1996-05-22
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ORIGIN(J
QUEENS BURY ZONING BOARD OF,APPEALS
SECOND REGULAR MEETING
MAY 22, 1996
INDEX
Area Variance No. 32-1996
Tax Map No. 7-1-8
Notice of Appeal No. 5-96
Tax Map No. 51-1-27.1
Area Variance No. 39-1996
Tax Map No. 13-3-19
Notice of Appeal No. 2-96
Tax Map No. 4-4-11
Notice of Appeal No. 3-96
Tax Map No. 73-1-4.1
Notice of Appeal No. 4-96
Tax Map No. 73-1-4.1
Ian Hurst
10.
Thomas L. McDermott
14.
John Brock
38.
John & Kathleen Salvador
38.
Marianne & Thomas ~cDonough
Steve Sutton D/B/A Sutton's
Marketplace
49.
Michael & James Valenti
Steve Sutton D/B/A Sutton's
Marketplace
50.
THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD
AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS
MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES.
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(Queensbury ZBA Meeting 5/22/96)
QUEENS BURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
MAY 22, 1996
7:00 P.M.
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MEMBERS PRESENT
FRED CARVIN, CHAIRMAN
CHRIS THOMAS, SECRETARY
WILLIAM GREEN
BONNIE LAPHAM
ROBERT KARPELES
MEMBERS ABSENT
THOMAS FORD
DAVID MENTER
EXECUTIVE DIRECTOR-JAMES MARTIN
CODE COMPLIANCE OFFICER-JOHN GORALSKI
TOWN ATTORNEY-MILLER, MANNIX, PRATT- MARK SCHACHNER
ATTORNEY REPRESENTING ZBA-JON LAPPER
MR. CARVIN-Our first qrder of business is a SEQRA determination on
the Mooring Post. Now, gentlemen, we went through all of this on
May the 1st. We announced a public meeting on this for this
evening. I do have what I consider to be a final draft of a
motion, outlining our conditioned negative declaration on that
particular situation. I can read this into the record, and then
entertain any questions, and then we'll need a vote.
MR. GREEN-Have you got copies of that?
MR. CARVIN-I only have one copy. I have other copies, but they are
amended. These are unamended copies, I have, and I will point out
the amendments. I'm going to ask our counsel. Do I need to read
in all the beginning stuff, Jon?
MR. LAPPER-Yes.
MR. CARVIN-I don't know if I've got it. Okay. This is in
reference to 617.21 State Environmental Quality Review Negative
Declaration Notice of Determination of Nonsignficance, the Project
Number is Use Variance No 82-1995, Area Variance No. 83-1995.
MOTION IN REFERENCE TO 617.21 STATE ENVIRONMENTAL QUALITY REVIEW,
NEGATIVE DECLARATION. NOTICE OF DETERMINATION OF NONSIGNIFICANCE
PROJECT NUMBER IS USE VARIANCE NO. 82-1995 AREA VARIANCE NO. 83-
1995, Introduced by Fred Carvin who moved for its adoption,
seconded by Chris Thomas:
This notice is issued pursuant to Part 617 of the implementing
regulations pertinent to Article 8, State Environmental Quality
Review Act of the Environmental Conservation Law. The Town of
Queensbury Zoning Board of Appeals, as lead agency, has determined
that the proposed action described below will not have a
significant effect on the environment, and a Draft Environmental
Impact Statement will not be prepared. The name of the action, the
Mooring Post Marina expansion. SEQRA status Unlisted. Conditioned
Negative Declaration, yes. Description of Action: Proposed
expansion of a pre-existing nonconforming marina facility.
Location including street address and the name of the municipality
is 291 Cleverdale Road, Queensbury, New York. Reasons Supporting
this Determination: As proposed, the project may have a
potentially large visual impact and impact on the character and
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(Queensbury ZBA Meeting
5/22/96)
aesthetic qualities of the neighborhood due to the massive building
proposed along Mason Road, specifically the visual impact of the
proposed 35 foot tall 162 feet long building directly adjacent to
a proposed 25 foot tall 92 foot long building along a residential
street may be potentially large. There is also a potential for
moderate noise impact from the proposed use of tractors, fork lifts
and other vehicles utilized to move boats on the project site.
There is also a potential for a large impact on public health and
safety due to a potential fire hazard from the storage of a large
number of boats. There is also a potential for a large impact on
drainage patterns and surface water runoff due to the size of the
proposed buildings. There is a potential for a large impact on the
present traffic patterns due to a potential parking congestion due
to the proposed volume of the expansion. If conditioned negative
declaration provided on the attached contact persop is James
Martin, Executive Director of Community Development, and we will
send a copy of our conditioned negative declarations to all the
appropriate agencies. The conditioned negative declaration
mitigation measures that are to be imposed. Number One, the
environmental impact analysis for the proposed project has been
undertaken based upon the applicant's assertion in the application
materials that the maximum summer season dry boat storage will not
exceed 140 boats, exclusive of new boat sales and boats under
repair in the boat maintenance building. In the event that the
actual maximum summer season dry boat storage exceeds 140 boats,
the lead agency reserves the right to re-examine the impacts and
mitigation measures including the possible imposition of additional
mitigation measures. Number Two, all new buildings cannot exceed
a maximum height of 25 feet at the eaves and 28 feet height at the
peak. Number Three, the boat storage building shall be re-
configured from the proposal submitted by the applicant as follows:
Building One, a maximum of 102 by 104 feet with the 102 foot long
side running parallel to the north wall of the existing maintenance
building, and a setback a minimum 50 feet from the Cleverdale Road
property line, five feet from the existing maintenance building,
and a minimum of 135 feet from the Mason Road property line. One
building a maximum of 30 by 102 parallel to the northerly most
property line and a setback 10 feet from the northerly most
property line and 30 feet from the Mason Road property line. One
building a maximum of 30 by 82 parallel to the northerly most
property line and setback 95 feet from the northerly most property
line and 30 feet from the Mason Road property line. One building
a maximum of 30 by 82 feet, parallel to the northerly most property
line and set back a minimum of 183 feet from the northerly most
property line and a minimum of 30 feet from the Mason Road property
line. One building a maximum of 30 by 102 feet parallel to the
northerly most property line and setback a minimum of 268 feet from
the northerly most property line, a minimum of 30 feet from the
Mason Road property, and a minimum of 10 feet from the property
line designated as north 85 54 minutes, 54 feet 50 seconds west on
Map 47066-C1 by Haanen Engineering, dated 9/13/95 and revised
3/7/96. Item Number Four, the project has been scaled down from a
proposed volume of 669, 320 cubic feet of new buildings to a
maximum volume of 573,672 cubic feet. Item Number Five, since the
new boat storage buildings will have a greater capacity than the
former boat storage building, no outside storage of boats shall be
permitted on the project site between June 1st and October 15th of
each year. Item Number Six, outside winter storage of boats shall
be strictly limited to the paved areas located immediately between
the open-sided shed boat storage buildings and/or Tax Map Lot No.
13-3-19, and shall be delineated on the final site plan. Number
Seven, the parking of vehicles and boat trailers shall be strictly
limited to Tax Map Lot 13-3-19, which is located on the east side
of Cleverdale Road, within the boat storage buildings, and directly
east of the existing office and store. Number Eight, outdoor
displays of boats for sale is strictly limited to a maximum of six
boats which may only be located west of Cleverdale Road and
directly adjacent to the north and east sides of the showroom
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(Queensbury ZBA Meeting 5/22/96)
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building. Number Nine, a fire alarm system conforming to most
current NFPA requirements and the NYS Fire and Building Codes shall
be installed in each boat storage building. The alarm shall be
connected to a central monitoring agency, fire extinguishers that
conform to the most current NFPA requirements shall be located in
each building. Additionally, a dry fire hydrant shall be installed
from Lake George. The location and installation shall be in
conformance with NFPA Standard 1231 Section B5, dry fire hydrant,
and approved by the North Queensbury Volunteer Fire Department.
Number 10, all forklift trucks and tractors used for the moving of
boats shall be equipped with mufflers and resonators to reduce
noise levels to a maximum of 75 decibels at 65 feet, and will not
be equipped with activated warning horns. Number Eleven, a
stormwater management plan shall be submitted by the applicant and
approved by the Town of Queensbury Planning Board during site plan
review of the project, which must, at a minimum, provide for no
increase in the rate and volume of stormwater runoff from the site,
compared to the existing stormwater runoff conditions of the site.
Number Twelve, the proposed landscaping plan prepared by Miller
Associates Landscaping Architects and Haanen Engineering, dated
9/28/95 shall be installed with the addition of a landscaped screen
to extend the full length of the new building located along
Cleverdale Road, directly east of the largest boat storage
building, and shall be landscaped with plant materials similar in
size, number and species to that proposed along Mason Road. This
revision shall be submitted by the applicant and approved by the
Queensbury Committee for Community Beautification and the Town of
Queensbury Planning Board during site plan review. Number
Thirteen, any future yard lighting shall be medium intensity flood
lights with top and side cut off visors to reduce light impacts on
adjacent properties and shall be approved by the Town of Queensbury
Planning Board at si~e plan approval. Number Fourteen, the hours
of operation for the Marina shall be 8 a.m. to 9 p.m. Number
Fifteen, the exterior color of all new buildings shall be subject
to review and approval by the Queensbury Planning Board and the
Queensbury Committee for Community Beautification at site plan
review. Item Sixteen, a total of 14 wet slips shall be reserved at
the docking facility for the temporary use of quick launch
customers.
Duly adopted this 22nd day of May, 1996, by the following vote:
Now, the only changes from our conversation on May 1st is that the
size of the buildings, I believe when I had originally looked at
this, was two buildings 30' by 100', and two buildings 30' by 80' .
They are now two 30' by 102' and two 30' by 82'. The reasoning for
this is to facilitate the studs, the structure. The 80 foot would
have put some structural integrity at risk. So the buildings are,
in essence, obviously two feet on four buildings is eight feet
longer total, but no building is longer than two feet. I do not
believe that this has a significant impact on the volume figure.
So we still are under 45 percent of the volume. The other
significant change is the first paragraph. Now, the first
paragraph is a number of boats that the applicant has indicated
that he has had over the past several year. This is his number.
Essentially, this does not put us into the boat counting business,
but what it does is it allows us to monitor this for a period of
time, and if we find that there are additional boats being stored,
to really judge the value or the integrity of the impact. So, all
we are doing is taking his number of 140 boats, and putting them
inside. The' other item is that I did include their decibels
readings, as far as the noise mitigation. The intent here is that
this is what the noise levels that the applicant has indicated. He
has also indicated that they are, or there are mufflers and
muffling devices that can be either purchased or put on these
machines to reduce that. So that's, in essence, what we are asking
to be done, and everything else, I believe, is the same. Are there
any questions on any of this?
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(Queens bury ZBA Meeting 5/22/96)
MR. KARPELES-Yes. I've
wondering what this means,
plan"?
got a question on Number Six. I'm
"shall be delineated on the final site
MR. CARVIN-Yes. What that means is that when the site plan is
done, that they will draw a line between the buildings, or it will
be delineated to where the boats actually can be stored. So that,
as I had pointed out on my chart the other day, any space that I
did not want to see any boats in the drive areas, that it means
between the two buildings or the four buildings, if you will, and
that will be delineated by site plan.
MR. THOMAS-We talked about boats at the docks itself for the quick
launch purposes, and I don't remember you reading anything about
that.
MR. CARVIN-Yes. Good question. We had something, I think, in the
original, in other words, so many maximum number of boats.
MR. THOMAS-Maximum number of boats to be at the dock for the quick
launch.
MR. GORALSKI-I believe your original motion at the last meeting
just talked about, not number of quick launch boats at the dock,
but it was number of boats that are actually docked. In other
words, they're not quick launch boats, they're boats that are
docked.
MR. CARVIN-I think I did have something in there, I think, saying
15, yes.
MR. GORALSKI-Fifteen.
MR. CARVIN-Okay.
MR. LAPPER-That came out when you asked us to take out the 140 as
an absolute number of boats.
MR. CARVIN-Yes. Okay. The Number Nine on which you have has been
taken out. So, I don't think we ever really addressed it. I know
we put it in here.
MR. THOMAS-Yes. We talked about it.
I
MR. CARVIN-John, we had hère, the maximum number of boats which may
be stored in the water of the docks exclusive of boats in the
process of quick launch shall be 15. Is that in reference to the
quick launch?
MR. GORALSKI-No. What that is, is that the Mooring Post, it's my
understanding that there are some boats that are not quick launch,
they are simply docked in the water like a typical marina would be.
MR. CARVIN-Okay.
MR. GORALSKI-And that's what those 15 boats was addressing, that he
does have the ability to dock 15 boats and store them in the water.
MR. MARTIN-He has 15 wet slips.
MR. GORALSKI-Right.
MR. GREEN-Is that because of the parking, Chris?
MR. THOMAS-Yes, because I remember we talked about it at length.
It was on the May 13th meeting. That was the public meeting, not
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(Queensbury ZBA Meeting 5/22/96)
the public hearing. We talked about that, in conjunction to the
parking.
.-,
MR. CARVIN-As I remember it, does he not have 50 wet slips?
MR. GORALSKI-Fifteen.
MR. CARVIN-Fifteen.
MR. GORALSKI-I believe that's what it says in here.
MR. CARVIN-Okay, and that's in the application?
MR. LAPPER-We could ask the applicant.
MR. CARVIN-Is the applicant here? John?
JOHN BROCK
MR. BROCK-Yes. What we primarily talked about at that meeting was
the requirement for the number of boats coming back, and if I
understand it right, I was to reserve up to 15, 10% of those slips,
which meant I had to reserve 14 slips for the boats that were
coming back off of quick launch. Okay, and that's the way I
remember that. So when they came back, we gave you some numbers
that showed that the 10% was adequate, according to the survey, and
that would leave like 14 slips or so available when the boats come
back from quick launch. So could tie off while we're pulling them
out.
MR. CARVIN-That was my recollection of that.
MR. BROCK-Yes. That's the way it went. I have, actually, I have
right now more than 15 dockers in the water, and I have had right
along. Okay. We will run in the neighborhood of 20 plus or minus
two or three boats, depending on the size of the boats, because my
slips are all, I don't have an individual slip. I have a long
dock, like 100 foot long. So I have a choice of putting three 30
foot boats there or five 20 foot boats, okay, but we wanted to make
sure there was enougH space for the docker, for the quick launch
people, when they got back, so it didn't jam up, and that was
approximately 10%, and I think that's what the wet slips referred
to, having enough room so when these boats all come back, there'll
be some place for them to tie up.
MR. CARVIN-It seems to me that that was my recollection, too, and
I'm not quite sure how that figures into an environmental impact.
That's just a reservation, right?
MR. LAPPER-The reservation of the 14, probably makes sense to add
that, so that there's not congestion.
MR. BROCK-Excuse me, Mr. Chairman, could I bring up a couple of
other points that, a couple of them are rather safety factors.
MR. CARVIN-Let me get this squared away and see if there's any
other questions. Okay. John, I have an addendum. A total of 14
wet slips shall be reserved at the docking facilities for the
temporary use of the quick launch customers. Does anybody have a
problem with that?
MR. THOMAS-No.
MR. CARVIN-All right. Then I will add that in. Item 16, a total
of 14 wet slips shall be reserved at the docking facility for the
temporary use of quick launch customers. Okay. Does anybody have
any questions on? Okay. I don't really want to open up a lot of
public discussion here, John. So, if you have some comments, I'll
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(Queensbury ZBA Meeting 5/22/96)
entertain them.
MR. BROCK-Okay. On Item Number Seven, it says that the parking of
vehicles and boat trailers shall be strictly limited to the lot 13-
3-19.
MR. CARVIN-Right.
MR. BROCK-Well, that's immediately, that is where the boats, the
cars are parked.
MR. CARVIN-Right.
MR. BROCK-I never park any trailers there, primarily because when
the kids and the people are getting out of their cars, going to the
dock, back and forth, if I have a trailer there or customer's
trailers parked in there, kids would be stepping over trailers.
Somebody's going to fall and get seriously hurt.
MR. CARVIN-Okay.
MR. BROCK-The trailers, I originally had the building higher,
planned on putting the trailers on the top, okay, above the boats,
or along side one of the other buildings we showed trailer storage.
I feel that if we were to store the trailers between the two middle
buildings in the back, there's still a five foot berm and eight
foot trees between the trailers and Mason Road. They'd never be
seen anyway. They'd be out of the way, and no one would get hurt.
MR. CARVIN-Well, I think we've got it within, in other words, you
could store it in the boat storage is what you've been maintaining.
MR. BROCK-Yes. That's when I had the height to put them on the
top. Now that I can't put them ins ide, I have to keep them
outside. You're saying to keep them across 'the road. It would be
much safer to put them between those buildings in the back, between
the two middle buildings. You've got four buildings in a row, and
there's nothing between those buildings in the back there, and
there's a big berm and trees behind it. It would be much safer to
put those trailers there, so that kids running around down by the
water don't get hurt.
MR. CARVIN-Well, I'll tell you. My problem with that area between
the two buildings is that I'm envisioning that as a grass area,
John.
MR. BROCK-Well, it will be grass, yes.
MR. CARVIN-Yes, I know, but the more cars and trailers that you put
over it, the more it becomes compacted.
MR. BROCK-Okay. See, what my thoughts were is not cars, but these
trailers come and you just set them there, and they stay, over the
summer, they stay there. The people's boats are on the racks, and
those trailers would just be parked there. It's not like we're
going to be driving trailers in and out all the time.
MR. CARVIN-Well, again, I still come back to the same spot.
MR. BROCK-Yes. It's the safety factor that I worry about, putting
trailers over there on that side of the road. I guarantee, someone
will get hurt. Some kid or some little kid will fall on a trailer
and they climb over everything, and I'm sure those rusty old
trailers, somebody is going to get hurt. Those aren't my trailers.
Those are customer's trailers. I hate to see some kid get hurt
and say, well, I have to keep these here. I have a problem with
that, personally. Other than that, that's the only thing.
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(Queensbury ZBA Meeting 5/22/96)
MR. CARVIN-Okay. Anything else, John?
MR. BROCK-The only two things I see that I have are that, and then
the decibel level. The truck did come out at 75 decibels instead
of 70. It was in the May 9th proposal, after we had put the
mufflers and resonator on it. We gave you those numbers. We had
to do a test, and it fairly quiet. It's much quieter than
something going down the street.
--./'
MR. CARVIN-Well, I believe the numbers that we were given were 70
decibels, at 50 feet.
MR. BROCK-We thought, originally the manufacturer thought we could
get that truck, that those two, his estimate was 70 decibels. I
bought the muffler and resonator, put them on, and we ended up at
75 decibels at 65 feet, which is less than an average decent sized
truck would be driving down the street, according to Tom Nace,
who's engineering, knows more about it than I do.
MR. CARVIN-Well, I know that Tom had indicated in testimony that
there were muffling devices that could be either purchased or
applied to there. So, I mean, I'm only going on the numbers that
you gave us at 70 decibels.
MR. BROCK-It came out at 75, after everything was put on it, is all
I'm saying.
MR. CARVIN-Well, then we have an incomplete application. I don't
want to start this thing allover.
MR. BROCK-Yes. Our proposal said our forktruck was 75 decibels, at
65 feet, on the proposal of May 9th.
MR. CARVIN-Does Staff have any comment?
MR. LAPPER-We were looking at the March 16th proposal when we came
up with that number.
MR. CARVIN-I don't have my stuff here.
MR. BROCK-Yes. That was an estimate that was given from the
manufacturer. I purchased that (lost word) and did put it on, and
I just wanted to let you know.
MR. CARVIN-Okay. Well, I'll leave it to the Board's discretion.
MR. KARPELES-You said 75 at 65 feet?
I
MR. BROCK-65 feet, and basically with moving the buildings further
away from the road now, there's 30 feet to the property line.
There's about another six feet to the road, 20 feet of road. So
anyone standing in their yard on the opposite side of Mason Road,
okay, even if there's been right at their property line would be
approximately 65 feet from the back, the closest point of the
buildings. .
MR. CARVIN-Does Staff have any feeling?
MR. LAPPER-It's up to the Board, the mitigation.
MR. CARVIN-Is the Board comfortable at 75?
MR. MARTIN-The only concern 1. would have is, as an enforcement
issue, it's already been applied, and we know the number, the
equipment's already been applied.
MR. GORALSKI-Well, whatever, just as long as you come up with a
number and the distance away from the source that I can go out and
measure.
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(Queensbury ZBA Meeting 5/22/96)
MR. MARTIN-And can enforce.
MR. KARPELES-Well, I think we've got to enforce something that's
realistic. If the manufacturer has come up with 75 decibels at 65
feet, he can't improve upon that.
MR. MARTIN-Well, my only point being is that the March 16th number
was an estimated number, a projection. The new number, apparently,
is with the equipment in place at that site in those conditions.
MR. CARVIN-I'll correct it to 75 at 65.
comfortable with that?
Does Staff understand,
MR. MARTIN-Yes.
MR. CARVIN-Is the applicant comfortable with that?
MR. BROCK-Yes.
MR. CARVIN-I'm going to re-emphasize, John, anything you can do to
keep those sounds down.
MR. BROCK-I would be glad to.
keep it down, I'll do that.
If I can get better equipment and
MR. CARVIN-Okay. As far as the boat trailers, I've got a real
problem with it. I mean, I think if we can keep it inside, I'm
going to be a lot more comfortable, and I really don't want to see
anything on those grassy areas. Just over time, that usage will
compact that, because it's going to be a pretty much impermeable
situation now. So I don't know what the test of the Board feels
like on the trailer storage.
MR. GREEN-Do you have any other property somewhere else, possibly,
that you could store the trailers on, if they're just going to come
in the spring and leave in the fall?
MR. BROCK-The only other place I'd be able to store them would be
in front of the building on Cleverdale Road or I have a piece of
residential property next to it, that I don't think anyone wants to
store them.
MR. GREEN-I was thinking maybe some place off site.
MR. BROCK-I don't have, no.
MR. THOMAS-To me, if the customer brings the trailer in in the
spring, why can't they take it back to where they brought it from
and then bring it back in the fall? Why have storage on the
property anyway? The boat is stored off site in the winter time
anyway, right?
MR. BROCK-I try to do that as much as I can. There are a lot of
people that have, like they travel up and they have a condo or
something like that where they can't keep them like, if they store
their boat at the fairgrounds or something like that. A lot of
people, like, use different fairgrounds around to store their
boats, and then they come back with their boat to use the lake and
their trailer. Well, the fairgrounds only accepts those trailers
for storage like during the winter. .
MR. THOMAS-Okay. I like the original proposal.
MR. CARVIN-I like the original proposal. Does anybody else have a
problem with it? Okay. If there's no other questions on the
mitigation, I would ask for a second. Is there a second to this?
MR. THOMAS-I'll second the motion.
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(Queensbury ZBA Meeting 5/22/96)
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MR. CARVIN-Okay. Again, any questions? I would ask for a vote,
then.
AYES: Mr. Thomas, Mrs. Lapham, Mr. Karpeles, Mr. Green,
Mr. Carvin
NOES: NONE
ABSENT: Mr. Ford, Mr. Menter
MR. CARVIN-Okay. So that these are our SEQRA which we now post for
30 days. Is that correct?
MR. LAPPER-We have to publish it in the Environmental Notice
bulletin.
MR. CARVIN-Okay, and that means that the Use and Area Variance can
come before us in July?
MR. LAPPER-They could come before you in June, if you're going to
have a public hearing. You can't vote on them until the 30 day
period.
MR. CARVIN-You mean on the Use and Area?
MR. LAPPER-Yes. You have to wait the 30 day notice period.
MR. CARVIN-Okay. Now does the applicant understand? I mean, we
have to wait 30 days. Do you want to try to get on the June for
the Use and Area or July? I mean, we won't be able to vote on it
in June. So it would be preferable, I think, to put this on the
July agenda.
MR. BROCK-Would they both be heard at the same time?
MR. CARVIN-I would hope so.
MR. MARTIN-It would make the most sense to schedule them back to
back, on the same evening.
MR. BROCK-If we could do it in early July, I would only have time
to get it scheduled. If we could do an early one for the Zoning,
and then the Planning one later in July.
MR. MARTIN-I think, John, also we're going to have to look at the
adjustments to the applications. You're going to have some re-
drafting to do and your application's going to have to be amended.
For example, I think a lot of your Area Variance requests go away
now, and the Use is somewhat framed in now.
MR. CARVIN-I would say July, then.
MR. MARTIN-We're prob~bly looking at an amended application.
MR. CARVIN-All right.
MR. BROCK-If you could do early July.
MR. CARVIN-Well, why don't you work it out with Staff, and that way
it'lL
MR. MARTIN-Yes. We'll try and agree upon a submission date that
would give us adequate time to review it and the Board, once it's
in, and do your public notice, for the public hearings.
MR. CARVIN-Okay. Mike, I saw your hand up. I'm not going to open
up the public hearing, but I'll.
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(Queensbury ZBA Meeting 5/22/96)
MIKE O'CONNOR
MR. O'CONNOR-My comment was just partially address. My
understanding was, based upon the mitigation, I would believe that
a whole new set of plans is going to have to be submitted, for
everybody to have a chance to review it. It's pretty much a new
application, perhaps a special meeting, because of the interest.
MR. CARVIN-Okay. Well, then I'll let you folks work it out with
Staff, then. Okay. If there's no other questions, the next item
of business is New Business.
AREA VARIANCE NO. 32-1996 TYPE II WR-1A CEA IAN HURST OWNER:
CAROL S. HURST KNOX ROAD, OFF ASSEMBLY POINT RD., NINTH HOUSE ON
LEFT AFTER TURN ONTO KNOX ROAD APPLICANT IS PROPOSING. TO CONSTRUCT
AN ADDITION TO AN EXISTING SEASONAL CAMP. RELIEF IS NEEDED FROM
THE SETBACKS LISTED IN SECTION 179-16C AND THE SHORELINE SETBACKS
IN SECTION 179-60B, 5, 15, C. ADIRONDACK PARK AGENCY WARREN
COUNTY PLANNING 5/8/96 TAX MAP NO. 7-1-8 LOT SIZE: 0.23 ACRES
SECTION 179-16C
IAN HURST, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 32-1996, Ian Hurst, Meeting
Date: May 22, 1996 "APPLICANT: Ian Hurst PROJECT LOCATION:
Knox Rd. Proposed proj ect and Conformance wi th the Ordinance:
Applicant is proposing to build a new 476 square foot addition to
an existing single family home. This addition would require relief
from the side yard setback in Section 179-16C and the shoreline
setback listed in Section 179-60B, 5, 15, C. Criteria for
considering an Area Variance, according to Chapter 267, Town Law.
1. Benefit to the applicant: Granting relief would allow the
applicant to build an addition to an existing home. 2. Feasible
alternatives: There do not seem to be any alternatives that would
provide less relief. 3. Is this relief substantial relative to
the Ordinance? The applicant is seeking side setback relief of 14
feet and shoreline relief of 6 feet. 4. Effects on the
neighborhood or community? There do not appear to be any negative
impacts on the surrounding neighborhood. Additional comment may be
given at the public hearing. 5. Is this difficulty self created?
This small lot (10,000 sq. ft.) would need relief from the Zoning
Ordinance for any building expansion. Staff Comments & Concerns:
This expansion would maintain the same northern side setback that
the main structure currently has. The addition would be located
behind the main structure and would not impact any adj acent
property owner's lake views. Staff does not have any problem with
allowing this type of expansion on this lot. SEQR: Type II, no
further action required. II
MR. THOMAS-IIAt a meeting of the Warren County Planning Board, held
on the 8th day of May 1996, the above application for an Area
Variance to construct an addition to an existing seasonal camp.
was reviewed, and the following action taken. Recommendation to:
No County Impact. II Signed by C. Powel South, Chairperson.
MR. CARVIN-Okay. Does everybody on the Board understand what the
applicant is requesting? Are there any questions of the applicant?
I do. Do you have any schematics of the house, of the proposed
addition?
MR. HURST-I could give you the plan.
MR. CARVIN-I want to know the height.
MR. HURST-The height, basically, is 16 feet, from the ground to the
tallest point. Basically, it's the same height as the old house,
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(Queensbury ZBA Meeting 5/22/96)
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the same measured height. The problem is we're moving uphill four
feet or so. We have a retaining wall behind the house and
therefore the hill levél is about four feet higher. So even if you
maintain the same height, it pushes up four feet, so the new
addition would stick up about four feet above the old house.
MR. CARVIN-Okay. Well, that's what I wanted to look at. I mean,
is it a direct relationship, the four feet? I mean, is that going
to be it, or is it going to be 12 or 14 feet?
MR. HURST-No. It's going to depend on how much we can, what sort
of level area we can create as we go back. Our plan is to try and
get it down as low as possible, and originally the plan was four
feet. It may have to go to five. That would probably be about as
high as it would go. Just having looked at the slope, I can show
you sort of a.
MR. CARVIN-Well, it looks to me, I guess my question is, is this,
that's what I was looking for.
MR. HURST-This is the original house. I think, actually, we're
about a foot higher here, as I mentioned it, since I've been there,
and so this level ends up being (lost word). This peak, which is
the furthest back, ends up being (lost word) .
MR. CARVIN-Okay. I guess my question is, what is the necessity for
this? I mean, can you not?
MR. HURST-We wanted sort of a larger two story area on this. This
is the plan. This would be the existing house, and the new
entryway uphill, so you have a small hallway, and we tried to push
that down as low as we can, with slopes from eight to twelve or so,
and then the bedroom, just have a separate roof. It's just in
terms of sort of, we like to have that high space in there. It's
just a nice open space. This would be not only.
MR. CARVIN-My point is that I don't, I understand what you're doing
here, but I'd like to try to keep this level on level here.
MR. HURST-I mean, even if we bring this down to this level, we're
still above, there's really, if we bring the slope of this roof
down anymore, I mean, we're five to one now. We'll be four to one.
MR. KARPELES-If I remember right, there's all kinds of trees in
here. This isn't even going to be visible.
MR. GREEN-It's really well screened.
MR. KARPELES-I don't think anybody's going to see that.
MR. GREEN-He's still saying he's going to be 16 feet from here to
here. I don't think you're ever going to see that.
MR. CARVIN-I was out there. So I think everybody's been out there
and looked at it.
MR. HURST-It's heavily treed.
MR. CARVIN-Are there any other questions of the applicant? Okay.
I'll open up the public hearing.
PUBLIC HEARING OPENED
MR. CARVIN-Any written correspondence?
MR. THOMAS-Yes, we have two letters. The first letter dated April
17, 1996 "Dear Variance People: Enclosed is the variance
application and nine copies plus my check to cover the fee. I have
signed as the owner, all ten copies of the application. Ian Hurst,
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(Queensbury ZBA Meeting
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the project applicant, assures me that my signature and the fee
will complete all that is needed from me as the building permit
documents have already been submitted to the Town of Queensbury.
I am third generation of my family to be able to spend time on
Assembly Point. In the late 60's, I was fortunate to be able to
purchase the small camp for which I now request the variance. The
camp in which I had grown up was down the road and had belonged to
my grandparents. It has since been sold, over 20 years ago. I
remained a seasonal resident on Assembly Point while I taught and
raised my son in my camp. I have seen a lifetime of changes on the
Point. Now I find that I, too, must request one change to allow me
easier access to my camp by moving the entrance a bit closer to the
road up the hill and to a more level spot. The addition would also
allow me to maintain a second sleeping area while I moved my
writing area, desk chair, etc. into the area presently being used
on occasion for relatives or guest visitors. Thus, I could write
when someone visited, as my functions are somewhat limited by a
medical condition. The addition would allpw me to use the camp
better. I love and care for my land, my camp and the lake. I am
fortunate to live in an area of long term residents, mostly
seasonal, who are caring and concerned people. They are aware of
my plans. I know that you must officially inform them and give
them an opportunity to make any concerns that they may have known
to you. I hope that we can do this on the May 15th hearing date as
I know that the applicant, Ian Hurst, and perhaps myself, can be
there on that date. Please help me with this date if possible.
Additionally, if variance and the building permit are approved, I
have a very limited time of availability of workers who have agreed
to this project. They have other jobs to go to. Thanks in advance
for your help. Yours truly Carol Hurst" A letter dated May 20,
1996, "Based on the review of the site plan provided me by Ian
Hurst, the applicant, and relying on his representation, this
proposed addition will not extend beyond the line of the north wall
of the existing structure, I, as the owner of the adjoining parcel
to the north of the Hurst property have no objection to the
granting of the variance sought by the applicant. Very truly
yours, Eileen Mahoney" That's it.
MR. CARVIN-Okay. Any other public comment? Seeing none, hearing
none, I'll close the public hearing.
PUBLIC HEARING CLOSED
MR. CARVIN-Now, does anyone have any questions of the applicant?
MR. THOMAS-I just have one. How many trees are you going to be
cutting down to?
MR. HURST-Hopefully, I'll only have to take out two.
MR. THOMAS-Are they the two pine trees? They're tall. It's on the
property.
MR. KARPELES-One's a cedar.
MR. HURST-There's a small cedar close to the house, which has
already started to tilt out over the house, which we're worried
about. That will have to be taken out, but hopefully there'll only
be two trees that we'll have to take out. We're trying to minimize
the impact on the nearby roots.
MR. THOMAS-How about stabilizing that bank, once you do cut the
trees out and start construction in there, because that is a very
steep slope.
MR. HURST-At that point, though, it maintains a relatively level,
flat area. We have a steep slope, and as it gets close to the
house there, it flattens out, and there's a retaining wall, and
we'll only partially take out that retaining wall (lost words) back
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(Queensbury ZBA Meeting
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5/22/96)
of the house in order to put in the wall.
MR. THOMAS-Okay.
MR. HURST-We don't plan on excavating huge amounts of soil. We'll
try to minimize the amount of excavation and impact to that hill.
MR. CARVIN-Okay, and y6u say that you're looking at a height of 16
feet, that that's the total to the peak?
MR. HURST-To the peak.
MR. CARVIN-Okay, and that's this peak here, right?
MR. HURST-Right.
MR. CARVIN-Okay. All right. Any other questions of the applicant?
Okay. What do you think, Bonnie?
MRS. LAPHAM-I don't have any questions at the moment.
MR. CARVIN-How about you, Bill?
MR. GREEN-I think it's very well thought out, and he's accomplished
his purpose quite well, and I don't have any problem at all.
MR. CARVIN-Bob?
MR. KARPELES-I feel the same way. I went up there today and looked
at it, and it looks like it's going to be an improvement. The only
thing I don't like is the one big pine tree that's got to come
down, but I don't see where there's much choice in that matter.
MR. HURST-Almost anywhere we try to do anything we would impact the
trees, simply because we're probably the most wooded lot in the
area.
MR. THOMAS-I think it's a worthwhile project, and I have no problem
with it.
MR. CARVIN-Okay. The only thing that I would stipulate, that the
new addition be no higher than 16 feet.
MR. HURST-The other thing is there will be no (lost words) we're
not putting any windows or anything on that side.
MR. CARVIN-Okay. Well, if we limit it to 16 feet, then you get
what you want, and we don't end up with something that's 28 feet
later on. Right, Jim?
MR. MARTIN-Right.
MR. CARVIN -Okay.
problem wit-h it.
I'd ask for a motion, then, if nobody has a
MOTION TO APPROVE AREA VARIANCE NO. 32-1996 IAN HURST, Introduced
by Robert Karpeles who moved for its adoption, seconded by William
Green:
The applicant is going to build a new 476 square foot addition to
an existing single family home. The addition requires a relief
from the side yard setback of 14 feet, and shoreline relief of six
feet. One of the stipulations will be that the overall height from
the ground to the peak of the roof will be no more than 16 feet.
The benefit to the a~plicant is that this will her to build an
addition to an existing home. There do not seem to be any
alternatives that would provide less relief. There have been no
negative impacts on the neighborhood. In fact, there's a letter
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(Queensbury ZBA Meeting
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from the neighbor saying that they approve of it, and the lot is of
such a size that any addition would require some kind of relief
from the Zoning Ordinance. The expansion will maintain the same
northern side setback as the main structure currently has, and the
addition will be located behind the main structure so that it will
be hardly visible from the lake.
Duly adopted this 22nd day of May, 1996, by the following vote:
AYES: Mrs. Lapham, Mr. Thomas, Mr. Green, Mr. Karpeles,
Mr. Carvin
NOES: NONE
ABSENT: Mr. Ford, Mr. Menter
MR. CARVIN-All right. I'm going to maybe shift some gears here.
How many folks, I know that you all came out to see democracy at
its best, but how many are here for the Salvador application? How
many are here for the McDonough and Valenti/Sutton? Okay. How
about the McDermott? Okay. McDermott wins. We're going to do
McDermott next.
MR. THOMAS-What about John Brock?
MR. CARVIN-How many here for Brock? We're going to do McDermott
next, because that's going to probably have the public hearing.
NOTICE OF APPEAL NO. 5-96 RR-3A THOMAS L. MCDERMOTT OWNER OF
SUBJECT PROPERTY: SAME SUNNYSIDE ROAD BEHIND MCDERMOTT HARLEY
DAVIDSON APPLICANT IS APPEALING A DECISION BY THE ZONING
ADMINISTRATOR THAT A PRACTICE TRACK FOR MOTORCYCLES WHICH IS
CURRENTLY BEING USED ON THIS PROPERTY IS A LAND USE WHICH IS NOT
ALLOWED IN THE RR-3A ZONING DISTRICT. THE DEFINITION OF LAND USE
IN SECTION 179-7B AS INTERPRETED BY THE ZONING ADMINISTRATOR IS
ALSO BEING APPEALED. TAX MAP NO. 51-1-27.1
PAT BALDWIN, REPRESENTING APPLICANT, PRESENT
MR. CARVIN-Okay. I'm going to ask the applicant, I guess, what are
we here for?
MRS. BALDWIN-Okay. I'm representing the applicant. Maybe I can
clarify what this application is really saying, because I did help
complete it.
MR. CARVIN-Okay, and you are?
MRS. BALDWIN-My name's Pat Baldwin. I'm with the law offices of
John Fitzgerald. The applicant has appealed to the Board for the
decision of the Building and Codes officer that his use is not an
allowable use within the district. This is an RR-3A zone. His
appeal is based on the fact that this use has been in existence
since 1940. The property has been used for motorcycle trail bikes
consistently from that time period to the present. It's used for
both recreation use and for competition practice. The uses involve
the creation of practice trails that people can ride on in this
field. The tracks and the trails have been created through the
years with various means of shovels. They've gone out there and
actually shoveled and created track. They've also used farming
tractors to create tracks, and more recently they've used heavier
equipment in creating the tracks. The history of the usage of the
track, I'm just going to try to give you an overview of what kind
of usage that this has had. During the 50's and the 60's there
were probably about 20 to 25 regular users of these tracks and
trails in that field. During the 70's, it increased quite a bit
with popularity of motorcycles to about 50 regular users. During
the 80's it declined to about 20 to 30 users, and currently there
I
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(Queensbury ZBA Meeting 5/22/96)
are about 30 to 40 regular users of the track and the trails that
are created in the field. The McDermotts have also leased the
field for growing corn from time to time, and in these leases,
they've actually conditioned the lease on leaving the middle of the
field and surrounding areas around the cornfields available for
creating these tracks and trails for the motorcycles to ride on,
and every year the tracks are re-created and they're created
differently. Now, I've also tried to outline here some of the
zoning history, just so we can see where the McDermott's property
has fallen during the time period that the Town has enacted three
different versions of the Code. 1958, the original zoning code did
not allow for motorcycle trails. It just wasn't an allowable use
within the Town, but they did allow for nonconforming use, a pre-
existing nonconforming use, and what you have to do is you look at
the time of the effective date of the Code, which is some time in
1958, and look at the use at that time. There was no prior code,
so obviously it was a lawful use at that time, and it was a
continuous use. So it was considered a pre-existing, nonconforming
use, which was allowed to continue at that time. The 1967 Code
created an SR-30 zone, which this property was in that zone, and in
the SR-30 zone, they allowed outdoor athletic facilities. However,
the Code never defined outdoor athletic facility. So, arguably,
this use could be considered within that definition. The 1967 Code
also allowed for nonconforming use, and in the definition of
nonconforming use, they say, any lawful use that was in existence
at the time the Code was effective, which would have been in 1967.
I looked for a particular date, but was unable to find it. So
whether in 1967 it was continued lawfully as a pre-existing
nonconforming use or if it continued lawfully within the definition
of an outdoor athletic facility, this use continued as a lawful
use. In 1988, there was a new Code that was adopted by the Town,
and the effective date of that Code was October 1, 1988, that one
as you know, and that created the RR-3A zone, which the McDermott's
property is currently in. Now, I've provided you with certain
parts of the Code that I'm going to be talking about, so you could
look at those as I'm talking. If you look at Section 179-15, RR-3A
zone, subsection B says, "The purpose of the Rural Residential zone
is to enhance the natural open space and rural character of the
Town of Queensbury", and then if you go on to Paragraph D (2) ,
you'll see that they're allowing outdoor athletic facilities, once
again, as a permitted use within that Zone. However, now, the Code
provides a definition for outdoor athletic facility, and that's
provided in Code Section 179-7, and the outdoor athletic facilities
that they're talking about in 1988 is tennis courts, basketball
courts, paddle tennis and played outdoors. They've also, if you
look right above that, created a definition for open space
recreation use, and that includes "Any recreational use
particularly oriented to and utilizing the outdoor character of an
area", which includes trail bikes. However, nowhere in the zone is
that use within an allowable zone in the Town.
-....../
MR. CARVIN-Excuse me. I guess I'm lost here.
MRS. BALDWIN-Okay.
If you look at Section 179-7, okay.
MR. CARVIN-Under "Open Space Recreational Use"?
MRS. BALDWIN-Right. Below that, they finally have provided a
definition for the outdoor athletic facility. It was not provided
in the '67 Code, but they've also created a new definition, or a
new use, Open Space Recreation use, at that point.
MR. CARVIN-And you're saying that that
Outdoor Athletic Court and Facility, is
Recreational Use?
is, the definition of
found under Open Space
MR. MARTIN-No. Those are two separately defined.
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(Queensbury ZBA Meeting
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MRS. BALDWIN-They've now created two separate definitions.
MR. CARVIN-Okay. Go with me slow, it's been a long day.
MRS. BALDWIN-Okay, for everyone.
MR. CARVIN-For everyone.
MRS. BALDWIN-Okay, the Outdoor Athletic Facility is now defined in
179-7.
MR. CARVIN-Do you have a page number?
MR. THOMAS-17933.
MR. CARVIN-Okay. I'm with you now.
MRS. BALDWIN-Okay, and if you look above that, with that same Code
that was enacted in October of '88, they've now created definitions
for Open Space Recreation Use, which does include any recreation
use, particularly oriented and utilizing the outdoor character of
an area, which includes trail bikes, but that use is not included
within any zones in the Town of Queensbury for trail bikes. So, in
effect, what has happened is there is no zone within the Town of
Queensbury that allows the recreational outdoor use of trail bikes,
but if you look at the zone, and the purpose of the zone, and you
look at the definition of Open Space Recreation use, it certainly
seems to be conducive to one another, and it's impossible to tell
whether it just wasn't thought of at the time to include it in that
zone, but it clearly hasn't been included anywhere in the Code.
Now, if you do look at Rural Residential zone, it does say the
purpose of the Rural Residential zone is to enhance the natural
open space, and then you have a definition for Open Space
Recreational Use. So they do seem like they would be conducive to
one another. So what, in essence, we have i is we have a
nonconforming use, and that is defined in Paragraph 179-7 as well,
and that says, "Any use which is lawfully in existence within a
given zone on the effective date of this chapter" but it's not
recognized as an accessory, permissible or conditional use within
that zone. Clearly, on October 1, 1988, the use that was lawfully
in existence would have been a continuation of the use of the
motorcycle track and trails on the property, and you will have, I'm
sure, a number of people testifying to that, and have given you
statements to that effect since 1940. So it has been a lawful
existence since that time, on the effective date of tne Ordinance,
and then you go on to look at Paragraph 179-79. It then says, a
nonconforming use can be continued and maintained in reasonable
repair, but cannot be enlarged or extended, and the reason I've
provided you with the numbers of people that have used the track
over the years is to show you that the use has not enlarged or
extended. It's been the same number of people, given a few people,
but the larger percentage of people using the track were in 1970
when motorcycles were probably at their height of popularity, and
at this point that use is less than it was in 1970, and then the
definition of land use, I believe this is one of the things that I
did discuss with Goralski. He cited Section 179-7, Land Use, as
saying, "Any construction or activity which materially changes the
use or appearance of land", and he's arguing that, potentially,
this is a change in the land use, creating a new land use, but if
you look at the second sentence in that paragraph, it says, "'Land
Use' . . . shall exclude any landscaping or grading which is not
intended to be used in connection with another land use." Any
changes in the track have been done in connection with the
continuation of recreational and practice competitors practicing on
these trails, which they've been doing fqr 50 years. A material
change, I think it's important to understand, a material change is
a change such as, they took this track and all of a sudden they
made it into a big mud hole for big four wheeler big trucks to go
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(Queensbury ZB~ Meeting 5/22/96)
out there and compete. That would be a material change. This
track is continued with the same use, the same type of motorcycles
and the same numbers of people have been using this property,
again, for the last 40 or 50 years. So what we're asking the Board
to examine is, on October I, 1988, was this a pre-existing use that
was allowed to continue under the nonconforming provisions of this
Code. It's not an examination of currently are there dissatisfied
homeowners living next to it that all of a sudden want this thing
stopped. You have to look at whether it's a legal entity of a pre-
existing nonconforming use that's allowed to continue, and I
believe you'll probably open the floor, because I know there are a
number of people here.
'-'
MR. CARVIN-Any questions of the applicant?
MR. MARTIN-I'd just like to give mY position, as Zoning
Administrator. I do see this as a land use, and I'm quite familiar
with the situation over there, both from a professional standpoint
and a personal standpoint. I grew up in Country Colony, which is
approximately a mile from this location, and several of my friends,
as teenagers, did ride in this area. I do not dispute the use of
the area for motorcycle riding or trail bike riding, but in October
of 1994, there was a constructed track in this area of the field.
A bulldozer was brought to the site. Jumps were constructed, and
so on, and that, I think, is in compliance with the land, a land
use, and that was a physical change, a material change to the
landscape of that site and to the use of that site. I do not
dispute the presence of motor bikes in that area of Town, and
there's a history there that is well documented, but this specific
track was not in this configuration prior to 1994.
MR. CARVIN-Any questions?
MR. GREEN-Let me just ask you, Jim, then, you're saying that
because they had heavy equipment and, because the land use or
development use, the last paragraph in the bunch of paperwork here,
shall exclude any landscaping or grading which is not intended to
be used in connection with another land use. So you're saying that
by creating a track, that's a different land use than what was
originally there?
MR. MARTIN-Yes, and I think that sentence is referring to
landscaping and excavating that's done by, say you're building a
home and you need to backfill to the foundation or you need to
grade away from the foundation to allow for an access door or
something like that. That, to me, is the type of grading that's
being referred to there. Landscaping is obvious. I mean, someone
is able to landscape their property, but that's the type of
excavation that I think is referred to in that sentence, not the
purpose of the excavation and grading that was done in this case.
MR. SCHACHNER-Fred, the only comment.! thought might be appropriate
is to put. the question in the proper framework for the Board, and
I think that whether the Board agrees or disagrees with Ms.
Baldwin's presentation, I thought that it set out a certain series
of questions that seemed logical to me, until the punchline, and
the punchline, I mean, it's her appeal, but the punchline that she
suggested was that the Board has to make a determination as to
whether this was a lawful pre-existing use on October I, 1988, and
I think that's not really the sole or even the most important focus
of the Board's inquiry. In light of the Zoning Administrator's
decision, which is specifically what's under appeal here, and the
Zoning Administrator's explanation of his decision, part of which
is also contained in his decision, I don't think the Board, I think
the Board must be careful, when you hear all the comments and hear
the parties' viewpoints, to not be artificially cutting this off as
of October I, 1988. The obvious focus is up until the present.
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MR. CARVIN-Does the Board understand?
open up the public hearing.
Okay.
Then I'm going to
PUBLIC HEARING OPENED
TOM MCDERMOTT
MR. MCDERMOTT-I'd like to support it. "I, Tom McDermott, as a dirt
bike rider, would like to re-affirm that the use of the McDermott
field as a practice area is a legal dirt bike riding area. The
land has been used and maintained by dirt bike riders for more than
the past 50 years. This area has entertained hundreds of the
Town's sons and daughters, while providing liberal amounts of
personal challenge and satisfaction. Dirt bike riders have never
been considered sweethearts to many. In the past, however, we were
always able to co-exist and look forward to continuing "to do so in
the future." Here's the gist of what the practice area has
inadvertently done and will continue to do. Implement and mediate
our community's interest and offer motorcycling. Maintain a higher
level of safety for people whose children ride. Help educate the
youths and the parents about the machines they ride and maintenance
the machines require. Help maintain the lawful and peaceful use of
the dirt bikes in Town. Provide a forum for parental involvement
in their children's activities. The McDermott field practice area
has existed in various forms for more than 50 years, and it has
done all these good things in the past and can and will do them
better in the future. There is a large number of new young riders
who would be guidanced of the more experienced and established
motorcross riders, and can and will have a chance to hone their
abilities, and another thing I want to bring up is, his
interpretation of grading is a personal interpretation. You're
going to grade and landscape your land, why does it have to be his
interpretation of how you're going to grade your land, and I'd like
to open the floor to anybody else. Thank you.
MR. CARVIN-Anyone else wishing to be heard in support?
SUPPORTER-I'm from Glens Falls. My name is (lost word). My son
and my daughter ride up there. My little girl is seven. I was
here before, and we don't have anywhere to ride in Glens Falls. I
live right in the middle of Glens Falls. We start racing there
pretty soon, another week or so. My little girl has been riding up
there for about a month now, and her riding ability has improved
tremendously since this track. She's right in the top five in her
class, out of like 30 boys. She's the only girl in her district,
and she goes like crazy. She's got all the riding equipment,
helmet, boots, chest protector, everything. I spent a lot of money
on the bike. It's quiet. She enjoys it. She looks to the future,
you know, racing bikes, being maybe, whatever she wants to do. All
she cares about it riding, and like I say, in Glens Falls, there's
no place to ride. You can't even ride in the front yard without
police showing up, or whatever. What Tom's done is terrific. It
gives us a place to ride. Nobody bothers us. We don't bother
anybody else. As far as I'm concerned, we don't. I mean, there
are a few people that complain to me, but I mean, I have a bike
right here right now, you couldn't even hear it idle.
MR. CARVIN-How old is your daughter, sir?
MR. She's seven. She's been racing two years.
MR. CARVIN-Two years. Okay.
'95?
So that would start here in '94 or
SUPPORTER-'94.
MR. CARVIN-And the field that she rode on in '94 is the same field
today?
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(Queensbury ZBA Meeting
......,;
5/22/96)
SUPPORTER-Yes. She rode there a few times.
MR. CARVIN-No, that's not what I'm asking.
before as it is today?
Is it the same field
SUPPORTER-It's changed a little bit, but nothing, not dramatically,
no.
MR. CARVIN-Not dramatically, okay, but it has changed?
SUPPORTER-It has changed a little bit, yes, that's just for safety,
though.
MR. CARVIN-In what fashion is it safer?
SUPPORTER-A little smoother, not as ruddy.
MR. CARVIN-Okay. How about some of those mounds out there. Were
they there in '94?
SUPPORTER-Yes.
riding skill.
It's smoothed down a little bit, to improve the
MR. CARVIN-Okay. Anything else? Okay. Thank you. I appreciate
that. Anyone else wishing to be heard in support?
TYRONE BAPP
MR. BAPP-Hi. I'm Tyrone Bapp. I live right on Sunnyside Road. My
kids ride. If you take the jumps down, it's going to be louder.
It's going to be dustier. It's going to be a lot louder, because
the bikes are going to be opened up, the jumps slow you down, the
ruts slow you down. Without it, it's going to be a lot louder.
It's going to be a lot dustier.
MR. CARVIN-And how many years have YOU ridden up there?
MR. BAPP-Since I was about 10 years old.
years.
I'm 27 now. Seventeen
MR. CARVIN-Okay, and I'm assuming the track is different now than
it was 10 years ago or 15 years ago?
MR. BAPP-Yes, it is.
MR. CARVIN-In what fashion?
MR. BAPP-Better, safer, you go slower. Before it was opened up,
and it was a lot louder, than if you're jumping.
MR. CARVIN-Okay.
over here? Yes,
Any other questions?
sir.
Anybody?
Okay.
Somebody
RICK SINGER
MR. SINGER-My name is Rick Singer. I'm a resident of Ridge Road,
and I live within ear shot of the track that you're discussing.
I've been known to be long winded. I'll try not to be long winded
tonight. I don't want to take up everyone's valuable time. I
would like to point out a few things. I started riding motorcycles
in 1969. Started riding dirt bikes when my son was eight years
old. He was born in 1974. That would make this 1982. In 1982, we
started riding at McDermott's track, or I should say in the
cornfield. Now, some people call it a track. Some people call it
a cornfield. Call it what you will. The point is, it's been
there. I've ridden it since 1982. There were jumps there in 1982.
There are jumps there today. There was jumps there in 1983, '84,
'85, etc. I don't see that there's any change, except for there's
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(Queensbury ZBA Meeting
5/22/96)
no change in use. There are jumps there that have been
constructed, constructed annually, since 1982, and I can testify to
that, and I have testified to that. I don't see that this
gentlemen in the green shirt who I'm not familiar with, when he
states that jumps were constructed in 1994 that is not a change.
That has been going on at least since 1982 that I know of, and
apparently for quite a bit of time before that, and I think that's
really what you need to concentrate on. My son started riding
there. He became a very good motorcycle rider, dirt bike racer,
motorcross racer. He started there. He started in the woods.
We'd ride from behind my house, over to McDermott's, and ride right
into West Fort Ann, and we'd do that, and we have done that. My
son learned to ride on those trails, and in McDermott's field. He
became a very good amateur racer. He became a professional racer,
and holds his professional license, largely due to being able to
and having ridden and jumped in McDermott's fields on' jumps that
were constructed the entire period since 1982 through to and
including today, and that testifies to the fact that there is
nothing different there than there was in 1982. Thank you.
MR. CARVIN-Can I ask you a couple of questions? Would you consider
the track to be in better condition, more improved, now or in 1982?
MR. SINGER-It's certainly much more sophisticated, better from the
standpoint of experienced riders, yes, better for that matter, for
even beginner riders, again, because of it's safety factor. In the
old days, in 1982, '83, '84, '85, you're probably not interested,
but I'm 59 years old, and I still ride. I think it's the greatest
thing in the world. It's been the greatest thing in the world for
my son. It has kept him away from drugs. It has kept him away
from alcohol. If you folks were out there doing this kind of an
activity, you would understand that you can't deal in drugs. You
can't do drugs. You can't deal in alcohol if you're going to ride
and race motorcross. The two just don't go together. It's too
demanding of a sport for you to be able to abuse your body with
alcohol, drugs, etc. and still do well at this sport, and I
attribute this sport to keeping my son away from drugs. He's now
23 years old. He's in his senior year at RIT. He has continued to
keep a B and better average the whole time, and on the Honor Roll
in Queensbury the whole four years he was there. He was a star on
the track team, all due to his physical abilities that he gained
racing motorcross, which developed his speed at the race track
there. He was their top 100 yard runner and 200 yard runner in his
senior year.
MR. CARVIN-Would you consider this to be a growth sport?
MR. SINGER- In this Country, absolutely. It's grown phenomenally in
the last 30 years, especially on the professional level, and the
way you get to be a professional is to start out in a field like
this.
MR. CARVIN-Would you consider this field to be attractive for other
riders or a destination point?
MR. SINGER-I guess I can't really comment on that.
what you mean. I don't understand the question.
I don't know
MR. CARVIN-Would this track, with all the improvements, be more
appealing to more riders, could it handle more riders?
MR. SINGER-I think because of the sophistication of the track it
would be appealing to more experienced riders. I don't think
you're looking at a situation where the track handles 30 today and
next week you're going to have 200 people there. There aren't that
many people interested in the sport, and as Pat Baldwin stated, the
ridership has actually declined over the number of years, but I
don't think that's the question. I think the question is, that has
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(Queensbury ZBA Meeting 5/22/96)
'-.-'
been put before you is, is this a change in use, and the answer is
no, and is there construction now when there wasn't before, and the
answer is no. Nothing has changed since 1982, when I started
riding there. There was construction in '82, '83, '91, '92, '93,
'94, '95 and '96. It didn't start in 1994, and I believe that's
what this gentleman i~ basing his argument on.
MR. CARVIN-Okay, but you have acknowledged that there have been
changes since the 80's. It's not the same track that you started
out on.
MR. SINGER-No, but that doesn't make it anything other than a
motorcycle riding area. The fact that it's a track does not change
the fact that that's where you go and you ride and you jump. You
don't have to jump. You can go around the jumps.
MR. KARPELES-Are there organized races there?
MR. SINGER-No, not to my knowledge.
I've never seen that.
MR. KARPELES-Time trials, or how does that?
MR. SINGER-Folks just go out and do your laps. A lot of riders are
riding slowly.
MR. KARPELES-Do people ride abreast, or do they just ride single
file?
MR. SINGER-Normally, single file. It's a safety, and we space
ourselves far enough behind the rider in front so that in the event
that he falls down, you don't end up on top of him, and you're
possibly injuring yourself and the person that's down. It is a
well controlled situation by the people that are using the
facilities.
MR. CARVIN-Anything else? Thank you. Anyone else in support?
THOMAS MCDERMOTT, SR.
MR. MCDERMOTT-I'm not very proficient at using words to get my
ideas out, and I'd just like to point out, as you said, we hope we
see a democratic process with this meeting. I learned to ride
there 54 years ago this month, and whatever decision is made, I'm
sure myself and my wife, my eight children have all learned to ride
in that field, and we accept it. Our neighbors will accept it, and
we'll go from there, but these children deserve and need, to keep
them out of dope, as Rick Singer just mentioned. It kept me off
South Street, becoming a bum, when I was a kid growing up, although
I shouldn't refer to South Street as a place where bums are
promoted, but Mr. Martin and my good neighbors that are in that
position have your feelings and your rights. If those children are
turned down of this facility, not necessarily that place right
there that we're referring to, but a facility that this Town owes
those children. This Town has done things for bicycle riders,
hikers, swimmers. My God, my grandmother and grandfather's place
in Jenkinsville is now a Town recreation place, and to see this
sort of thing go down the drain bothers me quite a bit, but if it
turns out to be negative, we'll accept, I'd like Mr. Martin and the
good neighbors to meet those children there at the entrance to that
field and tell them they can't ride there and watch the expressions
on those faces. Thank you.
MR. CARVIN-Anyone else in support? Anyone opposed?
THOMAS FRAMM
MR. FRAMM-Good evening. My name is Thomas Framm. I've been a
resident of Sunnyside Road for the past six and a half years. In
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(Queensbury ZBA Meeting 5/22/96)
those six and a half years, we've kind of seen motorcycles come and
go, but last year, a local excavating contractor brought out some
heavy construction equipment and built a rather large motorcross
track, certainly larger than I have seen since I've been up there.
I'm not begrudging the McDermott's heritage and the other people
riding their dirt bikes, but listening to in excess of 15
motorcycles, seven days a weeks, I made it through 12 years of high
school and four years of college. I can count. There has been an
extreme dust problem they've created. They've put up some trees,
white and red cedar. We've had in excess of four inches of rain in
the past 30 or 40 years, and just this evening there was a large
dust cloud going around the field. Everybody has a right to
recreation. I don't want to sit here and Heat a dead issue, but
the dust problem is getting rather uncontrollable as it comes in on
the sun porch. You're going to hang clothes outside. I. just think
we have to come to a happy medium here, and not go out and chew
them out of a place to ride. I mean, the Town has some land
available, they could make a dirt bike track. That's all well and
good, but we have to reach a meeting point on this, and something
has to be done. Thank you.
MR. CARVIN-Okay. Any questions? Okay. Thank you.
SPEAKER-I just wanted to ask if I could speak in favor, after
hearing these comments that were just made by this gentlemen.
MR. CARVIN-Well, I'll come back to that.
opposition.
Let me get the
JOANNE MYETT
MRS. MYETT-Yes. I'm Joanne Myett. I live on East Road, right
beside this field. It has changed, because there used to be
motorcycles that went out there, yes, but now it is dirt bikes,
constantly, day after day. You can no longer open your windows or
your doors. We can't have picnics outside, nothing. You can't
hang your clothes on the line. Do we have to give this all up?
MR. CARVIN-If you're waiting for an answer from us, you'll have to
wait until the end.
MRS. MYETT-I know. This is what I don't understand.
get changed to that?
How did it
MR. CARVIN-Well, hopefully we'll find out.
MRS. MYETT-Okay.
MR. CARVIN-Okay. Thank you.
CATHERINE BREAULT
MRS. BREAULT-My name is Catherine Breault, and I also li ve at
Sunnyside. My husband and I moved there three years ago, and when
we first moved there it was a nice looking cornfield, and around
the outskirts the bikes would go around. There was dust back then
even, but at least the corn would absorb the dust and we wouldn't
see the quantity of the dirt coming through. Since Elva died, the
cornfield started kind of changing it's terrain a little bit, and
then what would happen was the backhoe would come out and all of a
sudden the ramps, and dirt bike ramps, things like that pits and
everything started coming out. What we did was, you know, we
closed our windows and turned the fans on. We tried to ignore the
dust and everything, but it's gotten so bad that, as the other
woman has said, on the interior of the window sill, there's like
dust lined everywhere. You cannot hang your clothes out back. I
had a baby two weeks ago, and we're here tonight because I wanted
a baptism party this past Sunday in my yard, but I knew that there
were going to be anywhere from five to fifteen two stroke engines
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(Queensbury ZBA Meeting
-.../
5/22/96)
being out in that field, each doing their own little thing,
anywhere from 12 o'clock to 8 o'clock at night, and I knew there
was just no way that I could have a party of 26 people in my back
yard, and that really bothered me, the fact that I ha~ to turn
around and move my party elsewhere, and I have a very nlce large
back yard, perfect for a party, and I really sympathize with all
the other people, and I agree, there needs to be a happy medium.
I don't understand that I need my daughter's nap to turn around and
have a fan in order for her to sleep through those engines, and
it's just ridiculous the amount of time that they spend out there.
It's incredible and, you know, you should be able to entertain your
guests any time of the day, whenever you want, but I will not have
any picnics out there this summer, because I know that Saturday and
Sunday are free rein, and then once school stops, college is out,
anybody who wants to go and ride there really can. As soon as they
sign a waiver, that'sitheir right to go there. So I feel bad for
my neighbors, too. It's not just for illY entertainment rights, but
for theirs also. I looked out one afternoon and there was a huge
gust of wind with a pile dust maybe bigger than this room, headed
right toward Ridge Road, and I said, I feel really bad for the
people down at Ridge Road. I'm like, I'm really stupid. I should
feel bad for me, too, because not only does it go that way, it
comes this way, as soon as the wind blows a different way, and it's
just getting to the point where, if the quarry needs to come up,
that's fine, ride around the corners, but don't just clear the lot
and make it a dune buggy race track, it's just the bikes are going,
and, you know, it gets to the point where it's almost ridiculous.
MR. CARVIN-Any questions? Okay. Thank you.
GRACE RENAUD
MRS. RENAUD-I'm not very good at speaking. I'm kind of nervous
about this whole thing. My name is Grace Renaud, and I'm speaking
for my husband who's in North Carolina right now. We live on 15
East Road, and probably our house the closest of all to the field.
We are probably, you can just walk across, maybe 50 feet away, and,
I mean, you can't put an air conditioner during the summer, because
that dirt and dust is just going to draw right, which it does most
of the time anyway, but this is terrible. We cannot open our door
and have our t.V. on because you cannot hear the television, and as
far as it just being children out there, no. There are adults out
there. My husband was in the window here maybe two weeks ago, and
there was one of the trailers out there with the gentlemen
stripping down to their underwear and putting their motorcycle
boots on. These were not children. My husband said he wished he
had a video camera at the time, but unfortunately, and as far as
the changes up there, it's cornfield. I mean, I've been in this
area. I was a Kellogg originally, and we built some of the first
houses on the road. I was originally married to Mr. Myette, and
never was it the conditions it was now. We all used to be upset at
times with the motorcycles because of the noise, because they had
the big bikes and they'd test ride them up and down, and they'd
test ride them around the paths, and if you went down into the
fields and out into the woods, you would find jumps down there, but
the jumps down there, you'd get the trees and the dirt, they're
absorbing that noise. You're not hearing the noise, but this is,
and I mean, that field can be pretty full at times. I mean, you
look up our road, you go up the road, and you will see several vans
up there with the trailers that brings in the motorcycles and what
not, and it's just a little much, and if they want to see pictures
as to how, go up and take a look at the place now the way it was,
and I have some pictures here from years ago that showed what the
cornfield looked liked, right directly across from my house.
MR. CARVIN-The applicant has indicated that, and I don't want to be
misquoted here, but that the number of riders has been decreasing
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(Queensbury ZBA Meeting
5/22/96)
over the last few years.
or substantiate?
Is that something that you can agree to
MRS. RENAUD-Well, right this year it's incrkased. It's increased
tremendously. I mean, you'd have a few riders out there once in a
while test riding the bikes around the field or something, and it
would be real noisy, especially when they got right in front of
your house and the noise, you know, but you tolerated it because it
wasn't your neighbors. You do put up with some things from your
neighbors, but it wasn't, I could open my windows. I didn't have
to worry about putting my fan in, you know, my air conditioner in.
Like this year I don't really dare. As far as if we ever wanted to
sell our house, anybody ever came up and looked at our house and
wanted to buy it and come up there on Saturday or Sunday or even on
the weeknight and heard that commotion, they're not g~ing to want
to buy it. They're going to run like hell. I mean, who would want
to? They don't want to listen to it, and, I mean, I think it's
great as far as children are concerned. Children do need things,
but you also can't put it at the expense of everybody living
around, and like the other lady said with her baby being able to
sleep, having to close the windows. It's just not what it was, and
I raised babies up there, too. I had two of them up there.
MR. CARVIN-Could we take a look at your pictures, please.
MRS. RENAUD-These are actually my sister-in-law's pictures. I'm
surprised she didn't bring them up here, and there's even dates.
This is my house, right here to the front, this is the front yard.
See, I live where my sister-in-law lives now, but I did live up the
road before that, and I think if you looked up there now, I think
you'd see a big change from those pictures.
MR. MARTIN-Fred, we do have a video tape, if you want to see it
later on.
MR. CARVIN-Well, when we get to it.
MRS. RENAUD-And you can see how close, basically, my yard is
through the cornfield.
MR. CARVIN-Okay. We'll get these pictures back. I'm just going to
pass them to the Board.
MRS. RENAUD-Thank you.
MR. CARVIN-Anyone else wishing to be heard in opposition?
ANNE FULLER
MRS. FULLER-My name is Anne Fuller. I live at 3 Brookwood Drive,
which does not directly adjoin the cornfield. It's about a mile
away, and without even looking at the field, I know that there's
been a drastic change in usage. I've been out to my yard just
about every weekend in spring and summer doing gardening since 1990
when we moved there, and I've never noticed a level of noise that
I have noticed this spring. On Sunday, May 5th, we noted that
there was like five or six hours of constant motorcycle noise. We
drove over by the field, and we were shocked by the appearance of
the field. It looked like I had never seen it before. There were
ramps. There were hills. There were picnic tables out in the
middle of the field. It had never looked ,like that, and without
even looking at the field, I knew that there was a drastic change,
because I had never noticed the level of noise before this spring,
and the way it is now, I can't go out and enjoy my property because
the noise is so terrible, and the people who live directly by the
cornfield, I can't imagine how terrible it is for them, and the
noise is a million times worse right by the cornfield, and we could
hear the motorcycles in our house with the doors and windows shut.
- 24 -
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(Queensbury ZBA Meeting 5/22/96)
"-'"
MR. CARVIN-Okay. Any questions? Okay. Thank you. Anyone else in
opposition?
RALPH CHAMBERS
MR. CHAMBERS-My name is Ralph Chambers. I live directly adjoining
the field and it has been going on for years, but not to the
extent it' has this year. When they went from simply riding
motorcycles to motorcross, where the spin in digging wheels, it got
so bad I went out and shot a video, and I gave the video to Jim.
I don't know if you fellows have seen it or not.
MR. MARTIN-It's right there.
MR. CARVIN-Not yet.
MR. CHAMBERS-It'll indicate the level on the particular date she
talked about in May. Ther.e was 20 motorcross motorcycles out there
running, full steam ahead, and you have never heard any noise, it
was brutal.
MR. CARVIN-Okay.
I
Are we set up, Jim?
MR. MARTIN-Yes.
MR. CARVIN-Does the Board want to see the video?
MR. KARPELES-Yes.
MR. CARVIN-Jim, do you have any idea how many motorcycles are
there?
MR. MARTIN-I would say approximately eight to twelve maybe.
MR. CARVIN-Okay. Has the Board seen enough?
MR. KARPELES-Yes.
MR. CARVIN-All right. Anyone else in opposition?
CHRISTINE KUBRICKY
MRS. KUBRICKY-My name is Christine Kubricky, and the video, you can
see our house in the video. We live directly across from the
cornfield. Our property line is about 20 feet from the McDermott's
property line. I do respect the McDermotts and their riding and
the purpose for riding, but the cornfield, it has been a cornfield
for as long as I can remember. I've been in that home for the last
15 years. There is no corn this year. Last year and '94 they went
from a cornfield with a track, a flat track, I believe, to no corn
and several jumps, and this year they doubled the amount of jumps.
There used to be small dirt bikes and small children riding on the
cornfield. I see the cornfield and the dirt, the track every day.
There are probably only two small children who ride in that field
that I can tell. Most of the people who ride are adults. They are
no longer neighbors that ride. There are people from towns all
over. Their license plates from South Glens Falls, Hudson Falls,
Fort Edward, Vermont plates. So people are coming from everywhere.
The level of noise has increased dramatically this year. We cannot
go out in our yard and sit and talk at a normal level. We have to
shout to one another. I wouldn't mind, I do not mind the track so
much, although the noise is very loud. I'd feel more comfortable
knowing that on Sunday they got three hours and we got three hours,
but I know that if there's daylight and it's dry, they're going to
be riding. You never know when they're going to come. It starts
around 3:00 in the afternoon, and it just goes on, and as long as
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(Queensbury ZBA Meeting 5/22/96)
there's daylight, they're riding, and it would be comfortable
knowing that possibly not every Saturday, Sunday and every holiday,
every nice afternoon that we could share that time with them and
also enjoy it. It's an attractive nuisance. They are there and
they're enjoying themselves, and I understand their reasons for
wanting to be there, but I'd like to see a compromise made so that
we could live with it also. I do not want to see it stopped,
because I know how much they love the sport, but I would like to be
able to enjoy, we own a home in a residential area, and I would
like to enjoy my home in that residential area, and I think that
the few times, I've only gone over once to talk to them. They were
not willing to make any compromise on their part, whatsoever.
MR. CARVIN-Okay. Any questions? Okay. I want to point out that
we're not here to decide whether this use continues or is
discontinue. That is not the issue. The issue is if there's been
a change in the land, and whether the Zoning Administrator's
determination is correct or incorrect. So I want to kind of
emphasize that right from the start. We're not here to take
anything away or give anything, other than an opinion to either
support or not support what our Zoning Administrator has already
determined, okay. So, if you're looking for relief to have this
banned, from this Board, that's not the issue, okay. Is there
anyone else in opposition? All right.
MIKE O'CONNOR
MR. O'CONNOR-I'm Mike O'Connor, for the record. I've been asked to
represent some of the neighbors, Mary Reese, Florence Turnbull,
Richard VanDusen. I intended to do that anyway, to tell you who I
was representing. Purdy Yager, Ralph Chambers, and Thomas Brapp.
I understand there are people that have at least put together a
group for me to represent. I'll show the Board a tax map of the
area, if you aren't familiar with it, and the area in yellow
appears to be the area that we're talking about. The people that
I represent are lot owners in this insert, which goes right to the
front of the area in yellow. There's people that are most
immediate, or almost most immediate to this proposal. I think we
could go on for some time tonight and listen to everybody speak,
and of the group that I have spoken to, they all have seen a
drastic change in the land in the last couple of years, and there's
a little confusion on their part as to, some of them, as to exactly
when the heavy equipment was brought in and the jumps were put in
place, and what not, and if you've been up there, and I know that
the Board takes the time to go up and look at sites, you're going
to see that what was there remains of a cornfield has been
interrupted, for a good part, with the jumps to hold whatever they
put in. This is a map, and Mary Reese has put this together, which
would also show the neighborhood and show the track, and some
indication of the jumps that were put in recently, and you also
have the history of what you're now seeing as far as activity.
Apparently, what has brought this to a head is that this has just
become unbearable in the fact that it is continuous. Any time that
there's a nice day, the people are out there trying to enjoy the
track, to the point that the people can't enjoy their homes, in any
sense, like they used to. The balance tha~'s left, that used to be
use of a flat area in and about a cornfield, by, for the most part,
people within the neighborhood, has become a regional attraction.
I think besides just a change in the actual land and in the
definition, and I don't have any problem saying that that exception
for landscaping is not the exception that fits this case. That
change in the land was made to accommodate another use other than
the purpose of just landscaping. I think that that's the way that
exception in that language is written. I think that's the way it's
been interpreted. That change in the land, which has recently been
made, has been made to accommodate the traffic, to accommodate this
regional attraction, which has people coming in from allover.
We've heard a lot of discussion about children learning how to
- 26 -
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(Queensbury ZBA Meeting 5/22/96)
-.../
ride. I'm not sure that their vans showing up, their trailers
showing up, I'll probably murder them, but different racing
accompanies their teams, whether regional teams and local teams,
whether somebody just has that on their trailers or not. It's
different even in use as well as physical characteristics of the
land. I think there is a nonconforming use of some nature, and
that's our problem. This always seems to be our problem, when you
have neighbors against neighbors, is defining as to what was the
limits of the nonconforming use, what is the parameters that may be
permissible expansion of it, and we get into all kinds of
discussions, and this probably will be the only night that you're
going to discuss this here before it is resolved, but I think,
clearly, there was a change in land. Even the applicant has
admitted it. I have a little question in my mind, just from a
technical point of view. I don't know the standing of the
applicant, because I don't know who owns the land. I've heard both
Mr. McDermott Senior and Mr. McDermott Junior speak. I don't know
if the actual applicant here, Mr. McDermott Junior, has any
standing at all because I don't think that's his land that we're
talking about. I think that's Mr. McDermott Senior's land. I may
be incorrect. I may not be. I don't understand that part.
MR. SCHACHNER-I don't think it matters. Anyone can appeal the
Zoning Administrator's determination, literally anyone. So I think
it's irrelevant. I don't know the answer to the question as a
factual matter, but I don't think it matters.
I
MR. O'CONNOR-I also am not clear as to exactly what the
relationship of all the parties are. I've looked at some of the
minutes of the meeting that was before the Town Board when this was
an issue, and I understood that some of the people who are using
the track or utilizing the track, in fact, gave in kind services,
perhaps in consideration of use of the track, which might bring it
into the outdoor commercial nature. So, if you stick just to the
issue, is Mr. Martin correct in saying that there's a change in the
use, in the sense that there is a change in the land, I don't think
there's anything that is of issue here in fact. I think even the
applicant has admitted that he has installed a track. As I
understand it, that cornfield was used and was grown annually on a
regular basis, while the grandmother was alive, and only since the
grandmother has passed away have they discontinued using or having
the corn crops. There's another video here which was taken from
the back of Mrs. Reese's house, which would probably give you a
better idea as to the relationship of those houses shown on that
map, as to some of the actual noise, and some of the problems that
they are enduring because of this activity. It's a total eight
minute video, but I think she's got it set for less than that.
It's about five minutes long.
MRS. LAPHAM-Mike, when you talk about II in kind II services, what
exactly are you saying?
MR. O'CONNOR-As I understand it, some of the people that are using
the track donated their equipment or material to help construct the
track.
MR. CARVIN-I would remind the Board that we are here to determine
whether Mr. Martin is correct in his interpretation. So, bear that
in mind. Mike, why don't you show us the video. The Board says
they'll watch it for a while. Has the Board seen enough? Okay.
Thank you, Jim. Is there anything else, Mike?
MR. 0' CONNOR-Yes. I think that video was taken May 5th, and
approximately 200 feet from where Mrs. Reese was standing was the
closest of the bikes that she was trying to get the sound of. I
also, as counsel for the applicant, went through the Ordinance and
there are a couple of other issues the Board may look at. This may
very well be an amusement center, if you look at the definition, in
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(Queensbury ZBA Meeting
5/22/96)
addition to simply a change of land use. It may also be a camp,
and I'm just basically looking at the definition that we have
there, all of which requires some type of permit, and not
withstanding the fact that it may have some standing for
nonconformity, it also may be deemed to be an expansion, a growth
or activity which requires the enlargement of a facility, and if
you get into the enlargement of a facility, they talk about
alteration of facility, changing the location of the facility. As
I understand Mr. Martin's interpretation is that the applicant
cannot proceed with the activity as it presently is in existence
without applying for a permit. I don't know if he determined what
permit would be applicable, whether it be a Use Variance or whether
it would be a special use or what.
MR. MARTIN-Well, there is no provision for special use.. It would
have to be a Use Variance.
MR. O'CONNOR-I think that would be the summary of what ~ would
comment. Mary has some statements that she would like to give the
Board, too.
MARY REESE
MRS. REESE-My name is Mary Reese, and I live at 155 Sunnyside Road.
I've been a resident of the Town of Queensbury, residing in this
home for the past 59 years. My husband was in the military for a
number of years, but I would return every year to visit family. My
cousin Tom McDermott started a part time motorcycle repair shop in
the mid 50' s. He would periodically test drive motorcycles in this
field. In the mid 70's he applied for a variance to open a Harley
Davidson Motorcycle shop. The neighbors and myself supported him
in this venture. The motorcycle shop and the use of this property
as a motorcross track has no connection. The motorcycle shop, the
Harley shop, has now been re-Iocated to Route 4 in Washington
County. Tom McDermott himself has moved to West Fort Ann. His
son, young Tom, lives in his former house. My children, his
children and neighborhood children, during the summer school
vacation occasionally ride many bikes and motorcycles, not dirt
bikes, around the corner of this field. There may be three to five
at anyone time. The field at that time was pasture grass. There
was no quantities of exposed dirt. If the riding got to be
excessive or bothersome, I could call my cousin and it would stop
for the day, with no problem at all. It was strictly our children
and the local neighborhood using the field. Some time during the
late 70's Elva McDermott leased her property to a farmer to plant
corn. Therefore, from the late 70's, from the 70's right up until
the summer of '95, the use of that land had been for farming. Over
the past two years, once the corn had been cut in the field, dirt
bikes started using the land. It is in no way the same type of use
of motorcycle usage that previously existed. Young Tom is now
leasing the property from his father for use as motorcycle (lost
word) . He has had bull dozers and other excavating equipment
brought in to reconstruct the land. This motorcross track covers
the entire, whatever, nine acres of land with at least a dozen
hills and jumps. There is no pasture or grass area to be seen. It
is approximately nine acres of total dirt. On a daily basis,
people from outside our community trailer in their dirt bikes into
our Town of Queensbury to enjoy this motorcross track in an area
that is zoned Three Acre Rural Residential. This woulq be up to 15
bikes at one time riding on the track every day for a duration of
two to six hours. The back side of our property is situated right
dab in the middle of this track. On this back side is my property
there are 12 evergreens trees that each stand 20 foot tall and have
a circumference of 15 feet that provide no barrier whatsoever from
this motorcross track. Another potential hazard that should be
given attention to is the motorists on Sunnyside Road. During the
dry months that we experienced last summer, the dust clouds are so
thick that they impair visibility. The safety of motorists and
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(Queensbury ZBA Meeting 5/22/96)
children playing in their yard should be considered. The use of
this land has changed drastically over the past two years. I've
been told that the present use of this land has been allowed to
occur due to the "grandfather clause". The present use of this
land is in no way the same use or a continuation of the use that
has been in previous years regarding motorcycles. For the most
part, the last 15 or more years, it has been used for farming.
Thank you.
MR. CARVIN-Anyone else wishing to be heard in opposition?
GERTRUDE VANDUSEN
MRS. VANDUSEN-My name is Gertrude VanDusen, and I live at 172
Sunnyside Road in Queensbury. My home is on the south side of
Sunnyside Road. Our family also own vacant land on the north side
of Sunnyside Road across from my home and bordering the motorcross
track built last fall and enlarged this spring on the McDermott
cornfield. I appear tonight with a sense of sadness and out of
desperation and fear with what the future of these people in the
Sunnyside area could be like. I'm sad because after living on
Sunnyside Road and my family home for 49 years, to see the
neighborhood so desecrated with that activity now occurring in the
form of the McDermott cornfield. I am sad to see the peace and
tranquility of the neighborhood disrupted. I'm sad to see the
agitation when we can no longer enjoy our homes and yards during
the time of motorcross activity. It's sad to know the value of our
property is decreasing every time that the motorcross track is
used. Who will buy property next door to a motorcross track? Up
until last fall, it was not unusual for a road bike to be ridden on
the back grounds of this land or maybe even a racing bike. I do
not deny that, but I firmly state this. Those are not the dirt
bikes that are being ridden there now, and up until last fall,
there was not, and I repeat, there was not a motorcross track such
as we have now in that field. I'm here tonight to object to the
change that has been made in the use of this field. It's no longer
as agricultural lands as it's primary use. It is not now vacant
land either. It is land in a residential area that should be used
accordingly. Instead this field now has a man made active
motorcross track that from what I understand must be well laid out,
because it's attracting dirt bike riders from a wide spread area.
The building of this motorcross track has changed the character of
the land. Heavy equipment was brought in and used to create a
motorcross track, holes were dug, hills were made. The terrain was
definitely changed, and if this motorcross track is allowed to
continue one can expect expansion, more dirt bike riders, more
disturbances of peace and quiet for the Sunnyside Road and area
land owners, more complaints, more noise, more dust and more
traffic on Sunnyside Road. We've already seen people stop cars on
the road to watch, and who knows what else. Where will it stop?
Maybe weekend races, bleachers, food concessions, all in a
residential area. Is this something that we have to be faced with.
I'm asking that the McDermott appeal be denied, that the motorcross
activity be-stopped and that the McDermotts be made to restore the
land to its condition before the motorcross track was built. Thank
you.
MR. CARVIN-Anyone else wishing to be heard in opposition?
HENRY SCHWAEBLE
MR. SCHWAEBLE-I'm Henry Schwaeble. I live across from lake shore
on East Sunnyside Road. I lived there for the last 14 years, and
I'm here because my wife started to complain about it, and she said
if we want to do something, speak up here. I like the outdoors,
and when you're outside, in the last two years, I would say, when
it's nice, and when you're outside, it sounds like a thousand
swarms of bees, and it goes on for hours and hours. I lived before
on the upper lakeshore. My neighbor had a race track in the back,
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(Queensbury ZBA Meeting 5/22/96)
and they had races with a greater number of motorcycles than are
involved here, but it went on for sometimes two or three hours, and
that was the end of it. Maybe they had some training session that
they had two days before, and that was it. You'd know there was an
end to it, but the situation here goes on, especially on weekends,
from morning to night, and one time I was jumping in my car to go
to Lake George to get some peace and quiet, but mostly I'm here in
support of those close neighbors that are closer by, the dust and
the noise is unbearable, and I hope it will be changed. Thank you.
MR. CARVIN-Okay. Thank you.
MR. SCHWAEBLE-I forgot to mention. I used to drive a motorcycle
myself. I have nothing against motorcycles. In my day, you got a
ticket for a noisy muffler.
LOU STONE
MR. STONE-Hi. Lou Stone, North Queensbury. This is a very
interesting presentation tonight on both sides. All I'm here to do
is ask the Zoning Board of Appeals to support the Zoning
Administrator. He's made a decision. I believe it's a correct
decision. I think this should be open to a public hearing, and
public discussion and you should support the Zoning Administrator.
Thank you.
MR. CARVIN-Thank you.
opposition?
Anyone else wishing to be heard in
MARIAN MARCY
MRS. MARCY-My name is Marian Marcy, and I live at 12 Brookwood
Drive. This September I will have been there 28 years. I am here
in support of the people who live directly there, but I want to
tell you that we in Brookwood are greatly affected by it. The race
track has changed. It is unbelievable. The noise on our porch,
you cannot be out there. So I can't imagine what it's like for
these people who live there. I also am a licensed real estate
broker, and what does this happening, these people are saying they
spent a lot of money or one man spent a lot of money buying
motorcycle equipment for his daughter. Well, we've spent a lot of
money on our homes, too, and this is devaluing them tremendously,
and if the property did sell, and someone wasn't aware that the
motorcross track was there and purchased the home, an appraiser
went out there and the motorcycles were in progress, that's all it
would take, and I feel this is not fair to all of us. This is the
biggest investment we have in our lives is our private homes, and
I think the Town of Queensbury owes us some responsibility in this
regard. I think we should support Mr. Martin in what he has
decided. That's all I have to say.
MR. CARVIN-Okay. Thank you. Anyone else in opposition? Okay.
There was someone over here who wanted, in support. Yes, sir.
Okay. Is this a rebuttal? You've already spoken, is that correct?
MEMBER OF AUDIENCE-Yes. I've already spoken.
MR. CARVIN-Okay. I'm looking for any voices that have not been
heard before we go to rebuttal. Do you have a comment?
CRAIG KRAFT
MR. KRAFT-My name is Craig Kraft. I live probably two tenths of a
mile from the McDermotts there where the bikes race. I'm an avid
walker. I go down through all the time, walking. I've heard
people say anywhere from three bikes to ten bikes, seven bikes to
fifteen bikes. I've never seen more than a handful of bikes out
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(Queensbury ZBA Meeting 5/22/96)
--,'
there, and I've never seen children or grownups or anybody on this
property without proper safety equipment on their bikes, you know,
helmets, knee pads. I think there's a lot of responsibility being
taken out there. I don't know these people personally. I don't
know them other than tonight when I met them in here, but it's a
shame that the children can't go some place and learn a positive
way and, you know, learn how to ride a bike. As far as when they
come up near the roads, I've lived up here six years. I've never
seen any of these motor bikes come near Sunnyside Road. They come
out of the field, 90% of them that I've ever seen, walking out the
front yards, and we're talking about the safety of children who
live in the area. Right on Sunnyside Road, I can't count, half of
those children that live between Ridge Road and, say, the Par Three
Golf Course. We're hearing from people that live a mile and a
half, two miles away from the site. Now they must have some awful
good ears, because I live, like I said, less than two tenths of a
mile from that site, and I sit outside, I like to drink coffee, I
don't hear these bikes out there. It's just like cars going up and
down in front of your house, after a little while, you miss hearing
that sound. You turn out, don't listen to it, and I just don't
understand what all the objections are. They're talking about a
cornfield. What was it before a cornfield, a grass field? What do
farmers do with their land? They change their land appearance all
the time. Somebody decided not to re-grow corn this year, or last
year, that constitutes land change? That's something that's
artificially planted every year. What's the difference if they
grow corn, hay, wheat, you know, vegetables? It's still a field.
All their doing is putting bikes on it. It's privately owned.
It's my understanding it's not even being used for a commercial
purpose. Somebody doesn't have the right to use their own land for
the way they want to use it? That's all I have. Thank you.
MR. CARVIN-Okay. Thank you. Yes, sir.
RICHARD KUBRICKY
MR. KUBRICKY-I'm Richard Kubricky. I live on Hewitt Road, and my
property is 25 feet from the cornfield, and my pool is 160 feet
from the nearest track that runs by here. We're not talking Hells
Angels people here. I They're all good people. They're all my
friends, up until tonight. I hope they're my friends after I leave
here and say what I want to say. I think there is a need in
Queensbury for a track for these young people to ride on. However,
the track we're talking about is in a residential area, and it's
got a cornfield, and I've been there since '62. So that's 34
years. It's always been a cornfield or a cow pasture since I've
been there, and people riding motorcycles through there on
occasion, they ride through for an hour or so. They'd disappear.
You wouldn't hear from them for a while. If you get a wild kid
going through, you'd go and talk to his parents or talk to Elva
McDermott when she was alive and she'd straighten it out, or Tom
Senior. He'd straighten it out with no problem, but it's changed
now with this track that's been installed. There is a track. You
call it a practice track or race track. When they were practicing,
they'd raee out there, and you'd get six or eight of them racing
each other, it's horrible noise. I work heavy equipment. I sit
next to engines all the time. It's not the same situation here,
and what upsets me, that my wife and I can't sit by the pool and
talk to each other, and this gentleman that just spoke, I
sympathize with him. My kids have been over the years in that
field, but it's gotten so bad now that the quality of life that we
have, I can't afford to go away every weekend to get away from it.
My daughter in law goes over to her mother's house in Argyle, but
we stay where we are. So I think that you ought to recognize the
fact that I buy my (lost word) to put my porch in, to put my garage
in, to put my pool in. I get my permits, because I think zoning
permits is the quality of life, and I think that what we've got
here is a violation of the zoning, as far as the track is
concerned. I don't want to stop the motorcycles, because even as
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(Queensbury ZBA Meeting 5/22/96)
late as Saturday, there was probably 100 Harleys over there at
Tom's place, and nice people, no problems, they had a picnic and
they left. It's the dirt bikes, this track, that's giving us all
the problems, and I think the Town has to address that issue, and
maybe in the future meeting that they can work out something that
these people that have the motorcross can find some place they can
ride, but I thought I had seniority out there, as far as where I
live, and the length of time this track has been there. Thank you.
MR. CARVIN-Anyone else wishing to be heard?
BRUCE STEVENSON
MR. STEVENSON-Hi. I'm Bruce Stevenson. I guess I'm the bad guy
here. I built this track. Maybe these neighbors wou~d like me to
(lost word) all these jumps and make a flat track. Then they'll
complain about the dust. I don't think it's twice as bad as it is
now. I've got a four year old and he likes to ride. Every day I
come home from work, he's like, lets go over to (lost word) and
ride. What's he going to do when you guys shut this track down?
I've got a little track over at my place. Nobody bothers us, over
in Fort Ann.
MR. CARVIN-Okay. Anything else?
MR. STEVENSON-That's it.
MR. CARVIN-Thank you. In the back there?
TOM SULLIVAN
MR. SULLIVAN-Tom Sullivan, Ridge Road. They have six dirt bikes
running around in the middle of the field. How do they get out of
there? Where do they go? They don't cross Lake Sunnyside, no.
They go across the fields just south of me. They go up Ridge Road
and there might be two going up there, four, six. As far as
teaching children all these things, the children aren't obeying
Posted signs at all. We have Posted signs around our property, and
they go right on our property anyway, andlas far as the property,
it's, out here in the books it's listed as Elva McDermott, that
piece of property, name and number, I looked it up this afternoon.
MR. CARVIN-Okay.
Okay. Rebuttal.
Thank you.
Anyone else wishing to be heard?
MR. MCDERMOTT-I'm Tom McDermott, and obviously, everybody knows
that now. I don't let people ride when it's dusty. I have, I stop
them. If it's too dusty, they stop. I do not let people drive
seven days a week any time they want. That's not the way it is.
They call me. I tell them whether they can or can't. I've never
let them ride before one o'clock on Sunday because church is down
by the fire house. They need their time. I've never let them ride
any time before one on Sunday. On Saturdays, I tell them noon to
five, noon to six, then they're done. It works out about three
days a week we ride. It's not seven days a week. It's not, in the
video, if it's dusty, I have no wife. I live at home by myself, I
have to dust. I don't want it in my house either. So I stop them.
Some of these things that are being said are kind of really
outlandish, this seven days a week and riding like this. That
doesn't, it shouldn' t pertain to any of your decisions. Your
decision is land use. Was the land used for motorcycles all this
time? Yes. Of course they had corn there. Corn only grows for
six months. What happened the other six months? There was
motorcycles and snowmobiles. Nobody's ever complained about a
snowmobile when they leave the bars and they're drunk and they're
driving out in the middle of the night. Nobody does that on a
motorcycle. This is their way of stopping us from doing something
- 32 -
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{Queensbury ZBA Meeting 5/22/96}
else. They've stopped us before. They've stopped us from playing
broom ball at the Par Three, which was a great sport. They kicked
that out. The same people were behind that. Every time we get to
doing something they don't feel is right, we have to stop. I'd be
more than willing to sit down with some of these people and pick
two days, three days that we could do this. I would love Tuesday,
Thursday, Saturday, half a day on Saturday, or something like that,
Tuesday and Thursday nights and half a day on Saturday. I would
love to be able to sit down and talk to these people about it and
do it that way, but all of a sudden they walk up and say, no.
Every time they don't like something, no. They call the Town. The
Town has to pay a lawyer. We have to pay lawyers now, because they
decide it's not right. Who are they to decide what's not right for
me and the people like me? That's the only, I'm upset.
MR. CARVIN-Okay. Any other comments?
,....,/
MR. SINGER-Again, for the record, my name is Rick Singer. I live
on Ridge Road. After what I've heard here tonight, the first thing
I would like to do is thank the Board for their patience. There
was an awful lot of conversation here tonight considered irrelevant
and not on point. Do I understand correctly that the ,point that
the Zoning Administrator, if I understand them correctly, is making
is that the land use has changed?
MR. CARVIN-I believe that is what is being the issue.
MR. MARTIN-Basically.
MR. SINGER-In that case, I would simply like to point the Board's
attention to the fact that not one of the people who spoken in
opposition tonight disputed the testimony that other people,
including myself, have given, that that land has been used for
riding and jumping motorcycles since the 1940's, and therefore no
change in the use of the property has occurred. In fact, most of
the people that spoke in opposition tonight have, themselves,
confirmed the fact that motorcycle use on that land pre-dates all
of Queensbury's Zoning Codes, and therefore it must be permitted.
Thanks.
MR. CARVIN-Anyone else wishing to be heard? Any correspondence?
MR. THOMAS-Yes. A letter received 5/6/96, "Dear Mr. Jim Martin:
I am writing this letter to let you know that we are against a
racing track being in the field behind McDermotts. The noise is
unbearable. We can nb longer open our windows and doors because of
the dust that comes in our houses. We have lived here for close to
35 years now, and we have never seen a race track out there. We
hear that people are coming to race out there that don't even live
in this area. This is a residential area. Mr. and Mrs. David
Myett Mark ~nd Gail Benware Ada Phillips Phillip J. Forless Mr.
& Mrs. Cemile Renaud and Mrs. Ethel Coon" A letter dated May 13,
1996, to the Board "I reside at 3 Brookwood Drive since August
1990. My neighborhood has always been very peaceful and quiet. I
have spent many weekends in my yard doing gardening and yard work
and enjoying the peace and quiet. On Sunday, May 5, 1996, my
husband and I were both outside working when the peace and quiet
was disturbed by the noise of motorcycles that continued unabated
for more than five hours. Since we have never noticed this noise
before, we drove over to Sunnyside Road and were shocked to see
that the cornfield behind McDermott's Harley Davidson shop had been
turned into a motorcross track. It was completely bare with ramps
and hills built up, picnic tables out in the middle, with several
motorcycles using the track. The noise up that close was horrific
and the clouds of dirt billowing through the area was unbelievable.
We were half a mile away from the track and could hear motorcycles
in our house with all the windows and doors closed. I can' t
imagine how horrible it is for people who live on Sunnyside Road.
I spoke with a resident of Sunnyside Road who told me that Mr.
- 33 -
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(Queensbury ZBA Meeting
5/22/96)
McDermott is claiming that his property has always been used in
this manner, and that he is grandfathered under the zoning laws.
I will attest to the fact that, up until very recently, that
propérty was a cornfield. If they had been using it as a
motorcross track, as they claim, I'm sure I would have noticed the
noise before May 5th of this year. I am sick to think that every
weekend this summer we will be subjected to this horrible noise.
Our right to énjoy peaceful use of our property is being destroyed
by the thoughtless, insensitive and illegal use of that cornfield
by Mr. McDermott. He is running a commercial concern in an
agricultural/residential area. I am begging you to enforce the
zoning laws of the Town of Queensbury and make Mr. McDermott cease
and desist from any use of that property by motorized vehicles.
Not only is our peaceful neighborhood being destroyed, the value of
our property and all properties in the area of this track are
plummeting. Please save our neighborhood and our properties. Very
truly yours, Anne M. Fuller" A letter received 5/20/96 "Dear Sir:
I am writing concerning my 11.72 acres of land on Ridge Road that
is situated between Kip Grant's property and a motorcross track,
the cornfield previously owned by Martin J. McDermott. I have
recently Posted the land to prevent recréational vehicles from
using my property without permission. This is a superior
residential location that I'm considering developing. The current
motorcycle usage adjacent to my property is a deterrent to any
progress to our development. Vehicles crossing my land have etched
deep trails across the property from Ridge Road to thé motorcross
track and various other paths throughout the property. Noise
levels are extremely high and not conducive to creating a
residential atmosphere. I would like to urge the Town to act
against current motorcross type activities, Since I am unable to
attend the Zoning Board of Appeals meeting on May 22, 1996, I would
like this letter to represent my position on this issue.
Sincerely, Bertha Yager and Diane Yager Hayes." A letter dated
April 15, 1996 to the Queensbury Zoning and Planning Department,
Mr. James Martin "This is a letter in compliance with your laws on
complaints. This letter is to complain about a motor cross track
on Sunnyside Road. I have been in and talked to you at least four
times about same. This last weekend, April 13th and 14th 1996 was
terrible. The 13th was so bad I was breathing dust and coughing in
my house. The 14th the noise for 6 and a half hours was so bad we
could not hear our t.v. or radio without turning volume way up. I
have been told at previous meetings this track is illegal. I would
appreciate your following through on this action you have already
taken. Thank you Mrs. Mary Ellen Reese 165 Sunnyside Road
Queensbury, NY 12804" A letter dated May 22, 1996 "Dear Zoning
Board Members: Thank you for the letter soliciting comments on the
use of the RR-3A zoned property on Sunnyside Road by motorcycles.
Our property is to the northeast of the site and well within
, earshot'. The use of land by , dirt bikes' and similar ' recreation
vehicles' has escalated noticeably in recent years - even more with
the creation of the 'track' about which you are conducting the
hearing. This spring, the drone of motorcycles could be heard from
within our home long before weather allowed us to open windows. It
may be music to the ears of the riders but if you're not into the
sport, the racket is nerve-racking and annoying - far from what
should be coming from property zoned in any way residential, track
or no track. Obviously we're opposed to this use. Tom (McDermott)
recently told me of efforts to possibly search out an acceptable
sight in our area for a more formal track and we are hopeful that
a suitable location for this sport can be found. Very truly yours,
Kip and Jean Grant" A letter dated May 22, 1996 "We as landowners
and residents of Sunnyside E, wish to express our hope that the
Zoning Board of Appeals would NOT ALLOW a track use in the RR-3 A
zone off Sunnyside Road. This property has been principally used
as farm land for many years. To allow a track with the noise
element created by motorcycles would be detrimental to the entire
community. We are unable to personally attend the hearing, but
hope that consideration will be given to our written response.
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(Queensbury ZBA Meeting 5/22/96)
Sincerely Thomas L. Dougher Sylvia Dougher" A letter dated May
22, 1996 "Dear Mr. Martin: On a similar but different case, is
there anything that can be done about the dirt bikers that
continually use the fields and sand piles on the west side of Ridge
Road just past the town landfill. The noise and dirt (dust etc.)
created are bad enough but I am truly concerned about the safety of
the bikers most of whom appear to be young men/boys. Several times
recently there have been 'near misses' as they cross the road from
the fields on the west to the road/train that goes into the sand
pits etc. at the north end of the landfill. Is this an approved
trail? An approved usage? An insured activity covered by the
Town? M. Somerville"
MR. CARVIN-Excuse me, Chris, how many more do you have?
MR. THOMAS-Two more letters, a telephone conversation, and two
comments.
MR. CARVIN-Okay. Just give me whether they are in support or in
opposition to the Zoning Administrator's appeal.
MR. THOMAS-The letter dated May 22nd is in opposition.
MR. CARVIN-To the Zoning Administrator?
MR. THOMAS-It doesn't say anything about the Zoning Administrator
in here. They're just opposed to the track.
MR. CARVIN-Okay.
MR. THOMAS-A letter dated May 21st, another one opposed to the
track.
MR. CARVIN-Who was that from?
MR. THOMAS-Mrs. Samuel Somerville.
MR. CARVIN-Okay, opposed to the track.
MR. THOMAS-And the one before that was M. Somerville.
MR. CARVIN-Okay, and the telephone conversations?
MR. THOMAS-Opposed to the motorcycle track, and the name on that
was Pauline Lawrence and Heidi Durkee, opposed to it. A statement,
"The names appearing beneath have no objection to this application
by Mr. McDermott. 5/17/96 Lee Barton Elizabeth Barton" A
letter, a statement from Stephen M. Kelly having no objections for
Thomas L. McDermott operating a riding area, dated May 21, 1996.
MR. CARVIN-Is there any other public comment?
MR. THOMAS-Wait a minute. We've got one more. Another letter in
opposition, ·dated 5/22/96 from Norman S. Himes.
MR. CARVIN-All right. Seeing none, hearing none, the public
hearing is closed. Okay. Any questions of the applicant? Any
questions of the Zoning Administrator? Jim, am I to believe that
your position is that there is a change in the land use under
Section 179-7?
MR. MARTIN-Yes, and again I'm specifically relating to the track.
MR. CARVIN-Specifically relating to the track. Okay. Having heard
an awful lot of testimony, I'm going to bring the Board back to
what Mr. Martin is saying. I'm assuming that what he's saying is
that there is, because of the construction and other activities
which have materially changed the use or the appearance of the land
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(Queensbury ZBA Meeting
5/22/96)
or a structure or the intensity of the use, Mr. Martin feels that,
I don't know, what do you feel, Jim?
MR. MARTIN-I feel that the track that is a new dimension to the use
there, that previously did not exist.
MR. CARVIN-And that a Use Variance would be required.
MR. MARTIN-Yes.
MR. CARVIN-Okay. Does the Board understand the Zoning
Administrator? Does the Board understand what the applicant is
saying? All right. I will ask for opinions. Chris, what is your
thinking?
MR. THOMAS-Well, it's illY opinion that this has been an increase in
use, and that, from testimony given by the neighbors, that the land
has been changed, and hills, jumps, washboards have been added, and
there has been more riders on the site, which has created more dirt
and dust, but I do believe, from the testimony given, that there
has been an increase in use.
MR. CARVIN-Okay. So to summarize, I guess I'm hearing that you're
saying that the Zoning Administrator's interpretation is correct?
MR. THOMAS-Yes.
MR. CARVIN-How about you, Bob?
MR. KARPELES-I agree, too. Evidentally, open space recreation use
allows a trail bike trail, or a cross country ski trail. It
appears to me that this has changed from a trail to a track, and I
agree with Jim.
MR. CARVIN-And his interpretation?
MR. KARPELES-Yes.
MR. CARVIN-Okay. How about you, Bill?
MR. GREEN-I'd have to agree with them. To change the appearance of
the land and the intensity. It's got to be a new use.
MR. CARVIN-Okay. You, again, concur with the Zoning Administrator?
MR. GREEN-Yes.
MR. CARVIN-Okay. How about you, Bonnie?
MRS. LAPHAM-Absolutely. When you have a few neighborhood people
riding around the perimeter of what used to be a cornfield to now
a full fledged dirt track without vegetation anywhere and a lot
more bikes and a lot of people from out of the neighborhood by
their own admission, some woman said they come from other places
not Queensbury, yes, I think that is a change and I would uphold
Jim's decision.
MR. CARVIN-I also concur with the Zoning Administrator. I think
that the changes that have occurred out there do materially change
the use and the appearance of the land, and certainly it will have
and does have an effect on the intensity of the use, and I concur
that a Use Variance is in order. I think this is an awful lot of
similarities to the Mooring Post. We're not taking away the use,
and I think Mr. Schachner's heard, he's used the argument of a
restaurant. I mean, a restaurant is a set situation, and when you
start changing the dimensions of the restaurant and allowing more
folks to come in, then I think the community does have a right to
look at that, and I think that this is a situation where an
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(Queensbury ZBA Meeting 5/22/96)
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intensity of use is being fostered by material changes to the land,
which I think allows this Zoning Board to support our Administrator
in his determination that this is probably going to need a Use
Variance at some pointJ So, having said that, I would ask for a
motion.
MR. SCHACHNER-Fred, I'd like to make a suggestion, I think for
purposes of clarity of the record, when a motion is made, I think
it would be appropriate for it to refer to both factors that you've
just mentioned in your deliberations, meaning the intensity of use
and also the change in use, because several of you have mentioned
both terms, and I think that an expansion or increase in intensity
is one component. Some of you have also referred to what I think
Jim has principally hung his hat on, which is the physical change,
and I think for the purpose of clarity of the record, it would be
very appropriate to discuss both those components in any motion.
MOTION THAT THE ZONING ADMINISTRATOR'S INTERPRETATION OF THE LAND
USE OR DEVELOPMENT OR USE SECTION OF SECTION 179-7, WHICH INDICATES
THAT ANY CONSTRUCTION OR OTHER ACTIVITIES WHICH MATERIALLY CHANGES
THE USE OR APPEARANCE OF THE LAND OR A STRUCTURE OR THE INTENSITY
OF THE USE OF THE LAND OR A STRUCTURE, LAND USE AND DEVELOPMENT
SHALL EXCLUDE ANY LANDSCAPING OR GRADING WHICH IS NOT INTENDED TO
BE USED IN CONNECTION WITH ANOTHER LAND USE ORDINARY REPAIRS OR
MAINTENANCE OR INTERIOR ALTERATIONS OF EXISTING STRUCTURES OR USES
SHALL ALSO BE EXCLUDED FROM THE TERM LAND USE OR DEVELOPMENT, IN
RELATION TO THE TRACK BEING OPERATED BY THOMAS L. MCDERMOTT AND/OR
THOMAS L. MCDERMOTT, JR. IS CORRECT, AND BY HIS INTERPRETATION BOTH
THE INTENSITY AND THE MAGNITUDE OF THE CHANGES TO THE LAND WOULD
INDICATE THAT A USE VARIANCE BE APPLIED FOR ANY EXPANSION OF ANY
PERCEIVED NONCONFORMING USE ON THE LAND. SO I WOULD CONCUR WITH
THE ZONING ADMINISTRATOR'S DECISION., Introduced by Fred Carvin who
moved for its adoption, seconded by Chris Thomas:
Duly adopted this 22nd day of May, 1996, by the following vote:
AYES: Mr. Green, Mr. Karpeles, Mrs. Lapham, Mr. Thomas,
Mr. Carvin
NOES: NONE
ABSENT: Mr. Ford, Mr. Menter
MR. CARVIN-We support our Zoning Administrator's decision.
AREA VARIANCE NO. 39-1996 TYPE II WR-1A CEA JOHN BROCK OWNER:
SAME AS ABOVE CLEVERDALE ROAD, ONE MILE ON LEFT FROM INTERSECTION
WITH ROUTE 9L APPLICANT IS PROPOSING TO CONSTRUCT A 30 SQ. FT. GAS
HOUSE ON AN EXISTING DOCK. RELIEF IS NEEDED FROM THE ACCESSORY
STRUCTURE SETBACKS LISTED IN SECTION 179-67A, 1. ADIRONDACK PARK
AGENCY WARREN COUNTY PLANNING 5/8/96 TAX MAP NO. 13-3-19 LOT
SIZE: 0.65 ACRES SECTION 179-67A, 1
(DUE TO TAPE ERROR, THIS SECTION OF MINUTES WAS LOST)
NOTICE OF APPEAL NO. 2-96 WR-1A JOHN & KATHLEEN SALVADOR OWNER
OF SUBJECT PROPERTY: SAME 2999 NYS ROUTE 9L APPLICANT IS SEEKING
TO APPEAL A DECISION MADE BY THE ZONING ADMINISTRATOR STATING THAT
LOCATING A HUNTING AND FISHING CABIN ON THEIR PROPERTY WOULD NOT BE
IN CONFORMANCE WITH THE QUEENSBURY ZONING ORDINANCE, SPECIFICALLY
SECTION 179-7, AND SECtION 179-60B(1) (b) (15) (c). LOCATION: 2999
NYS ROUTE 9L, TAX MAP NO. 4-4-11 IN A WR-1A ZONE IN A CRITICAL
ENVIRONMENTAL AREA. ADIRONDACK PARK AGENCY JURISDICTION.
JOHN SALVADOR, PRESENT
(DUE TO TAPE ERROR, SOME OF THIS SECTION OF MINUTES WAS LOST)
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(Queensbury ZBA Meeting 5/22/96)
MR. SALVADOR- (Lost words) particularly on small lots situated
adjacent to water bodies. After the Town Attorney took more than
10 weeks to determine that the lands comprising tax parcel 4-1-11
were indeed wi thin the Town's taxing jurisdiction and therefore the
Town's zoning jurisdiction, Mr. Martin, the Town's Zoning
Administrator, responded that our application for a building permit
was being denied because of the configuration of our 300 square
foot hunting and fishing cabin. After we determined what he meant
by configuration deficiencies, we withdrew our building permit
application and a re-design of the cabin was undertaken. All
features which were considered by Mr. Martin and his Staff to be
repugnant to the Town Zoning Ordinance were delete. Unique designs
such as a totally self-contained wastewater handling and treatment
system and its attendant domestic water supply were totally
eliminated, not for environmental reasons, but because the
innovative systems did not conform to those systems· and system
components as expressly allowed in the Town's Sanitary Code.
Obviously, our Town Planners have never frequented a hunting and
fishing cabin. We do believe that the most environmentally sound
methods of handling sanitary waste, once it has been generated,
begins within indoor plumbing. Other carefully designed components
of the cabin which we found necessary to eradicate included the
kitchen facilities and the sleeping accommodations. These
amenities were determined to be beyond what the Planners envisioned
as necessarily required to participate in hunting and fishing
activities. Actually, their presence threw the design into a
dwelling category. The Town's Zoning Ordinance unreasonably
restricts a hunting and fishing cabin to a cabin, camp or lean-to
or similar structure designed for occasional occupancy for hunting,
fishing or similar purposes. The very definition is replete with
ambiguities. What other structures are similar to a cabin, camp or
lean-to? How often is "occasional" and what purposes could be
termed to be similar to hunting and fishing? One of the stated
reasons for our proposal not being in conformance with the Town's
Zoning Ordinance is that the design indicates a capacity to dock
boats along the perimeter deck. We assume any capacity to dock
boats assumes the presence of an adequately designed boat dock,
that is required by the Ordinance. The Town's Zoning Ordinance
defines a dock as any structure, whether affixed or floating,
placed in or upon a lake, pond, river, stream or brook, and which
provides a berth for water craft and/or a means of pedestrian
access to and from the shoreline. This shall include boathouses,
piers, wharfs, crib docks, stake docks, floating docks and all such
similar structures. The same Zoning Ordinance defines a private
dock as a wharf or portion of a wharf extending along the shore and
generally connecting to the uplands, which accommodates up to three
vessels owned by the property owner, except canoes, rowboats and
sailboats under 18 feet. The cabin structure and its perimeter
deck do not meet the requirements of having a capacity of that of
a boat dock, according to the Ordinance, which Mr. Martin
administers because, One, there is no means for pedestrian access
to and from the shoreline, unless Mr. Martin really believes we
walk on the water. The perimeter deck does not extend along the
shore and is not generally connected to the uplands. We are on
record with the Zoning Administrator and have stated that it is not
our intention to utilize the perimeter deck as a boat dock. It is
a deck, not a dock. Also, it is not required to access the cabin
by any means other than a canoe or rowboat less than 18 feet long,
walking across the frozen waters or simply swimming in the flood
waters. None of these access methods requires a boat dock. The
rendering does not show the details, but each of the four sides of
the cabin is designed to accommodate each of the four methods
mentioned above. The use of a boat, other than a canoe or rowboat,
less than 18 feet long, is not only not necessary to access the
cabin, it's use is not practical. Can you imagine starting an
engine of a power boat to go 130 feet? A power boat greater than
18 feet in length? We have a five mile speed limit in the Bay.
Boats traveling at low RPM are great polluters. The use of a power
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(Queensbury ZBA Meeting 5/22/96)
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boat is not in character with the design concept. Hunting and
fishing goes with canoes and rowboats, not power boats, and power
boat owners don't need hunting and fishing cabins. Winter access
is not possible with power boat or with water cooled engines. The
perimeter deck railings are designed such as they will not
withstand the forces of wind, wave and current on a boat if it were
docked at the perimeter deck. We assume Mr. Martin's underlying
objection to the hunting and fishing cabin being constructed is an
appearance of our being able to do something which the Ordinance
does not allow, namelY construct more docks in a residential zone.
In short, this application is for a 300 square foot hunting and
fishing cabin, not a boat dock, not a boat house, not a bird house,
not a dog house, not even a cat house. The number of illegal and
non permitted uses to which any structure could be used approaches
infinity, and therefore no single reason should be used to claim
nonconformity with the Zoning Ordinance without such selection
being arbitrary. Other means of access which might not be allowed
seem to be of no concern to the Zoning Administrator, car or truck
over the ice, aircrafts, snowmobiles, dog sled, motorcross bikes
over the ice. Mr. Martin's opinion even fails the duck test. It
doesn't look like a dock. It doesn't walk like a dock, and it
doesn't quack like a dock. Further, if need be, we could prohibit
the use of that structure from the use by boats greater than 18
feet in length by simply putting swimming marker buoys around the
perimeter. That would keep the boats out. It would (lost words)
bathing beach area. Other ways that people use to keep people away
from their facilities and out of their backyard is to build fences.
We don't think this should be necessary, but if need be, that is an
alternative. Summarizing the boat dock issue, our application for
building permit is for a cabin, not a boat dock for berthing
vessels. The stated access is by rowboats, canoes less than 18
feet, walking over the frozen surface of the flood waters or
swimming out to the cabin, and in any case, boat docks are only an
accessory use, and a vessel is not absolutely necessary to access
this cabin. Again, the building design is not capable of handling
a boat greater than 18 feet in length. Normally, such curable
irregularities as we're talking about are not a basis for a
determination of non conformity. It would be hoped that these sort
of things could be worked out. On the subject of setback, Mr.
Martin has determined that our proposed project is not in
compliance with the 75 foot shoreline setback as called for in the
Ordinance. Technically, our site plan shows a shoreline setback of
approximately 130 feet. The Ordinance is not clear in which
direction, relative to the shoreline, the setback is to be measured
from. As to the lakeward direction, the specified setback for
docks and boathouses is 0 feet. We explained in our letter of
March 5, 1996, setback is commonly referred to as the measurement
of horizontal distance between the permitted use and the property
boundary. The Queensbury Zoning Ordinance fails to reflect that
our property boundary is not coincident with the shoreline on tax
parcel 4-1-11. In fact, over the years the shoreline of this
parcel has experienced dramatic shifts in location, caused
initially by the inducement of flooding, the location and re-
location Qf public highways and the proliferation of nonconforming
uses. The Board should take notice that the area calculations of
this parcel bore no reference to the shoreline, only property
lines. Property lines are fixed forever on a map, lines with fixed
lengths and bearings. Setback regulations, unless carefully and
reasonable established, can result in a taking of one's property.
On the subject of setbacks, the New York State courts have ruled in
VanAlken v. Kimmey 252 New York Supplement 329 that only on the
highest grounds of public health, safety and welfare can
regulations establishing setback lines be justified. What grounds
for the Town setback regulations? I haven't seen it measured in
relation to public health, safety and welfare, as it pertains to
the setback on our tax parcel. The application of width, area and
setback requiremen~s of Zoning Ordinances amounts to
unconstitutional deprivation of reasonable use of land owners
- 39 -
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(Queensbury ZBA Meeting
5/22/96)
property if not carefully weighed in total. Here the Zoning
Administrator has singled out one dimension of a basket of
parameters that can limit the use of one's property, area, setback
and height. If Mr. Martin's interpretation that the setback is to
be measured from the shoreline rather than the property boundary,
that his decision amounts to an unconstitutional deprivation of
reasonable use of the property. We're talking about the lowest
reasonable use of this property. Remember, the other allowed use
is a single family residential dwelling. Did the Town envision
that sort of structure to be built out there when they zoned it
that way? When they tax our waterfront property that way? Is that
what they envisioned? The setback requirements as outlined in the
Zoning Ordinance will, therefore, prohibit any development on
parcel 4-1-11, for uses permitted by the Ordinance, a 300 square
foot hunting and fishing cabin, and that the only ).lse of the
property consistent with the Ordinance is bare land, and that the
effect of the Ordinance restriction is to destroy the economic
value of this parcel to be but bare residue. With regard to
Critical Environmental Area, the Town has no definition of a
Critical Environmental Area. It does not exist in the Ordinance.
The Town has not mapped any Critical Environmental Areas.
Recently, at a Town Board meeting, I directed, there was much
discussion at a Town Board meeting on the subject of Critical
Environmental Areas, and I became concerned, and I asked them, in
a public forum, I asked the Town Board, what is the definition of
a Critical Environmental Area, and Mrs. Monahan responded that it's
not very well defined. The Lake George Park Commission has defined
a Critical Environmental Area to be within 500 feet of the
shoreline, but this applies to projects in which they are issuing
permits or lead agency or what have you. The Park Commission has,
as far as I can see, no jurisdiction over this project. It doesn't
deal with docks, marinas, recreation uses of hunting and fishing.
They don't get into that. So it doesn't appear to me that there
would be any jurisdiction there. The APA has a checklist, a permit
checklist, talking about things like Critical Environmental Areas,
and a subj ect that Mr. Martin brought up concerning deep water
marshes. With regard to Critical Environmental Area, I've gone
through this checklist. I cannot see that we are involved, that
this would be a Critical Environmental Area with regard to the
APA's jurisdiction. The closest they come are State forest reserve
lands classified as wilderness, primitive, or canoe areas. To the
best of my knowledge, none of these exist in Queensbury. The next
category that comes close is a single family dwelling, but we would
have to be in resource management or industrial use, and neither
one of those apply. With regard to deep water marsh, frankly, it's
the first time I've ever heard the term. They called the deep
water marsh some special kind of a wetland. The APA defines
wetlands as wetlands, defined in the APA Act as any land, annual,
subject, etc., etc., commonly referred to as a bog, a swamp or a
marsh. This area where we intend to erect this structure has never
been known to me as a bog, a swamp, or a marsh. In summary, we ask
the Queensbury Zoning Board of Appeals, a quasi judicial Board, to
find that Mr. Martin's determination that our cabin on the lake has
a capacity to accommodate vessels larger than 18 feet in length is
not a fair representation of the facts, and has been arrived at in
an arbitrary manner. The proposed proj ect cannot and will not
accommodate vessels larger than 18 feet in length. Further, that
the setback requirements of the Town Zoning Ordinance, if applied
as interpreted by the Zoning Administrator to our waterfront
property and our house and our proposal to erect a 300 square foot
hunting and fishing cabin due deprive us of all reasonable use of
our land, which amounts to a taking. Such a regulatory taking, in
the absence of just compensation constitutes lack of due process
and renders the Town Zoning Ordinance illegal and unenforceable.
We'd be glad to answer any questions you might have at this time.
MR. CARVIN-Do you have any questions?
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(Queensbury ZBA Meeting 5/22/96)
...--
MR. THOMAS-After public comment.
MR. CARVIN-Well, Jim, do you want to respond to Mr. Salvador?
MR. MARTIN-Not really. I think my findings pretty much speak for
themselves. The area of the depth of the water in this area of the
lake can accommodate a boat of a great size to tie up to that
facility, and as it's clearly stated in my letter, my
interpretation of the setback provision is that it's a separation
from the water body, and it's that simple.
MR. CARVIN-I'll open up the public hearing.
MR. SCHACHNER-Fred, can I just ask you one question?
MR. CARVIN-Sure.
MR. SCHACHNER-Mr. Salvador, since you've been good enough to try to
point out for the record what my role mayor may not have been in
this, you mentioned something about the Town Attorney taking 10
weeks to make some determination. I wonder if you could clarify
whom you were referring to.
MR. SALVADOR-Yes. That was your predecessor, Paul Dusek.
MR. SCHACHNER-Thank you very much.
MR. MARTIN-The other thing I would like to say for the record is
that the information given in regard to the Adirondack Park
involvement was meant to be advisory and helpful, and was never
stated as a requirement of the Town.
MR. CARVIN-Okay. I'll open up the public hearing. Anyone wishing
to be heard in support of the applicant?
PUBLIC HEARING OPENED
CAROL LAGROUSE
MRS. LAGROUSE-Mr. Catv in and Members of the Zoning Board of
Appeals, my name is Carol LaGrouse. I reside in Stony Creek. I'm
President of the Property Rights Foundation of America. I'm here
today to address the issue of the denial of the permit to build by
the Zoning Board on the basis of a setback, and on the basis of
environmental considerations, and to ask you to rej ect those
aspects of the ruling of the Zoning Board. In the last week, at
the Property Rights Foundation, I received calls from Elmira,
Queensbury, Northville, Port Jarvis and Geneva, all about the
problems of zoning vagueness, and problems of interpretation of
power in favor of powers that are unclear in Zoning Ordinances, and
these interprétations are generally not in the favor of the
applicant. It seems to be that, in this State at least, Zoning
Boards do not know the limitations of their enabling laws. Some
Zoning Boards tend to think that the law can be summarized in a
single sentence, that the Zoning Board has the power to approve or
disapprove an application, and then would utilize any other matter
that they can find of potential relevance in the Master Plan or the
Zoning Ordinance in order to bolster that interpretation. Now, in
relationship to an applicant, the interpretation that I try to
persuade people to persuade their Zoning Boards of is that exact
meaning of the clause cannot always be interpretable, clearly, to
draw a conclusion with respect to any application, but the agency
seems to cite these conclusions anyway, and that we should have a
different approach, that a Zoning Board should say that they can't
find any specific item that's really relevant to the problem of
this application, that when you construe the clause, in the only
logical, simple way that it can be interpreted doesn't completely
address this issue, or it leaves open an area that's broader, that
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(Queensbury ZBA Meeting
5/22/96)
serves the needs of the applicant and doesn't serve to restrict
that applicant. Now, words in law have to have a literal meaning,
or else we don't have a way to be consummate over actions. In
other words, you don't really have a way to be free, and that's
what this organization's about, and that's why I tried to come here
tonight, although I can't take up the cause of every applicant. In
the situation of ,the Salvador's application for the cabin on the
lake, the law allows a 75 foot setback, as you know, from the
shoreline, but in this peculiar situation, the shoreline goes
through the applicant's property. Now, the applicant takes the
interpretation that the 75 feet therefore should be measured in one
direction or the other, and he chooses the feasible, attractive
alternative to measure it out into the lake. Now what complaint
can the Zoning Board have, because the Ordinance doesn't
specifically say that land under water can be built on. It allows
a seaward measure of that setback. Now a more restrictive holding
relies on that setback clause being unconstitutional and vague or
overly broad because it doesn't address land under water. If you
don't take that interpretation, take the interpretation that I'm
advocating now, what you're really saying is that the Ordinance, by
delineating the setback away from the shoreline, prohibits all
under water construction, but when you promulgated that zoning law
or that master plan, you didn't just simply say, well, we hereby
attribute all under water construction on land owned under water.
You never did that, because you would have realized that that was
comprised a taking of all that land, and you had to compensate
under the Constitution. Now, a couple of other points come out
that I meet all the time, and that is that zoning laws feel that,
when they can't find anything else, nowadays, to point to, they
come up with things like, deep water marshes, Critical
Environmental Areas, or whatever. Now, these things can be lifted
out of the sky. They're like anything else. If you're in a
certain zone, you want to call it a Critical Environmental Area,
that's another type of zone. That should be on the map so that
when the Salvadors come and want to use their property or purchase
that property, they see that that's in a Critical Environmental
zone. They don't want, but once you go for an application and
somebody tells you, that's a Critical Environmental Zone, that's a
legal area or that's not the right time to make the application.
That's what the call in the Constitution Expos Factos Law. That's
something without due process because procedural process requires
that you have two things. You have notice and hearing, but if when
you come for the application, (lost words) Critical Environmental
zone to you, it has never been noticed and heard for public
comment, then you have lack of due process. So, if you have to
call on such things out of a hat, you've really gotten yourself
boxed into a corner, and you don't really have grounds to deny
approval. If you don't have, really, grounds to deny approval, the
Ordinance you're going to draw from, have to draw from an
unconstitutionally vague aspect, you have to draw something out of
a hat, then you simply have to give approval, and that's the thing
that I can't understand, and I'm hoping that this Zoning Board of
Appeals will understand, is that zoning offices seem to feel that
when they want to deny something, they have to look for a way, and,
really, some times you have to just permit something because there
is no constitutional way to deny it. That's my presentation. I
thank you for your time.
MR. MARTIN-First of all, the Critical Environmental Areas are
mapped, and they are available on public maps in the Town office
building on three different sets, and I believe the Critical
Environmental Areas were established at a public meeting of the
Town Board, and I am advised that it was probably done after a
public hearing, although I can investigate that further.
MRS. LAGROUSE-And (lost words) at this point, Salvador's land,
under water, at that point, is designated a Critical Environmental
Area?
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(Queensbury ZBA Meeting 5/22/96)
MR. MARTIN-Yes, and that information exists on public maps.
They're available to the public.
MR. SCHACHNER-And the definition of Critical Environmental Area
comes from the New York State Environmental Conservation Law where
it's very explicitly defined.
MR. CARVIN-Okay. Any questions? Okay. Thank you. Anyone else
wishing to be heard in support? Anyone in opposition?
FRED ALEXY
MR. ALEXY-My name is Fred Alexy. I have property adjoining Dunhams
Bay Lodge, and I'm reasonably familiar with the area involved. I
object to this proposed hunting and fishing cabin or dwelling, as
Mr. Salvador presents it. He seems to be struggling with the
definition of what constitutes pollution, and I think that if
somebody threw the contents of a garbage can on his dining room
floor, he'd quickly tell him what he thought was pollution. In my
view, it would be, having a cabin of this kind would be a source,
permanent source of site pollution. It would be a permanent marine
navigational hazard. It would be a permanent site of water
pollution, with all manners of discarded liquids, bottles, cans and
other materials finding its way into the lake, deposited by the
cabins occupancy. The structure will be denied the most
fundamental and necessary elements to provide for the sanitary and
healthful conditions for any occupants of the building, in short,
a real source of lake pollution. The ice reeks havoc to many man
made structures on the lake. It does it annually, and there will
be (lost words) damage to the building that would be sustained from
the ice movement, with the high likelihood that the building will
be destroyed with the wreckage floating at the bottom of the lake,
and you can witness that annually. I'm sure everybody's very
familiar with what happens on Lake George annually. There are many
boathouses tumbling into the lake. Granting the construction of
this building would open the door for others to construct buildings
in other areas in the lake that share the unique under water
property line situation that is there apparently on Dunhams Bay.
The lake should remain a lake and not a new site to erect
buildings. In short, this building or any other building, dwelling
or lean-to has no business being built on the lake. Questions?
MR. CARVIN-Any questions? No? Anyone else wishing to be heard in
opposition? Any correspondence?
I
MR. THOMAS-Yes. A letter dated May 22, 1996, subject, appeal of
John Salvador for zoning relief. "I understand that Mr. Salvador
wishes to build a structure which would be located in the open
water area of southern Dunhams Bay. We are vehemently opposed to
such an installation. 1. This is a congested, high traffic area
because of the Dunhams Bay Boat Company operations, the many docks
in the immediate area, the traffic from the boat launch facility
operated by Mr. Parillo. 2. There is risk of pollution from
water, drainage and septic facilities from the proposed structure.
3. There would be added noise and liqhtinq from occupants of the
proposed structure. 4. It would be a rather ugly blot on the
landscape as viewed by the neighbors, such as us who reside in
Dunhams Bay. 5. Mr. Salvador certainly has a large enough land
holding to find a place for a hunting and fishing cabin on his dry-
land property. We urge the ZBA to stand fast, and strongly resist
and deny the proposed action! Allen W. Strack Eleanor Strack
2964 State Route 9L Lake George, NY 12845" A letter dated August
17, 1993, addressed to Mr. John Salvador, Jr., regarding French
Mountain Tract Lots 11 & 12 at Lake George, Town of Queensbury,
County of Warren "I am writing in response to recent expressions
of confusion regarding the State's claim of title to the underwater
land adjacent to the above-captioned property and the continuing
jurisdictional control of other governmental agencies to the waters
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(Queensbury ZBA'Meeting
5/22/96)
of Lake George. The Commissioner of General Services has
acknowledged that the land constituting lot nos. 11 and 12 of the
French Mountain Tract was conveyed with only the specific exception
of any gold and/or silver. Therefore, with this exception only,
the State of New York neither asserts any claim nor has any
sovereignly acquired real property interest in and to land, now or
formerly submerged, south of the respective northerly boundaries of
the aforesaid lots. However, the State still maintains its
sovereignly based ownership to all of the ungranted bed of Lake
George pursuant to sections 4 and 15-a(4) of the state Public Lands
Law. Furthermore, this lack of title does not abrogate or in any
way affect the regulatory authority of any Federal, State and/or
local agency having jurisdiction over the subject premises,
including but not limited to, agencies empowered pursuant to
articles 43 and 71 of the State Environmental Conservation Law,
article 3 of the State Navigation Law, and any codes, and/or
regulations promulgated thereunder. Sincerely, Joseph F. Stellato"
And the letterhead reads, "Executive Department Office of General
Services", and this was faxed May 21, 1996 to Jim Martin from Al
Bander. That's it.
MR. CARVIN-Any other public comment?
GILBERT BOEHM
MR. BOEHM-My name is Gilbert Boehm. Per a notice I received, I
guess I'm within the effected zone of interest. Since you're
really looking for just opinions, I'm not about to be able to talk
to the law. I don't really see any objection to building this
thing. I think, because of the way he builds things, I think it
would be an interesting object for various people, a point of
interest, another wonder of the world, maybe the ninth, tenth.
That's it. Thanks.
MR. CARVIN-Any other public comment?
MR. SALVADOR-First, with regard to Al Bander's letter, I welcome
that letter. We are not in opposition to anything he says in that
letter. That's why we are at the Town of Queensbury for a building
permit. Okay. That letter states that the State has no sovereign
claim to these lartds. Who does have the sovereign claim? If the
State doesn't have it, who does? And what does "sovereign claim"
mean? Mr. Alexy mentioned a few things. We would take care that
there wouldn't be any garbage in the lake. We do it every day. We
know the problems and we know how to do it. Wi th regard to
sanitary, we're forced to go to a system very similar to that used
on every boat on Lake George. It's called a port-a-potty. You
take it in. You take it out. We're getting used to this up on
Lake George. The DEC doesn't do anything on the islands anymore.
You take it in, you take it out. We do the same thing. With
regard to ice damage, we know how to handle this. We've handled it
in the design, the design of the piling. Thrust from ice forces has
been taken care of in our piling calculations. We deal with this
every year in our other waterfront structures. There are ways to
do it. With regard to this sort of thing proliferating around the
lake, I don't know. The best that I can understand is that there
may be one other area in North Queensbury that has this similar
situation, but they choose not to claim their rights. Lighting,
it's difficult to see from the rendering, but the four corners of
this structure are equipped with navigation warning lights. The
ridge of the roof has an aircraft warning light. All of these
things have been taken care of in the design. We don't expect to
have any problems in that regard. By the way, the Town of
Queensbury could help us in this regard, with regard to docking
boats at this facility. This structure is well within the bounds
of one of Queensbury's vessel regulation zones, and they could
simply prohibit. They could enact an amendment to this Ordinance,
Number 34, and prohibit the docking of boats at hunting and fishing
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(Queensbury ZBA Meeting 5/22/96)
-.,¡:
cabins, and that could be enforced by the Warren County Sheriff's
patrol that's on the lake, which the State of New York pays
$235,000 to this County to enforce the navigation laws, and the
Town has the power to make a navigation law, and the Warren County
Sheriff's Department has the authority to enforce it. By the way,
the Lake George Park Commission has a regulation granting to
property owners the exclusive right to the control of the waters
200 feet beyond their property line, and they say property line, by
the way. They don't say shoreline. So we have total control,
within this area. Not only do we own the underlying land, which
gives us control of the surface water, but we have another 200 feet
of control granted to us by the Park Commission. The Critical
Environmental Area is not defined in this Zoning Ordinance. This
is what we use when we design and layout facilities within this
Town. I wouldn't doubt that, in the dark of night some time, the
Town Board decided they had to do this and they did it and it's
squirreled away on somebody's drawing downstairs some place, but it
is not common knowledge. Thank you.
MR. CARVIN-Any other public comment?
ALAN STRACK
MR. STRACK-My name is Alan Strack. I live at Dunhams Bay, about
three doors from the Boat Company here and the Lodge. I guess this
would be like another boat dock. I look to the quality of our life
and we've lived in that area for about 25 years now. This would be
like another boat that would be just pulled up into our area and
docking with running lights, flooring lights, and so this would be
just like another boat in our already congested area. We've got
lights, mooring lights. We already have too much light congestion
in that area with the docks that we have there between Mr. Salvador
and Mr. Parillo. That place is lit up like a shopping center
already, and we have to keep our blinds drawn at night in order to
get some sleep, but I guess I am concerned with the quality of our
life. We seem to have a little confusion here because this damn
thing happens to be an island that sits in the middle of the water,
and we're trying to define it in terms of a cabin that normally
sits on dry land, and so we seem to be going around a lot of Mickey
Mouse stuff about, how do you define a cabin, how do you define
setback, how do you define everything else, because of this
peculiar situation, but I would hope that somewhere along the line
some common sense would prevail in the interpretation of our zoning
laws. This is an extremely unique situation. Perhaps the rules
that have been written don't cover this. When the rules were
written, I don't think anybody knew we had a peculiar situation
like that because you normally look at setback and you normally
look at your property line as being defined by your shoreline, and
this is a unique situation, and I don't think the laws
specifically, necessarily, cover that, but I'm concerned for the
quality of us in the neighborhood and this would be a real blot on
our neighborhood. Thank you.
MR. CARVIN-Any other public comment? I'm not going to have
rebuttal all night. So if you've got something that you want to
add, fine, but if it's going to be a rebuttal.
MR. SALVADOR-Mr. Strack seemed to allude to the fact that no one
knew about these submerged lands. I'm going to refer you to a 1976
meeting of this Board in which, I'm going to give you a little
background, first. Bear with me, please.
MR. CARVIN-Well, it's getting late, and I'm short on bearing.
MR. SALVADOR-I understand. We had built some boat docks down at
the Western end of our property, and one day the Queensbury Town
Building Inspector knocked on our door and said that we had built
those docks without a permit from the Town, and I really didn't
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(Queensbury ZBA Meeting 5/22/96)
know what he was talking about, but I figured if I have to get a
permit, I'll get a permit, and I asked him. I said, is this just
a formality or have I got a real serious problem here? No, he
said, it's just a formality. Come on down and get the papers, and
we did, and of course we were denied the after the fact permit, and
we were forced to make application for a special use permit for
these docks. Now, I'm looking for the minutes of the meeting.
MR. CARVIN-Mr. Salvador, how does this relate to Mr. Martin's?
MR. SALVADOR-The fact that it was not known to anyone.
MR. CARVIN-Okay. You've made your point as far as Mr. Martin.
That's what I'm trying to bring this Board back to here.
MR. SALVADOR-I want to respond to Mr. Strack's.
MR. CARVIN-Well, Mr. Strack has responded to us, and this is an
issue that is not relevant to Mr. Martin's determination.
MR. SALVADOR-Okay.
MR. CARVIN-Thank you. Are there any other public comments? Seeing
none, hearing none, the public hearing is, closed. Okay. Does
anybody have any questions of the applicant? Any thoughts, Chris?
MR. THOMAS-No. I read all the letters that Mr. Salvador and Mr.
Martin have exchanged, and it seems to me that, I don't know about
this one. I really don't. This is one, I think we're going to
have to hash over and come up with a decision later on.
MR. CARVIN-You have 30 days. Bob, do you have any thoughts?
MR. KARPELES-For me, I agree with Jim, for all the reasons that
he's enumerated in his March 7th letter. That makes sense to me.
MR. CARVIN-Okay. Bill?
MR. GREEN-My biggest concern is setback question. We all know the
general intent of the Code when it was written was away from the
water, but we have to base this on, I think I'd go along with
Chris. I really can't make a determination right now.
MR. CARVIN-Okay. Bonnie?
MRS. LAPHAM-Well, I tend a little more Bob's way of thinking, that
Jim's letter makes it quite clear, and I would support his
decision.
MR. CARVIN-Okay. Well, first of all, I do support our Zoning
Administrator for a number of reasons. Number One, we are a quasi
judicial Board, and what is quasi judicial mean? Well, it means
that we're not lawyers, for one thing, and I count at least a half
a dozen lawyers in here. We are people who have volunteered to sit
on these Boards who are not versed in all facets of the law. We
are given a set of instructions, and I think done deliberately, as
far as Use and Area Variances are concerned, which deal with
certain criterias that we should look at in relationship to our
community, because it is our community. It's not the State of New
York. It's not the United States. It's not the Universe. It's
our community, and I think we are the first step in the judicial
process, and hence the term "quasi". Now what does that mean to
me? Well, it means to me that as a resident of the Town of
Queensbury, I probably have the most interest in what happens in my
community, and if we are wrong, or if I am wrong in my
interpretation of the manual, of which I can show you we have
several manuals, there are avenues of regress, so that goes to the
next step, where each step gets a little bit more technical, until
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(Queensbury ZBA Meeting 5/22/96)
I
the law is defined. Now, I think the issues really resolve around
one thing, and I know Mr. Martin has addressed, you know, two
things, and it's really the setback. I mean, what was the intent
when the people who wrote this book meant by a 75 foot shoreline
setback? Well, the person from the Property Right's advocate said,
and I watched her do it, and I've seen several other people do it,
as heaven is my witness, she makes a motion upwards. Well, it's
not written that heaven is up, but it is assumed that up is up.
It's not written anywhere that up is a direction, but it is a
common feeling that up is in a specific place, and I think just
because it does not, and is not so specific that a shoreline
setback has to be on the land ward side, I know illY interpretation
is that it's got to be dry land. That it's, as Mr. Martin says,
the intent is to provide a separation from the body of water, and
that does not mean out into the body of water. Now, as a resident
of the Town of Queensbury and not a lawyer, I can look at the
environmental impacts to my community if this were to be allowed.
Now, Mr. Martin also says that a private dock as a wharf, and he
goes on that the structure can accommodate vessels larger than 18
feet in length. Well, that may be a technicality, because all I
know is that you could probably tie a 25 foot boat to that with a
two inch line. So, I mean, the ability to do that is there. I
mean, that's self evident when you've got, I don't know, whatever,
175 feet around the thing that's all water. You have the ability
to probably put a 160 foot boat tied up to that dock. So, I mean,
certainly his interpretation is correct, that it can accommodate
vessels larger than 18 feet in length. So, I am very adamant in
supporting our Zoning Administrator in his interpretation,
especially from the 75 foot setback. I mean, it makes good sense,
in relation to our community. Now, if we are wrong, then there are
venues that will tell us that we're wrong. So, I am in support of
the Zoning Administrator. I don't know if I've missed anybody, or
we can table this for 62 days.
MR. SCHACHNER-Well, you would table it. You're confined by law to
make a decision within 62 days after the close of the public
hearing.
MR. CARVIN-Chris, any thoughts?
MR. THOMAS-I think you convinced me that Mr. Martin was right.
MR. CARVIN-Bob, I know you said vou were convinced.
MR. KARPELES-I/m convinced.
MR. CARVIN-Bill?
MR. GREEN-Well, I guess, based on the way you/re describing our
duties, I have to go with my general feeling, that the intent is
away from the shore, and I think that's the intent of the zone.
MR. CARVIN-Yes. I might point out that there is no instructions.
We have inStructions on how to look at Use and Area Variances, but
when we get to administration, and it says Zoning Administrator
shall have the power and duty to administer and enforce the
provisions of this cqapter. The Zoning Administrator shall be
appointed and may be removed at the pleasure of the Town Board. An
appeal from an action, omission, decision or ruling by him
regarding a requirement of this chapter may be made only to the
Zoning Board of Appeals within 60 days of such decision or action.
Well that means that whatever his decision is comes on our lap, but
we don't have something that's nice and neat, like we have with a
Use or Area Variance. So I just fall back to what the purpose of
our zoning is, and that's right in the very first section, 179-2,
"Purpose and Objective The purpose of this chapter is to promote
the health, safety and general welfare of the community and to
provide for a variety of housing opportunities and densities and
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(Queensbury ZBA Meeting
5/22/96)
protect the property values and aesthetics of the community by
channeling and directing growth by regulating restricting the
height, number of stories, the size of buildings and other
structures, the percentages of the lot that may be occupied, the
size of the yards, courts and open spaces, density of population
and the location and use of buildings, structures and land for
trade, industry, residence and other purposes, to the maximum
extent permissible within the proper exercise of the police power
as delegated by the Town Law." And that's our responsibility, and
that's the only thing that I have to guide how we come to an
appeal, because we don't have anything that's neat and clean. So
it falls back to the safety and health and welfare of our
community. Do I have four positive votes to support the
Administrator? Okay. I'll make a motion.
MOTION THAT WE CONCUR WITH THE ZONING ADMINISTRATOR' SDECISION WITH
REGARD TO NOTICE OF APPEAL NO. 2-96 JOHN SALVADOR. THAT THE
ZONING ADMINISTRATOR IS CORRECT IN HIS INTERPRETATION OF SECTION
179-60B(1) (b) (15) (c), AS THE SHORELINE I SETBACK IS INTENDED TO
PROVIDE SEPARATION FROM THE BODY OF WATER AND THAT HE'S ALSO
CORRECT IN " HIS' i, INTERPRETAT:ION THAT . THE PROPOSED STRUCTURE CAN
ACCOMMODATE VESSELS LARGER THAN 18 FEET IN LENGTH, AND I WOULD
SUPPORT HIM IN HIS DECISION., Introduced by Fred Carvin who moved
for its adoption, seconded by Robert Karpeles:
Duly adopted 22nd day of May, 1996, by the following vote:
AYES: Mr. Thomas, Mrs. Lapham, Mr. Karpeles, Mr. Green,
Mr. Carvin
NOES: NONE
ABSENT: Mr. Ford, Mr. Menter
MR. CARVIN-We support our Administrator. Okay. I have two
applications. I'm going to ask the respective applicants if we can
combine these, because the appeal is against the same
determination. If there is no problem, I would like to combine the
two of them together?
APPLICANT-Yes, no problem.
MR. CARVIN-Okay. No problem. Good. Then we will hear Appeals No.
3-96, McDonough and Sutton and Appeal No. 4-96 together.
NOTICE OF APPEAL NO. 3-96 MAUREEN & THOMAS MCDONOUGH STEVE SUTTON
D/B/A SUTTON'S MARKETPLACE OWNER OF SUBJECT PROPERTY: KEN
ERMIGER APPLICANTS ARE APPEALING A DETERMINATION MADE BY THE
ZONING ADMINISTRATOR IN A LETTER DATED APRIL 2, 1996 CONCERNING THE
PROPERTY OWNED BY KEN ERMIGER. THE APPLICANTS ARE APPEALING THE
DETERMINATION THAT A PROPOSED GO-KART TRACK IS NOT A BUILDING THAT
IS SUBJECT TO THE APPROPRIATE STREET SETBACK. THE DEFINITIONS OF
BUILDING & SETBACK IN SECTION 179-7B AS DETERMINED BY THE ZONING
ADMINISTRATOR ARE ALSO BEING APPEALED. LOCATION: WEST SIDE OF
ROUTE 9, JUST NORTH OF AGWAY. TAX MAP NO. 73-1-4.1 IN A HC-1A
ZONE.
NOTICE OF APPEAL NO. 4-96 MICHAEL & JAMES VALENTI STEVE SUTTON
D/B/A SUTTON'S MARKETPLACE OWNER OF SUBJECT PROPERTY: KEN
ERMIGER APPLICANTS ARE APPEALING A DETERMINATION MADE BY THE
ZONING ADMINISTRATOR IN A LETTER DATED APRIL 2, 1996 CONCERNING
PROPERTY OWNED BY KEN ERMIGER. THE APPLICANTS ARE APPEALING THE
DETERMINATION THAT A PROPOSED GO-KART TRACK IS NOT A BUILDING THAT
IS SUBJECT TO THE APPROPRIATE STREET SETBACK. THE DEFINITIONS OF
BUILDING & SETBACK IN SECTION 179-7B AS DETERMINED BY THE ZONING
ADMINISTRATOR ARE ALSO BEING APPEALED. LOCATION: WEST SIDE OF
ROUTE 9, JUST NORTH OF AGWAY. TAX MAP NO. 73-1-4.1 IN A HC-1A
ZONE.
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(Queensbury ZBA Meeting
5/22/96)
MR. THOMAS-Going back to Appeal No. 3-96, a letter dated April 2,
1996 "Dear Planning Board Members: Per your request, I am writing
to clarify my determination concerning the application of the
setback provisions of the Travel Corridor Overlay Zone, Section
179-28 and Highway Commercial Zone, Section 179-23C, to the
proposed Go Kart track, Site Plan application 6-96, currently under
review. According tQ the site plan accompanying the above
referenced application the track will consist of compacted subbase;
8" of base material; 2" compacted binder; 1 1/4" compacted top
material with a finished elevation consistent with the established
grades as shown on the grading and drainage plan. The track
includes an overpass with a retaining wall at an elevation of 479'
over the lower portion of the track at 470'. The near edge of the
track is situated 28' back from the front property line and 12'
feet from the side property line. In consideration of your request
the following sections of the code have been reviewed; section 179-
23C Minimum Yard Setbacks; Section 179 -28 A-C Travel Corridor
Overlay Zone; section 179-7 Definitions and Word usage,
specifically Setback, Building Line and Building. The code defines
setback as 'the established line beyond which no part of a building
shall extend'; building line is defined as 'a line formed by the
intersection of a horizontal plane that coincides with the exterior
surface of the building on any side'; building is defined as 'any
structure which is permanently affixed to the land, is covered by
a roof supported by columns or walls and is intended for shelter,
housing or enclosure of persons, animals or chattels.' The
building definition also states 'see structure'. However, all
references to setback in the HC-1A zone and the Travel Corridor
Overlay Zone refer only to building. The track is at grade and has
no vertical plane or roof. Therefore, it is nota building and not
subject to the setback provisions of the HC-1A zone or the Travel
Corridor Overlay Zone. I hope this letter serves to answer your
question. As always feel free to contact me should you have any
further questions. Sincerely, James M. Martin, AICP Executive
Director Community Development" A letter dated April II, 1996,
addressed to Fred Carvin "Dear Mr. Carvin: Our firm represents
Michael & James Valenti of Agway and Keith Ferraro of Skateland in
connection with the above site plan application which has been
before the Town Planning Board. The Zoning Administrator has
rendered an opinion applicable to Ermiger project, which we believe
adversely affects the interest of our clients. Enclosed for
consideration by the Zoning Board, please find our appeal of that
opinion. Sincerely, Martin D. Auffredou" "MEMORANDUM IN SUPPORT
OF APPEAL The subject property is located in a highway commercial
(HC-1A) zone. Pursuant to the Zoning Code, an 'amusement center'
is a Type II permissible use in this zone, subject to site plan
review. The applicant proposes to construct a go-kart track at the
southeast corner of the subject property within the minimum yard
setbacks as established by Section 179-23(C) of the Zoning Code.
A go-kart track is not a specified permissible use in an HC-1A
zone, although it appears that a go-kart track may fit within the
definition of 'amusement center'. The zoning administrator has
rendered an opinion that the go-kart track does not constitute a
building and", therefore, the yard setbacks do not apply. The term
'amusement center' is defined in Section 179-7 of the Zoning Code
as 'an indoor or outdoor facility, which may include structures and
buildinqs where there are various devices for entertainment,
including rides and booths for the conduct of qames and buildinqs
for shows and entertainment' (emphasis supplied). The term
'structure' is defined as 'any object constructed, installed or
permanently placed on land to facilitate land use and development
or subdivision of land including but not limited to, buildings,
sheds, single-family dwellings, mobile homes, signs, service
station pumps, drive-in or drive-thru islands, with or without
canopies, all above gr6und tanks and any fixtures, additions and
alterations thereto...' (emphasis supplied). There is no question
that a go-kart track is a structure. Pursuant to the plans that
have been submitted by the applicant, the go-kart track will
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(Queensbury ZBA Meeting
5/22/96)
require substantial grading of the subject property and will have
an underpass and other accessory devices and structures. The go-
kart track itself will be built on a substantial base. Clearly,
the go-kart track is a permanent structure installed on land to
facilitate land use. It is not akin to a parking lot. Simply
because the go-kart track does not constitute a 'building' in the
conventional sense, does not mean that it is not a 'structure'
within the definition set forth in the Zoning Code. The definition
of ' building' in the Zoning Code expressly contains the word
'structure'. The definition of 'setback' is 'the established line
beyond which no part of a building shall extend.' It is
respectfully submitted that in the zoning context, the words
, structure' and 'building' are used intElrchangeably. It makes
absolutely no sense whatsoever to maintain that the setbacks apply
only to ' buildings' but not to 'structures'. What possible purpose
could this policy serve? Just because the project is located in an
HC-IA zone, does not mean that aesthetics and dimensional
requirements should be ignored. Yet, this is the end result of the
zoning administrator's opinion. Finally, if the go-kart facility
does fall within the definition of 'amusement center' then, by
definition,' it constitutes a ',structure or building'. If it does
not fit within the definition of an amusement center, then a go-
kart track is not a permissible use within the zone. We also
believe that there may be precedent within the Town for requiring
a ride (a structure as compared to a building in the conventional
sense) to be constructed, installed or placed within the applicable
setbacks. We submit, upon information and belief, that some years
ago, the Town required the Great Escape facility to install the
'Steamin Demon' roller coaster ride within the applicable front
setbacks. If a go-kart track is a ride within the definition of
'amusement center' then it too should only be installed within the
applicable setbacks. In light of the foregoing, we respectfully
submit that the zoning administrator's opinion in this matter is
erroneous. The zoning administrator's interpretation is clearly
contrary to the spirit and intent of the Zoning Code, and, if
applied, will render the setback provisions contained in the HC-1A
provisions of the Zoning Code meaningless and worthless. Dated:
April 12, 1996 Bartlett, Pontiff, Stewart & Rhodes, P.C.
Attorneys for Michael & James Valenti (Agway), Keith Ferraro
(Skateland) 1 Washington Street Glens Falls, NY 12801"
Applicant's name is Steve Sutton, doing business as Sutton's Market
Place, and down here it's stated "I join the appeal of Thomas J.
McDonough and Valenti brothers." A letter dated April 3, 1996,
addressed to the Queensbury Planning Board Members, "Dear Members
of the Board: I and my wife Marianne are owners of a business and
other property directly across from the proposed Go-Cart proj ect on
Route 9 and are interested in this matter. I did obtain a copy of
the above correspondence and have drafted the attached Memorandum
in light of Mr. Martin's letter. This Memo directs to your
attention the fact that Mr. Martin has limited setbacks only to
'buildings'; not 'structures'. He specifically limited his
definition search to Setback, Buildinq Line and Buildinq (last line
paragraph 3). He failed to refer to the first paragraph 'A' of
definitions which states unequivocally that the word buildinq
includes the word structure. When the word structure is used
setbacks apply. My question to the Board and Mr. Martin is why was
structure not addressed? What is the reason or logic that the very
definition of structure was not applied? Thanking you for your
considerations in this matter. Very truly yours THOMAS J.
MCDONOUGH" I think that's all the letters. The others are just
repeats of the same letter, in both applications.
TOM MCDONOUGH
MR. MCDONOUGH-Good evening. My name is Tom McDonough. My wife,
Marianne and I are the applicants here, along with Steve Sutton and
other parties, and we live practically across the street back up in
Twicwood and we own and operate the Greycourt Motel and law offices
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(Queensbury ZBA Meeting 5/22/96)
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across the street from the projected site, and succinctly stated,
this is an appeal from the Zoning Administrator's determination
that the setback in this particular case applies only to buildings,
and he says that because structures are not used in the Corridor
Overlay Zone or HC-1A zone. For purposes of the whole Chapter 179,
in Definitions, it specifically states in the introductory
paragraph, 179A, that the word "building" includes the word
"structure". So every time you use the word "building", throughout
Article 179, we use the word "structure". Now, when you apply that
simple definition to the application that's made here,
unquestionably what is proposed to be placed on the property by
virtue of the site plan, and as described in Mr. Martin's letter,
is a structure, and OJ¡lce you apply "structure", where you have the
word "building" , setback applies. Nowhere in Mr. Martin's
commentary has he addressed the issue of applying structure where
the word "building" is. Even in the Highway Overlay Zone, if you
read the 179-28, the purpose in that Section, where the "Town of
Queensbury realizes as the town and the region continues to grow,
the need for improved local arterial roads will become important to
the movement of traffic within the Town of Queensbury. In order to
maintain the rural character along these roadways and/or to allow
widening of these roadways in the future, increased setbacks for
new construction has been established along the major regional
arterials in the town." This area is one of those arterials
that's specifically stated in there, and if you go to subsection C,
it says, "All buildings hereafter erected or altered within this
Travel Corridor Overlay District shall set back 75 feet from the
edge of the roadway right-of-way." Now, if you follow your own
provisions of the Code, which says, the word building includes the
word structure when you say that, "all structures hereafter erected
or altered within this Travel Corridor Overlay District shall be
setback 75 feet." It's a very simple application. If you put the
word "structure" wherever you see "building", in Section 179, which
is mandated by this Section, it applies to this construction. That
being so, it's required to comply with the setback requirement.
It's nothing more than that, and if you don't apply the word
"structure" where you have a building, you're not complying or
paying attention to your own Code.
MR. MARTIN-Could I respond to that, if I might?
MR. CARVIN-Sure.
MR. MARTIN-You have my memo of May 10th, and I'll read it into the
record. "I'm writing this memo to provide further clarification
and documentation regarding my determination that the proposed go
cart race track is not subject to the setback. First, I would
advise that you review my letter of 4/2/96 (see copy of letter
attached) which explains the basis of my determination. I am in
receipt of a copy of a letter from Tom McDonough dated 4/3/96 which
calls attention to section 179-74 (see copy attached) which
explains word usage as it applies to 'building' and 'structure'.
It is important to note that the 'interchange' between building and
structure. is limited to Q.!l§ application. In basic language,
building includes the word structure. However, it is important to
note that the reverse is not stated; structure is not stated to
include building. Therefore, a building is a structure, but, a
structure is not necessarily a building. The next point which has
relevance to this particular issue is a decision by the Zoning
Board of Appeals in December of 1988 (see attached copy of the
resolution). An appeal was filed concerning the height restriction
on several rides proposed for the Great Escape. The board decided
that 'a structure is not always a building and is not governed by
the height restrictions for buildings'. In my opinion the same
would hold true for the setback provisions. Lastly, the
configuration of the track asphalt which is fixed to the ground is
not unlike that of a parking lot or private driveway. Therefore,
to apply the setback provision to the track would mean that parking
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(Queensbury ZBA Meeting 5/22/96)
lots and driveways also would be subject to the setback provisions.
This has not been the policy to date." And I think that memo
concisely explains the interchange between those words. It goes in
one direction, and it is specifically not ,stated to go the other
way.
MR. MCDONOUGH-May I address that point?
MR. CARVIN-Sure.
MR. MCDONOUGH-The definition of structure, right here again, is
"any object constructed, installed or permanently placed on land to
facilitate land use and development or subdivision of land", that's
what it is, and it also says, including but not limited to
buildings. That's right within the definition of "st;ructure".
MR. CARVIN-Okay. Can I ask you a question? Are we to assume from
your.
MR. MARTIN-I don't disagree. A building can be a structure, but a
strüctureis not always abuilding.
MR. CARVIN-Okay. Let me get something clear here. Are we talking
the go kart track as a structure? Or are we talking the paved area
of the go kart track?
MR. MCDONOUGH-I think if we go with the definition that's provided
by the Code, is any object constructed, installed or permanently
placed on land to facilitate land use and development. That
includes the whole ball of wax.
MR. CARVIN-What's the Section, please?
MR. MCDONOUGH-That's in 179-7 Definition of Structure.
MR. CARVIN-Okay.
MR. MCDONOUGH-And as described in the letter of Mr. Martin, dated
April 2nd, what he has in there on the first full paragraph
describes a structure, "According to the site plan accompanying the
above referenced application the track will consist of compacted
subbase; 8" of base material; 2" compacted binder; 1 and 1/4"
compacted top material with a finished elevation consistent with
the established grades as shown on the grading and drainage plan.
The track includes an overpass with a retaining wall at an
elevation of 479' over the lower portion of the track at 470'. The
near edge of the track is situated 28' back from the front property
line and 12' feet from the side property line." All that is a
structure.
MR. MARTIN-I don't disagree with that. It is a structure. I
acknowledge it's a structure, but again, a building may be a
structure, but a structure is not necessarily a building, and every
reference to setback in the Code specifically says "building".
It's that simple.
MR. CARVIN-Jim, maybe you can tell us what the difference between
a structure and a building is.
MR. MARTIN-A structure is something that is affixed to the ground,
but does not necessarily have a vertical plane and does not
necessarily have a roof. If it has those two items, then it is
also a building, but a structure, such as a wall around a garbage
dumpster or something like that is not a building. It is a
structure, and therefore, is not subject to the setback, and across
town and time and time again, across several Zoning
Administrator's, has never been interpreted to be that way, and
this same body, back in 1988, in a resolution, said, a structure is
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(Queensbury ZBA Meeting 5/22/96)
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not always a building.
MR. CARVIN-All right. I want to come back to, is a paved parking
lot a structure?
MR. MARTIN-Yes.
MR. CARVIN-And does it have to conform to the side setbacks?
MR. MARTIN-No, because it's not a building.
specifically says building.
The setback
MR. CARVIN-Okay.
MR. MARTIN-And I think it is setting dangerous precedent to begin
calling structures items that are subject to the setback, because
we're going to go around Town, then, and parking lots, because, you
know, I don't think it's fair to distinguish that saying, well,
this is a go cart track, though. It's not like a parking lot.
From illY interpretation, you know, when you look at the compacted
subbase, two inches a gravel, two inches of asphalt, what is the
difference? Why am I to hold a go cart race track to another
standard different from that of a parking lot?
MR. MCDONOUGH-It's the nature of the land use that's the
difference.
MR. MARTIN-Well, you have vehicles passing over it. What is really
the difference?
MR. MCDONOUGH-Because one's a parking lot.
MR. MARTIN-That's not how I understand my job as Zoning
Administrator. It's cut and dried, black and white, and if it's
the same make up, then if this type of structure, compacted subbase
with asphalt, then why is that structure, then, any different than
a parking lot in a driveway?
MR. MCDONOUGH-Because a parking lot is described as IIAny place,
lot, parcel or yard used, in whole or in part, for storing or
parking three (3) or more motor vehicles under the provisions of
this chapter." This is not for this purpose.
MR. MARTIN-Well, then we better start defining or listing parking
lots and driveways as allowed uses, then, in the Zoning Code, and
allowed structures.
MR. CARVIN-What would you qualify a swing set?
MR. MARTIN-It's a structure.
MR. CARVIN-Okay, and would a swing set, under these definitions, if
it has a cement base, have to comply to the side setbacks?
MR. MARTIN-No.
MR. SCHACHNER-Do you mean as Jim interprets the Code, or as the
applicants interpret the Code?
MR. CARVIN-As Jim interprets the Code.
MR. MARTIN-No, it would not have to comply with the setback.
MR. CARVIN-Okay, and how about you gentlemen? A swing set, with
cement, permanently affixed to the ground? It's a structure.
We've determined it's a structure. We've determined it's
permanently affixed to the ground.
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MR. MCDONOUGH-If it's a structure, in a Highway Commercial zone,
used for highway commerce, certainly.
MR. CARVIN-What about in a residential area?
difference?
What's the
MR. MCDONOUGH-Then that is not a commercial use.
MR. CARVIN-It's still a structure.
MR. MCDONOUGH-It's not a commercial use in a Highway Commercial
area. How about if you put a ferris wheel right on there without
the zoning? That's not a structure?
MR. CARVIN-I don't know. I don't have an answer. I knqw that they
said there's no height restriction, in 1988.
MR. MCDONOUGH-No height restriction here, but there's not a
structure.
MARTIN AUFFREDOU
MR. AUFFREDOU-My understanding, in 1988, though, and it wasn't part
of the application, but my understanding was that the Town did
require that structure to meet the setbacks from the road, and my
understanding was also, and my client's Mr. Ferraro, our client Mr.
Ferraro, when he put in his go cart track, 500 feet or so down the
road, he had to get a variance from this front setback because it
was a structure. You had to get a variance to put it wherever you
wanted to put it. So I think there's some inconsistent
applications going on here. I think there's some unfairness that
needs to be pointed out. I clerked for a judge at one point in
time who used to tell lawyers and other people that their
interpretations sometimes were too crabbed. The spirit and intent
of the Code I think needs to be followed here, and as far as
setting precedent, just because this is a Highway Commercial zone,
it's a Highway Commercial Overlay Zone, whatever it is that you
want to call it, it seems to me that you want to avoid any, and
this Town has set forth in the Code, that you want to avoid putting
everything right on top of property lines. That's specified right
in here, and I think a go cart track, there's no question in illY
mind, that is a structure. If you allow it to go within the
setbacks, the applicable setbacks here, it seems to me that you're
defeating the purpose that you've set forth in the Code, and I
think the purpose of this Highway Commercial zone is, yes, to
recognizing the intensive uses there, recognizing the busyness of
the area, but still allowing enough room between uses, enough room
separating uses, so that there isn't a convoluted or compact or
busy area. You're trying to address those setbacks. Otherwise the
setbacks serve absolutely no purpose at all. I don' t see any
purpose in having a setback if Mr. Martin's interpretation is to
take (lost words). The setbacks are rendered meaningless.
Absolutely meaningless.
MR. CARVIN-If they were just to run the go carts on the plain
ground, in an oval, two feet off the property line, should they be
forced back? Is this what you're saying? Would that still be a
structure?
MR. AUFFREDOU-I think it's land use which would have to be, which
would have to be looked at for the setbacks respectively. I'm not
sure that it constitutes a structure, but I think what they're
clearly doing here is putting in a structure. They're affixing a
permanent structure to the land.
MR. MARTIN-I don't dispute that. It's a structure.
MR. CARVIN-Okay.
Any other comments?
I haven't opened up the
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(Queensbury ZBA Meeting 5/22/96)
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public hearing yet.
MR. AUFFREDOU-I'm not sure that there's anything new that I can
add, other than what Mr. McDonough has said and what I've set forth
in my appeal.
MR. MCDONOUGH-And I've set forth in my memo on the appeal, also,
which is basically what I've said here.
MR. CARVIN-And I guess, Jim, he's thrown his cards on the table.
So the Board, we know where all the combatants are. Okay. I'm
going to open up the public hearing. Anyone wishing to be heard?
PUBLIC HEARING OPENED
JOHN LEMERY
MR. LEMERY-My name is John Lemery of Lemery & Reid. I'm counsel to
the Great Escape. The Great Escape joins in the request of the
applicants here. There's no question in my mind that it's a
structure. There's no question in my mind, either, that it has to
comply with the setbacks. I'm sure if the Great Escape were here
and they wanted to move the Screamin' Demon within 50 feet of Route
9, that there would be a hew and cry about the setback and an
appropriate setback. When the Steamin' Demon was put in in 1988,
it was put well back, so as to meet the setback requirements. I
think the position that it was a structure is consistent with
exactly what Mr. McDonough and Mr. Auffredou are arguing here
tonight, which is that this go cart track is clearly a structure.
The fact that a struc4ure isn't necessarily a building doesn't mean
anything. A structure is a structure. Structure and building are
used interchangeably in the Code, and it's clear, what you were
talking about earlier, the intent of the Zoning Ordinance and the
intent as it applied to your last application. I don't think it's
the intent of either the Master Plan of the Town relative to Route
9 and the need, from time to time, to widen that, put in turning
lanes and all the rest of it, and with that in mind, to allow,
willy nilly, up and down that corridor, signage and other
structures of a permanent nature, such as a go cart track, to be
within the setback. So The Great Escape, you've heard all the
arguments, you don't need to hear any more from me at ten of
twelve, but the Great Escape joins in this and requests that this
go cart track be required to be within the setback confines of the
Ordinance. Thank you.
GILBERT BOEHM
MR. BOEHM-I have a question,
retaining wall is a structure.
retaining walls 75 feet back?
relative to a retaining wall. A
Does that mean, now, we have to put
I think that complicates things.
MR. CARVIN-It doesn't make it any easier, does it?
MR. BOEHM..:No.
MR. CARVIN-Thank you. Anyone else? Yes, sir.
KEITH FERRARO
MR. FERRARO
MR. FERRARO-My name is Keith Ferraro. I'm one of the owners of
Skateland. I think precedent has been set, here, because we were
required, before we could build our kiddie go cart track, to
receive a variance on the front setback for our three inches of
blacktop on grade.
MR. MARTIN-I've researched that application, and that's not what
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(Queensbury ZBA Meeting 5/22/96)
the variance is for.
MR. FERRARO-But it was part of a commercial amusement device, and
that's what the structure was designed for, and that's why we had
to get the variance. It's still the same thing. It's for the
amusement device. It's not because you're going to permit us to
put a piece of blacktop on the front lawn.
MR. MARTIN-My recollection in researching that application, and if
it comes to a point where the Board needs to see that I can get it.
There was a variance given on the water slide, as I believe, but it
was not for the go cart track.
MR. CARVIN-When was this, Jim?
MR. MARTIN-Probably in the mid eighties.
MR. FERRARO-Mid to late eighties, yes.
MR. MARTIN-'85, '86.
MR. FERRARO-'87, I think, but the variance did speak specifically
to the front setback for the kiddie go cart track as well as other
variances for the water slide which were granted at that time, but
if you need that information, I can present it to you. So that's
all I have.
MR. CARVIN-Thank you. Yes, sir.
WILLIAM NEALON
MR. NEALON-My name is William Nealon. Our office represented
Skateland at the time of the water slide and the go cart track
before the Board, and absolutely that go cart track was a part of
that variance application.
MR. MARTIN-It was a part of the application, but not a point of the
resolution.
MR. NEALON-I don't believe so, Jim.
MR. MARTIN-Well, I looked specifically at that, in researching this
when the question first came up, but I'll look again.
MR. NEALON-All right. Thank you.
MR. SCHACHNER-It doesn't have to be now, Fred, but at some point
prior to decision, I think I'd like to advise the Board about the
possible relevance of the previous decision, whenever you see fit.
MR. CARVIN-Okay. Thank you.
WALTER REHM
MR. REHM-My name is Walter Rehm, and I represent Kenneth Ermiger
who is the applicant. I think the question is, does this track
have to comply with the setback? The question really is, what is
the setback? And the answer to that is found in the Zoning
Ordinance, and I would ask the Board if they would, please, to turn
to the definition of "Setback", which is on Page 17942, and while
you're doing that, I will say that the responsibility of the Board
in this case is to interpret the Zoning Ordinance as it exists, by
an analysis of the plain language of the Ordinance. Now, if you
look at the definition of "Setback", it says that Setback is "The
established line beyond which no part of a building," and I
emphasize the word building, "may extend", and the use of the word
building in that definition is key. It is key to Jim's
determination, which is correct, and there can be no question about
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(Queensbury ZBA Meeting 5/22/96)
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that. The other definition that deals with setback is found on
Page 17948, which is "Yard, Front". "A yard that extends the full
width of the lot and is situated between the adjacent highway right
of way or shoreline and the front line of the building", again
used, "projected to the side lines of the lot. The depth of the
front line shall be measured between the front line of the building
and the highway right-of-way." Now, I submit to you that the use
of the word building is the answer to this question. There is no
way that you can define a go cart track as a building, and the
reason you can't is that the building is defined in the Zoning
Ordinance, and again, if you would turn to the definition, which is
Page 17914, a building is "Any structure which is permanently
affixed to the land, is covered by a roof". A building must have
a roof. "Supported by columns or by walls and is intended for
shelter, housing or enclosure of persons, animals, or chattels."
A go cart track is not a building. Now, if you would turn to
Section 179-28C, which is Page 17986.5, that's the regulation that
deals with the Travel Corridor Overlay Zone, and the regulation is,
"All buildings hereafter erected or altered within the Travel
Corridor Overlay District shall be set back 75 feet from the edge
of the road." Again, the setback relates only to buildings, and
buildings are structures with roofs which are designed for shelter.
So that is the answer, and as Jim correctly pointed out, you have
other things that are structures. Telephone poles are structures,
signs are structures, parking lots and fences and retaining walls,
and as was mentioned, swing sets are structures, but they're not
buildings, and if they're not buildings, under the Town of
Queensbury Zoning Ordinance, without question, they do not have to
comply with the setback, and that is the determination of the
Zoning Administrator, and I think that, as I say, there can be no
question whatsoever, and to hold otherwise would be an entirely in
(lost word) of the plain language of this Ordinance, but if you
look beyond that and look at the practical difficulties associated
with that, sidewalks, then, I suppose, would be structures, and
sidewalks would have to be setback 75 feet from the highway, and
parking lights would have to be set back 75 feet from the highway.
It makes absolutely no sense, and I'll tell you I'm amazed,
frankly, at the argument that has proceeded this, which seems to be
based upon that which those who were making the arguments would
like to believe the Ordinance says, but are not based upon a close
and careful and honest review of the Ordinance.
MR. CARVIN-Any questions? Thank you. Any other comments? Any
other public comment? Written correspondence?
MR. THOMAS-Yes, there was. A letter received 5/20/96, addressed to
Mr. Martin. "Dear Mr. Martin: I would like to go on record in
support of setback requirements including front, rear and side
setbacks for the proposed go cart track on Route 9. As a resident
of Twicwood I live up the hill behind Sutton's and value the rural
atmosphere surrounding my home. The noise and visual pollution of
the Go-Kart operation any closer to the road than the set-back
regulations require would seriously detract from the relative peace
and quiet which attracted me to this area three years ago. I ask
you give careful consideration to the possible enhancement of
popular Route 9 as opposed to continuing unplanned
commercialization and its accompanying over-all pollution. I hope
you will seriously consider enforcing these required regulations.
Sincerely, Helen A. Briggs" That's it.
MR. CARVIN-Okay. Rebuttal?
MR. AUFFREDOU-We're not talking about sidewalks. We're not talking
about retaining walls. We're talking about structures which are
included within the definition of "Amusement Center" in the Code.
We're talking about structures, included in the definition of
"Amusement Center", which is what this is, which is what this
proposed use is. Now it seems to me that if Mr. Mart in's
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(Queensbury ZBA Meeting 5/22/96)
interpretation is correct, and if this Board accepts Mr. Martin's
interpretation, it seems to me that Mr. Lemery can contact his
client tomorrow and tell them that they can move the Great Escape
as close to Route 9 as they want to. I can tell Mr. Ferraro that
he can move his go cart track right on top of Route 9 if he wants
to. There is a purpose and an intent behind what the precedents
have established. There's a reason why these structures have been
set back. There's a reason why Mr. Ferraro had to get a variance,
and that's because this Board, the predecessor members, decided at
one point in time that it made sense to follow a practical
interpretation, perhaps not a literal interpretation, not a crabbed
interpretation of the zoning code as I mentioned earlier, but an
interpretation that makes sense and is in line with the spirit and
intent and purpose of the code, which is to protect neighboring
properties and is to try to keep this zone looking nice.. You don't
want uses right on top of one another. That's the purpose of
setbacks.
MR. MCDONOUGH-Just a point to ponder. If the Town did not intend
to have structures included within the concept of the word
"building", why was it put there? Is it to be disregarded? They
said building includes structure. When you look in the definition
of building it refers you to structure also. On (lost word)
comment with respect to "Amusement Center", they include structures
and buildings in the definitions. Thank you.
MR. CARVIN-Jim, on Page 17936, I've just got a question. Under
Item E., can you give me a little bit of grasp? In other words,
they're saying "Each commercial use structure and each industrial
use structure in excess of 300 square feet constitutes one (1)
'principal building' ." In reading through that, I'm just trying to
figure if that is a definition of when a structure turns into a
building.
MR. REHM-What's the Section Number, please?
MR. CARVIN-It's Page 17936, Principal Buildings, and it says within
the Adirondack Park. I don't know if it's in the Adirondack Park
or not.
MR. THOMAS-No.
. I
That's outside the Adlrondack Park.
This is.
MR. REHM-Could I say something?
MR. CARVIN-Sure. I'll let Mr. Martin kind of mull that one over.
MR. REHM-I think it's extremely important, I listened carefully to
what you said earlier about the role of the Board. I think it's
extremely important for a Board of this type to understand that in
interpreting an Ordinance, when you can make a determination based
on the plain language of the Ordinance, you must do so. In this
case, without question, the Town Board, in enacting this Ordinance,
said that setbacks relate to buildings. Buildings happen to be
structures, but not all structures are buildings, and they were
very specific in defining what a building was, and they were very
specific in definition that setback relates to buildings. It is
absolutely improper for the Board, in the face of the plain
language of the Ordinance, to try to interpret what the Town Board
meant, if the Town Board may have had some other ulterior motive or
that the Town Board may have meant a result that is not plain in
the Ordinance, and that's the law, and that is the responsibility
of the Board, and I know that, I think it's very clear that you
would probably, as planners, prefer that this facility conform to
the setback, but that's not your role in this particular
circumstance. Your role in this particular circumstance is to look
at the plain language and make a determination based on the plain
language if you can do so, and I submit to you that the language is
so clear, and I think Jim Martin agrees that the language is so
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5/22/96)
clear in this case, that you must do sO,thatit would be improper
to try to read something into this plain language that is not
there, and remember that this plain language is there for the
purpose of informing my client what the law is, and for the purpose
of informing everybody else in the Town what the law is, and if you
say that the term "Setback" which specifically indicates that it
relates only to a building, relates to more than a building, that
it relates to telephone poles and sidewalks and retaining walls and
swing sets and all of that, how in God's name can anybody read this
Ordinance and know whether or not they're in compliance? They
cannot, and that's why this is such a clear situation, and that's
why your role is so important in this particular case, to just look
at the specific language of the Ordinance. I think that that's a
fair presentation of what the law of construction is, of statutory
construction is, and the attorney is here, your attorney, is here
tonight to agree or disagree.
MR. CARVIN-Any other public comment?
MR. MARTIN-Just getting back to your question, Fred. The first
thing I would note is that is within the Adirondack Park and that
is likely language that is specific ,to the Adirondack Park, but to
answer it, it says, commercial use structure, I would want to know
what the definition of Commercial Use Structure is, and I go with
the definition of, there is no definition for Commercial Use
Structure. There is a definition of Commercial Use "Any use
involving the sale or rental or distribution of goods, services, or
commodities, either retail or wholesale, or the provision of
recreation facilities or activities for a fee. The term shall
include but not be limited to the following: drive-in restaurant,
fast-food operation; filling station; public garage; restaurant;
retail store; retail stand; and tavern." In each one of those
cases cited, that would be a building, each one of those things
listed there. The other thing I'd like to take advantage of is Tom
Nace is here, and, Tom, do you recall the development on the
property next to this? The Pirate's Cove?
TOM NACE
MR. NACE-Pirate's Cove? Yes.
MR. MARTIN-Golf Course. Tell me, for the record, are some of those
tees or parts of tha~ Golf Course within the 75 foot setback?
MR. NACE-Okay. For the record, my name is Tom Nace with Haanen
Engineering. I did represent Pirate's Cove in the Site Plan Review
of that project. There are holes in the Golf Course, the Miniature
Golf Course, and part of the reservoir or pond that's used as part
of the course is within the 75 feet.
MR. CARVIN-How long ago was that, Tom?
MR. NACE-That was.
MR. MARTIN-Within a year, eight months.
MR. NACE-Yes, last August maybe.
MR. MCDONOUGH-Last fall we were at that meeting, and that issue was
never addressed, never came up at that point in time. So, that
Board didn't address any setback at all. The only issues addressed
there were the safety and side setback with respect to Animal Land
because children would be on the Golf Course, and there might be
the potential for some hazard coming from the adjacent property.
That's the only, so there was not an address of setback at all.
MR. MARTIN-Tom, but what is the nature and configuration of those
holes. How are they constructed?
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MR. NACE-They're constructed out of cement, crushed stone base.
The pond is constructed of gunnite, hermetically placed cement,
again on a crushed stone base. There's walkways that cross some of
the pond that constitute some of the holes and are constructed of
cement. So it is a structure under the definition of attached to
the land, for the beneficial use, but it is not a building, and we
addressed the issue of setback before coming to the Planning Board
with that, with the Zoning Administrator.
MR. CARVIN-Okay. Thank you, Tom.
MR. MCDONOUGH-May I just address that? I was present at those
hearings. At no time was setback addressed at that hearing. The
only issue was safety on the side line. I would think, had that
become an issue, Mr. Nace would have probably been talking about
that issue at that hearing. It was not even brought up. So we
didn't know that there was an issue with respect to setback at that
point in time at all. Just a point in response to the inquiry, to
say that was the precedent for this should not be the basis for
that testimony, to say that because that was done there, it wasn't
an issue at all. We didn't know it was an issue.
MR. CARVIN-Anyone else? Seeing none, hearing none, I'll close the
public hearing.
PUBLIC HEARING CLOSED
MR. CARVIN-Does anyone have questions of the applicant? Do you
have any particular feelings, Bill, one way or the other?
MR. GREEN-I really want to see the other go cart down the road and
see what was actually done there.
MR. CARVIN-Yes. I don't think we're going to make a decision
tonight. I know I'm not comfortable coming up with a decision, not
at the time that it is, that's going to be coherent, and there are
an awful lot of issues, here, that have been raised that are well
within the gray area, and I think I want to do a little homework,
but I want to know if anybody's got any questions of the applicant,
or anything you want to put on the record, so when you go through
the minutes later on, you know what you were thinking.
MR. MARTIN-If you want material out of that Skateland file, that
can be supplied, or is available to you.
MR. CARVIN-I don't know what I'm going to need at this point.
That's something that I'm going to have to mull over in mY mind.
I would probably like to consult with the Town Attorney. I don't
know, Mark, do you know if there's any precedents or any cases out
there of a similar nature that can be looked at? Not that I think
that's going to be the easy answer.
MR. SCHACHNER-Well, it might be, if there were very closely
analogous cases. I'd be fairly surprised if there were. To the
extent that general principals have been advanced by the various
parties, most of the general principals actually advanced by, if
you will use this term, both sides, are correct, as matters of law.
I think that we're down to a real, you know, sort of hair
splitting, language specific, Zoning Ordinance specific, and
project specific issue to some extent, but my comment that I was
going to make earlier is no longer relevant, in that I wanted to
make sure and caution the Board that there is some very significant
possible relevance to this past decision that none of us really
know for sure what transpired, and the Board members have already
indicated that you want more information on that, and I think
that's very appropriate.
MR. CARVIN-Okay. Do you have any thoughts or comments?
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--
MR. REHM-Could I ask a question? I just wanted to ask Mark a
question. Are you referring to a prior interpretation of the
Zoning Ordinance by this Board?
MR. SCHACHNER-I'm referring, in that comment, to this notion that
there's a similar or different go cart track located somewhere in
close proximity that the owner or operator of that facility, as I
understand it, feels very strongly, as does his counsel at that
time, that they were subject to a very specific determination that
they needed to comply with the setback, even with respect to their
carts, and Mr. Martin, my Staff person, is telling me that he
doesn't think it's an apples to apples situation.
MR. REHM-Yes. I think if that is a determination of the Zoning
Administrator, it is not germane to these proceedings. If it is a
determination of the Zoning Board of Appeals, it is germane.
MR. SCHACHNER-I think everyone is in agreement, as far as I know,
that there was ª determination made by the Zoning Board of Appeals
with respect to that facility. I think everyone agrees with that.
The question we're not sure of is exactly what that determination
did or didn't déal with.
MR. REHM-A determination on the need for a setback variance.
MR. SCHACHNER-Right. There seems to be a very sharp disagreement
about whether that was or was not an issue.
MR. REHM-I just want to make it clear. I agree.
MR. MARTIN-The other thing that I know was a fact on that previous
case was that the Travel Corridor Overlay Zone was not in effect at
the time that was reviewed, and that the 50 foot setback was the
only thing that would have been even talked about, because the
Travel Corridor Overlay did not exist.
MR. REHM-I think it may well have been a different Zoning
Ordinance.
MR. MARTIN-It was the '82 Ordinance that that was reviewed under.
MR. REHM-And so I would hope Mark would caution the Board to be
careful with what the Board looks at in terms of a prior Zoning
Board of Appeals interpretation. Lets make sure we've got this
Ordinance and lets make sure we've got this Ordinance and not a
prior Ordinance with different language, and lets make sure that it
is an interpretation of the need for a setback, not necessarily the
need for a Use Variance or some other type of variance.
¡
MR. CARVIN-Well, for myself, I will be doing a lot of homework on
this, and it will be specific to this particular application, and
unfortunately, I can see the merit on both sides. I think both
sides have advanced some pretty interesting concepts, if I can use
that term, and I'm not quite sure where, you know, I can come down.
I mean, I'm quite honest here. I just don't know. I mean, both
sides have got very convincing arguments, and that's why I would
like, personally, I would like some time to résearch what some of
the history has been, and I'm hearing that the history has been
sporadic. I mean, theré's been decisions both ways, and I think
that this could be an issue that, potentially, has some large
ramifications. I think that, you know, how this Board comes down
on this issue really could have a major impact. So, personally, I
want to make sure, if I'm going to be taken to court, I want to
make sure that I'm okay. So, I guess we've got 60 days, 62 days.
Okay. Thank you.
MR. MARTIN-Meeting adjourned?
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(Queensbury ZBA Meeting 5/22/96)
MR. CARVIN-Yes, I think so. Yes, meeting adjourned.
RESPECTFULLY SUBMITTED,
Fred A. Carvin, Chairman
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