2009.02.25(Queensbury ZBA Meeting 02/25/09)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
FEBRUARY 25, 2009
INDEX
Area Variance No. 8-2009 Kelly E. Carte 1.
Tax Map No. 300.16-1-3
Area Variance No. 4-2009 Randy Severance 7.
Tax Map No. 266.1-1-20
Sign Variance No. 81-2008 Great Escape Them Park, LLC 17.
RE-HEARING REQUEST (Sasquatch Ride) Tax Map No. 288.20-1-20
Notice of Appeal No. 1-2009 Lemery Greisler, LLC Mark Noordsy for 25.
the Great Escape Tax Map No. 288.20-1-20
Notice of Appeal No. 2-2009 Mastoloni Family, LLC Ed Mastoloni 26.
Tax Map No. 226.15-1-29
Area Variance No. 9-2009 Mastoloni Family, LLC Ed Mastoloni 30.
Tax Map No. 226.15-1-29
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 02/25/09)
QUEENSBURY ZONING BOARD OF APPEALS
SECOND REGULAR MEETING
FEBRUARY 25, 2009
7:00 P.M.
MEMBERS PRESENT
JAMES UNDERWOOD, CHAIRMAN
ROY URRICO, SECRETARY
JOAN JENKIN
RICHARD GARRAND
JOYCE HUNT
BRIAN CLEMENTS
JOHN ZANGHI, ALTERNATE
ZONING ADMINISTRATOR-CRAIG BROWN
LAND USE PLANNER-KEITH OBORNE
TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER
STENOGRAPHER-MARIA GAGLIARDI
MR. UNDERWOOD-I'll call to order the February 25t" meeting of the Zoning Board of
Appeals. First off, I'm going to do a quick review of our procedures, in general. For each
case I'll call the application by name and number. We do have quite a few this evening,
and so I'll read those in, and for anybody who shows up for the ones, I don't think we
have any cancellations for tonight, do we? Everything's on, as far as I know. The
secretary will read in the pertinent parts of the application, the Staff Notes as well as the
Warren County Planning Board decision, if applicable. The applicant then will be invited
to the table and be asked to provide any information that they wish to add to their
application. The Board, then, will ask questions of the applicant. Following that, we'll
open the public hearing. I'd caution that the public hearing is not a vote. It's a way to
gather information about concerns, real or perceived, and it's a way to gather
information, insight in general, about the issue at hand. It should function to help the
Board members make a wise, informed decision, but it does not make the decision of the
Board members. As always, we'll have a five minute limit on each speaker, so that
basically tells us everything they want us to know in that five minutes. A speaker may
speak again if, after listening to other speakers, a speaker believes they have new
information to present. Following that, we'll read correspondence into the record, and
then the applicant will have an opportunity to react and respond to the public comment.
Board members then will discuss the variance with the applicant. Following that, Board
members will be polled to explain their positions on the application, then we'll close the
public hearing, unless there's a reason to leave it open, and that would be only if it looks
like the application will be continued to another meeting. Finally we'll have a motion to
approve, disapprove or table and then we'll vote on it.
NEW BUSINESS:
AREA VARIANCE NO. 8-2009 SEQRA TYPE: II KELLY E. CARTE OWNER(S):
KELLY E. CARTE ZONING: LC-10A LOCATION: 207 FULLER ROAD APPLICANT
PROPOSES A 160 SQ. FT. ADDITION TO A 1,440 SQ. FT. GARAGE PREVIOUSLY
APPROVED BY AREA VARIANCE NO. 19-2007. RELIEF REQUESTED FROM THE
MAXIMUM SQUARE FOOTAGE ALLOWED FOR AN ACCESSORY STRUCTURE.
CROSS REF.: AV 82-1993, AV 19-2007 WARREN COUNTY PLANNING: FEBRUARY
11, 2009 LOT SIZE: 45.99 ACRES TAX MAP NO. 300.16-1-3 SECTION: 179-5-020
KELLY CARTE, PRESENT
MR. UNDERWOOD-I can read the letter in. This letter is dated 1/19/09. It's addressed
to the Zoning Board of Appeals. "Members: I am writing to request a modification to a
variance I obtained last year to construct abarn/workshop on property I own at 207
Fuller Rd. in Queensbury, to replace an old barn that is ready to fall down. I was told at
the time that there are no provisions in the Code for barns in LC-10A zones, even though
agriculture is an accepted use in that zone. I would have to apply for a variance for a
garage over 900 sq. ft. limit. I had initially planned to build a structure of 1600 sq. ft. (40
x 40 ft.), but cut it back to 36' x 40' (1440 sq. ft.) to approximate the combined area
allowed fora 900 sq. ft. garage plus 500 sq. ft. allowed for another outbuilding (1400 sq.
ft. total), to facilitate my getting the variance. It was several months later before I applied
(Queensbury ZBA Meeting 02/25/09)
fora building permit, and when I did, I mistakenly submitted the plans I had drawn up a
year earlier, which still showed the building size as 40 x 40. I obtained the permit from
the Building Department for that size, but didn't start actual construction for another
couple of months. By then, I had forgotten that I reduced the size of the building by 4 ft.
on the variance application, and I constructed the foundation, frame, and roof to 40' x
40'. I was unaware of this error until contacted by Bruce Frank on January 15t" of this
year. I would like to request an additional 160 sq. ft. (4' x 40') of relief to bring my
building into compliance with the zoning ordinance. In hindsight, I probably should have
requested this in the first place, but I didn't want to `rock the boat' any more than
necessary, and I was only giving up 4', but I can't shorten the building now! I believe it
still is a reasonable request since it's less than 1/10 of 1 % of the 46 acres that I own. It's
located much further away from the neighbors than the old barn, and even further away
from the property lines than originally planned. Thank you for your consideration. Kelly
Carte"
STAFF INPUT
Notes from Staff, Area Variance No. 8-2009, Kelly E. Carte, Meeting Date: February 25,
2009 "Project Location: 207 Fuller Road Description of Proposed Project: Applicant
has constructed 160 square feet of additional garage space to a 1,440 square foot
garage previously approved by Area Variance 19-2007 (see attached).
Relief Required:
Applicant requests 160 square feet of additional size relief from the maximum allowable
square footage for an accessory structure. Specifically, the applicant was approved for a
1440 square foot garage/workshop and has built a 1,600 square foot garage/ workshop.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the granting of
this area variance. Minor changes to nearby properties are anticipated as a result of
this proposal as the building is located 200 feet from the nearest residence and is
situated on a 45.9 acre parcel.
2. Whether the benefit sought by the applicant can be achieved by some method,
feasible for the applicant to pursue, other than an area variance. The applicant could
build in a more compliant location or reduce the size of the project to what was
approved. However, with the structure near completion, the feasibility to build a
compliant structure as approved would be drastic in nature.
3. Whether the requested area variance is substantial. The request for 160 square feet
or 11 % additional relief for what was previously approved under A.V. 19-2007 may
be considered minor relative to what was approved. However, the amount of total
approval may be considered moderate to severe (see below).
540 = 900 = 0.60 x 100 = 60.0 % -This represent the amount of relief approved for A.V.
19-2007.
160 = 1440 = 0.11 x 100 = 11.0 % -This represents the additional relief above what was
granted.
700 = 900 = 0.77 x 100 = 77.0 % -This represents the ultimate amount of project relief if
approved.
4. Whether the proposed variance will have an adverse effect or impact on the physical
or environmental conditions in the neighborhood or district. Minor impacts on the
physical and environmental conditions of the neighborhood may be anticipated.
5. Whether the alleged difficulty was self created. The difficulty may be considered self
created as evidenced in the applicant's narrative.
Parcel History (construction/site plan/variance, etc.):
BP20080377 Workshop Approved 7/24/08
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A.V. 19-2007 Garage size relief Approved 3/28/08
Staff comments:
The applicant states in his narrative that the plans he submitted to the Building and
Codes Department for his building permit were mistakenly the original 1,600 square foot
plans and not the approved area variance plans. The garage/workshop was
subsequently built using the unapproved plans and was noticed to be non-compliant
relative to what was approved during a routine site inspection by Code Compliance
Officer Bruce Frank. The applicant is now before the Board seeking approval for the
additional 160 square feet currently existing.
SEAR Status:
Type II - No action necessary.
"Warren County Planning Board Project Review and Referral Form February 11, 2009
Project Name: Carte, Kelly E. Owner(s): Kelly E. Carte ID Number: QBY-09-AV-08
County Project#: Feb09-15 Current Zoning: LC-10A Community: Queensbury
Project Description: Applicant proposes a 160 sq. ft. addition to a 1,440 sq. ft. garage
previously approved by Area Variance No. 19-2007. Relief requested from the maximum
square footage allowed for an accessory structure. Site Location: 207 Fuller Road Tax
Map Number(s): 300.16-1-3 Staff Notes: Area Variance: Applicant proposes a 160 sq.
ft. addition to a 1,440 sq. ft. garage previously approved by Area Variance No. 19-2007.
Relief requested from the maximum square footage allowed for an accessory structure.
The applicant indicates that the building permit that was issued was fora 40 by 40 ft.
garage where the plans that should have been submitted should have been for 36 ft. by
40 ft. garage as approved by the variance. The applicant has indicated the foundation
and framing have been constructed for the 40 ft. by 40 ft. and relief is requested to
maintain the existing structure that is under construction. The information submitted
indicates the property is 46 acres; where the zoning limits garages to one per parcel and
to a 900 sq. ft. size. Staff recommends no county impact based on the information
submitted according to the suggested review criteria of NYS General Municipal Law
Section 239 L applied to the proposed project. Warren County Planning Board
Recommendation: No County Impact" Signed by Richard C. Merrill, Warren County
Planning Board 2/13/09.
MR. UNDERWOOD-Mr. Carte.
MR. CARTE-Good evening, members of the Board. I'm here because I screwed up, just
as I said in there. Originally, I had wanted to build it at 40 by 40, and I drew the plans up
that way, probably a year before I even went for the variance. I got the variance a year
ago, two years ago this month, actually, it was a February meeting two years ago, and it
was about 15 or 16 months before I even applied for the building permit. I mistakenly put
in the original ones, forgetting that I had had to reduce it for the variance, and they were
approved, another two or three months before I started construction, and when we went
to it, I just built it to the plans, and I just forgot all about the fact I had reduced it to 36 feet
for the original variance, but at this point, obviously, you know, it's built. All I'm doing
now is interior. I've got some siding to put on or whatever, and that's about it. So I'm just
here to try to make it come into compliance and straighten out my mess.
MR. UNDERWOOD-Board members have any questions at this time? I think we're all
pretty familiar with it. I think most of us were here when we did go through that.
MRS. JENKIN-I have one question.
MR. UNDERWOOD-Sure.
MRS. JENKIN-About the clear cutting. Did you have Site Plan approval for that clear
cutting that you did?
MR. CARTE-I didn't need approval because it's less than the five acres that are required
for. It's about, well, a little under four acres that I did, as far as the cutting goes.
MRS. JENKIN-Because it says here there were five to eight acres, or five to seven.
MR. CARTE-Well, I don't know who measured it, but it isn't, I mean, I can show you an
aerial view of the original tree line from the tax maps, and there is definitely less than five
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acres there, yes. That's about 100, well, 160, 150 feet wide, and about 700 feet long, or
thereabouts, I mean, well under five acres.
MRS. JENKIN-What's the purpose of this?
MR. CARTE-I'm going to clear it and make a pasture type of thing, you know, at this
point, I mean, I still have tree stumps and stuff like that to take out there, but that's why I
cleared the land.
MR. GARRAND-I haven't been out there since your last application. Have you removed
the accessory building out front?
MR. CARTE-No, I have not, yet, and until I get, I've got junk in there that I'm going to put
in the new one. That's why I'm building the new one, basically. So I haven't taken the
old one down yet, no.
MRS. JENKIN-Well, I don't understand how you got the building permit, when the plans
weren't approved, or the plans weren't correct.
MR. BROWN-One of the steps in the process of closing out, or finalizing Area Variances
is the applicant bring in final sets of approved plans that this Board has seen the night of
a meeting. That was something that was done with the original approval in February of
2007. The applicant's required to bring in three sets of plans, one set goes in the original
file. One set goes in the building permit file, and one set goes to Bruce Frank, to do a
field inspection. When the building permit was reviewed and issued, I didn't open the
plans and compare square foot for square foot. I just, when you do a few dozen of these
each week, you don't, you know, study each one probably as much as we should, but
luckily the failsafe is, we have somebody go out and do an inspection of the building.
Ideally before it starts construction. I'm not sure that happened in this case, where Mr.
Carte contacted Bruce and said I'm ready to go. I've got the area staked out, you want to
come and check it? I think in this case it happened after it was done because we found
out the building was up. One of the Building Inspector, and said, you know, was out
there doing an inspection, got the idea to go and take a look himself. Snapped the tape
and figured out it was 40 by 40.
MR. CARTE-Yes, I neglected, I mean, I think the last line on the approval for the zoning
variance was, you know, you supply three plans, do something else and notify the
Zoning Officer, or Bruce Frank, when you start construction, and I didn't see that. I saw
the part that said you can now apply for a building permit, and, you know, start
construction. So I applied for the building permit and went ahead and built it. I didn't
even realize that Bruce would be going back out there to inspect what I thought was just
a building, you know, a structure after that. I thought the zoning thing was all done with.
So he did not see this, before the building was up, and I did not get him out there.
MR. CLEMENTS-I guess I had a question also. We have the motion, here, to approve
your Area Variance that you had in 2007, which states 1440 square feet, but I don't have
the minutes, here, of that meeting, and I was wondering if during that meeting maybe you
could tell us, did the Board ask you to reduce the size? They must have asked you to
reduce the size of your first plans because you had plans that were 40 by 40 to begin
with. Would that be right?
MR. CARTE-Well, originally I had drawn them up, but then, in talking with Craig, actually,
I discovered that there were no plans, no provisions in the Code for a barn of any sort. It
had to be done as a garage, and the limitation for a garage was 900 square feet. In
looking at my plans, I also noted that there was an allowed use of 500 square feet for an
accessory structure. So I said 900 and 500 is 1400 square feet. If I reduce this down to
36 by 40, it's 1440 square feet. They probably won't turn me down for it. So that's why I
did it.
MR. CLEMENTS-So the 1440 square feet was what you brought in here when you
applied for your?
MR. CARTE-Correct, yes.
MR. CLEMENTS-And the Board didn't ask you to make it any smaller?
MR. CARTE-No.
MR. CLEMENTS-It was what you asked for, then?
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MR. CARTE-That's what I asked for and it was granted, yes. As I said, in hindsight, I
probably should have done the other one and then, you know, argued the matter if they
wanted me to make it smaller or something, but it just seemed the logical thing to do. It
wasn't a big deal to me, you know, four feet. So that's why I did it, but it's a bigger deal
now, I guess.
MR. CLEMENTS-Thank you.
MR. UNDERWOOD-Any other questions from Board members at this time? I guess I'll
open the public hearing. Anybody from the public wishing to speak on this matter? Any
correspondence, Roy?
PUBLIC HEARING OPENED
MR. URRICO-Well, there is, I guess it's a letter. Mr. Carte must have sent a notice to
some of your neighbors, and one of them signed the note, but there was nothing
attached to the note.
MR. CARTE-Okay. Well, it's because I was away last week on vacation and I know I
would have been away when they received notification of this thing. So I wanted just to
explain to them what it was about, so that they didn't, you know, they could come if they
want, but they didn't have to waste their time if they weren't interested.
MR. URRICO-In essence it's the same letter that he submitted to us, and Joe Brayton of
231 Fuller Road just sent it in with his signature at the bottom. So I guess he's okay with
it, otherwise he wouldn't have sent it without anything else, and that's it.
MR. UNDERWOOD-Okay. Anything else you'd like to add, then? I guess I'll close the
public hearing, then.
PUBLIC HEARING CLOSED
MR. UNDERWOOD-And I'll poll the Board members. I'll start with you, Roy.
MR. URRICO-Well, when we get to these cases, it's always kind of uncomfortable for
both parties, the party that made the mistake and us over here having to deal with the
situation after the fact. I think Mr. Carte is contrite enough so I feel it was an honest
mistake, and the telling information for me is that if this had been presented to us to
begin with, I probably would have been in favor of it at that point, considering the size of
your lot and that this is actually going to be further away from the road than the original
structure. So I would be in favor of it. I don't see anything that would prohibit it from
being located there.
MR. UNDERWOOD-Okay. Joyce?
MRS. HUNT-Thank you. I have to agree with Mr. Urrico. I don't see any major impacts
to the physical or environmental conditions in the neighborhood, and I was here when
you came with your original, and I probably would have approved it. So I would be in
favor now.
MR. UNDERWOOD-Rich?
MR. GARRAND-I can't see where an extra 160 square feet is going to make a whole lot
of difference on 46 acres. So I'd be in favor of it.
MR. UNDERWOOD-John?
MR. ZANGHI-I would tend to agree, with the size of the lot, although it was self-created.
I would be in favor of this as well.
MR. UNDERWOOD-Joan?
MRS. JENKIN-The request itself, because of the acreage that you have, is not
substantial, and it would be very, very difficult to cut a metal building down, it would be
very, very difficult. So I think that it will not have adverse physical or environmental
effects on the property, just because you do have 46 acres, and if you're going to turn
that into pasture land, that will help to help runoff and everything I was thinking about.
So I would be in favor of this.
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MR. UNDERWOOD-Brian?
MR. CLEMENTS-I guess I'd have to agree with the rest of the Board. I was an alternate,
I believe, and I wasn't on the Board, but I believe I was in the audience when this came
up before, and I'm looking at the same thing Roy was, is the size of the property and
where it's located, probably, had he brought this in with 160 more square feet, I would
have voted for it anyway. So I'd be in favor of this.
MR. UNDERWOOD-Yes. It's my belief that it's a minor deviation from what you
proposed to us, and I don't think I would have not approved a 40 by 40 either on such a
large parcel as what you have there. It is aself-created difficulty in this instance here,
but at the same time, it's an honest mistake that any one of us might have made had we
decided to change plans the same way that you did also. So does someone want to
make the motion?
MRS. HUNT-I'll make a motion.
MR. UNDERWOOD-Okay. Sure.
MOTION TO APPROVE AREA VARIANCE NO. 8-2009 KELLY E. CARTE, Introduced
by Joyce Hunt who moved for its adoption, seconded by Roy Urrico:
207 Fuller Road. The description of the project, the applicant has constructed 160
square feet of additional garage space to a 1440 square foot garage previously approved
by Area Variance No. 19-2007. Relief required. The applicant requests 160 square feet
of additional size relief from the maximum allowable square footage for an accessory
structure. Specifically the applicant was approved for a 1440 square foot
garage/workshop and has built a 1600 square foot garage/workshop. The balancing
test. Whether the benefit could be achieved by other means feasible to the applicant. I
don't think so since he's already started construction and near completion of
construction. There will not be an undesirable change in the neighborhood character or
to nearby properties. The request is really not substantial, considering the size of the
property and the fact that the new structure is 200 feet from the road, whereas the old
one that it's replacing was much closer. There will be no adverse physical or
environmental effects, and the alleged difficulty is self-created, in the sense that the
wrong plans were used. So I make a motion we approve Area Variance No. 8-2009.
Duly adopted this 25t" day of February, 2009, by the following vote:
AYES: Mr. Urrico, Mrs. Jenkin, Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Zanghi,
Mr. Underwood
NOES: NONE
MR. UNDERWOOD-You're all set.
MR. CARTE-Thank you very much.
MR. UNDERWOOD-Sure thing.
MR. CLEMENTS-Mr. Chairman, I just have a question about this. In the original
variance it said that, as a condition, that no further structures would be erected. Will that
be continued to be?
MR. UNDERWOOD-Yes. I don't think there's any, you know, we would not deviate from
the previous mindset of the Board in regards to that.
MR. CLEMENTS-Okay. Thank you.
MR. CARTE-Members, may I just ask one thing. I sent in a letter, after that, I sent in a
letter to the Board after that. I don't know if you have it in the file or not, but during the
minutes of the meeting, I think was said was that because I used the 900 and the 500
square foot for the accessory building, that I would not be allowed any other accessory
building or any other building, you know, on the property, but I plan on building a house
there later, and I sent a letter in saying, you know, the wording that was in there was not,
that was read into the approval was not the same wording as what was stated in the
conversation that we had there. In other words, if it says I'm not allowed any other
building on that property, then I wouldn't be able to build a house, and so I sent it in
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(Queensbury ZBA Meeting 02/25/09)
there, and I would think that it would be in the file, because I was asking the wording to
be modified, shall we say, to reflect that fact.
MR. UNDERWOOD-I would think that the general thought of the Board was that we were
talking about secondary buildings, i.e. barns, etc.
MRS. JENKIN-But it doesn't say that. So maybe we should clarify that.
MR. CARTE-Well, that's really why I sent the letter is because it wasn't stated that way.
MRS. HUNT-Will this be a replacement for your home?
MR. CARTE-Well, there's a, it will be eventually. There's an old farmhouse on the
property that, after I finish paying for this thing, I plan on tearing down and building
another, a new house there, yes. So I won't be two houses, but it will be another
structure, obviously.
MR. UNDERWOOD-I think I remember the letter, and, you know, I'm almost certain we
were talking about accessory structures on the lot. I would not worry about that if I were
you. I mean, to me, it's not something that we're not concerned with, but, you know.
MR. CARTE-Okay. I just wanted to bring it up there because I did send that in after.
Thanks.
MR. UNDERWOOD-Yes.
AREA VARIANCE NO. 4-2009 SEQRA TYPE: II RANDY SEVERANCE OWNER(S):
RANDY AND CINDY SEVERANCE ZONING: RR-3A LOCATION: 7 FOX ROAD
APPLICANT HAS BEGUN CONSTRUCTION OF A 2,176 SQ. FT. SINGLE-FAMILY
DWELLING. RELIEF REQUESTED FROM MINIMUM SHORELINE SETBACK
REQUIREMENTS. CROSS REF.: BP 2008-396; SPR 5-09; FWW 2-09; TBOH
SEPTIC VARIANCE SCHEDULED FOR 2/23/09 WARREN COUNTY PLANNING:
FEBRUARY 11, 2009 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.79 ACRES
TAX MAP NO. 266.1-1-20 SECTION: 179-4-030
RANDY SEVERANCE, PRESENT
MR. UNDERWOOD-This is kind of an interesting one, because I don't think we've come
up against these edicts of the Adirondack Park Agency before, in regards to the project,
and I'm sure that Board members will probably have a lot of questions once we read in,
and those questions I think we'll direct to you, Craig.
STAFF INPUT
Notes from Staff, Area Variance No. 4-2009, Randy Severance, Meeting Date: February
25, 2009 "Project Location: 7 Fox Road Description of Proposed Project: The applicant
has partially constructed a 2,360 square foot single family dwelling with attached garage
within 75 feet of an APA classified wetland.
Relief Required:
The applicant requests 56.53 feet of shoreline relief from the 75 foot shoreline setback
requirement for the Rural Residential 3 acre zone per §179-3-040.
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the granting of
this area variance. Minor to moderate changes to nearby properties may be
anticipated as requests for similar relief may be forthcoming.
2. Whether the benefit sought by the applicant can be achieved by some method,
feasible for the applicant to pursue, other than an area variance. The applicant could
build in a more compliant location or reduce the size of the project.
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(Queensbury ZBA Meeting 02/25/09)
3. Whether the requested area variance is substantial. The request for 56.53 feet or
71.4 percent relief from the 75 foot minimum wetland setback requirements for
building/hard surfaces may be considered moderate to severe relative to the
ordinance.
4. Whether the proposed variance will have an adverse effect or impact on the physical
or environmental conditions in the neighborhood or district. Moderate impacts on the
physical and environmental conditions of the neighborhood may be anticipated as
encroachment on wetlands may reduce the filtering capacities that wetlands provide.
However, the applicant has stormwater controls designed to mitigate possible
impacts.
5. Whether the alleged difficulty was self created. The difficulty may be considered self
created.
Parcel History (construction/site plan/variance, etc.):
BP20080396 Single Family Dwelling, attached garage Approved 8/14/08
Planning Board recommendation to the ZBA concerning wetland setbacks 2/17/09 (see
attached)
Staff comments:
The applicant has constructed the shell of a single family residence in the Cherry Ridge
Subdivision. It was determined, after public complaint, that the property contained APA
wetlands. These wetlands were not located on any maps within the Town of Queensbury
GIS data base and appear to be newly designated wetlands. The wetland is located on
the submitted survey, to the rear of construction and according to the Freshwater
Wetlands Permit Application comprise of 12,500 square feet or 0.29 acres. The shortest
distance the house is to the wetlands appears to be 18.47 feet or 56.53 feet within the 75
foot setback requirement for structures per §179-4-030. The applicant states that he was
unaware of any wetlands present on the parcel when a building permit was issued on
August 14, 2008.
• The Planning Board has issued a recommendation concerning this application
(see attached).
• The Adirondack Park Agency has issued a settlement agreement concerning this
parcel and actions undertaken to date (see attached).
Project review protocol
• Planning Board recommendation concerning wetland setback issues-See
attached dated 2/17/09
Town Board of Health to approve Septic Variance-Pending for February 23, 2009
Zoning Board of Appeals to review and make a decision concerning this
application A.V. 4-2009 on February 25, 2009
Planning Board to review Site Plan 5-2009 FWW 2-2009 on March 3, 2009.
SEAR Status:
Type II - No determination necessary."
"Warren County Planning Board Project Review and Referral Form February 11, 2009
Project Name: Severance, Randy Owner(s): Randy and Cindy Severance ID Number:
QBY-09-AV-04 County Project#: Feb09-20 Current Zoning: RR-3A Community:
Queensbury Project Description: Applicant has begun construction of a 2,176 sq. ft.
single-family dwelling. Relief requested from minimum shoreline setback requirements.
Site Location: 7 Fox Road Tax Map Number(s): 266.1-1-20 Staff Notes: Area
Variance: The applicant proposes to construct a single family home with a footprint of
2,176 sq. ft. The home is to be located 18.47 ft. from the shoreline where a 75 ft.
setback is required. The information submitted indicates the home is currently under
construction where the plans submitted do not detail erosion and stormwater control
measures. Staff recommends no county impact with the condition that plans include
erosion and stormwater control measures. This is based on the information submitted
according to the suggested review criteria of NYS General Municipal Law Section 239 L
applied to the proposed project. County Planning Board Recommendation: No County
Impact with Stipulation The Warren County Planning Board recommends No County
Impact with the condition the plans include erosion and stormwater control measures."
Signed by Richard C. Merrill, Warren County Planning Board 2/13/09.
8
(Queensbury ZBA Meeting 02/25/09)
MR. OBORNE-Just a point of clarification. The Board of Health has given approval for it,
and that should be in front of you.
MR. UNDERWOOD-Yes. I had a question for you, Keith and Craig, maybe, too. This
subdivision dates back to 1970. Was this an approved lot at that time? And why is it an
RR-3A zone here, if all these lots are substandard? What's the point?
MR. BROWN-You're going to find that in a lot of places in Town where subdivisions were
developed and then subsequently zoning came in that was not consistent with the lot
sizes that that subdivision was approved at. So this subdivision certainly isn't unique in
the Town. There's countless nonconforming lots, based on current zoning.
MR. UNDERWOOD-So the applicant came in for a building permit to our Department.
Was he issued one?
MR. BROWN-It was issued a building permit. It was reviewed by myself for zoning
compliance and the Building and Codes Department for compliance with the Building
Code and the Septic Ordinance. None of the records, and it was pointed out in the Staff
Notes, none of the records we have showed any wetlands, any streams, didn't show up
on any of the databases we have. So, you know, the building permit was issued based
upon the information before us. It's my understanding that an inquiry was made to the
Park Agency about the wetlands, because someone closer was probably more familiar
with the property. Somebody from the Agency came down and I'm sure Mr. Severance
will clear this up if I make any mistakes here, but the Agency came down, did a field
delineation and said, here's the edge of the wetlands, go forward from here.
MR. UNDERWOOD-Okay.
MR. BROWN-After the building permit was issued, after it was under construction for
probably several months?
MR. SEVERANCE-Three months, yes, three months under construction.
MR. BROWN-So that's this side of the story.
MR. UNDERWOOD-Okay, Mr. Severance, anything else you want to fill in? I mean, we
were a little baffled by it, as I'm sure you were once you started construction.
MR. SEVERANCE-Well, in my notes here, what I was going to present to you, basically
it's all covered in everything that you already received, but the house is placed where it is
because of the covenants. That's 35 feet off the road is what the covenants state. We're
36 feet. I just wanted to make that clear. It's just an unfortunate situation that we've
come upon with the wetlands. I don't want to point any fingers. I don't think anybody
really made a mistake. It's just the way it is and we've got to try and comply and rectify it.
MR. UNDERWOOD-What was your original plan for septic, in the back, then?
MR. SEVERANCE-Yes, the mound was in the back. Yes. So we had to move it to the
very extreme front corner, and luckily we got that cleared yesterday, or Monday.
MR. UNDERWOOD-Okay.
MRS. JENKIN-So you have cleared almost all the way to where there's probably a little
creek that runs down there. You've cleared out where, you were planning to put your
septic system in that area?
MR. SEVERANCE-It was cleared where the septic was going, yes. There's still
untouched vegetation in the back, in the wetlands that are now wetlands, that haven't
been touched.
MRS. JENKIN-So what are you going to do with the area that you've cleared? It says
here you're supposed to remove all fill from the wetlands, avoid causing any, and then
install a silt fence, which you have.
MR. SEVERANCE-Yes. Everything that the APA required us to do when they
determined the wetlands back in October we did immediately. Removed the fill, installed
the silt fence and planted the grass seed and straw.
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(Queensbury ZBA Meeting 02/25/09)
MRS. JENKIN-You've already done that?
MR. SEVERANCE-Yes. Grass was starting, believe it or not, in November it was starting
to come up.
MRS. JENKIN-Now you can't see for the snow.
MR. SEVERANCE-Yes, I know, but, no, we've complied. We want to protect the
wetlands. We don't want to see any damage done to the wetlands, but we do want to
complete our house.
MRS. JENKIN-Because it's going to infringe on your backyard, too. You'll have almost
no backyard.
MR. SEVERANCE-Exactly. It took 1/3rd of the lot, yes. That's disturbing right there.
MRS. JENKIN-What are you going to do right behind the house?
MR. SEVERANCE-I've got about, the back of the house all vegetation. We're going to
re-route all the water drain off off the roofs away to a basin and plant vegetation to help
protect any runoff into the wetlands.
MRS. JENKIN-So where is the basin?
MR. SEVERANCE-It's out by Ridge Road between the garage and Ridge Road.
MRS. JENKIN-Okay.
MR. SEVERANCE-Out near the front corner.
MRS. JENKIN-Okay.
MR. UNDERWOOD-And you've got a well here on this property for your water?
MR. SEVERANCE-Yes. The well was already done.
MR. UNDERWOOD-And how about your setbacks from your well from your proposed
septic? It looks pretty close to me.
MR. SEVERANCE-One hundred and seven feet I think it was.
MR. UNDERWOOD-Okay.
MR. SEVERANCE-Yes. That was okay.
MR. UNDERWOOD-All right. Via the communications from the APA, then, they agreed
with this as the means of dealing with the septic?
MR. SEVERANCE-The septic, yes.
MR. UNDERWOOD-That's probably the only alternative you could possibly do there,
other than a holding tank, which isn't allowed on a year round residence.
MR. SEVERANCE-Right, that's correct.
MR. UNDERWOOD-Okay. Board members have any other questions?
MR. URRICO-I have a question for Staff. When something like this occurs, like the APA
changes its wetlands designation, how do they notify the neighboring communities? And
what would your response be? I mean, how would you, would you alter maps
accordingly, how long does it normally take?
MR. BROWN-Well, to answer your first question, how do they notify us, the answer is not
very well, and the coverage maps that we have, we obtained from them, usually via the
County GIS program. So those maps are maintained and produced at the APA and
released to the County, and then we subsequently get them from the County. So this
new mapped wetland may be on a wetlands map in a few years. So, I mean, we have
the local map, the field delineation and the survey of this property that delineates it for
this property, but we don't maintain a Town wetland map that we could add this to.
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(Queensbury ZBA Meeting 02/25/09)
That's certainly a goal that we want to obtain with the new zoning that's upcoming is to
do also something with wetlands, but right now it's not a very clear communication
process, any time the APA updates their wetlands.
MR. URRICO-So the burden is on the applicant to access that information, whatever
means they would have.
MR. BROWN-Sure, yes.
MR. URRICO-Okay.
MR. UNDERWOOD-And because it's a CEA, that's why the Planning Board has to
review it also?
MR. BROWN-Well, it's because there's filling and hard surfacing within 50 feet of the
shoreline.
MR. UNDERWOOD-Sure, and that would be any kind of water or wetland, correct, or is it
just wetlands?
MR. BROWN-Any shoreline.
MR. UNDERWOOD-Any shoreline, okay.
MR. CLEMENTS-And you're saying that this wetland isn't shown on any APA maps, as
of now?
MR. BROWN-That's correct. The only map that I've seen it on is this survey map.
MR. CLEMENTS-Okay.
MR. GARRAND-Has the APA been out already to make sure that you're conforming with
their stipulations here?
MR. SEVERANCE-They were out October 31, 2008, and they did see that we
immediately did those things that they wanted, but once the septic is installed in the
Spring, they gave us a certain amount of time to come out and inspect it. I forgot how
many days it was. It was in the regulations here, but they will be back.
MR. GARRAND-You have 30 days.
MR. SEVERANCE-Within 30 days, yes.
MR. ZANGHI-Yes, because you have to supply a certification to them.
MR. SEVERANCE-Right, that's right, yes.
MR. UNDERWOOD-Why did they end up with a raised bed system out there?
MR. BROWN-Originally?
MR. UNDERWOOD-No, I mean the one in the front yard has got to be raised also. Is
that just because you don't have enough depth to bedrock?
MR. BROWN-I would guess it's either depth to bedrock or groundwater.
MR. SEVERANCE-It was groundwater.
MR. UNDERWOOD-So it's high groundwater out there?
MR. SEVERANCE-Yes, in the front yard there even.
MR. UNDERWOOD-So there's always the possibility this isn't going to be ultimately
functional either?
MR. BROWN-Well, yes, I think there's a semi approval, at least a conditional approval
from the APA they need to come back and inspect. A signoff or a waiver from the New
York State Department of Health, and then a septic variance from the Town local Board
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(Queensbury ZBA Meeting 02/25/09)
of Health, and I'm sure there's at least a couple of independent engineer reviews in the
middle there some place. So certainly the goal is to have a functional system.
MR. UNDERWOOD-Everybody keeps their fingers crossed behind their back, hopefully.
Yes. Okay. Any other questions from Board members? I guess I'll open up the public
hearing. Anybody from the public wishing to speak?
PUBLIC HEARING OPENED
CHRIS NAVITSKY
MR. NAVITSKY-Good evening. Chris Navitsky, Lake George Water Keeper. I think Mr.
Urrico had a couple of questions, beat me to my questions. They probably would have
been to Craig, about what indications or if there was going to be additional information
from the APA regarding the wetland. Did they go any further? I guess maybe my
question might be to be to Randy if they went any further.
MS. RADNER-You need to direct your questions to the Board, and then the Board
determines if they want to ask any additional questions of the applicant.
MR. NAVITSKY-Understood. Absolutely. My question would have been if they went off
of the property at all to obtain the extent of that wetland, so the Town could know that in
the future. Secondly, obviously we would want to protect that wetland as much as
possible, but with the disturbance that has already happened in the wetland, we were
just wondering if there was buffer planting proposed, and with the extent of disturbance
there was, you know, would that even be beneficial? I don't want to just claim to put
buffering in if it may not be beneficial, depending on the extent of disturbance, and I
know Mr. Severance has been through a lot already and we just don't want to make blind
requests out there that may not be beneficial to the wetland. So I don't know how to
determine that. So those were our two points. First, how can the public and the Town
know the extent of the wetlands, if there was any additional information that was
gathered, and then maybe an assessment of the wetlands. I do not know if that would
fall under this Board or under the Site Plan. Thank you.
MR. UNDERWOOD-Thank you. Anybody else wishing to speak on the matter? We do
have a couple of letters that were received and handed to us this evening. Do you want
to read those in?
MR. URRICO-Yes. I have them all here. Okay. "Concerning the 2/25/09 public hearing
of the Board of Zoning Appeals of the application of Randy Severance for variances and
approvals of hard surfacing, construction and sewage disposal adjacent to a wetland,
and side and front property setbacks, I am the owner of the property directly opposite
and to the north of the 7 Fox Road. I am in favor of Randy Severance receiving
approvals on all of the variances he has requested. I do not believe construction of a
mound system will affect property values and I feel it is in the best interest of the people
along Fox Road and Queensbury to have these applications approved and presented
and to have this home completed and landscaped as soon as possible. Thank you, John
Whelan" "Please make my concerns a part of any record for all of the above dates and
any future unlisted meetings that may occur. OVERVIEW: Prior to the purchase of and
town permits being issued Mr. Severance was advised of the water problems that
existed on the lot 266.1-20.T The Town issued a permit to build on plans that were
presented which did not show a Wetland, which then triggered this process. The
applicant has now placed all in a position of forced compromise as none of us will be
happy with an unfinished house sitting on a lot at the entrance to Fox Rd. All of this
could have been averted if the plans were correct at the project's inception. From 12 Fox
Rd. perspective there is one major issue at hand and that is the Wisconsin Mound
System which has a visual impact for 12 Fox Rd. once constructed. We are the most
impacted neighbor to this project's visual appearance. The loss on property value as a
result of this eyesore should not be burdened by the neighborhood. I spoke with the
applicant on this very issue who agreed there would be a property loss and understood
this concern. The unanswered question that was not resolved is who should take the
loss??? I requested in Nov. 09 a drawing or landscaping plan showing how the Visual
Impact was going to be eliminated. I have not seen a plan nor do I see a plan in the
Town Folder nor did Keith Oborne have any information on the issue. 12 FOX RD
PERSPECTIVE: I request for consideration that a Landscaping plan is presented
showing how the applicant intends to negate the visual impact for 12 Fox Rd. My family
object to walking out the front door to look at a mound system of this magnitude. The
Plan should be surveyed from 12 Fox Rd. <front door location> for the height of
vegetation that is needed so we do not see the mound. Installation of height mandate to
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(Queensbury ZBA Meeting 02/25/09)
be done prior to issuance of any certificate of Occupancy. As we look at the front and
west side of the mound a proper landscaping plan with Stipulated height should be
mandated within the permit process. We therefore have no problem with a mound
system this being our compromise providing the properties landscaping issue is
addressed and mandated. I invite all the board members and staff during their
inspections of this project to come to my front door and look at the situation and how it
would look from our vantage point. As for the Setback of 0 feet from the front, the further
back this mound is the more accommodation for the landscaping would be
advantageous to the final outcome. ENTRANCE TO FOX RD. AND CHERRY RIDGE:
Appropriate landscaping should be provided so this mound has no visual impact from the
drive bys or anyone living in the area. In reference the petition of neighbors obtained by
the Applicant. I wish to make the case that all except one are not impacted by the
project. The prior owner of the lot who signed the petition does not even reside in Cherry
Ridge. I would guesstimate that most neighbors would not know what a Wisconsin
Mound system even looks like, and of course if you're not immediately affected then the
issue becomes moot. Four years ago we purchased 12 Fox Rd. If there was a mound
system across the road that Purchase would not have happened. Now we face a
property devaluation unless the boards in question thru their infinite wisdom can make
some accommodations to protect just that, our property value. This is a self inflicted
problem by the applicant. I now ask that the town government intervene and make
proper judgment in protecting our property value and rights. Sincerely, Peter Lewin" "I
live in Ridge Knolls. I object to the proposed by homeowner, Randy Severance, on Fox
Road who is constructing a home to build a "mound system". It was his decision to build
on this narrow lot that abuts to a fresh water stream. The Town of Queensbury should
have taken note of the limitations of the lot before construction started. In 1988, we had
to have a new leach field dug. Our lots is 150' by 200' and not abutting a natural stream.
Our house is 1700 sq. feet, 3 bedrooms and bath and a half. We were required to put in
5 65' long fingers to accommodate the leach field requirement by the town. In our
immediate area, we've seen what the town has approved by allowing Tom Kubricky, in
the North Forty development, to construct a pond and a helicopter pad -and AI Cerrone
in the same area to build a pond. Ponds were not natural to these properties. This area,
I believe, was considered a wetland where there were several streams with beaver and
trout. This is no more. Allowing this variance on Mr. Severance's property would be
another injustice. We received a request for avariance -which we strongly oppose. We
are in Florida for the winter and if there is a more formal letter we have to write
addressed to a particular person, we will gladly do so. Suzanne and Mace Comora 4
Knolls Rd. So. Queensbury, NY 12804" And one more. "To Whom It May Concern,
With regard to a petition of neighbors submitted by Mr. Severance concerning the
construction of a Wisconsin Mound septic system at 7 Fox Rd., I would like to go on
record as having never been approached at any time by Mr. Severance on this matter or
any other. My wife and I have resided at 20 Fox Road since April 2007. We live
immediately next to the Lewins at 12 Fox Road. It appears that the majority of the
neighbors who signed on to Mr. Severance's petition are not visually impacted by such a
system. We live across the street and have a diagonal view of 7 Fox Road. Unlike
many who may be unfamiliar with such a septic system, my wife and I have a family
member who, in fact has such a system in the front lawn of her home. The mound is
app. 2-3 feet above the surrounding lawn surface and is very unsightly. Aside from its
appearance, the homeowner cannot plant anything on the mound whatsoever. Any and
all attempts to disguise or otherwise hide the mound must be done with rather extensive
landscaping and/or stonework around the mound's perimeter, thus making lawn
maintenance and overall care somewhat difficult. Should a landscaping plan be
considered, height requirements will be necessary if the mound is to be concealed or
otherwise hidden. Since 7 Fox Road is a corner lot intersecting with Ridge Road (Route
9L) said height requirements will have to be somewhat restricted so as to afford
motorists entering Ridge Road from Fox Road adequate vision to assure their safe entry.
Prior to building our house at 20 Fox Road, we had visited Queensbury quite frequently
over a 3 year period specifically looking for a place to build our retirement home. Finally,
we found an available lot in the Cherry Ridge development, purchased it and proceeded
to build. Looking back, had we entered Fox Road and found that the very first house on
the street had such a septic system in its front lawn, we would not have entertained
building a home in this particular development. Our greatest concern in this matter is the
potential devaluation to our home and property should approval be given to construct the
septic system in question. We strongly urge the town government and its various
boards to first consider the protection of our property rights and values prior to approving
Mr. Severance's application. We would like our concerns to be made part of the record
in this matter and be considered at any and all meetings that may come about regarding
7 Fox Road. Sincerely, David P. Kovacs Penny Kovacs" That's it.
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(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-Craig, what's the history of other septic systems along there? I
mean, they haven't had problems, or are they all working?
MR. BROWN-I couldn't tell you. We don't have a record of, there's no maintenance
program where we go inspect.
MR. UNDERWOOD-I mean, I would assume the Town would have been apprised of the
situation if they were all failing or if there was a significant questionability of the
conventional systems.
MR. BROWN-Yes. I mean, just as you guys know familiar areas in Town that you see
Area Variances for, I'm sure the Town Board has the same level of knowledge of, hey,
we always see septic variances in these areas, and apparently they were comfortable
enough to grant this one.
MR. UNDERWOOD-Sure. Okay.
MRS. JENKIN-What would be the height of the mound system?
MR. SEVERANCE-The mound system, the Wisconsin Mound System is three feet high.
I did have concerns in the beginning, which I did speak to Mr. Lewin, but I have none any
longer because it's a three foot mound system on existing grade. The existing grade,
right now, is two feet below the road level. So, the top of the mound's going to be about
a foot above the road, one foot. Now, I talked to Mike Shaw with the State Department of
Health. We're able to manipulate the slope, which is my concern, first of all, is my
property value as well. I understand the neighbor's concern also, but what I intend to do
is bring in extra fill to make the slope very gradual on all three sides except for one,
which is the west side, because it's right up tight against the boundary line. That side I
proposed in my Site Plan to put arborvitae, three foot apart, along the whole west side to
hide that side of the mound, but as far as making this mound system not noticeable, it's
my, it's one of my top priorities, right after protecting the wetlands.
MRS. JENKIN-You don't have to put in a retaining wall or anything for that side that is
next to the wetland, so the dirt will not run away into the?
MR. SEVERANCE-No.
MRS. JENKIN-You don't have to?
MR. SEVERANCE-No. As far as an observation tubes, there's two tubes that come out.
They will be cut flush right below the level of the ground, capped, so they can still be
workable, as far as observing the system, but they will not be seen whatsoever. So I
think I've got everything covered, as far as property value loss. I don't see any loss to
any of the neighbor's property values.
MRS. JENKIN-What about your landscaping plan that the neighbors have asked for to?
MR. SEVERANCE-I'm on a very limited budget, as far as me getting an artist or
someone else to draw something up for, you know, for what I think is just going to be a
moot point because it's going to be taken care of on my Site Plan. It's going to be not
very noticeable in my opinion.
MRS. JENKIN-Well, I'm not asking for any kind of wonderful landscape, but I just
wondered, were you planning to plant any shrubs, any trees right around on that side of
the yard to sort of, to screen yourself from the road?
MR. SEVERANCE-Along the west side, between my neighbor and I, which my neighbor
next door to me has been very, very cooperative and has no problem with this
whatsoever, but that's the part of the mound that I cannot gradually slope. I can't
because I'm up against the lot line. So I have to put arborvitae vegetation growth on that
side to hide that whole side. The other three sides will be so manipulated it's just going
to blend right in. I'm very confident of that.
MRS. JENKIN-So it'll be a lawn?
MR. SEVERANCE-It'll be a lawn. You see, as it is now, it slopes down now. So the
elevation of the lot right there is below road level. So you put a mound on it, and it's as if
I brought fill in to just bring it up. It's going to work in beautifully.
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(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-I don't think you would want to fill in between the road and there
because then water's going to run into the system. You've got to have a separation.
Otherwise it's not going to be functional. You don't want to overwhelm it with road runoff
and things like that.
MR. SEVERANCE-Right.
MRS. JENKIN-Well, I just thought maybe shrubbery or something like that that would
catch water, wouldn't it?
MR. UNDERWOOD-I mean, I suppose you can just plant it up with, you know, daylilies
or something like that and put a big patch between the road and there, and, you know,
that's probably the best you can do. That's a simple solution for it in the summertime.
Okay. I guess I'll close the public hearing, then.
PUBLIC HEARING CLOSED
MR. UNDERWOOD-And poll the Board members, and I'll start with you, Brian.
MR. CLEMENTS-Thank you. Well, my feeling is this has been very unfortunate, I know,
for you, for all of the things that have come about here. It looks like you've really jumped
through some hoops for the Health Department and the APA, and I have a very similar
type of system at my house, and I had a built up system and I had a dip. So know pretty
much what that's going to look like if it's down there. By the way, that's been working for
about 20 years. So good luck to you. So, all that considered, I think that there'd be
minor changes in the neighborhood. I think that the benefit to the applicant can't be
achieved, really, by any other method, the way this is set up. So I would be in favor of
this application.
MR. UNDERWOOD-Okay. Joan?
MRS. JENKIN-Yes. I think the encroachment into the wetlands is unfortunate, and I'm
hoping that you have planted it with grass and natural seeds and then over the years
everything will just start growing up again, and if you leave it alone, it probably, after two
or three years, it's going to have all of the natural vegetation in there anyway, and it'll
help to hold the water. I don't see a really undesirable change in the neighborhood.
There's homes around it that are very similar to yours. The whole problem is the size of
the lot and the situation. I don't think it'll, if you've taken these proper steps, that the
adverse physical or environmental effects will not be large, and I'm not sure whether it's
self-created because you bought the property in good faith and didn't know there was
wetlands, even though you knew it was a low area. So I would be in favor of this.
MR. UNDERWOOD-Okay. John?
MR. ZANGHI-I think I agree with the things that have been said up until now. I'm not
sure that it was self-created, under the circumstances, and, given the fact of how far
along you are, I'm not sure of the alternatives, and the feasibility and the desirability of
those by the neighbors, even the ones that are concerned in this case. So, overall,
basically I would agree with the other two Board members, that I would be in favor of
this.
MR. UNDERWOOD-Rich?
MR. GARRAND-I've been trying to think of a way that the applicant can achieve the
desired results through any means feasible, and at this point, I really can't. The amount
of variance requested here may seem significant. I was concerned about the visual
impacts and the mitigation planned for this, but the applicant has shown that he is taking
steps to remedy that. With respect to whether this would be self-created or not, I think it
would pretty much be up to the APA to delineate the wetlands and get together with the
Town and update the Town maps, in order to show where the wetlands exist in Town
and where people can and cannot build within the Town. So I would have to be in favor
of this application.
MR. UNDERWOOD-Joyce?
MRS. HUNT-Thank you. Yes. It doesn't seem to me this was self-created, and the fact
that the Planning Board has issued a recommendation to approve the variance, and the
APA has issued a settlement agreement with you, and the Board of Health has approved
your septic system, and there will be a Site Plan Review next week, I would be in favor.
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(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-Roy?
MR. URRICO-Yes. My only concern, I think I want to make sure we understand that
we're talking about the septic system, but we're also, the relief we're granting is for
shoreline relief, and I just want to make it clear, that's what we're discussing here, and
the other thing is my concern would be any future cases that come across, whether this
would be setting a precedent, and I'm confident, I'm comfortable that this is an unusual
situation that the Town maps will be updated, at least to reflect these changes, so that if
the situation comes up again, it probably will be thwarted before it gets to us. So, that
being said, I'm satisfied that the applicant has mitigated the problem as much as he can,
that I'm not even sure the difficulty was self-created in this instance. I think he's dealing
with any possible physical or environmental conditions. Yes, there's a large setback
we're talking about, but, again, it goes back to when the problem was created. I'm not
sure it was there when he applied, and I think there's no other means to satisfy this
problem, and as far as the neighborhood, I think he's doing everything in his power to
mitigate the problem again. So I'd be happy to vote yes on this.
MR. UNDERWOOD-Okay. I, too, would voice the concerns that Roy has put forth, and
the only other thing I would add is this. It'll be incumbent upon you to do significant
plantings between your lower yard in the back, what little you have there, and the stream
that runs through there. I mean, I think that the key to this is we're giving you relief from
the shoreline setback requirements, and a significant vegetative buffer needs to re-
created down there. I mean, you can look and see what the natural one was. It should
be easy enough to re-create that. It's important for us to realize that when we build on a
lot that probably, by all means, if it was a proposed subdivision, this would be an
unbuildable lot, bar none. So, I mean, you recognize that, and I think the APA
recognizes that. It's unfortunate that you had to jump through all these hoops this time.
It's a real pain in the butt, I'm sure, but at the same time, it looks to me like you're trying
to make amends for that septic system location in the front yard there and, you know,
that's something you can be working on through the years. It's not something that's
going to occur overnight or by any means like that, but I think the back is important, just
as important if not more important, because that's what we're going to grant you relief
from. So I guess I'll ask somebody to make a motion. Brian?
MR. CLEMENTS-Sure, I'll make the motion.
MOTION TO APPROVE AREA VARIANCE NO. 4-2009 RANDY SEVERANCE,
Introduced by Brian Clements who moved for its adoption, seconded by John Zanghi:
7 Fox Road. The applicant has partially constructed a 2360 square foot single family
dwelling with attached garage within 75 feet of an APA classified wetland. The relief
required. The applicant requests 56.53 feet of shoreline relief from the 75 foot shoreline
setback requirements for the Rural Residential Three Acre zone per 179-3-040. In
making the determination, we should consider whether an undesirable change will be
produced in the character of the neighborhood or a detriment to nearby properties will be
created by granting this variance. Minor changes to nearby properties may be
anticipated. Whether the benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue other than an Area Variance. It doesn't look
like there is any other feasible method besides an Area Variance. Whether the
requested Area Variance is substantial. The request is substantial, but looking at the
circumstances, it would be in the best interest to go along with what's been done, or
what's been said by the Planning Board, the Board of Health, and APA. Whether the
proposed variance will have an adverse effect or impact on the physical or environmental
conditions of the neighborhood. Moderate impacts may be anticipated. However, the
applicant has stormwater controls designed to mitigate possible impacts. Whether the
alleged difficulty was self-created. The difficulty may be considered self-created.
However, unbeknownst to the applicant, he was not aware that there were wetlands
when he started, and I would make a motion that Area Variance No. 4-2009 be
approved.
Duly adopted this 25t" day of February, 2009, by the following vote:
AYES: Mr. Zanghi, Mrs. Jenkin, Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Clements,
Mr. Underwood
NOES: NONE
MR. UNDERWOOD-Okay.
16
(Queensbury ZBA Meeting 02/25/09)
REHEARING REQUEST SIGN VARIANCE NO. 81-2008 SEQRA TYPE: N/A GREAT
ESCAPE THEME PARK LLC (SASQUATCH RIDE) AGENT(S): JOHN LEMERY, ESQ.
LEMERY GREISLER LLC ZONING: RC-15 LOCATION: 1172 STATE ROUTE 9
ZONING ADMINISTRATOR REQUESTS A RE-HEARING DUE TO MATERIAL
MISREPRESENTATION BY THE APPLICANT. THE TOWN OF QUEENSBURY
ZONING ADMINISTRATOR REQUESTS THAT THE ZONING BOARD OF APPEALS
REHEAR APPLICATION SIGN VARIANCE NO. 81-2008 DUE TO A MATERIAL
REPRESENTATION OF INFORMATION. THE ORIGINAL APPLICATION WAS FOR
RELIEF FOR A NEW FREESTANDING SIGN. CROSS REF.: AV 80-2008, SP 41-2008
WARREN COUNTY PLANNING: DECEMBER 10, 2008 LOT SIZE: 237.64 ACRES
TAX MAP NO. 288.20-1-20 SECTION: CHAPTER 140
MARK NOORDSY, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Rehearing of Sign Variance No. 81-2008, Great Escape Theme Park,
LLC (Sasquatch Ride), Meeting Date: February 25, 2009 "Project Location: 1172 State
Route 9 Description of Proposed Project: Appellant is appealing to the Zoning Board of
Appeals relative to a January 13, 2009 decision made by the Zoning Administrator
regarding a proposed sign.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing
party aggrieved?
• The appeal, signed on January 15, 2009 was filed on January 15, 2009 with the
Town.
• The appellant is the property owner.
It appears as though this appeal is timely and the appellant is an aggrieved party.
Second, Merits of the argument:
It is the appellants position that the sign permit for the proposed freestanding sign must
be issued consistent with the October 21, 2008 Planning Board decision and the
subsequent December 17, 2008 Zoning Board of Appeals decision.
It is the position of the Zoning Administrator that the sign permit is to be withheld pending
the outcome of the Rehearing Request for Sign Variance 81-2008.
If the Zoning Board of Appeals decides to rehear the sign variance then it would appear
as though this appeal is moot. If the Zoning Board of Appeals decides to not rehear the
sign variance then the sign permit would be issued as soon as all necessary final plans
are submitted, reviewed and signed."
MR. UNDERWOOD-I think what we're going to do initially is we're going to go through
what this process is here. This is a re-hearing request that we're doing here this
evening. This was Sign Variance No. 81-2008, and it looks like Mr. Noordsy is going to
be representing them this evening. Now, do you want me to read the letter? Because
that pretty much explains where you're coming from on that.
MR. BROWN-Well, the letter you just showed me is from the applicant. I don't know if
you're talking about reading my letter to figure out where I'm coming from or?
MR. UNDERWOOD-Your letter is the one I wanted to read, yes. I mean, I'm going to
read that one in at some point anyway into the record, but.
MR. BROWN-You can certainly do that.
MR. UNDERWOOD-Just a minute. All right. This letter is dated January 14, 2009, and
it's addressed to myself. "Dear Mr. Underwood: I am writing to you and the Zoning
Board of Appeals with a request for your Board to rehear Sign Variance application 81-
2008 for the Great Escape. My request for this rehearing is based on my belief that
there has been a material misrepresentation made to your Board relative to the proposed
sign. My belief is based on, and substantiated in, the minutes of the October 21, 2008
17
(Queensbury ZBA Meeting 02/25/09)
Planning Board meeting and the December 17, 2008 Zoning Board of Appeals meeting
as follows: During the October 21, 2008 Planning Board review the tower, signage was
questioned on several occasions. Ultimately the proposed sign was withdrawn from
consideration from the Site Plan Review application with the Planning Board having the
understanding, from the applicant, that; "If there is a request for a sign, we will come
back" (p 14, Lemery). As such, the Planning Board issued a Site Plan Review based on
the ride not having any sign or if there was to be a sign, that the applicant would return to
the Planning Board for discussion on the sign. Subsequently, at the December 17, 2008
Zoning Board of Appeals review of Sign Variance application SV81-2008, the Zoning
Board Chairman asked: "Have you got to go back to the Planning Board to do this,
though?" the answer given; "No" (p 50 Lemery). Next, the Chairman asked: "They
(Planning Board) didn't have a problem with the lumens on it or any of that stuff?" the
answer given; "No" (p 51 Lemery). These answers given to the Zoning Board are
inconsistent with the Planning Board record and the information given at the Planning
Board meeting as there was discussion on the lighting levels for the sign and the
applicant made the statement that they would return (to the Planning Board) for any sign
request, presumably, because they removed the sign proposal entirely from the Site Plan
Review application. If the Zoning Board of Appeals is amenable to a rehearing of SV81-
2008 Iwould further suggest that the Zoning Board of Appeals seek a recommendation
from the Planning Board relative to the sign as the same was a point of contention during
the Site Plan Review process. Attached herewith please find the minutes from both the
October 21, 2008 Planning Board meeting and your December 17, 2008 Zoning Board
meeting. Thank you for your consideration. Sincerely, Town of Queensbury Craig
Brown Zoning Administrator" Okay. Now, we haven't done one of these for a while.
Just refresh our memory. In other words, it's up to us, as a Board, and ultimately
whatever decision the Board reaches, in order for this to re-occur, it's going to have to be
a unanimous decision of the Board?
MR. BROWN-That's correct, and part of the process, it's been notified as a public
hearing. So obviously the applicant gets to come up and give you their side and argue
why they don't want to have a re-hearing, but you're correct, it does have to be a
unanimous decision of the Board to vote to re-hear it. The ultimate decision, if you don't
do a vote to re-hear it, that doesn't have to be unanimous, but it does have to be, it's
treated like the Sign Variance starts all over again.
MR. UNDERWOOD-Okay.
MR. BROWN-So, process wise, I don't know if that answers your question.
MR. UNDERWOOD-Anybody else unclear as to what we're doing here, at this point?
Okay. I think, then, what we'll do is.
MR. URRICO-During normal process, we don't always consult the Planning Board on
signs. So why are we doing that here? Why is that considered a step that was not done
in this instance?
MR. BROWN-I don't think my position is that you didn't consult the Planning Board
before you decided. I'm just saying that the information that you were given at the
Zoning Board meeting wasn't the same information that the Planning Board was given
during their review of the Site Plan.
MR. URRICO-Okay.
MR. UNDERWOOD-But there's nothing, my question would be this. There's nothing that
pre-disposes, in other words, the Site Plan Review, the Planning Board assumed they
were going to review the sign. I mean, it's obvious to me from their October meeting that
they thought at some point something would be coming back to them. At the same time,
if an applicant wishes to pursue a variance for a sign, they can come to us. They don't
go to the Planning Board first of all. So, if you read back through, I mean, this is just my
take on it. Anybody can correct me if they think I'm going way offline here, but in the
initial presentation by Mr. Lemery, the evening that he presented it to our Board, he was
pretty clear that he was presenting to us a request for a variance for a sign out in front of
The Great Escape there. I think he tried to allay our concerns, by, you know,
documenting that they had flown balloons that were not going to be apparent from the
Glen Lake properties that were concerned the evening of our meeting there. I think that
all of us recognize that this was a significant request. It's like, you know, in the hundreds
of percentile greater than what we normally would allow, and not a sign that we would
probably see anywhere. I mean, the only other signs that I can see typical, that typify
these, are up on the Northway that were done back in 60's, for some of the gas stations
18
(Queensbury ZBA Meeting 02/25/09)
in Timbuktu, you know, they appear above the tops of the treetops as you go through
there. I think what you're asking us, here, is to overturn ourselves, based upon the
information that we had that evening. It may not have been where we normally would
have gone because the request was so great, but at the same time, I think that the Board
recognized that the explanation that was presented to us, we did ask some questions,
and I don't know if we want to just take out, the two questions I asked that evening, when
I got answers of no and no, may have been a little bit of a variance from the realities that
you're trying to open up to our eyes in front of us here, but at the same time, the Board
did reach a decision that evening, and I don't think any of us, you know, tried to
backburner this and ignore the fact of what we were doing. I think we were all concerned
because of the great request that was asked for that evening, but at the same time, the
Board deliberated. I think we, in depth, recognized the concerns of the neighborhoods in
viewing the sign. For myself, in the interim, you know, I've gone back down to Ash Drive,
the ride is essentially up as high as it's going to be right now, and I don't see anything
over on Ash Drive period, you know, unless you've got x-ray vision, you can look through
hills and the whole park, I think it would be impossible. The presentation to me that
evening, seemed to be pretty reasonable. I don't think they painted some rosy picture
that wasn't there at the same time. I don't think there was any attempt on their part to
blindside us with something that was going to come back later to haunt us, and even in
the variance, as we worded it, we left in there language saying that if the sky was lit up
significantly by this side, that they were going to turn it off. I mean, that was part of the
agreement here. We recognize that the Park was going to have the sign on it only during
hours of operation. Recognizing that in the summertime months when it is open, that it's
oftentimes light until nine, well past closing time for the Park that they said was going to
be nine p.m., I believe. There were a few, I think we all recognize that in the autumn, like
during the Halloween things, and things like that, that there were going to be some dark
evenings when the sky would be lit up until the Park did terminate their hours of
operation. So, that's simply where I'm coming from there, as an explanation. I don't
know if anybody else wants to add anything at this point.
MR. BROWN-I just have a response, if you care to hear it. It sounds like you're pretty
much.
MR. UNDERWOOD-Sure.
MR. BROWN-Three things. The first thing, the Planning Board is clearly charged with
looking at signs, size, location, placement. That's definitely something that's in their
purview. It's actually listed as the first thing on the list of ten things that they're required
to look at when they do a Site Plan Review. So signs is clearly in the ballgame when it
comes to a Site Plan Review. Secondly, I'm certainly not asking you to overturn yourself.
That's not a request that I would make. I'm simply saying that the information that was
given to one Board isn't the same information that was given to another Board, and if the
information that was given was consistent, both ways, one or both of the Boards may
have come up with a different decision. They may not have, but that leads to the third
thing which is what I'm charged to do, and that's charged to make sure that, you know,
the process is followed correctly, both from the Board's side and the applicant's side, and
if I find any inconsistencies like this, it's my responsibility to bring those things to light. If
you decide to make a decision that that's not important, that's your decision, but I'm just
doing what I'm charged to do.
MR. UNDERWOOD-I don't think that we would try to negate the importance of what your
decision making process is, but I'm a little bit confused, and I think the Board members
are, because if this wasn't ready to go to the Planning Board, why did it come to us first?
I mean, it would have seemed to me that, as a means, in other words, if we're going to
look at the Planning Board review for the project as it went through, you disenfranchised
the Planning Board because you segmented the review process. In other words, they
didn't go through the whole process. They went through 90% of it, minus the sign part of
it.
MR. BROWN-No, that's not entirely correct, and if you read the minutes from the
Planning Board meeting, the applicants made the representation that, you know, based
on the questions from the Planning Board, they removed the sign from the project
proposal, with the caveat that if we do put up a sign, it will be a conforming sign, and I
think that's stated in there several times by the attorney. So the Planning Board had it in
their mindset, and I'm guessing here, but that if there's a sign here, it's going to be a
compliant sign, that we don't really have to worry about. So it didn't have to come to the
Zoning Board in the first case. It only had to come to the Zoning Board after it had Site
Plan Review and they decided to put up anon-compliant sign, and my position is that the
Planning Board approved the Site Plan thinking that they were going to have a compliant
19
(Queensbury ZBA Meeting 02/25/09)
sign on the ride and subsequently they want to come for a nonconforming sign. So
there's a disconnect there between what the Planning Board saw and approved, versus
what the current proposal is.
MR. UNDERWOOD-What was the arrangement in the final EIS for the whole Great
Escape properties as far as signage? I mean, I don't have it.
MR. BROWN-I don't have it in front of me. I don't know.
MRS. HUNT-I have a question. If we let the variance stand, do they have to go back for
a Site Plan Review to the Planning Board, or is that it then?
MR. BROWN-Well, that's a good question. I mean, the record does say that we'll be
back if we put up a sign. I don't know. I haven't really made a determination on that.
MR. UNDERWOOD-Any other Board members have questions at this time?
MR. URRICO-Well, I guess the question would be for me is that, how could we have
known what the Planning Board said? We didn't have those notes available to us.
MR. BROWN-Right, exactly, and I think that's why the Chairman asked the applicant
what did the Planning Board say, and based on the answers you got from the applicant,
you understood that the Planning Board didn't have a problem with the sign.
MR. URRICO-But I think that, in the future, we shouldn't even hear the case without
having those notes with us.
MR. BROWN-Or a recommendation from the Planning Board.
MR. URRICO-We'd have to have something. I think we wouldn't have known, in any
case, what the situation was. We're finding out about it, essentially, two months later.
MRS. JENKIN-I do have a question, Craig. It's very clear in the minutes, with the
Planning Board minutes, that Mr. Lemery said that if they did a variance for the sign, they
would come back to the Planning Board. It's here and I can read it, the whole thing. If
the sign is in the compliance with the, well, first of all, I'll read it, there may be a request
for a sign. If there's a request for a sign, we will come back. If the sign is in compliance
with the Ordinance, then that is the end of it. If the sign doesn't comply, and we want to
put up a sign at the top of the site, if any sign is up there, it would simply be a sign, either
a Great Escape sign or a Sasquatch sign, but it hasn't been designed. Nothing's been
done with regard to it, and we'd have to come back and seek that approval, and if there
was a sign, and if there was, it would require a variance by the Zoning Board, and that
sign would not be visible by anyone at Glen Lake because it would not be higher, but it
said they would definitely come back and seek approval. Mr. Lemery was not clear, and
whether it's his responsibility to actually use the same words that he used at the
Planning Board to us when he was asked about the Planning Board, and he did not say
that he, that it was clear in the Planning Board that they would come back for a variance,
or they would come back if they decided to put up a sign. So I don't think it was clear to
us, and Mr. Lemery did not give us that information which is he required to give us this
information when he was very, very clear with the Planning Board that he would come
back and yet he didn't tell us?
MR. BROWN-Is he required to tell you the same information he told the Planning Board?
MRS. JENKIN-Right.
MR. BROWN-I would think so.
MRS. JENKIN-That's what your argument is, is he was very specific with the Planning
Board what he would do, but he was not as specific with us. Is that correct?
MR. BROWN-That's the concern I'm trying to bring to the table and see if it warrants a
re-hearing, in your opinion.
MR. NOORDSY-Are we going to have our chance to address this?
MR. UNDERWOOD-Yes, you are. Why don't you guys come on up now.
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(Queensbury ZBA Meeting 02/25/09)
MRS. JENKIN-Well, you know, with this information that's been given us, I think it's
legitimate.
MR. UNDERWOOD-All right, and here's where I think we need to go. The evening that
this was presented to us, in this packet that was provided by the applicants, you guys
have them in front of you now. Why don't you open up to Page 48, okay. In the
introduction here by Mr. Lemery at the time, all right, I believe it was a pretty thorough
explanation as to what was being proposed, what the possible implications of the
placement of that sign, and I believe, what, at the 150 foot level, or 155 foot, I believe is
maybe.
MR. NOORDSY-One eighty-five.
MR. UNDERWOOD-One eighty-five. Okay. I think that the explanation was such that it
was an explanation that, in regards to viewing the sign from various angles, up on Route
9, over at Glen Lake, etc., I think there was a pretty apt description as to the balloon
tests, and there were quite a few follow up questions from Board members at the time,
too, before we opened up the public hearing that evening.
MRS. JENKIN-Absolutely.
MR. UNDERWOOD-The explanation seemed pretty thorough to me, and I think if you go
back and read Page 48 there, I don't think there was an subterfuge on the part of the
applicants to try and, you know, basically pull the wool over our eyes in that respect. I
mean, you're going to make your own judgments as far as that goes. Does everybody
want to take the time to read back through that themselves for a few minutes here, on
Page 48?
MR. CLEMENTS-I have. I don't know if you want me to make a comment.
MR. UNDERWOOD-Okay. No, no. Because what I'm going to ask you to do is I want to
go down and just ask you individually if you thought that that was a thorough explanation
or not, and if you had any problems or concerns with it. So, Brian, why don't you start.
MR. CLEMENTS-Okay. Well, I'd like to say that reading through the text and
specifically, and more specifically the highlighted text, from both Mr. Brown's and Mr.
Lemery's copies of minutes. I really think that there was a miscommunication between
Mr. Lemery and the Planning Board. I think that when Mr. Brown said that if there's a
request for a sign we'll come back, Page 14, I think the question there is come back to
who? The Planning Board or the Zoning Board. I think that there's an interpretation
there, and I think it was kind of left up in the air, and I don't think either side new
specifically. Later on when it says to the Planning Board, I think Mr. Lemery's words
were very careful not to mention the Planning Board, and therefore, again, was left up in
the air. So, I guess my point is that I think that that night that we did get a good idea of
the overall project, and that's kind of where I'm at.
MR. NOORDSY-Mr. Chairman, I'm sorry to interrupt, but before you poll the Board, I just
would appreciate getting a chance to put our.
MR. UNDERWOOD-I'm not really polling. What I'm asking the Board is, I think that, you
know, we've all had plenty of time to research, to go back and read the record, and I
think I just want to get a feeling from my Board members of how they're feeling towards
the way it was presented to us, because I think if you look at it from the Planning Board
side of the coin, if you look at it from our side of the coin, presenting to our Board, we
were not apprised of the Planning Board's previous, we weren't provided those minutes
prior to our meeting, as far as my knowledge goes. We didn't have any knowledge of
where the sign was with them or whether it was even part of their purview at that point in
time, and I just simply interjected a couple of questions in there asking that. Let's just
continue. Joan?
MRS. JENKIN-Yes. I think we thoroughly went over the explanation about the sign. The
questions we asked, the answers we got were extremely clear, and I had no problem
with approving that variance, but it seems that that's not the issue. I think that, given the
information that we had, I think that it was very clear, and they were very forthright about
the type of sign it was going to be, the type of illumination the sign itself would have, but
the thing is that it was not mentioned that they had told the Planning Board that if they
decided to put a sign up they would come back to the Planning Board. It's very clear in
the minutes that they were going to come back to the Planning Board. For what reason,
I don't know, but the thing is, we weren't told that. We discussed every little aspect of the
21
(Queensbury ZBA Meeting 02/25/09)
sign. We were satisfied with everything about the sign. I think that we made a good
decision about the sign, but that's not what the Zoning Administrator is talking about is
not whether we made a good decision or not. He's talking about whether we got the
complete information about the fact that Mr. Lemery had said they were going to go back
to the Planning Board if they decided to put up a sign.
MR. NOORDSY-I apologize, again, Mr. Chairman, but as Mr. Clements pointed out, Mr.
Lemery was very careful not to say. We'll be back means we'll be back to the Town.
We'll be back. We'll make our application to the Zoning Administrator. If it's compliant,
that's the end of it. If it's not compliant, then we go to the Zoning Board. That is what he
said in response to the question. I agree that at least one member of the Planning Board
thought that it would have to come back, but his response was, the next page, we'll make
our application for a sign permit, if we decide to go forward, and if it's not compliant, we'll
go to the Zoning Board. He did not say we'll come back to the Planning Board.
Everyone's focusing on we'll be back, but he didn't say back to the Planning Board.
We'll be back to the Town. We'll be back and do our application process, and that's what
we did. We followed the right procedures, and I think when you asked those questions,
and I do feel that it was not correct to be pulling sentences out of context without
discussing everything that did transpire, and we never received a copy of that letter that
you read from the Zoning Administrator to you. I've never seen that or heard that until
just now. When you asked those questions, we ended up with a discussion about the
difference between the up lighting that the Board had approved and the lighting and the
sign which they hadn't approved, because we pulled that application, we pulled the sign
from that application before that went to the Planning Board. It wasn't in response to
what was happening that night. It was pulled. It was a decision that was made before.
We went there because we realized we weren't firm on where we were going with that
sign, what we wanted it to say. It was pulled before we went there. It wasn't in response
to what they were asking. I just think we were, the fact that after you asked those
questions, then there was public comment, and Mr. Lemery came back and went through
again, okay, let me be clear on what the procedure is. This is what we said we would do,
and I can go through all the details on these minutes if you'd like, in fact, I will read that.
MR. UNDERWOOD-Okay. Why don't we hold off on that for a moment, because I want
to get through the rest of the Board members here. John, were you sitting that night?
MR. ZANGHI-Yes, I was.
MR. UNDERWOOD-Any concerns you have or what's your take?
MR. ZANGHI-I thought we had a very good discussion and a very extensive discussion
and I felt we made it, you know, we understood what we were talking about at that time,
and I tend to agree that it's vague where they would bring it back. So I'm very
comfortable with what we did that night.
MR. UNDERWOOD-Okay. Rich?
MR. GARRAND-I wasn't here, but I read the transcripts, and basically I'm going to focus
my decision on between what's Staff contention is and what the applicant's contention is
with regard to this.
MR. UNDERWOOD-Sure. Okay. Joyce?
MRS. HUNT-Yes, well, I think we did a very thorough job when we took this variance on,
and we certainly asked a lot of questions and covered a lot of ground, and I'm happy with
the decision we came to.
MR. UNDERWOOD-Roy?
MR. URRICO-In my estimation, this was an a-typical application. We have not, in the
past, relied on the Planning Board's input. In many cases, it comes to us first and we
make our decision on the variance and then it goes to the Planning Board for Site Plan.
That's usually the way the applicant prefers to deal with it. I mean, we've done many of
these Sign Variances since I've been here, and I think this was thoroughly presented to
us. I think the information was there. We asked a lot of questions, probably as thorough
as we've been, probably more thorough because of the unusual situation, and how often
do we deal with this, you know, an amusement park setting. We only have two in Town
that fit this criteria. So I think we were pretty thorough, and I'm satisfied with the
information that was presented that night.
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(Queensbury ZBA Meeting 02/25/09)
MRS. JENKIN-Jim, I, when I read the minutes, too, I didn't understand, and I still don't
understand, why they would have had to come back to the Planning Board, but it was
inferred in this statement that they would come back, but I don't, I also wonder what Mr.
Urrico just said, I understood that signs were supposed to come here, for a variance. If
we need a variance, then the signs come here and then they go for Site Plan Review. I
didn't understand why, except that it's here in the minutes of the Planning Board.
MR. UNDERWOOD-And since we got that after the fact, that's kind of.
MRS. JENKIN-Right.
MR. UNDERWOOD-That's a definite moot point on our part. I would echo Roy's
sentiments, too, you know, applicants come in and ask us for variances all the time. We
have the ability, within what our parameters that we work under are, to request the
Planning Board's recommendation, and I think that that was a possibility that we could
have gone to that evening, but I think after the explanation, after the questioning of the
Board, even despite the comments from the neighborhood up there, the fears of the
Board were pretty much allayed as to whether the sign was going to be a detriment to
the neighborhood or the greater Town of Queensbury. It was an extraordinary oddball
request because we've never had a sign at that height above the ground proposed
before, and I think that everybody asked a lot of important questions. The answers that
we received, as all the Board members have said, were such that everybody's fears
were sort of allayed. No one had any real concerns going forward, and I think that the
Planning Board aspects of it, even if it did go back to them, had we already approved the
variance, that was it, you know, I mean, unless we'd done something absolutely
monumentally long in our thought process here, and, all right, why don't I give you guys a
few more minutes of your time.
MR. NOORDSY-For the record, my name is Mark Noordsy. I am an attorney with the
Lemery Greisler law firm. With me is Don McCoy, the President of The Great Escape,
Eric Lute, the Marketing Director, and Rick Marshal, of Marshal Signs, the company
that's constructed the sign, and, you know, I will mention after we left here on December
17t", after the unanimous approval, the sign was ordered, and it's been constructed. It's
on the grounds. This delay has caused a lot of time and money to The Great Escape.
Procedurally, let me address procedure and then I'll address the minutes. Mr. Chairman,
you just made the comment that you could have asked for Planning Board input.
Certainly that provision is within the Code, but it's not a requirement. The Chapter 140,
with regard to signs, provides a procedure for an application to the Zoning Administrator,
and then if that's denied, as obviously would be denied in this case, then you come here
to the Zoning Board for a variance. There's no requirement of any Planning Board
involvement. Once the Zoning Board issues it's decision, a permit should be issued, and
that's the second part of this, the next item on the agenda, is our appeal asking for
direction that that permit be issued. So, we followed the procedures correctly. As far as
what was discussed, there was no misrepresentation or any intention to deceive. Again,
I mean, you can pluck things out, but if you go to that Planning Board meeting, and
sometimes when these things get printed out, the page numbers may be different, but
I`m looking at what I submitted to you, on Page 14, and Mr. Lemery said, if there is a
request for a sign we will come back. If the sign's in compliance, that's the end of it. If it
doesn't comply, and I'm paraphrasing, it's either going to be a Great Escape sign or a
Sasquatch sign, that's why we had withdrawn at that point, because that decision hadn't
been made, if we make that decision, we'll come back and seek that approval, and if it
was, it would require a variance by the Zoning Board. He is not talking about coming
back to the Planning Board for Site Plan approval. He's talking about following the
process of Chapter 140 with regard to signs, and then when we were before you, the
Chairman asked, I'm looking at Page 50 of what we submitted, have you got to go back
to the Planning Board, and Mr. Lemery said no. Mr. Underwood asked, they don't have
a problem with the lumens on it or any of that, and Mr. Lemery said no, but then the
discussion continued. Mrs. Jenkin asked about the up lighting and then Mr. Lemery
clarified the up lighting had been approved. We had received a waiver for it. It's
necessary in order for the operator to be able to see up and see the folks that are up
there on the ride, but they had approved that, but that was a separate issue from the
lighting and the sign, and then on Page 53 Mr. Lemery says, we told the Planning Board
that we would come to the Zoning Board for the signs because at the time we went to the
Planning Board, the designers had not determined what the sign would look like. Then
on Page 54 and 55, there's a long discussion about, as you'd mentioned, about the effect
of the lighting, and as you mentioned, that was included as a condition in your approval.
Lighting and the effect of the lighting was discussed. Procedures were properly followed.
There wasn't any intention to deceive. Our request is that you deny the request fora re-
hearing, and on the appeal that's the next item, that you direct that the sign permit be
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(Queensbury ZBA Meeting 02/25/09)
issued. As I mentioned, the sign is on the grounds, in reliance on the approval that was
granted on December 17t". We didn't receive anything to the contrary, until I believe
about four weeks later. There wasn't any self-created hardship in our going ahead and
getting the sign constructed. We were acting in reasonable reliance on this Board's
decision. Certainly I'll concede that, if you look at certain sentences, they may be
confusing, but if you looked at the whole thing, I think the intent was clear, and there was
no intent to deceive. So we would appreciate you directing that this permit be issued. If
you have any questions, please let me know and I'd be happy to address them.
MR. CLEMENTS-I think I have one comment. I think I agree with you that there was no
intention to deceive, but I think that there was an intention to be vague, and I think that's
really where we are. Not that that's wrong. I'm just saying that it was vague, and for
whatever reason, whether he did not say Planning Board, Mr. Lemery I'm talking about,
Planning Board or Zoning Board, I think there was an intention to be vague about that,
and I don't know whether that was because he didn't know whether he had to come back
to the Planning Board, if it was not going to be a compliant sign, whether he had to go to
the Zoning Board for, you know.
MR. NOORDSY-Well, I think the point he was making is that if it's compliant, it's
compliant. The permit gets issued, but he does say on Page 14 that if it's not, then that
requires a variance by the Zoning Board. I mean, he did say the Zoning Board. There
are statements that we'll come back, but, and I was there. I really understood that to be
we'll come back to the Town and deal with the Town, you know, go through the Town
procedures. It doesn't say back to the Planning Board.
MRS. JENKIN-If we're looking at exact wording, you're absolutely right, because it does
not specify that they will come back to the Planning Board. It just says we will come
back. So that can be inferred either way, and so the argument that you've given,
because three lines down they do mention coming back to the Zoning Board, it could be
inferred that way. Very difficult, but.
MR. UNDERWOOD-Well, do Board members have any other questions you want to ask
of the applicants or Mr. Brown or amongst ourselves? Okay. Then I guess what I'm
going to do is this. I'm going to read through what the request to us was, and then I'm
going to ask you for your decision. The Zoning Administrator is requesting to the Zoning
Board of Appeals re-hear Sign Variance application site variance 81-2008, due to his
view that there was inconsistency between the Planning Board record and the Zoning
Board of Appeals record on this issue, and specifically that's what we're going to make a
decision on here at this point.
MR. BROWN-Just to keep things tidy all the way through, I think what you want to do is
make a motion to re-hear, and then if it doesn't pass, then that'll be the way to close it
out.
MR. NOORDSY-Well, if I may respond, I think there's only a motion to re-hear if
someone favors a re-hearing.
MR. BROWN-Right, but that's why you vote, and if the vote doesn't carry, then it doesn't
pass.
MR. NOORDSY-Well, you can make a motion to not re-hear.
MR. UNDERWOOD-Okay. Then I guess at this point I'll make a motion.
MOTION THAT THE TOWN OF QUEENSBURY ZONING ADMINISTRATOR
REQUESTS THAT THE ZONING BOARD OF APPEALS RE-HEAR THE APPLICATION
SIGN VARIANCE NO. 81-2008 GREAT ESCAPE THEME PARK, LLC (SASQUATCH
RIDE) DUE TO MATERIAL MISREPRESENTATION OF INFORMATION. THE
ORIGINAL APPLICATION WAS FOR RELIEF FOR A NEW FREESTANDING SIGN. I
WILL MAKE THE MOTION THAT AT THIS POINT IN TIME IT DOES NOT APPEAR
THAT THE BOARD WISHES TO RE-HEAR THIS APPLICATION, AND BASED UPON
THE INFORMATION THAT WAS PROVIDED TO US WHEN WE APPROVED THIS
APPLICATION, THE BOARD FEELS COMFORTABLE WITH THE DECISION MAKING
PROCESS THAT WE WENT THROUGH, THAT WE WERE VERY THOROUGH IN
OUR ANALYSIS, AND THAT AT THIS POINT IN TIME, WE DO NOT FEEL THAT
THERE WAS ANY MATERIAL MISREPRESENTATION BY THE APPLICANT, THE
EVENING THAT IT WAS PRESENTED TO US. SO THIS WILL BE A DENIAL OF THE
REQUEST OF THE ZONING ADMINISTRATOR., Introduced by James Underwood who
moved for its adoption, Seconded by Roy Urrico:
24
(Queensbury ZBA Meeting 02/25/09)
Duly Adopted this 25t" day of February, 2009, by the following vote:
MRS. HUNT-It's not really clear, though. You want a denial of the request for re-hearing.
MR. UNDERWOOD-So this will be a denial of the request of the Zoning Administrator.
MR. BROWN-So a yes vote means do not re-hear it.
MR. UNDERWOOD-Yes, that's correct.
MR. BROWN-Okay.
AYES: Mr. Urrico, Mrs. Hunt, Mr. Clements, Mrs. Jenkin, Mr. Zanghi, Mr. Underwood
NOES: Mr. Garrand
NOTICE OF APPEAL NO. 1-2009 SEQRA TYPE: N/A LEMERY GREISLER, LLC
MARK NOORDSY FOR THE GREAT ESCAPE AGENT(S): LEMERY GREISLER, LLC
MARK NOORDSY OWNER(S): THE GREAT ESCAPE THEME PARK, LLC ZONING:
RC-15 LOCATION: 1172 STATE ROUTE 9 APPELLANT IS APPEALING A JANUARY
13, 2009 LETTER OF DETERMINATION FROM THE ZONING ADMINISTRATOR
REGARDING PLACEMENT OF A 87.5 SQ. FT. SIGN LOCATED NEAR THE TOP OF
THE APPROVED SASQUATCH RIDE. CROSS REF.: SV 81-2008, AV 80-2008; BP
2008-610 (SIGN PERMIT FOR SASQUATCH RIDE); BP 2008-610 (SASQUATCH RIDE
FOUNDATION); SPR 41-2008 WARREN COUNTY PLANNING: N/A LOT SIZE:
237.64 ACRES TAX MAP NO. 288.20-1-20 SECTION: CHAPTER 179, ARTICLE 4;
140; 179-16-100
MARK NOORDSY, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Notice of Appeal No. 1-2009, Lemery Greisler, LLC Mark Noordsy for
The Great Escape, Meeting Date: February 25, 2009 "Project Location: 1172 State
Route 9 Description of Proposed Project: Appellant is appealing to the Zoning Board of
Appeals relative to a January 13, 2009 decision made by the Zoning Administrator
regarding a proposed sign.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing
party aggrieved?
• The appeal, signed on January 15, 2009 was filed on January 15, 2009 with the
Town.
• The appellant is the property owner.
It appears as though this appeal is timely and the appellant is an aggrieved party.
Second, Merits of the argument:
It is the appellants position that the sign permit for the proposed freestanding sign must
be issued consistent with the October 21, 2008 Planning Board decision and the
subsequent December 17, 2008 Zoning Board of Appeals decision.
It is the position of the Zoning Administrator that the sign permit is to be withheld pending
the outcome of the Rehearing Request for Sign Variance 81-2008.
If the Zoning Board of Appeals decides to rehear the sign variance then it would appear
as though this appeal is moot. If the Zoning Board of Appeals decides to not rehear the
sign variance then the sign permit would be issued as soon as all necessary final plans
are submitted, reviewed and signed."
MS. RADNER-It is moot, at this point, gentlemen. The re-hearing has been denied.
There's nothing further that needs to be done. The Zoning Administrator's concerns that
25
(Queensbury ZBA Meeting 02/25/09)
this Board may have been mislead have been addressed, and there's nothing further to
discuss.
MR. UNDERWOOD-Okay. So, I guess, would you like any kind of closure on this?
MR. NOORDSY-Yes. We have one other request. As you know, the towers are up. The
crew is ready to put the cap on tomorrow. They've been held up a few days waiting for
this evening. They're from Houston. They're expensive. What we would like to be able
to do, the sign affixes to the cap. What we'd like to be able to do is do this all at once
and send the crew home. It will cost us a lot of money, and we can be here tomorrow
morning whenever you open with whatever plans are necessary to get that permit, but
we would like to be able to put that sign up tomorrow.
MR. UNDERWOOD-So is this pending the issuance of that permit for the sign?
MR. NOORDSY-Yes, we need that permit.
MR. UNDERWOOD-And has that been held up based upon his request?
MR. NOORDSY-Yes.
MR. UNDERWOOD-So, you would like, I mean, I don't know if that's something that we
can dictate. I don't think so.
MR. NOORDSY-As long as Craig is here.
MR. UNDERWOOD-Craig is here. You can ask him.
MR. BROWN-No, it's not, and that's why I wrote the notes the way that I did, that once
we get the final, as discussed earlier, the final three sets of plans submitted for that Sign
Variance and they coincide with the plans that have been submitted for the Sign Permit,
then, yes, we'll issue the sign permit, then, yes, we'll issue the sign permit tomorrow
morning.
MR. UNDERWOOD-Okay.
MR. NOORDSY-Then what we would like to do is be here when you open. I just want to
make sure that we've got what you need.
MR. BROWN-Eight o'clock.
MR. NOORDSY-We'll be here. Now, the sign has not, if I may, the sign has not changed
from when we submitted the application. You just need three copies of that?
MR. BROWN-Unless there were any specific conditions that the Zoning Board placed on
the Sign Variance, then you want to have those conditions listed on the plan, and three
of those, and then we'll be all set.
MR. NOORDSY-All right. I can make it. Fine. We'll be here. Thank you.
MR. BROWN-All right. Sure.
MR. UNDERWOOD-Okay. Thank you.
NOTICE OF APPEAL NO. 2-2009 SEQRA TYPE: II MASTOLONI FAMILY, LLC ED
MASTOLONI AGENT(S): BRIAN S. REICHENBACH, ESQ. OWNER(S):
MASTOLONI FAMILY, LLC ZONING: WR-1A LOCATION: 18 NEIGHBORS WAY,
ASSEMBLY POINT APPELLANT IS APPEALING A JANUARY 9, 2009 LETTER OF
DETERMINATION BY THE ZONING ADMINISTRATOR REGARDING CALCULATION
FOR REQUIRED SHORELINE SETBACK; SECTION 179-4-030, SCHEDULE OF AREA
AND BULK REQUIREMENTS, NOTE 4. CROSS REF.: BOH 28, 2009; BP 6060 DOCK
YR. 1979; BP 7463 YR 1982; MAJOR STORMWATER PROJECT, AV 9-2009
WARREN COUNTY PLANNING: N/A LOT SIZE: 0.54 ACRES TAX MAP NO. 226.15-
1-29 SECTION: 179-4-070
BRIAN REICHENBACH & TOM HUTCHINS, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
26
(Queensbury ZBA Meeting 02/25/09)
Notes from Staff, Notice of Appeal No. 2-2009, Mastoloni Family, LLC Ed Mastoloni,
Meeting Date: February 25, 2009 "Project Location: 18 Neighbors Way Description of
Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to a
January 9, 2009 discussion and a subsequent January 15, 2009 written decision made
by the Zoning Administrator regarding a shoreline setback.
Staff comments:
First, Standing:
Was the appeal taken within the appropriate 60 day time frame and is the appealing
party aggrieved?
The appeal, signed on January 14 and 15, 2009 was filed on January 15, 2009
with the Town.
• The appellant is the property owner.
It appears as though this appeal is timely and the appellant is an aggrieved party.
Second, Merits of the argument:
It is the appellant's position that the shoreline setback requirement has been incorrectly
applied to the property by the Zoning Administrator. Specifically, the appellant suggests
that, in the absence of two adjoining structures the 50 foot minimum setback must be
applied.
It was the determination of the Zoning Administrator that the house nearest to the
shoreline on the one and only adjoining property (also owned by Mastoloni) be used as
the minimum shoreline setback requirement for the subject property. As discussed on
two occasions (most recently 2/20/09) with the appellant's agent; the one and only
adjoining property actually has TWO structures. As such, it would appear as though the
originally determined 116 foot setback would increase to that of the average setback for
the two existing structures on the adjoining property as the second, not previously
considered structure, is further from the shoreline."
MR. UNDERWOOD-Okay. I think what I'll do then, initially, too, is to read in Mr. Brown's
letter to the Mastoloni Family, LLC, because that sort of explains how he reached his
conclusions. This is dated January 15, 2009. "Dear Mr. Mastoloni: I am writing you
with regards to the above-referenced project in order to document our conversations of
January 9, 2009 with your agents, Tom Hutchins and Brian Reichenbach relative to the
same. As discussed, your project will require an Area Variance from our Zoning Board of
Appeals as well as Site Plan Review from our Planning Board. Specifically, your
proposed residential additions do not meet the minimum side yard property line setbacks
and shoreline setback requirements as required by the Waterfront Residential, (WR-1A)
zoning district. Additionally, your project includes the expansion of anon-conforming
structure within a Critical Environmental Area (CEA), this item also triggers both reviews
listed above. Further, please note that the applicable shoreline setback requirement
shall be calculated according to our §179-4-030; Schedule of Area and Bulk
Requirements. It is my determination that this measurement is to be taken from the
closest point on the building located on the one and only adjoining parcel also owned by
you and referenced as parcel 226.15-1-28 and that this setback shall be the applicable
standard for this project rather than the 50 foot minimum (see footnote (4) on the above
reference Area and Bulk table). Finally, please note that this project will be treated as a
Major stormwater project due to the amount of disturbance in proximity to the shoreline
of Lake George, concerns regarding soil conditions and that the entire project site is
within the Lake George CEA. I understand that your agents are preparing the necessary
application materials for your project. Please note our established submittal deadlines,
which are the 15t" of every month, if you wish to have your project considered for
placement on an upcoming agenda. Should you have any questions or comments
regarding your application, please do not hesitate to contact this office. Sincerely, Town
of Queensbury Craig Brown Zoning Administrator" I believe this would have been in
response to this, and this is a letter from Stafford, Carr, McNally, P.C. Attorneys At Law,
and it's addressed to myself. "Dear Mr. Underwood: This firm represents Edward
Mastoloni and the Mastoloni Family LLC regarding their proposal to renovate a 4
bedroom house the LLC owns at 18 Neighbors Way in the Town of Queensbury. Please
accept this letter as an appeal of a decision rendered by the Town Zoning Administrator.
On January 9, 2009, Tom Hutchins and I met with Craig Brown, Zoning Administrator of
the Town of Queensbury to discuss our client's project. At the meeting, Mr. Brown
indicated that he considered the proposed alterations of the former Binley house to be
subject to "Table 4, Footnote 4" of the Queensbury Zoning Ordinance Summary of
27
(Queensbury ZBA Meeting 02/25/09)
Dimensional Requirements. The dimensional requirements provide that the proposed
alterations, located in a Waterfront/Residential 1 Acre zone, would be subject to a 50 foot
setback from the waters of Lake George. The footnote, however, provides for an
alternate calculation of a required setback that consists of "or the average setback of the
two (2) adjoining principal buildings, whichever is greater". Since the only adjoining
building is 116 feet from the water and the house my clients propose to alter is at most
approximately 75 feet from the water, it would require an additional variance from the
Town. There is no part of the existing structure that is 116 feet from the lake. There is
likewise no part of the parcel that is 116 feet from the lake on all sides. Our opposition is
that the correct setback is 50 feet. The table and the footnote, read together, provide for
two alternative setback computations. The first required setback is 50 feet. The footnote
then offers a calculation if, and only if, there are two adjoining buildings. In this case
there is only one adjoining building, so the average of two adjoining setbacks does not
exist. In this case where a statute or ordinances offers two alternatives, and one does
not exist, basic rules of construction compel adoption of the one possible alternative.
Reading a preference or additional condition that does not exist in the statute or
ordinance into the ordinance is not proper or allowable, nor is changing the plain
meaning of the word "two" to one. I respectfully request the opportunity to argue this
appeal at the Board's meeting at which the Mastoloni's remaining variances will be
considered. In the event the Board decides to deny this appeal, please consider our
application for variance from the setback requirements in Table 4, Footnote 4 as set forth
in our variance application. Thank you for your attention. Very truly yours, Brian S.
Reichenbach" So, again, what we're doing here is the appellant is appealing the letter of
determination of the Zoning Administrator regarding the calculation, and so I think maybe
first of all, I'm not sure whether we should go to you, Craig, first, and ask for your
explanation, or we'll just go right to you guys, I guess.
MR. REICHENBACH-That's fine. I'd like to introduce myself. I'm Brian Reichenbach. I
wrote the letter. I represent Mr. Mastoloni, who is here on the far end of the table, and
Tom Hutchins is the engineer on the project. Mr. Brown has imposed between a 116
foot and a 130 foot some setback, based on his reading of the famous Table 4 Footnote
4, and you can't see it from where you are, but we'll get to all that. Footnote 4 purports to
summarize the actual shoreline setback contained in the Zoning Ordinance. This is not
the actual Zoning Ordinance, as you all may know. The actual Zoning Ordinance is in
the text of the Ordinance. This is a summary, Table 4 Summary of Dimensional Bulk
Requirements. Since the alternative setbacks in this table, you can't read it from where
you are, is 50 feet, or the average setback of the two adjoining principal buildings,
whichever is greater, and that's way down here on the bottom in the tiny print. Since
there's only one adjoining lot, Mr. Brown has interpreted that to mean that he computes
the average setback of the two structures on that one adjoining lot, and he arrives at an
average setback somewhere between 116 and 130 feet. Our position is that the
Ordinance can't be interpreted that way properly, and there are a number of reasons for
that. There's an overwhelming and very well settled principal of law in New York, that is
that zoning rules are in derogation of the common law principal that a property owner
can do whatever he wants with his property. Since they are in derogation of that
common law right, they have to be construed strictly against the regulator. In this case,
the Town. What that means is that Mr. Mastoloni is entitled to every benefit of the doubt
when you construe the language of the Ordinance. The Zoning Administrator has not
interpreted the right language here. This table, as I indicated, is not the Zoning
Ordinance. The actual Zoning Ordinance is set forth in Section 179-4-070, Shoreline
Setbacks, and the wording there is different, and the differences are very important. The
wording here is again, an alternative calculation. It's 50 feet or the average setback of
the houses on the two adjoining lots, whichever is greater. That speaks to two adjoining
lots, not two adjoining buildings. There are no two adjoining lots in this case. There's
only one adjoining lot. There's another legal rule that we have to respect here, which is
that if there is a re-statement or a summary of a legal rule, and it's in conflict with the
actual text of the rule, the text of the rule has to be followed, and you have to disregard
anything that's at variance with that. Queensbury Town Board, I think, back in 2002,
passed this language, not the language of the summary table. This is the text that is part
of the Ordinance. This is what must be followed. Again, this language is also an
alternative. You have 50 feet, the greater of 50 feet, or the average setback of the
houses on the two adjoining lots. Miriam Webster defines adjoining as touching. Clearly
there's only one lot here that touches Mr. Mastoloni's property. The language of the
actual rule here is the two adjoining lots, not the one. The Zoning Administrator is not
free to substitute his own construction, two houses on one lot, but the plain language of
the statute here, which is two of the houses on the two adjoining lots. In the context of
the rule of strict construction, the only interpretation that makes sense is that there are
not two adjoining lots, so the applicable setback has to be the one alternative that does
exist, 50 feet. That's the only one that you can actually compute. Now, even if you
28
(Queensbury ZBA Meeting 02/25/09)
consider the language of the table, the Zoning Administrator's interpretation can't stand a
close scrutiny. The Footnote refers to two adjoining principal buildings. There can't be
two principal buildings on one lot. There can only be one principal building. That's the
meaning of the word principal. If you adopt his construction, you then render the word
principal meaningless. There's another basic rule of statutory construction in New York
that you can't render a word in the Statute meaningless. You have to give meaning, it's
plain meaning, to every word in the law. Additionally, buildings can't be adjacent.
Buildings don't touch other lots in Queensbury, there are setbacks. Lots touch other lots.
There can't be adjoining buildings. Only adjoining lots. So what we have here is that the
only interpretation that makes any sense, is to look at the actual language of the Code,
not the Summary that conflicts with it, and apply it to mean what it says, the average of
the setback of the houses on the two adjoining lots, or 50 feet. That language gives us a
choice, since one choice, the average setback of the houses on two adjoining lots,
doesn't exist, we have to adopt the other alternative, which is 50 feet. For all those
reasons, we would ask that you overturn Mr. Brown's decision here and decide that the
applicable setback here is 50 feet. Thank you.
MR. UNDERWOOD-Could I ask a couple of questions here? The Mastoloni properties,
as they currently exist, have they been co-joined from previous separate properties, or
has it always been one large group here? The Binley property, obviously, is the point
that we're concerned with here, for the proposal.
MR. REICHENBACH-The Mastoloni Family LLC purchased the Binley property. There's
a separate LLC that owns the other property.
MR. UNDERWOOD-Okay.
MR. REICHENBACH-They're two separate owners.
MR. UNDERWOOD-Those two homes on that other lot there, though, I mean, was that
always a single lot with two houses on it, or was it separate lots?
MR. REICHENBACH-Originally it was two.
MR. UNDERWOOD-So there were two lots there.
MR. REICHENBACH-Right.
MR. UNDERWOOD-Okay.
MR. REICHENBACH-We don't know whether one of those lots adjoined the Binley
property at some point in the past or not.
MR. UNDERWOOD-Yes, what the original configuration was. How about the lot to the, I
guess it would be to the south of the Binley lot there where the dock complex is there.
Was that part of the Binley?
MR. REICHENBACH-That is not.
MR. UNDERWOOD-That was a separate lot also?
MR. REICHENBACH-I'm sorry. My apologies, sir. That's all one, that one line, some of
the lines on some of those drawings, it's difficult to determine. This is all one plot.
MR. UNDERWOOD-So the Provenzano lands to the south of that, that's?
MR. REICHENBACH-That's a separate lot.
MR. UNDERWOOD-That's a separate lot.
MR. REICHENBACH-This is all one parcel.
MR. UNDERWOOD-Right.
MR. REICHENBACH-This is the parcel we're talking about.
MR. UNDERWOOD-But we can assume at some point in time that was joined back
together to make it into one large parcel with its odd shape. It doesn't appear that it
29
(Queensbury ZBA Meeting 02/25/09)
probably would have been any kind of a natural subdivision, you know, with that many
odd angles to it.
MR. REICHENBACH-I don't know. I'm not aware of that happening. I don't know what
happened.
MR. BROWN-Mr. Chairman, I may have a short answer to this. If, in either of the
conversations I had with Counsel, he had brought this argument to my attention, I
probably would have conceded at that point. So, I mean, he's correct. There's a conflict
in the Code, it's written in two different ways, and the way that he's brought to my
attention here tonight about the houses on two adjoining lots, I think it's a good argument
and I think that the 50 foot setback is the one that applies.
MR. UNDERWOOD-Okay. So basically you're comfortable with changing your mind on
this issue?
MR. BROWN-That's correct.
MR. REICHENBACH-I didn't sandbag you.
MR. BROWN-No, that's okay.
MR. REICHENBACH-I just learned this last night, basically.
MR. UNDERWOOD-Okay. So, I guess at this point in time then, Notice of Appeal No. 2-
2009 is no longer required?
MR. BROWN-Well, I think if you want to close out the file, I think the appellant could
withdraw the application, based on my comment that I concede, and that their position is
correct, that 50 feet is the correct setback to use.
MR. UNDERWOOD-Okay. Do you want to just withdraw that part of the application,
then?
MR. REICHENBACH-Yes, if we agree that the 50 foot setback is the correct setback,
then we have no need for an appeal because.
MR. UNDERWOOD-Okay. That's fine with us. Then I guess what we'll do is we'll notice
withdrawal of Appeal No. 2-2009, because the agreement has been worked out with the
Zoning Administrator and we will note that the 50 foot requirement for shoreline setback
is in effect.
MR. BROWN-That's what will apply for the variance which is the next one.
AREA VARIANCE NO. 9-2009 SEQRA TYPE: II MASTOLONI FAMILY, LLC ED
MASTOLONI AGENT(S): BRIAN S. REICHENBACH, ESQ. OWNER(S): MASTOLONI
FAMILY, LLC ZONING: WR-1A LOCATION: 18 NEIGHBORS WAY, ASSEMBLY
POINT APPLICANT PROPOSES TO REOVATE SINGLE FAMILY DWELLING AND
CONSTRUCT A 875 SQ. FT. ADDITION ONTO APRE-EXISTING NONCONFORMING
2,020 SQ. FT. SINGLE FAMILY DWELLING. RELIEF REQUESTED FROM
SHORELINE AND SIDE YARD SETBACK REQUIREMENTS, AND EXPANSION OF A
NONCONFORMING STRUCTURE. CROSS REF.: BOH 28, 2009; BP 606 DOCK YR.
1979; BP 7463 YR. 1982; NOA 2-2009 WARREN COUNTY PLANNING: FEBRUARY
11, 2009 ADIRONDACK PARK AGENCY: YES LOT SIZE: 0.54 ACRES TAX MAP
NO. 226.15-1-29 SECTION: 179-4-070; 179-13-010
BRIAN REICHENBACH & TOM HUTCHINS, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 9-2009, Mastoloni Family, LLC Ed Mastoloni,
Meeting Date: February 25, 2009 "Project Location: 18 Neighbors Way, Assembly
Point Description of Proposed Project: Applicant proposes to renovate a 2,020 square
foot existing non-conforming single family dwelling to include raising the roof and
construction of an 810 square foot first story addition and the addition of 65 square feet
to the second story.
Relief Required:
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(Queensbury ZBA Meeting 02/25/09)
Depending on the outcome of the NOA 2-2009, the applicant requests 16.32 feet of
shoreline relief from the 50 foot requirement per §179-4-030 or 82.32 feet of shoreline
relief from the average of the two adjoining lots per §179-4-030 footnote 4. Further, the
applicant requests relief from the expansion of anon-conforming structure per §179-13-
010. Finally, the applicant requests 7.5 feet of south-side setback relief per §179-4-030
Criteria for considering an Area Variance according to Chapter 267 of Town Law:
In making a determination, the board shall consider:
1. Whether an undesirable change will be produced in the character of the
neighborhood or a detriment to nearby properties will be created by the granting of
this area variance. Minor changes to nearby properties are anticipated as a result of
this proposal. However, the possibility of similar requests for shoreline setback relief
may be forthcoming.
2. Whether the benefit sought by the applicant can be achieved by some method,
feasible for the applicant to pursue, other than an area variance. The applicant could
build in a more compliant location or reduce the size of the project.
3. Whether the requested area variance is substantial. Depending on the outcome of
NOA 2-2009, the request for 16.32 feet or 32.6% relief from the minimum 50 foot
shoreline setback may be considered moderate relative to the ordinance ... or the
request for 82.3 feet or 70.9% relief from the 116 foot shoreline setback average of
the two adjoining lots may be considered moderate to severe relative to the
ordinance. Further, the request for the expansion of anon-conforming structure may
be considered minor for this project relative to the ordinance. Finally, the request for
7.5 feet or 37.5% of south-side setback relief may be considered moderate relative to
the ordinance.
Shoreline setback calculations
16.3 ft. = 50 ft = 0.326 x 100 = 32.6% relief requested if the 50 foot shoreline setback is
determined
82.3 ft = 116 ft = 0.709 x 100 = 70.9% relief requested if a 116 foot shoreline setback is
determined
4. Whether the proposed variance will have an adverse effect or impact on the physical
or environmental conditions in the neighborhood or district. Minor impacts on the
physical and environmental conditions of the neighborhood may be anticipated.
5. Whether the alleged difficulty was self created. The difficulty may be considered self
created.
Parcel History (construction/site plan/variance, etc.):
BP 7463 Crib Dock Approved 7/22/82
BP 6060 Crib Dock Approved 9/05/79
Staff comments:
The applicant wishes to renovate the existing 2,020 square foot house to include a
reconfiguration of bedrooms and an expansion to include an 810 square foot first story
addition and a 65 square foot second story addition. The renovation of the second floor
bedrooms includes the raising of the roof within 50 feet of the shoreline setback and the
addition of 65 square feet of living space. This has been determined to be the expansion
of anon-conforming structure per §179-13-010 as it relates to the 50 foot shoreline
setback.
The shoreline setback is not an issue for the first story addition if the setback is
determined to be at 50 feet. However, should the determination of the Zoning
Administrator stand, the additional expansion relief of 810 square feet will need to be
given for this project.
SEAR Status:
Type II - No SEAR Determination required."
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(Queensbury ZBA Meeting 02/25/09)
"Warren County Planning Board Project Review and Referral Form February 11, 2009
Project Name: Mastoloni Family, Ed Mastoloni Owner(s): Mastoloni Family, LLC ID
Number: QBY-09-AV-09 County Project#: Feb09-18 Current Zoning: WR-1A
Community: Queensbury Project Description: Applicant proposes to renovate single-
family dwelling and construct a 875 sq. ft. addition onto apre-existing non-conforming
2,020 sq. ft. single-family dwelling. Relief requested from shoreline and side yard
setback requirements, and expansion of anon-conforming structure. Site Location: 18
Neighbors Way, Assembly Point Tax Map Number(s): 226.15-1-29 Staff Notes: Area
Variance: The applicant proposes to renovate asingle-family dwelling and construct a
875 sq. ft. addition onto a pre-existing non-conforming 2,020 sq. ft. single-family
dwelling. Relief requested from shoreline and side yard setback requirements, and
expansion of anon-conforming structure. The information submitted indicates the
interior of the home is to be reconfigured from a 4-bedroom home to a 3-bedroom home.
The septic system will be upgraded and has received approval from the Town of
Queensbury Board of Health. The existing home setbacks are to remain the same
where the home is located at 33.7 ft. from the shoreline and a 50 ft. setback is required;
the rear setback currently is 12.50 where a 20 ft. setback is required. The plans show
the location of the building, new construction areas, stormwater and erosion control
measures and other site items. Staff recommends no county impact based upon the
information submitted according to the suggested review criteria of NYS General
Municipal Law Section 239 L applied to the proposed project. County Planning Board
Recommendation: No County Impact" Signed by Richard C. Merrill, Warren County
Planning Board 2/13/09.
MR. UNDERWOOD-Okay. Just to refresh everybody's memory here, Craig, in your
letter, I think it's recognized this is a Critical Environmental Area. This is a Major
stormwater designation on this project also.
MR. BROWN-That's correct.
MR. UNDERWOOD-And specifically, I mean, we're on a point here, in other words.
MR. BROWN-Yes.
MR. UNDERWOOD-And, based upon here, the site of the cottage, as far as you know, is
that natural shoreline there, or is was that in-filled at some point?
MR. BROWN-No, I think that's natural shoreline.
MR. UNDERWOOD-It is all natural. You would agree with that? Okay. All right. We'll
open it up to you guys.
MR. REICHENBACH-Okay. Well, I have an argument that I can go through to state our
position on the five questions for the variance, but before we do that, understanding how
difficult it is to understand the project from just words on a page, I'd like to have Mr.
Hutchins give you an overview of the project, so maybe you have an idea in your mind of
what we're trying to do here.
MR. UNDERWOOD-Yes, and if you would, when you do that, too, I think everybody
recognizes you have a very old cottage here, a very antiquated septic system, and that
you do have some approvals that have been granted to you by the Town going forward
for the septic?
MR. HUTCHINS-Yes. On the septic, a variance has been granted by the, actually I'm
going to stand up and point if I could.
MR. UNDERWOOD-Yes, sure.
MR. HUTCHINS-A variance has been granted by the Town Board of Health to install a
new septic system that would actually be installed on this adjoining parcel, back in this
area. The variance that was granted was granted from this property line setback, but
what it does is it takes an antiquated septic system, presently in this area on this cottage,
you'll see on our plan that there's a septic tank and a pump station shown, and would
pump up to a modern, compliant system, well, compliant with a variance. It's non-
compliant in the sense that it's close to that property line, however, it's a modern
absorption field.
MR. UNDERWOOD-Are these properties all on well, or are you drawing lake water up
there for drinking purposes?
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(Queensbury ZBA Meeting 02/25/09)
MR. HUTCHINS-They're all on lake water. Am I correct, Ed?
ED MASTOLONI
MR. MASTOLONI-Mine isn't.
MR. HUTCHINS-No, your house has a well. This one has a lake intake. There is a well
here that serves this house.
MR. UNDERWOOD-Okay.
MR. HUTCHINS-This is on lake water, and to summarize, this is your sheet S-2. I've
colored it a little bit to make it a little clearer. The area shown here in brown is the
footprint of the existing yellow cottage. The area shown in green is the footprint that's
proposed for addition. This is the single story great room addition that's shown on the
floor plan, and this is the small area that encompasses first and second floor addition in
order to square out, these are very small, there are four bedrooms in there. They're very
small, and the revised configuration will go to three bedrooms, a little more reasonably
sized. This, I've shown it in blue, but there's a 50 foot lake setback line shown on here.
We have taken a fair amount of effort to keep at least the entire addition area compliant
within that 50 foot setback. Obviously, the existing building is not within the 50 feet, and
it's because of the renovations to allow us to get additional headroom on the second
floor, we're going to re-build the roof, and we're going to re-build the roof, in some places
two feet higher, in one place three foot four higher. Is that right? The length of that, yes.
That's why we're now asking for the shoreline setback because we are working within
that, but we're not going beyond the existing footprint with those, with that addition, and
we're not asking for a height variance. We'll be in compliance with the 28 foot.
MR. UNDERWOOD-What are you saving of the original house that's there?
MR. HUTCHINS-The first floor, second floor, second floor wall, the roof will be re-built,
the roof and, I'm not sure whether he would remove the second floor walls and re-build
them, or re-build them. I'm not exactly sure how he would do that, but the first floor
would remain. The second floor would remain.
MR. UNDERWOOD-What's the construction right now of the walls on that place?
MR. HUTCHINS-It's a very, very old building. I haven't looked at the wall construction. I
have looked in the ceiling space.
MR. UNDERWOOD-Is that a two by fours or two by sixes?
MR. HUTCHINS-They are, they're not two by sixes. They're old, rough lumber. I've
looked at the rafters. The rafters are rough rafters. They're sagging.
MR. UNDERWOOD-Because one of the questions I would put forth is this, you know,
we've gotten into these before where they're currently sited in noncompliant mode here.
When the project begins, everybody comes back and says, this place is a junker. We
want to just bulldoze the whole thing and start all over again. So, I mean, I think that's
something that, as a Board, we need to be concerned with, because, you know, it's
presented to us this way, but, you know, in a sense, if it's going to come back as a
bulldoze job, in the future here, I think there's grounds for us to consider, you know,
building it compliant, you know, with setbacks from the lake more appropriate, you know,
and that's a monetary thing, too, you know, for you guys. I mean, when you start tearing
things apart, and you end up with that situation, you know, I mean, this has happened to
our Board numerous times in the past, and I would rather look at the project from, you
know, maybe you ought to tear out a wall and see what you've got before you present it
to us this way, you know, just because I think that we're looking towards doing something
better up there on the lake than just accepting what we have and saying that, well, we
can't change and make things better.
MR. HUTCHINS-Well, to my knowledge, and, Ed, correct me if I'm, it's a renovation
project. It's extensive. I mean, there's foundation work that's going to be done, but it's a
renovation of the building. The intent is not to raze the building.
MR. GARRAND-This is new construction if you're altering the foundation, then.
MR. HUTCHINS-You're building a foundation beneath the existing wall.
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(Queensbury ZBA Meeting 02/25/09)
MR. MASTOLONI-The existing foundation is not a foundation. There is no foundation.
There is no footings. This house was built 135 years ago. The floor joists are one by
nines, supported on, from rock to rock. Now, the idea was to raise the house a little bit,
put a foundation, footings into the bottom, and to try to keep as much of the existing
structure as possible. As far as what the walls consist of, I think Craig was there. We
opened up one of the walls and we found old insulation which was horse hair, and my
wife doesn't want to live with horse hair in the walls. So, it's going to be expensive, but
we thought it would be better to renovate rather than to build new, and right now this, and
to try and keep it within the environmental idea of Lake George, what Lake George
should like. That's why the selection of the particular materials for the exterior.
MR. UNDERWOOD-I think it's understandable that that's the way that a lot of people
approach these projects, but, you know, the past record with us is that, oftentimes, that's
not where we end up and I foresee this one here as another example of you're trying to
make it into something that it can't possibly be. I mean, there's always a, where there's a
will, there's a way you can do this, but numerous times it's been presented to us this
way, and I see this one here, based upon your location, you know, requiring the relief
that you require from the water there, and knowing the water quality issues that we have
up in Harris Bay, you know, I mean, everybody's recognized that on other projects that
we've had here, I think that maybe, at this point in time, you know, you need to really
think carefully what you're going to do here, because if we're going to grant you a
variance for this, I would grant it only conditionally, based upon what you're proposing
here. If you come back, two weeks later, to Craig, and you tell Craig, this is a complete
teardown, then I think that I would just simply say to you at that point, you're going to
have to build in a more compliant manner than what you're proposing here, because I
think that's better for the lake and better for all of us, you know, and I think you living up
on the lake recognize why that is, too.
MR. BROWN-Mr. Chairman, I think at least from the building permit issuance and the
review after the fact side of it, that's clearly the way we do it. If the plans that come in for
the building permit don't match what the variance was granted for, you don't get the
building permit. If at some point during construction they alter from the plans, stop and,
you know, once we discover there's a change, you have to go to the Zoning Board and
get some relief at that point, or change it back. So, I think, as long as the applicant
knows, and I'm sure that they do, based on what you just said, they're going to be limited
to a second story addition, and if it turns out where we have to tear it down and re-build
the first floor, they understand they're going to have to come back to you.
MS. RADNER-Back to who?
MR. BROWN-Back to the Zoning Board. Not just come back, come back to the Zoning
Board.
MR. UNDERWOOD-All right. Mr. Hutchins, anything else you want to add at this point?
MR. HUTCHINS-I don't believe so. There's the side setback, which is shown
dimensionally, it's to the southerly line, and it's, again, expanding the existing building
upward within that setback.
MR. UNDERWOOD-Yes, and in essence the addition is going to be that great room. It's
not going to be more living space, more bedrooms.
MR. HUTCHINS-The addition is what's shown as green. A portion of it, it's in that
northerly corner of the, but yes.
MR. UNDERWOOD-You're at four bedrooms now, you're going to go to three, or are you
going to keep the four?
MR. HUTCHINS-It's going to three.
MR. UNDERWOOD-You're going to three, right. That's what I thought.
MR. HUTCHINS-Yes.
MRS. JENKIN-So the bedrooms are only going to be on the second floor.
MR. HUTCHINS-Yes.
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MR. UNDERWOOD-We've got it all.
MRS. JENKIN-What do you plan, what is your foundation going to be? What are you
planning for a foundation?
MR. HUTCHINS-Based on my discussions with the architect, they intend to pour a
concrete frost wall, correct?
MR. MASTOLONI-Yes.
MR. HUTCHINS-A perimeter frost wall.
MR. UNDERWOOD-Because at the present time this is just seasonal use, correct?
MR. HUTCHINS-Correct.
MR. UNDERWOOD-Right.
MR. MASTOLONI-Well, I understand originally this was the home operated by the
garbage collector of Lake George, and it was year round. It certainly wouldn't be year
round by any of our standards today.
MR. UNDERWOOD-Yes. Kind of hard to say without insulation underneath, and, you
know, if you're up in the air, you're talking frozen pipes on a regular basis. Okay. Any
questions from Board members at this point? All right. Why don't we open the public
hearing.
MR. REICHENBACH-Mr. Secretary, may I address the questions?
MR. UNDERWOOD-Certainly. Yes. Sure.
MR. REICHENBACH-I spent a lot of time on these notes. Ladies and gentlemen, if
every single nonconforming house in the Town of Queensbury, on Lake George, came
before you with this plan and you approved it, you'd make the lake a healthier place.
This is the kind of project that wins awards for lake stewardship. The project's going to
reduce population density, and it's going to improve wastewater handling. The project
passes each test that you folks have to look at for this Board to grant a variance. Will
there be an undesirable change in the character of the neighborhood or a detriment to
nearby properties by granting this variance? Absolutely not. If you grant these
variances, the change to the neighborhood and the neighboring properties will be a
beneficial change. The house that exists obviously is dated. It's a bit of an eyesore. It's
yellow clapboard, four bedrooms, presumably faulty septic system right on the lake. It's
going to become a new, environmentally friendly, three bedroom house with wood siding,
natural colors, and it's going to fit into the Adirondack and wooded neighborhood area.
In the big picture the project, again, is going to reduce the density of the population in the
area by going to three bedrooms, and it's going to provide additional safeguards for the
water of the lake. It's not a trophy home. There's no giant wall of glass facing the lake.
They're going to use native materials and colors. It's going to be much more in line with
the best designs in the area and the natural beauty of the lake. The Staff Notes don't
say anything about any detrimental change, I'm sorry, or any detriment or any
undesirable change. This is a unique parcel on a one of a kind peninsula on Lake
George. The only effect that this particular project, getting rid of this yellow dated house
and putting in a more natural design, is going to benefit the property, and the septic
changes will benefit and protect the lake. The next question is whether the benefit
sought by the applicant can be achieved by some feasible method other than an Area
Variance. Absolutely not. This is a renovation to a prior nonconforming structure on a
unique piece of land on the lake. The changes to the existing footprint and all the
changes that will encroach on the setbacks, do not involve moving anything even an inch
closer to the lake. They only involved changing the roof heights, again, at most, three
feet four inches. This is the biggest change in the roofline. None of the changes
contemplated or planned are going to increase the encroachment on any of the
setbacks. The setback from the lake here is going to stay exactly where it is, and the
setback from the side here is going to stay exactly where it is, not one inch closer to the
lake anywhere, or to the setbacks, to the side setback. The reason they're going to raise
the roof height is because there's no ridge beam. The roof sags right now. It's like an
old horse. To make the house safe and the roof level, it has to be raised to add a beam
along the ridge. The Staff Notes kind of prove our point. The Staff Notes say that the
benefit could be achieved by building somewhere else, or by adopting a different project.
Well, the question isn't whether any benefit can be achieved. It's whether the benefit
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(Queensbury ZBA Meeting 02/25/09)
sought by the applicant. The benefit sought by the applicant is this project. The only
way this project can be done, the benefit sought by the applicant, is for you folks to grant
a variance here. The fact that the only way that the Staff says that the benefit can be
achieved is to do something else proves our point that a variance is the only way to go in
this particular adventure. In fact, if the Staff's position were adopted, there'd be no need
for you folks, because if all they had to say was, no, you can achieve a benefit by going
somewhere else, building the house somewhere else, or not doing this project, doing a
different one, there'd be no need for variances. No need for you folks to hear any of
these appeals. You could do something else with your Wednesday nights. The next
question is are these requested variances substantial? Our position is that they are not.
Again, this footprint that exists is not going to come one inch closer to the lake or to the
side setback. The reason for the variance is because the roof's going to go up slightly in
some places, on the part of the structure that already encroaches on the setback area.
The lake setback is going to remain exactly what it is now, with 16.3 feet of relief from the
50, and the side setback is going to remain exactly what it is now, 7.5 feet of relief from
the 20 foot requirement. All the new addition construction's going to be in compliance
with the 50 foot lake setback up here in the green shaded area. The Staff Notes are
statistical comparisons, but our position is that that's not particularly important when you
look at the overall project. We're not going to be encroaching any more than we are
now, and again, in the big picture, reducing density, improving the protections to the
lake. The next to last question is whether the proposed variance will have an adverse
impact on the physical or environmental conditions in the neighborhood. Again, I think it
should be obvious by now that it's quite the opposite. The project, again, is going to
reduce density and improve the protections of the lake, and that's going to improve the
neighborhood overall, and the most important environmental impact possible, it's going
to do more things to protect the waters of Lake George. We're going to remove that old
septic, put the new septic in, or the leach field in way up toward the other end of this
parcel. The leach field currently is right down here, as I understand it. The Staff Notes
don't make any indication of any kind of adverse impact, and finally, is the difficulty self-
created. Mixed messages on this question. I have two lawyers in my office who have
vast experience in this area of law, and they disagree on whether it's self-created or not.
Our position is that it is not. This house has been nonconforming for many, many years,
probably since the first Zoning Ordinance was enacted in the Town of Queensbury. If
you accept the view that if you purchase a nonconforming home on a lot, then you've
self-created the difficulty, and what that means is, the only way you can avoid self-
creating adifficulty is if you own the property when the Zoning Ordinance took effect,
because any other situation would then be self-creation. This is not self-creation. Mr.
Mastoloni and his family had a right to purchase this property, and they're now seeking a
variance, which is the only way that they can possibly go forward with this very beneficial
project. The Mastoloni family should be applauded for this project. It's everything
anybody who wants to protect the lake and the environment up there could want. It
replaces an old septic system with a new State of the Art system to be moved away from
the lake. It reduces population density by changing a four bedroom house to a three
bedroom house. It takes a structure that doesn't fit into the character of the
neighborhood or the natural setting, and replaces it with natural materials in a style that's
more fitting with the natural beauty of the area, without decreasing the existing setbacks
by an inch. Overall, the big picture compels approval of the variance for this beneficial
project. Thank you very much. I'd be glad to answer any questions you might have.
MR. GARRAND-I've got just one. Back to your theory on self-creation. Basically, zoning
in Queensbury, by purchasing a property in the Town of Queensbury, or renovating, it is
implied that you will consent to the applicable zoning, and the Comprehensive Land Use
Plan within the Town of Queensbury. Sort of what you'd call a principal of implied intent
that you have conformed to the intent of the zoning in the Land Use Plan. I just thought
I'd bring that up.
MR. REICHENBACH-I agree with you, sir. What I'm saying is, after having laid awake
two or three nights on that question, I can't come up with a situation where if you
purchase a nonconforming lot under that analysis, that you've self-created the difficulty.
The only way around that is if you are the person who owned the property at the time the
Zoning Ordinance went into effect. Otherwise, everyone who has a nonconforming lot
and needs a variance purchased it. Am I making my?
MR. GARRAND-Yes, but if the Town changes the zoning, you know, mid stream, you
know, some years after you've owned the house, yes, it's not self-created. I would agree
with you on that point, that it's not.
MR. REICHENBACH-Right. I guess we agree on that point. If there is a disagreement,
it may come on the next part of that point.
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(Queensbury ZBA Meeting 02/25/09)
MR. GARRAND-Yes. I mean, in a situation like this where, you know, you can obviously
tear down and rebuild it in a more compliant. I'm not sure, you know, exactly what your
dimensions would be, how far you'd be from the other shore, moving the house around,
but, like you said, we do agree on some points on that.
MR. REICHENBACH-Thank you.
MR. UNDERWOOD-Questions from other Board members? Brian?
MR. CLEMENTS-Yes, I just did some calculations here, and I just wondered if you could
tell me if this is correct. The house, right now, is 2,020 square feet. You're adding an
810 square foot first story addition and an addition of a 65 square foot on the second
story. Would that be a total of 2,895 square feet? Is that your calculation?
MR. HUTCHINS-Actually our Floor Area calculation is on the floor plan sheet, which is
the last sheet, and it's different than, it's done differently than you just read to me. First
floor existing, total existing of 2,020 square feet. Proposed first floor, when including
renovated first floor and new first floor, is 2,095 square feet. Second floor is 800 square
feet, for 2895 square feet total.
MR. CLEMENTS-The same amount, though. I assume that this is the Floor Area Ratio
requirements are, asking that of Craig.
MR. OBORNE-Absolutely.
MR. CLEMENTS-There's no problems with that?
MR. OBORNE-There's no problems with the FAR.
MR. CLEMENTS-Okay. Thank you.
MR. UNDERWOOD-Any other questions. Okay. So I'll open the public hearing up.
Anybody wishing to speak on this matter? Raise your hand. In the back, please.
PUBLIC HEARING OPENED
JOHN CAFFRY
MR. CAFFRY-Good evening. I'm John Caffry. I'm here tonight on behalf of my mother,
Jane Caffry Hawn. She's the trustee of the trust that holds our family property that we've
had since 1970, which is about 100 feet south from Mastoloni property, and it adjoins the
other Mastoloni property that, where the septic system will be is just a few feet from our
property line down there, and the access to both of their properties is over an undeeded
right of way on Neighbors Way, which is a private road. We own the first 200 feet. Mr.
Mastoloni owns the next 100 feet of it. I tend to disagree with Mr. Reichenbach's legal
interpretation on some of the issues, but I'm not really here to debate those things. I
really just have some questions about the expansion and I think they do relate to the
variances because they're expanding a nonconforming structure, and I hope the Board
will take them into account and make sure they're addressed before you take any action
on this. The first is whether the patio or the deck that they're proposing has to meet
setbacks. That it appears to be within the 50 foot setback area. I could read your Code
either way on that question. I don't know what your established practice is on that, but if
patios are suppose to meet setbacks, this one appears to violate it, and it could be
reduced. It appears they are applying for variances for the vertical expansion, of course
some of you remember that was a big issue with the Riitano project. I'm pleased to see
that that's part of this application, or at least appears to me to be. I want to confirm that it
is. I'm concerned about the parking. Where the expansion's going to go, it's going to
block off the existing driveway. So, I don't, we haven't yet seen a stormwater plan, but
obviously this is going to increase the size of the structure. You're going to need a
stormwater plan, as the Staff has already pointed out. The tricky part is if you approve
the variance before their stormwater plan is done, you can't be positive that they can
actually build a compliant stormwater system on the property. So, even though you may
think that's a Planning Board issue, that it would seem to me that that ought to be
addressed with this Board before you grant any variances. Also the question about
parking, whether there's sufficient parking, because they're going to be blocking the
driveway, and the plans do show a new driveway, but that's mostly on the other
Mastoloni property, which, by the way, was originally three lots. Somebody asked about
that earlier. That was originally three different subdivision lots, and this Binley house
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(Queensbury ZBA Meeting 02/25/09)
was a separate lot, and then the Nemiths, who owned it before Mr. Mastoloni, are the
ones that consolidated it all into, those three lots into one, but regarding this new
driveway, it would seem to me that that needs to be taken into account, in terms of
permeability and stormwater, and that before you grant the variance that would relate to
this expansion of the house, that's reliant on this new driveway, they'd need to be sure
they're going to have a deeded right of way for that new driveway, across the other
Mastoloni property. The Town Board required that for the septic system, that there be a
deeded easement to keep that septic system, because they are separate ownerships.
Also, if this expansion is reliant on the new septic system, I don't know if the new
easement's been recorded yet for that septic. That ought to be taken care of, and I think
those are my questions basically. Unless the Board has any questions. Thank you.
MR. UNDERWOOD-Thank you.
MR. CLEMENTS-Do you have a well on your property?
MR. CAFFRY-No. Our house is just to the, about 200 feet south. We use lake water.
So far as I know, Provenzano, who is the next closest one, uses lake water. So, you
know, to the extent that they can improve the septic system, we're all for it. Now, of
course, they could do that without this variance, too, but, no, we don't have a well, never
have.
MRS. JENKIN-Is your house a year round home?
MR. CAFFRY-No, it's seasonal. Our is, if you've been up there if you start in on the little
dirt drive, Neighbors Way, it's the big red one on the right side, it's the first one on
Neighbors Way, and then, like I said, we own the first couple of hundred feet of
Neighbors Way.
MRS. JENKIN-So it's an undeeded right of way, right now?
MR. CAFFRY-Yes. So that house was there before Neighbors Way, before anybody
else. I don't think anybody's ever contested that. Provenzano uses it, too.
MR. UNDERWOOD-Okay. Thank you. Anybody else from the public wishing to speak
on this matter? Come on up.
CHRIS NAVITSKY
MR. NAVITSKY-Good evening. Chris Navitsky, Lake George Water Keeper. I had a
couple of questions for the Board. First of all, I don't know if I heard a reference to
hazardous materials in the application.
MR. UNDERWOOD-No, it was horse hair, I believe, was the insulation in the walls. So I
don't think there was anything hazardous.
MR. NAVITSKY-Okay. Gotcha. Okay, but if there was hazardous materials that close to
the lake. Second, about, there was reference to foundation replacement. If there was
concerns about the depth to bedrock, if there'd be blasting, we've seen sometimes
blasting, you wind up with a much larger hole and a much larger impact. So if there was
any test pit information. I believe, my question would be, is this going to a Site Plan
Review to the Planning Board?
MR. UNDERWOOD-Yes.
MR. NAVITSKY-It is a very unique parcel. I actually have been out there. It's vegetated
and protected in areas. One, and this could be a Planning Board or a Zoning Board
issue, but if there could be designation for protection zones from construction so that we
could keep those areas that buffer the lake protected from construction equipment,
protected from compaction and disturbance that can impact the lake. There was a
question regarding the status of the existing septic system. Were we just going to leave
that there, or will that be removed? And I think Mr. Caffry had some good points about
the stormwater. Because there are setback requirements for stormwater. So, again, are
we going to get into a situation that they may need more variances. So is that something
that should be looked at at this time, because there are setback requirements for
infiltration systems, and those are my questions. Thanks.
MR. UNDERWOOD-Thank you. Anybody else from the public wishing to speak? Come
on up.
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(Queensbury ZBA Meeting 02/25/09)
BEVERLY POZZI
MRS. POZZI-Good evening. I'm Beverly Pozzi, and I live in close proximity of the
Mastoloni home, current homes and the new proposed one, and so I've handed out a
letter, but I'd also like to read it because I have some additional comments. The subject
owner, Edward Mastoloni, is requesting approval of an addition to an existing house,
which is currently a nonconforming structure. This addition constitutes an increase of
approximately 43% or 875 sq. ft., for a total of 2895 sq. ft. The next sentence, gentlemen
and ladies, please strike because Mr. Hutchins has told us that the addition will conform
with the 50 foot setback. Currently, as you know, it's 33 and a half, or 33 feet from the
east side of the shoreline. "This does not include non-living space of a patio which will
cover permeable soil on the side of the new addition, which appears to be to the north.
There are major concerns abut this fragile piece of property, which is a small peninsula:
The stress to the land of large equipment needed for construction, the displacement of
the earth and subsequent erosion it causes. Removal of trees and other shrubbery, the
roots of which hold this land firm, and damage to root systems of remaining trees, etc.
Now I've experienced that myself. After constructing a new house, three years later the
trees began to die. No intention of taking these trees down in any shape, manner, or
form. Replacements proposed would take a long time to create the current stability. The
degradation of the water in the immediate vicinity, where drinking water pipes, in addition
to what Mr. Caffry has told us, go out from four different homes, mine included, the
Gridleys, two of those, and the Lynches. The adjacent cove, which it's to the left of the
area, is shallow and has been subjected to stress with the removal of trees in January
2008 which were anywhere from five to fifteen feet from the water's edge, where
regulations are 35 feet. Bruce Frank intervened and acted on this situation. Removal
required a permit which was not obtained before cutting. I asked Mr. Stranahan about
this, recently, and he had all kinds of excuses, and I said, the matter is, why didn't you
get the permits first. He said because they take too long and Mr. Mastoloni would have
hired somebody else. Now that's a direct quote from Mr. Stranahan. The shoreline is
rocky, thus protecting it from erosion; this should not be disturbed or removed. /have
been told that the former owner, the Binley family went to great lengths to ,preserve the
area, and brought in rocks to secure the shoreline. The former owners maintained the
property in a natura/, woods /ike condition. New landscaping commonly incorporates
fertilizers, pesticides and plant enhancing products detrimental to the water. This would
only compound and speed up the existing degradation of water quality. This cove has
been the site of algae blooms for the last three summers. What once was a sandy
bottom is now becoming very soft-mushy. The fish which formerly swam near the docks
no longer exist; sunfish have not been seen in several years. The water has turned from
crystal clear to murky. We have had an ultra-violet water filtration system for the last
seven years. The Mastoloni family owns two lovely homes adjacent to this property.
The lawns are pristine, therefore it can be assumed that they would want this land to be
as attractive, following whatever recommendations professional landscapers and
groundskeepers would make. Drinking water source: That's been somewhat discussed.
The Mastoloni family has a well, will this house tap into that well on the adjacent
property, if not, where will the water come from??? The lake? Should it be decided
that a second well is needed, would that drilling further weaken this area? I was told that
it is bedrock. Since I am not a geologist I do not know what would result, what I do know
is that drilling equipment is very heavy and depending on the type used, causes
vibration. I had some additional thoughts, since I sat here and listened, and one of the
things I asked Mr. Underwood to confirm was back in 2006, when there was another
hearing on a new home being proposed on Assembly Point, and things were very fragile,
the discussion turned around to Rockhurst, and the comment that was made by
members of the, a couple of members of the Board, was that Rockhurst should never
have been built on in the first place. Now, in addition, again, this has been discussed,
what happens during the renovation of this 1870's farmhouse if it is found structurally
unsound, without a foundation? And as John Caffry said, the new driveway, but will that
be paved, and if so, that's even less permeable area, and there'll be an increase of
runoff. The proposed addition on a different parcel of land, not so fragile, would be very,
very attractive, and one other thing. The density of the trees and the shrubbery and the
undergrowth is now very thin and within the last year, since re-trimming has been done,
which I understand it is allowed, and I'd like to just show you a picture of what it used to
look like, and with that, I respectfully request that the Board members visit and see for
themselves just how fragile this area is. As I say, it's a small peninsula and it's very
fragile. Thank you. I'll start with Mr. Urrico and you can pass it down. That once was
the density. If you go out and look now, it's declined over the years, but there isn't the
root system there once was there to hold it together.
MRS. JENKIN-The trees, are you talking, this is the peninsula?
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(Queensbury ZBA Meeting 02/25/09)
MRS. POZZI-Yes, this is the end of the peninsula, and it goes back further, but that's the
only picture I have from that era to show you just how dense it was.
MRS. JENKIN-Do you know what year this was?
MRS. POZZI-I am guessing 1950's or so.
MRS. JENKIN-Thank you.
MR. UNDERWOOD-Anybody else from the public? I guess that's it. Any letters, Roy?
MR. URRICO-Other than the one that was just read in.
MR. UNDERWOOD-That's it?
MR. URRICO-That's it.
MR. UNDERWOOD-Okay. Any closing comments or commentary?
MR. HUTCHINS-I would touch on some of the comments, if you're interested. Yes, with
regard to stormwater, as part of our Site Plan, we will be required to do a stormwater
plan, and with the way the stormwater rule is written, there's a chance that we may have
to ask for a variance for a device within 100 feet of Lake George. I don't know where that
device is going to be yet. I don't know how big it is because I wasn't sure the size of the
building and this is a sensitive area. It's going to be a detailed stormwater plan. It's
going to be a detailed Site Plan. It's going to involve a landscape plan, tree protection
plan. It's going to be a very extensive Site Plan. We have not completed that at this
point because we didn't know where we were headed with the variance. As far as the
driveway, yes, an easement will be required, and you can correct me on this, from, it will
be from one Mastoloni property to this property to allow parking and access, and we tried
to work it so that that turn around wasn't on the other property, but it just squeezes
everything tighter, and it doesn't work well. The foundation replacement, what's
envisioned is a perimeter frost wall with a crawl space underneath. No rock excavation.
MR. UNDERWOOD-You just going to build off a bedrock. You're going to pin right into
bedrock and go up from there.
MR. HUTCHINS-Yes, and it's not going to be any, it's crawl space.
MRS. JENKIN-So if it's crawl space then you're going to have to remove quite a bit of the
soil in order to get it down deep enough to make a crawl space? Are you talking about
four feet? Three feet?
MR. HUTCHINS-No, we're talking about bedrock ledge or four feet, whichever is less,
and it's probably going to be rock ledge.
MRS. JENKIN-So you wouldn't be blasting?
MR. HUTCHINS-No.
MR. CLEMENTS-This is around it, and then are you going to have a slab? Is it going to
be on a slab?
MR. HUTCHINS-It's not going to be a slab. It's going to be on the perimeter walls, and
interior piers as necessary, supported from the rock, which will be poured underneath the
house, and support the house. They'll jack and pour and set the house.
MR. UNDERWOOD-What are you going to do if you jack it and the whole thing is, I
mean, you obviously, have you been underneath it to see what you've got to work with?
MR. HUTCHINS-I have been inside it, and I'm not the, fortunately I'm the site guy, I'm
not the buildings guy. We do have an architect involved that's doing the building plans,
that is very familiar with the property.
MR. UNDERWOOD-I mean, you're not talking like your floors are falling out of there
now?
MR. HUTCHINS-No, I don't think they're falling. I mean, it's in rough shape.
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(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-Because, you know, I mean, I really see this as the, you know, the
usual example of the one that as soon as you start this, you're going to be sorry that you
even thought about it that way, but, you know, as opposed to just simply saying we're
going to do new construction, you know, because I don't know what you're going to do
for a bailout if that's the case. I mean, you're going to have to come back.
MR. HUTCHINS-Well, if we have to bailout and tear down, I mean, the understanding is
we're renovating that structure. I mean, it's extensive, but you understand that. If we
have to bail out and tear down, then we're back here.
MR. MASTOLONI-I hope not.
MR. HUTCHINS-Okay.
MR. UNDERWOOD-Back to Square One.
MR. MASTOLONI-I've been reassured that we can raise the house by a company, we
had them come in and look at it, they said, yes, they can raise the house and put it back
down after the footings are set. The windows will be replaced, and of course they're old.
MR. BROWN-Mr. Chairman, if I could just add in here, just so the applicant's clear and
the Board's clear and I'm clear at this point, that if that raising of the house and
construction of the frost wall results in the house being any taller than it is right now, that
additional height should be part of this relief request. If it's going to be at the same
ridgeline elevation that it is right now after the foundation's in.
MR. HUTCHINS-No, you're not going to raise the first floor elevation when you're done?
No, we're going to jack and set.
MR. BROWN-Okay. That's fine. I know sometimes there's a couple of feet difference
when you.
MR. MASTOLONI-We're trying our best to keep the cost down. At least I am.
MR. URRICO-I have a question about the filtration that you're going to be putting in.
When would you be, was it the septic system you were talking about?
MR. HUTCHINS-The stormwater?
MR. URRICO-Yes. What would be the triggering device on that, in terms of whether you
would use that or not?
MR. HUTCHINS-Well, we'd have to do a stormwater plan.
MR. URRICO-Okay.
MR. HUTCHINS-A common method of, and, Craig, jump in if I say something that
doesn't jive with you. A common method of stormwater treatment and management is
an infiltration device. Because this project has been deemed a major project under the
stormwater law, because it's a major project, if it's an infiltration device, it has to be 100
feet from Lake George, and this is going to be a common problem with residential
projects that don't have, that can't deal with stormwater. I mean, you can't pump
stormwater. It's got to go downhill, and to get it 100 feet from the lake it very difficult. In
this case it's going to be very difficult. I had a similar situation on another project, a few
months ago. I asked for a variance on the stormwater upfront. I said we're never going
to be able to get there. We asked for the variance at this Board, and this Board referred
it to the Planning Board for an opinion on stormwater. So, in this case, I don't know
where I'm going to be on stormwater. So, I thought, well, let's come up with a good
design and get it before the Planning Board. That's why I did it that way. I know we're
going to have to deal with stormwater. It's possible, likely, that we may need a variance
from that 100 foot lake setback. It's a long ways to get 100 feet from the lake.
MR. UNDERWOOD-But it's not an unworkable solution compared, I mean, we've done
this previously, you know, not only with infiltrators, if that's not a possibility we created
artificial, you know, plantings.
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(Queensbury ZBA Meeting 02/25/09)
MR. HUTCHINS-Right. If I do a planting grove that's not an infiltration device, then it
doesn't meet the setback, but, and it's a little unclear just what an infiltration device is, I
think, and, Craig, do you want to touch on that?
MR. BROWN-No, I don't want to touch on that, at all, but just to confirm that we definitely
had those conversations that stormwater is an issue here, and there may be some
setback variances for infiltration devices, and I don't know if these are conversations I
had with Ryan, or I know I had them with Tom, but there is some merit to, you know, do
you want to see what the Planning Board says about the Site Plan when the Site Plan's
put together? I think what's part of the Site Plan is some grading on the site, some filling
within 50 feet of the shoreline. Is that still part of the plan, to level the front yard? And
maybe some tree cutting within 35 feet of the shore, limbing up some trees and some
plantings.
MR. HUTCHINS-Well, yes, there'll be some grading, in the patio certainly.
MR. BROWN-So there's other components to the project, other than just the building.
So, when you put all those together, does it all work? Does the bigger building closer to
the shore with more dirt and less trees, you know, when you look at the whole package,
is it something that you would still decide on the same way if you only looked at one
piece? So, and that's discussed, and it's still an option that you have tonight is to say,
see what the Planning Board thinks about the Site Plan once they see the filling and the
cutting and the grading and the stormwater, and then they let you know whether they like
it or not.
MR. URRICO-And the second part of my question was along those lines. If that filtration
system is something that's needed, could it affect the design of the building that you
currently have and where it's located?
MR. HUTCHINS-Well, the building design is, we've done the best we can to get as
compliant as we can with the building design, and it's my opinion that we'll be able to
come up with a stormwater design that is effective and functional, and with this building
design. Maybe I'm wrong. Maybe I'll have to be back here in order for that to work, but
it's our opinion that we're going to be able to get there with this building design.
MR. UNDERWOOD-Okay. Anybody else?
MRS. JENKIN-Well, I'm really very concerned about the fact whether this will be a
renovation or a reconstruction, and, personally, I'm not ready to grant a variance when
it's very, very unsure whether when you start gutting the place and seeing what's there,
whether you decide that the walls and the wood and everything needs to be replaced, if
this will be a reconstruction. I'd like to see more information about that. I'd like to see
something written from some contractor or something that they have examined the inner
walls. They've seen what this construction is, and it can be used again. Because with
old, old homes, there's ant damage when you get into walls. There's all kinds of
problems that you can run into, that you have to rebuild, and the other thing is, I have a
problem with all the other uncertainties about the property itself, stormwater,
permeability, water, all the changes that have to be made to the property. There's a lot
of questions right now.
MR. HUTCHINS-Well, on the building, our architect has looked at the building in great
detail, and he's put together the plans as a renovation, and he's confident that it's a
renovation.
MRS. JENKIN-But you're changing the siding. You're going to gut the house. You're
going to put all new wood inside. You're going to change it. That is basically a
reconstruction rather than a renovation.
MR. HUTCHINS-Well, all I can say is our architect has been through it and it's, he's
deemed it renovatable. I know that's not a very good word, but.
MR. BROWN-And I guess if I could, just to clarify what that is. The plan is to put a
foundation in, keep the first floor floor system, the first floor walls, and the second floor
floor system, and everything else above that's going to be new. Because you're going to
extend the upstairs walls and put a new roof on it, in addition to your first floor addition.
Is that a two story addition, orjust a single story?
MR. HUTCHINS-One story.
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(Queensbury ZBA Meeting 02/25/09)
MR. BROWN-Single story addition. Okay. So what you're going to have is first floor
deck, first floor walls, second floor deck. Everything else is new. So, I mean, I don't
think that's reconstruction. That's definitely a very aggressive remodel. So just so that
you're clear as to what the project entails, it's that.
MRS. JENKIN-Well, it is if the wood is intact.
MR. BROWN-Right, but if they find that they can't pick it up and put a foundation
underneath it and set it back down without destroying it, they realize they're going to
have to come back to you and say, can't do it, have to do a re-build, and face the music
of, okay, maybe you can put it in a more compliant location. I think they understand that.
MRS. JENKIN-But at that point, then, plans would have to be changed, to keep within the
setbacks you'd have to use a different design, and it would already be under
construction, and then we'd be back to the same problem that we often have with other
homes that are already partially done and then we're asked to grant other variances,
then it's a problem.
MR. BROWN-Well, I think in this case, and I don't want to sound like I'm on either side of
the fence here, but the first thing you're going to do is you're going to pick up the house.
If you can't pick up the house, you're not going to pour any concrete. You're not going to
do anything after that. So it would only be under construction until it got about that high
off the ground, and then if it didn't work, then they would know that there wouldn't be a
project to do that way, and again, I'm not arguing for it or against it. I'm just saying,
realistically, there's not going to be anything built until they decide what they can do with
lifting the house.
MRS. JENKIN-Well, I personally would like to see it go to the Planning Board first and
table it tonight, myself.
MR. UNDERWOOD-Okay. Anything else you guys want to add, or, otherwise I'll close
the public hearing at this point.
PUBLIC HEARING CLOSED
MR. UNDERWOOD-Why don't we do this. Do you guys want to see whether you want to
continue this and give them what they want tonight or do you want to send it to the
Planning Board? What are your feelings? I'll start with you, John.
MR. ZANGHI-I have some of the same concerns that Joan iterated, and I would like to
see it go to the Planning Board for recommendation.
MR. UNDERWOOD-Okay. Rich?
MR. GARRAND-I'm pretty comfortable with this tonight. I'm not sure on what the
Planning Board's going to do relative to the variances that are asked for here tonight.
MR. UNDERWOOD-Joyce?
MRS. HUNT-Yes. I'm comfortable working on it tonight. I think the fact that the
proposed addition is going to be within the 50 foot setback, and the rest of the renovation
will be the same footprint. So I would be comfortable today voting.
MR. UNDERWOOD-Roy?
MR. URRICO-Yes. I think I'm in agreement with Rich. I think we're talking about 7.5 feet
of relief, setback relief, and the expansion of a nonconforming structure. I think the fail
safes are built in to the system, that if something does not appear right, that if they have
to come back to us, that would trigger a re-look at the whole situation and then we can fix
it then if we need to. I don't think there's a problem. I do think the situation is kind of
self-created. I don't think there's going to be a real detrimental change to the
neighborhood, based on just. There was one question, I'm sorry. There was a question
about the patio that wasn't answered. Right?
MR. HUTCHINS-Yes. There is a patio. It is a patio, and thus, a portion of it is within 50
feet of the lake, so it automatically triggers Site Plan Review. We're going to Site Plan
Review anyway, we know that. To my knowledge, a patio on grade is not subject to
setback, except within 50 feet triggers Site Plan Review. Correct?
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(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-That's right.
MR. BROWN-Well, yes, to answer, I think Mr. Caffry had this question. If it's a deck, if
you're hammering nails together and it's a structure, that's part of the house and it has to
meet the setbacks. If it's more of a landscaping feature like a flagstone patio or concrete
patio, that does not have to meet the setback requirements, but it does count towards the
hard surfacing if it's within 50 feet of the shoreline. That's correct.
MR. HUTCHINS-Right, and we are looking at and considering a couple of forms of
permeable pavers to use in that application.
MR. URRICO-All right. Then based on satisfying most of the criteria, I would be in favor
of it.
MR. UNDERWOOD-Okay. Brian?
MR. CLEMENTS-This is a tough one for me. I actually went up and looked at this when
it was For Sale and kind of have a pretty good idea of what that's like. I think I would
side with Joan here and say that, with all of the renovation that's going to go on, that this
could probably be put in a more compliant place and I don't know if it would cost as much
or cost the same to do that. So I guess what I would rather do is listen to what all the
other specifications would be for runoff and things like that from the Planning Board, and
I would rather make a determination, I think, after we got some more information back
from them.
MR. UNDERWOOD-Joan?
MRS. JENKIN-Yes. I think I've said what I felt. I would like more information, and
especially on the stormwater. I'd like to find out if there needs to be major stormwater
infiltration system, and find out what other things need to be done on the property itself,
how much, how many trees are going to have to go and some of the things that the
Planning Board is responsible for.
MR. UNDERWOOD-Okay. For myself, I think I have to recognize that it's over a half an
acre lot, which is, you know, exceptional in a lot of respects for property up on Cleverdale
and Lake George. It is on a peninsula. There are concerns that have been raised about,
you know, water quality up on that part of the lake there, and I think everybody
recognizes that Harris Bay is a closed body of water. It doesn't get the turn over that the
main part of the lake gets, and things like that, but nonetheless, you know, what you're
proposing, as far as your septic solution here, is a dramatic plus as far as I'm concerned,
compared to what you have there now. You are going to be going from seasonal usage
to year round usage with this proposal here I would assume. At that point, it triggers, in
my mind, the fact that, you know, it's presented to us as a re-do, as afixer-upper, that
that's a possibility. At this point in time, I would be willing to grant you the relief you're
requesting, but only with the caveat, and you guys have already recognized that, too,
and the record reflects that, and that these minutes go on to the Planning Board with our
concerns, too. If this project starts and it ends up being a complete tear down, then at
that point in time I think you're going to have to go back to the drawing board, and I don't
think that's an unreasonable request on our part. You are set back 33 feet from the lake.
That's not unreasonable, but I think if you're going to go to all brand new construction,
and this thing could be jockeyed further into the center of the peninsula there where
would have even less of an effect on the lake than what you have now. The adjoining
properties, your family owns all that property through there. A lot of that is unvegetated
without trees and things like that, and I think everybody recognizes that the cumulative
effect of all of that is not good, you know, even though it's open now, and those
properties aren't subject to our review here tonight, that, you know, you can add
vegetation, maybe as part of the stormwater prevention plan that's going to be decided
by the Planning Board, that, you know, you consider some vegetative plantings up there.
Naturalize with the surroundings of what the lake once was and what we wish it would
become because that's been missing in the quotient here in a lot of these projects.
You've got a really nice piece of land out there. It's a good example of what's there, and
I think it's important that when you go in for Site Plan Review that you recognize that you
do the least amount of intrusive building that you can do here, on the project, and if,
indeed, you have to come back to us, that doesn't mean that we're not going to allow you
to put a house out there. I think we would just like to have you make that house in a
more compliant situation. This is the easy way to do it, what you've proposed here, but
sometimes it's not the best way to do it, and, you know, if we get to that point and you
guys find that the walls are no good in this house, and that it demands a complete re-do
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(Queensbury ZBA Meeting 02/25/09)
project, then you will have to come back and get relief from us for that, but I don't think
we would be, you know, negative totally about doing anything.
MR. HUTCHINS-Or build in a compliant manner. Right?
MR. UNDERWOOD-Yes, or build it in a compliant manner. Sure. So then you don't
have to bother with us at all. So I guess what I'll do is have one of you guys want to
make the resolution?
MOTION TO APPROVE AREA VARIANCE NO. 9-2009 MASTOLONI FAMILY, LLC ED
MASTOLONI, Introduced by Richard Garrand who moved for its adoption, seconded by
Joyce Hunt:
18 Neighbors Way, Assembly Point. The applicant proposes to renovate a 2,020 square
foot existing nonconforming single family dwelling to include a raised roof and
construction of an 810 square foot first story addition, and the addition of 65 square feet
to the second story. The applicant requests 16.32 feet of shoreline relief from the 50 foot
requirement per Section 179-4-030. Further, the applicant requests relief for the
expansion of a nonconforming structure as per Section 179-13-010. Finally, the
applicant is also requesting 7.5 feet of south side setback relief per Section 179-4-030.
On the balancing test, whether benefits can be achieved by other means feasible to the
applicant, the applicant is trying to preserve a section of the existing old house. I don't
believe benefits can be achieved by other means feasible, while trying to still save that
portion of the house. Will this create an undesirable change in the neighborhood or
character to nearby properties. We don't believe it will change the character of the
neighborhood. By preserving what's there, it will be preserving the character of the
neighborhood. Whether this request is substantial. I don't believe the request is
substantial. I would deem it as moderate. Will this request have adverse physical or
environmental effects on the neighborhood? The Planning Board is going to be looking
at this. They're going to be looking at stormwater management here. So I don't believe,
at this point, it'll have adverse physical or environmental effects, and this may be
deemed as self-created. So I move we approve Area Variance No. 9-2009.
Duly adopted this 25t" day of February, 2009, by the following vote:
AYES: Mrs. Hunt, Mr. Garrand, Mr. Urrico, Mr. Zanghi, Mr. Underwood
NOES: Mr. Clements, Mrs. Jenkin
MR. REICHENBACH-Thank you.
MR. UNDERWOOD-Okay. We've got some ZBA minutes to approve here.
APPROVAL OF MINUTES
January 21, 2009
MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS
MEETING MINUTES OF JANUARY 21, 2009, Introduced by James Underwood who
moved for its adoption, seconded by Richard Garrand:
Duly adopted this 25t" day of February, 2009, by the following vote:
AYES: Mr. Garrand, Mr. Clements, Mrs. Hunt, Mr. Urrico, Mrs. Jenkin, Mr. Zanghi,
Mr. Underwood
NOES: NONE
January 29, 2009
MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS
MEETING MINUTES OF JANUARY 29, 2009, Introduced by James Underwood who
moved for its adoption, seconded by Joyce Hunt:
Duly adopted this 25t" day of February, 2009, by the following vote:
AYES: Mrs. Hunt, Mr. Garrand, Mr. Clements, Mr. Urrico, Mrs. Jenkin, Mr. Underwood
NOES: NONE
45
(Queensbury ZBA Meeting 02/25/09)
MR. UNDERWOOD-Okay. We're all set. See you next time.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
James Underwood, Chairman
46