connor, and what we're looking at is Section 179 7216" a nd I suppose if the ifJOr d "use" ifJer e subst. i tuted in t h.¿,y e for "zone", on the third line and in the fift.h line, '/ou'd have no queÕ:.>tion. It '8 our cont.entionthat this~ Board has, b'/ precedent decision, determined for t.his particular property, in 1988, that a buffer zone is required. It's our position t.hat the applicant is estopped from denying that, because the applicant, in fact, applied for an Area Variance for the buffer, from the buffer zone in 1988. I've looked in your Ordinance for a definition of "zone" and I have not found one, per se. If you do look, though, at Section 179-9B, it says, in the event that none of the above rules, which has to do with district lines, applies, the location of the district boundaries shall be determined by the Zoning Board of Appeals. I would urge the Board that that is analogous to what we're talking about here. If you had, clearly on the zoning map, a commercial zone and a residential zone, there's no question that you will have a requirement for a buffer zone. Because you don't have that, I think you'll find Mr. Martin has indicated, in this instance, that that is not one of the Area requirements that this particular applicant would be required t.o meet. I think, again, that's giving to a nonconforming use an unintended benefit by using that interpretation. I would think that the buffer zone would be even more particular and more critical to a nonconforming use, than simply two zone lines that are on a map. It's our argument, based upon the precedent of this Board, that the applicant, in this particular instance, if he maintains his present layout, should be required to comply with the buffer requirements, which 1S a 50 foot differential. Keeping, I hope, with what I generally do before this Board, I have made a big point, and I think this Board should look at, from time to t.ime, look at the history of our Zoning Ordinance, and the history of the different definitions. I would have to admit that what I am urging of this - 12 - '- -' Board is exactly how buffer zones were defined in the 1983 Ordinance. That has been changed. I've got a copy of the '83 Ordinance, and I'll submit that to you, just as part of my attempt to give you as much information as you have, and be able to stand on the information that I give you, without any reluctance and without any hesitation. I urged you, before, to look at the old definitions of nonconformity and how it was expanded historically. You may want to look at it in this instance. It may be contrary to my argument. I acknowledge that to you, but I'm not trying to just argue words with you. MR. MARTIN-This lS the '83? MR. O'CONNOR-'82. '82 has the same language as what I've submitted, except it didn't have the exception for the farm. In '83, they added an exception that it did not apply to farm uses being adjacent to residential. In '88, they changed the word "residential use" to "residential zone" and roads. MR. LAPPER-Mike, what's your argument, in terms of the change from residential use to residential zone? MR. O'CONNOR-I can't explain the difference. I was not part of the revision committee at that time. I just have always made a point of showing this Board, historically, what the prior definitions have been. I don't want to argue a point and not share that with you. I think this Board has to look at its precedents. It would have t.o look at the evolution of the Ordinance. If you look at the 1988 application it, in fact, was decided that a buffer zone, an Area Variance was required, under what would appear to be a more favorable definition. To say that, under our present definition now, that a buffer zone is not required, it just doesn't follow logic. MR. LAPPER-Mr. Chairman, I think one question application, versus the date of the change It's possible that the application that did this was under the old Ordinance, and I there's a difference between residential is the of the request guess I zone and date of the Ordinance. 'relief from think that )"esidential use. ~1R. TURI\!ER-·Yef;. MR. LAPPER-I don't see a date on this application. July. The application was in July. Okay. So this was under the old. Okay. So it appears that the application was submitted under the pr io)" Ordi nance. MR. TURNER-Yes. Okay. So we can progress. Mr. West. TOM WEST MR. WEST-Thank you, Mr. Chairman. I will be brief on this. I would just like to add just one new dimension to the argument. I think that the literal language of the regulations, Section 179- 72, demonstrates that a buffer zone is required. The way I read the provision, as it currently exists, relative to this project as it currently exists, is as follows. You start out, it says, "Where any commercial use". Commercial use is a defined term in the Ordinance, and I don't think there could be any doubt that the operation of the Mooring Post Marina is a commercial use. It's very interesting that it doesn't say "commercial zone". It says a "commercial use as def i ned in this Chapter, I¡.Ji th the exception of farm operations, etc., abuts any residential zone". I don't think there's any need to define zone. Zone is such a common term in zoning, and if we look at Section 179-16, for example, we see that the zone in which all of the properties are located is a Waterfront Residential zone. So, clearly, the commercial use at issue here in the Mooring Post Marina abuts a residential zone, in that that use abuts on three sides the - 13 - -'......--' -- n:::sidential zone and, t.hoì-efm-e ,. it i:s (;'Uì opi nion that t buffer zone requirement of Section 179-72 applies, and that it should be required. I would also reiterate Mr. O'Connor's stat.ement that I think an estoppel I applies here. I think even though there was a minor change in the language, I don't think that change is significant, and I don't think it changes the essential facts here, that it was already determined by this Board that a buffer zone is required for variances associat with the Mooring Post, and I think that decision should be maintained here tonight. Thank you. MR. TURNER-Okay. Mr. Schachner. MARK SCHACHt"ER MR. SCHACHNER-My principal point on this Appeal is that I think we're all picking at certain words, and I think we're ignoring the key word that I think Jim Martin, although he can speak for himself, used in making his determination, and that's the word "abut:s". It'~3 our contention thElt this does not. fall I¡,Jithin Section 179-72 entitled "Buffer Zones" for a couple of reasons, which I'll get into in a minute, but the most obvious one is that this commercial use does not abut a residential zone. It's within a residential zone. It's a preexisting, nonconforming use, and it seems clear to me, these are very creative, esoteric arguments being advanced by some creative attorneys, but it. seems clear to me t.hat, in illY. ·experience in helping draft Zoning Ordinances and implement them elsewhere, buffer zones typically, and I think in this OnHnance, ì"efer to when you're at. the of one particular type of zoning district, and looking at some other type of zoning district, and Mr. O'Connor (lost word) the I¡,Joì-d "zone" is used instead of "use" in certain instances" Similarly, Section 179-9 clearly, the entire Section that Mr. O'Connor points us to, called "Int.erpretation of Di:::;trict Boundaries", again, has to do with, when you're in a situation where you can't tell whether the district line, okay, residentiaJ or commercial, and you can't tell exactly where it is, the Zoning Board has some discretion to decide that. Now, I don't know, off the top of my head, where the nearest portion of land zoned commercially is, but it's clearly not very close to the properties in question. Would you agree with that, Mr. Zoning {~drni nistr ator? MR. MARTIN-Yes. I think the nearest location would be at the Cleverdale store. MR. SCHACHNER-Okay. So, in any event, we are not here, in a situation where Mr. Martin or the Board are being asked to look at any question involving district boundaries, and that's what Section 179-9 is about, and that's what Section 179-72 is about, in the sense that it applies a buffer zone when a commercial use is abutting a residential zone, and again, the word "abuts", I think, was in large measure what Mr. Martin looked at, and this is not something that abuts a residential zone. It's within it, and the only other comment I'd make is that, I appreciate Mr. O'Connor's candor of pointing out to you several things, not the lea::;t of which J.~S that it the ~'Jord "zone" ì"ead "use" and if certain words were different, he says that you'd be in a different situation and you'd have a stronger case, and I totally agree with that, but the words are what they are. The law was changed. The prior application was under a different Ordinance and, by the way, please do not lose sight of the fact that th prior application sought to use different portions of tho property commercially, including portions which have been labeled as residential use elsewhere by others, but it's very much apples and oranges. We think this is a pretty clear issue. This is not a situation in which the buffer zone provision is applicable. We think the Zoning Administrator made the correct determination. MR. TURNER-Anyone else wish to speak on the issue? - 14 - ...., DA'v'ID KENN'Y' MR. KENNY-I don't know if it's applicable here, but I was on that Committee in 1988. I believe one of the reasons why the change IrJas from "use" to "zone", I don't have all my notes IrJith me. I haven't looked at them in years, but was more to do with commercial, up on Route 9 where there's also industrial. Where, if I had a house, which I do OL.,¡n a house on Route 9 right nOL"¡, that's used as a residential house. I don't think that entitles me to have all my commercial property around me give me a 50 foot buffer zone, and t.hat's why it wa,,~; changed from the "use" to "zone". Whereas, hypothet.ically, on commercial pì"Opeì"t.y, using it for residential use, that means I have to, I could require all my neighbors to give me a 50 foot buffer. So if you were in a zone, and you used it for residential use, now that is not a need. Do you understand what I'm saying? t-1R. TURNER-Yes. MR. KENNY-And that's why it was specifically changed to "within the zone" and not a use, because you can have commercial and use it as residence. If it was saying a 50 foot buffer was a use, then the neighbors have to give me a 50 foot buffer. I believe, I can't remember all the documentation. I thought I'd try to clarify it to make it easier. (Lost words) using it with some of the residential property in Town where there is a lot of residential use now. They do not require a buffer there. MR. TURNER-Anyone else wish to be heard? ELIZABETH Wf-'1RD MRS. WARD-Elizabeth Ward, and I own property further out on the Point. I would like to ask you to think a little bit about what you have here. You have a residential zone with a nonconforming commercial use. There is no building there now. Mr. Brock is proposing putting up two very large buildings, and I think you know that a buffer zone j.s ì"equired because .it is a resident.ial zone. I appreciate that if a residence were in a commercial zone, perhaps, they wouldn't have the right to demand the same kinds of things, but I think that you're trying to do here is to look at the environment, and the environs there, and it is residential. MR. TURNER-Okay. Anyone else? MS. CIPPERLY-Another viewpoint that we looked at, as Staff, was the fact. that there j.s already a use on that pì"Opert.y, within that 50 foot buffer. So you're talking about two different things, here. You're talking about the use, which has extended all the way to the property line. So to say, now, that you have to bring it back 50 feet would be saying you're not entitled to that preexisting use. So, you're talking about structures versus uses. MR. TURNER-Right. All right, Mr. West. MR. WEST-This lS Tom West again. Just in response to the last comment. I think we all would agree with that, if the applicant, Mr. Brock, had chosen to maintain the original buildings in their sa,me place, size, location, etc., but that's not what happened here. He chose to take them down. They're not there, and he's proposing to put a new project in place of the old structures. Having already determined that the Use and Area Variance is required, I t.hink it's logical that the buffer zone follows. This is a direct by-product of taking a nonconforming structure out and wanting to replace it with something new, and I think the logical interpretation, which is consistent with the prior interpretations, is that all of the provisions of the Code have to be complied with. - 15 - ---... MS. CIPPERLY-So you're his property back there saying he has no right r i~:Jht now? to store boats on MR. WEST-Well, that may be the result of the, certainly as to the building location, that's true. In terms of what you're saying, is there was outdoor storage in that area, and I don't think that's at issue or being contested here, but in terms of putting forth a project plan, which is essentially what you have before you, a site plan proposal, it should take into account the buffer zone that's required. If there are other grandfathered uses, such as outdoor storage, that may be a separate issue. MR. MARTIN-But the Ordinance doesn't distinguish from storage, between outdoor and indoor. It's boat storage. So is the use of the property, whether it be in or outdoor. boat t hi:i t MR. WEST-But the intent of a buffer zone is, as Mr. ~chachner noted, is to provide some relief in the change from one t.ype of use to another, and with what we're talking about here, what's at issue is not outdoor storage or not the prior, or the continued operation of the Mooring Post, in accordance with the character that previously existed, including outdoor boat storage. What we're talking about are these massive new buildings that are proposed. Once you choose to raze existing structures, and you want to set a new site plan, at least as to those structures, they have to comply with the buffeT zone requirements. There may be other grandfathered uses, such as outdoor storage, that coul(J e>~ist on that buffer zone, and I don't think the n(~ighbor:~s IÞJould contest that, and I think that would be a logical interpretation, but really the heart of the issue is the new building. MS. CIPPERLY-The 'v'egetated str lp. boat~3 on that? definition of a So you're saying buffer zone he s;hould or is a 50 foot shouldn't stO(,¿ MR. WEST-I think a logical interpretation would be that it has to be vegetated, but that he could store boats outdoors, because that was a prior nonconforming use. MS. CIPPERLY-What would you say if the adjoining residential use was a boat storage building, accessory structure? MR. WEST-Again, now that's where the language of the Ordinance is clear, that it's the zone that it abuts that counts. It's a commercial use abutting a residential zone. The fact t.hat it's used for something else, I don't think, would change the ana.ly::~ir~" MR. CARVIN-Well, I think buffer zone is pretty clear. MR. TURNER-It says no parking or storage of vehicles of any kind or objects associated with the use of the property is permitt MR. WEST-I think that what we're advocating here is. MR. TURNER-You want to take away his nonconforming use. That's not right. That's why I voted against the Use Variance, the requirement for the Use Variance. You're taking away his vest right in that piece of property. MR. WEST-I think t.hat our position, Mr. Chairman, is not that we are, and I think it's very important for you to recognize all of the comments of the neighbors are the important comments on t t issue, and every neighbor that I've heard speak said that nobody condemns Mr. Brock from continuing to operate the Marina along the line of the character of the way it was previously operated. So I don't t.hink that's at issue, and I'm not advocating that. I think you have a situation, here, where, as to the buildings, the buffer zone requirement would require that there be, the new buildings, that there be 50 feet of undeveloped space. You could - 16 - --- -- also logically rule that, just like any nonconforming use exists, with respect to zoning requirements, that it would be permissible for him to continue outdoor storage on those areas where he previously continued outdoor storage. It's not a big point. I don't want to take up anymore time of the Board, but I think it is a logical interpretation of the Code, and one that follows the two previous rulings. MR. O'CONNOR-I don't think Sue is purposely misdirecting our thought processes. The Appeal is not as to the outside storage. The Appeal was for the proposed buildings as they were set forth on the site plan, the application of the applicant's (lost word) was to have the buildings as new buildings conform to a buffer zone. If there are activities outside of the construction of the new buildings, that was not the issue of the Appeal. What I would like to suggest, if I might, though, and if I could have your indulgence, a three minute recess. We may be able to resolve the question on this Appeal. MR. TURNER-All right. You have it. MR. O'CONNOR-Respectfully, Mrs. Evans would wish to withdraw her i~ppeal . MR. TURNER-Okay. Thank you. MR. THOMAS-That takes care of that. MR. TURNER-Okay. MR. SCHACHNER-Can I make just one comment on that? The last substantive comment, I believe, heard during that Appeal was by Mr. West, and although I know Mr. West did not intend to lead us in this direction, I want to say, for the purposes of your record, that the exact same reasoning that Mr. West advanced, as to why the preexisting, nonconforming use could probably be allowed to continue outdoor boat storage on the premises is exactly why we will maintain here, and elsewhere, that the Use Variance is not necessary, and I want to make sure that that's in your record, that's his own words and his own reasoning lead to that conclusion, in I:J],Y opi nion. I'm sure not in his_ opi nion. MR. TURNER-Okay. MR. SCHACHNER-Thank you. MR. TURNER-Okay. Any further business on this matter? None that 1 know of. Okay. MR. O'CONNOR-Mr. Chairman, I would ask one question. Does that mean that the A,"ea VtH iance that has been schedulecl for )-"our next meeting will now, by this Board, be taken off the agenda until a Use Variance is determined or not determined? MR. TURNER-Yes, that's correct. MR. LAPPER-If applied for. MR. TURNER-Right. That's correct. MR. WEST-Could I also raise the issues that I raised at the last meeting, Mr. Chairman, procedural issues, and I think it was clear from presentation, the last meeting, the SECRA issues that I raised would apply if you determine that a Use and/or an Area Variance is required, and Mr. Schachner made some statements to that effect, and I don't disagree with that, but that's the procedural mode that we're in now. This is an Unlisted Action in a Critical Environmental Area, which makes it a Type I Action, which means that, unless you can find a real good reason not to, an Environmental Impact Statement should be prepared and a review - 17 - , --. ---- should be coordinated with the Lake George would also note that, under Section 807 of that any application for a variance should Adiì"ondack P"n-k Aqency" as woll as the final Park CommlSSlon. I the Executive Law, be forwarded t.o the decision. MR. MARTIN-I can applications, they thE) (;P{i. This is caso, now, lt will assure Mr. West, as we do are reforred to the APA when they recognized as a Type I Action, also require Site Plan Review and J,.<Ji tl''' all OU'( OCCUì- ~",¡i th.i n and, L n t.hi.~:; ¿~ ¡:"":I I:.) l~ ()\/ '::-} 1 . 1'1f\. TUm'~EF<""Yes. MR. WEST-Thank you. MR. O'CONNOR-Thank you. MR. TURNER-Okay. No other business, the meeting's adjourned. RESPECTFULLY SUBMITTED, T adore Turner, Chairman - 18 -