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1996-08-14 SP (J ..-.-...... frtf (OPy QUEENS BURY ZONING BOARD OF APPEALS SPECIAL MEETING AUGUST 14, 1996 INDEX Use Variance No. 82-1995 Mooring Post Marina Tax Map No. 13-3-19 13-3-20, 21 1. Area Variance No. 83-1995 Mooring Post Marina Tax Map No. 13-3-19 13-3-20, 21 1. 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. --- / / n .... 9" f (Queensbury ZBA Meeting 8/14/96) ~,"~ '4 ~ ' -ì -- QUEENS BURY ZONING BOARD OF APPEALS SPECIAL MEETING AUGUST 14, 1996 7:00 P.M. MEMBERS PRESENT FRED CARVIN, CHAIRMAN CHRIS THOMAS, SECRETARY BONNIE LAPHAM DAVID MENTER ROBERT KARPELES WILLIAM GREEN EXECUTIVE DIRECTOR-JAMES MARTIN CODE COMPLIANCE OFFICER-JOHN GORALSKI ATTORNEY REPRESENTING ZBA-JON LAPPER STENOGRAPHER-MARIA GAGLIARDI OLD BUSINESS: ---- USE VARIANCE NO. 82-1995 TYPE I WR-1A CEA MOORING POST MARINA OWNER: JOHN BROCK WESTERN SIDE OF CLEVERDALE ROAD, NORTH OF THE INTERSECTION WITH MASON ROAD APPLICANT SEEKS TO CONSTRUCT AND USE NONCONFORMING COMMERCIAL BOAT STORAGE BUILDINGS ON A PRE-EXISTING, NONCONFORMING SITE, AND SEEKS RELIEF FROM THE USE AND AREA REQUIREMENTS OF SECTION 179-16, WATERFRONT RESIDENTIAL - ONE ACRE (WR-1A) ZONE. LAKE GEORGE PARK COMMISSION ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING TAX MAP NO. 13-3-19 TAX MAP NO. 13-2-20, 21 AREA VARIANCE NO. 83-1995 MOORING POST MARINA SAME DESCRIPTION AS USE VARIANCE RICHARD FRANKEL, REPRESENTING APPLICANT, PRESENT MR. CARVIN-Before we begin, I would like to go over the format. We are in the process of a Use and Area Variance for the Mooring Post. We opened this up some time ago. It was tabled until the completion of the SEQRA review, which was conducted, I believe in May. We are here this evening to hear the Use portion first and then the Area portion second. What I would like to do is, as far as the matter of the public hearing is concerned, as opposed to having the two public hearings, I'd like to run the public hearings simultaneous, as far as the Use and Area Variance, in an effort to save some time. I understand that we can do that. Is that c?rrect legal counsel? / I MR. LAPPER-Yes. MR. CARVIN-As I said, the votes will be separate. The Use will be heard first. The Area will be heard second. If the public is making comment this evening on either one of them, we will have ample opportunity for you to address them, but we will just open it up one time. The format is that we will have the applicant come forward. The Board may have some questions of the applicant. We will then open up the public hearing, after which we will read any additional correspondence into the record, after which the Board may have some additional questions of the applicant, and then this Board will vote to either approve, deny or table. I would ask anyone making comment this evening to come to the microphones. They are taping microphones and not necessarily amplification microphones. I would ask that you state your name on the record and make your comments. Because of the size of the crowd and the anticipated public comments, we would ask you to get your point - 1 - (Queensbury ZBA Meeting 8/14/96) across as quickly as possible, and, having said that, I don't think there's anything else. So why don't you read the tabling motion, Chris. MR. THOMAS-liThe Queensbury zoning Board of Appeals has reviewed the following request at the below stated meeting and has resolved the following. The meeting date was November 29, 1995, the Variance File No. was 82-1995 for a Use Variance was tabled for SEQRA review. RESOLUTION OF INTENT OF THE ZONING BOARD OF APPEALS OF THE TOWN OF QUEENSBURY TO BE LEAD AGENT IN THE REVIEW OF THE MOORING POST MARINA "RESOLUTION NO.: October 18, 1995 INTRODUCED BY: Fred Carvin WHO MOVED FOR ITS ADOPTION SECONDED BY: Chris Thomas -- WHEREAS, JOHN BROCK has submitted an application for a Use Variance & Area Variance in connection with a project known as or described as Mooring Post Marina, and WHEREAS, the Town of Queensbury Zoning Board of Appeals desires to commence a coordinated review process as provide under the DEC Regulations adopted in accordance with the State Environmental Quality Review Act (SEQRA), NOW, THEREFORE BE IT RESOLVED, that the Town of Queensbury Zoning Board of Appeals hereby indicates its desire to be lead agent for purposes of the SEQRA review process and hereby authorizes and directs the Executive Director to notify other involved agencies that: 1. an application has been made by John Brock for construction of boat storage buildings; 2. a coordinated SEQRA review is desired; 3. a lead agency for purposes of SEQRA review must therefore be agreed to among the involved agencies within 30 days; and 4. the Town of Queensbury Zoning Board of Appeals desires to be the lead agent for purposes of SEQRA review; because, f.n this case, the Zoning Board has stricter criteria to consider,/the Use Variance is a prerequisite to all other local approvals, the Zoning Board has had over a year of experience with the project and the attendant issues. BE IT FURTHER, RESOLVED, that when notifying the other involved agencies, the Executive Director shall also mail a letter of explanation, together with copies of this resolution, the application, and the EAF with Part I completed by the proj ect sponsor, or where appropriate, the Draft EIS. Duly adopted this 18th day of October, 1995, by the following vote: AYES: Mr. Menter, Mr. Karpeles, Mr. Ford, Mr. Thomas, Mr. Green, Mr. Carvin - 2 - "-' --,,' (Queensbury ZBA Meeting 8/14/96) NOES: None RESOLUTION ACKNOWLEDGING LEAD AGENCY STATUS IN CONNECTION WITH USE VARIANCE, AREA VARIANCE, SITE PLAN REVIEW FOR THE MOORING POST MARINA RESOLUTION NO: INTRODUCED BY: Fred Carvin WHO MOVED ITS ADOPTION SECONDED BY: Thomas Ford WHEREAS, in connection with the Moorinq Post Marina Use variance, Area Variance and Site Plan Review project, the Town of Queensbury Zoning Board of Appeals, by resolution previously authorized the Executive Director to notify other involved agencies of the desire of the Zoning Board of Appeals to conduct a coordinated SEQRA Review, and -- WHEREAS, the Executive Director has advised that other involved agencies have been notified and have consented to the Town of Queensbury Zoning Board of Appeals being lead agency, NOW, THEREFORE, BE IT RESOLVED, that the Town of Queensbury Zoning Board of Appeals hereby recognizes itself as lead agency for the purpose of SEQRA Review. Duly adopted this 29th day of November, 1995, by the following vote: AYES: Mrs. Lapham, Mr. Green, Mr. Menter, Mr. Karpeles, Mr. Ford, Mr. Thomas, Mr. Carvin NOES: NONE MOTION TO TABLE USE VARIANCE NO. 82-1995 JOHN BROCK MOORING POST MARINA, Introduced by Fred Carvin who moved for its adoption, seconded by Robert Karpeles: For additional information from the applicant, and to allow him to revise the Long EAF Form Part I, as this application is deemed to be incomplete. Duly adopted this 29th day of November, 1995, by the f,çllOwing vote: / AYES: Mr. Green, Mr. Menter, Mr. Karpeles, Mr. Ford, Mr. Thomas, Mrs. Lapham, Mr. Carvin NOES: NONE Sincerely, Fred A. Carvin, Chairman Queensbury Zoning Board of Appeals" MR. CARVIN-Before we begin, I'm assuming that everyone on the Board is comfortable moving forward on this? There's no conflicts? - 3 - (Queensbury ZBA Meeting 8/14/96) Everyone's up to speed, familiar with what the applicant is requesting. I also know that we did a SEQRA Review we posted to all the additional agencies, and I'm going to ask Staff, I'm assuming we have not heard back any negative or additional comments. So I'm assuming that our SEQRA is in order and is proper? MR. MARTIN-That's correct. MR. CARVIN-And we've had no conflicts whatsoever. So we may move beyond that issue. MR. MARTIN-Yes. MR. CARVIN-Okay. I'm in receipt of a letter dated, actually it's a memorandum. I'm not sure what the date is, I guess August 2nd, from Friedman, Hirschen, Miller, Coughlin & Campito with regard to the Area and Use Variance. I'd ask you to read the applicant's comments into the record, and then I think we've also got some additional Staff Notes that I think we'll read into the record. MR. THOMAS-Memorandum to the Zoning Board of Appeals, regarding Area and Use Variance, Mooring Post Marina, Cleverdale, New York, Town of Queensbury, Warren County for the "Area Variance Applicant seeks an Area Variance for his property. Pursuant to the New York State Court of Appeals case Sasso v. Osqood, 86 NY2d 374 (1995), the Board is to balance the criteria under Town Law Section 267-b(3} (b). 1. The requested side yard setback area variances are not substantial. The substantiality of the requested variances must be considered in light of the overall variances requested. One building requires a setback of a little over 4 feet. This building is buffered by property owned by the applicant. Other buildings noted on the map submitted require 10 feet setbacks that are no greater than the original building setbacks. The rest of the project conforms with the area zoning requirements and in fact increase setbacks from original buildings. Thus, it is submitted that there is no substantial change from the preexisting setbacks when the overall proj ect is viewed. 2 . There will not be an undesirable change produced in the character of the neighborhood by the granting of the area variance. This property has been used as a marina since 1906. The Board in the SEQRA hearing addressed the size of the buildings, their location, landscaping, level of boats and the time under which the Marina will operate and determined the proposal will mitigate the environmental concerns. Modernization of the facility will be a positive improvement to the site and will internalize a large portion of the boat storage. There will be improved landscaping and stormwater management. Thus, the neighborhood will not be adversely affected by the granting of the variances. 3. The benefit sought by the applicant canI)ot be achieved by alternative means. The applicant has provided yarious alternatives to the Board and the community to modernize his facility. The present proposal during the SEQRA hearing was agreed to by the applicant has feasible for him to stay in business. The applicant cannot feasibly achieve the necessary level of boats needed to remain in business without the buildings situated as shown on the site plans. In other words, practical utilization of the property would be denied without the granting of the area variances. 4. The difficulty was not self-created. The present situation was created based upon the reliance on a demolition permit and building permit issued by the Town that resulted in the previous marina buildings being demolished. This property is a nonconforming use that should not be lost due to the good faith reliance upon the aforesaid issuance of Town permits. 5. There will not be an adverse effect of impact on the physical or environmental conditions in the neighborhood. The conditional negative declaration on this project clearly shows that the present proposal mitigates any adverse effect on nearby physical or environmental conditions. 6. Applicant will suffer significant - 4 - '-' --' (Queensbury ZBA Meeting 8/14/96) economic injury absent the granting of the variance. The applicant has presented evidence in his zoning variance applications that he will suffer significant economic injury if the variances are not granted. The applicant purchased the Marina and the adjoining residential lot in 1985 for $750,000.00 as an ongoing, viable commercial marina. The real estate appraisal of Beaty Agency establishes that in the Fall of 1995 the combined value of the Marina lots is $338,000.00 if they were to be sold as residential lots and not as a nonconforming use. The most recent Income Statements provided to the Board establish that the operating expenses including repairs and maintenance costs and real estate taxes. There are also expenses incurred in demolishing buildings ($70, OOO) . The applicant's accountant has described that mere continuation of the existing marina is not economically viable, even if the buildings which were previously removed pursuant to valid permits from the Town were replaced. Modernization is required to provide the feasibility of the business. Use Variance Applicant seeks a use variance to build the proposed buildings on a pre-existing nonconforming lot. 1. The applicant cannot realize a reasonable return if the land is used as zoned. The applicant purchased the Marina and the adjoining residential lot in 1985 for $750,000.00 as an ongoing, viable commercial marina. The real estate appraisal of Beaty Agency establishes that in the Fall of 1995 the combined value of the Marina lots is $338,000.00 if they were to be sold as residential lots and not as a nonconforming use. The most recent Income Statements provided to the Board establish that the operating expenses including repairs and maintenance costs, and real estate taxes. The applicant's accountant has described that mere continuation of the existing marina is not economically viable, even if the buildings which were previously removed pursuant to valid permits from the Town were replaced. Modernization is required to provide the feasibility of the business. 2. The hardship relating to this property is unique. This situation arose after the applicant's good faith reliance on a demolition permit and building permit issued by the Town resulted in previous marina buildings being demolished. This property is a nonconforming use that should not be lost due to the good faith reliance upon the aforesaid issuance of Town permits. The layout of the property is unique considering it involves Lake side as well as non-lake side property for the continuation of a nonconforming use that predates the zoning ordinances. This is not a situation that is general to the surrounding properties, but unique to this landowner. 3. The essential character of the neighborhood will not be altered by granting the requested use variance. This property has been used as a marina since 1906. The Board in the SEQRA hearing considered such items as noise levels, lighting and traffic as well as the level of boats and the time under which the Marina will operate and determined the proposal will mitigate the environmental concerns. These items are also relevantinphowing that the character of the neighborhood is not being Jlltered. Modernization of the facility will be a positive improvement to the site and will internalize a large portion of the boat' storage. There will be improved landscaping and stormwater management. Thus, the neighborhood will not be altered by the granting of the variance. 4. This difficulty was not self-created. The present situation was created based upon the reliance on a demolition permit and building permit issued by the Town that resulted in the previous marina buildings being demolished. This property is a nonconforming use that should not be lost due to the good faith reliance upon the aforesaid issuance of Town permits." STAFF INPUT Notes from Staff, Use Variance No. 82-1995, John Brock - Mooring Post Marina, Meeting Date: August 14, 1996 "APPLICANT: John Brock - Mooring Post Marina PROJECT LOCATION: Cleverdale Road PROPOSED PROJECT AND CONFORMANCE WITH THE ORDINANCE: The applicant is proposing to construct and use nonconforming commercial boat - 5 - (Queensbury ZBA Meeting 8/14/96) storage buildings on a pre-existing, nonconforming site. The applicant is seeking relief from the use requirements listed in Section 179-16, Waterfront Residential One Acre (WR-1A) zone. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE OF THE LAND IS USED AS ZONED? The Planning staff supplied to the Board an excerpt from New York Zoninq Law and Practice which provides guidance based on previous case law as to what constitutes 'quality' proof when addressing the reasonable return question from Town Law. The seven points outlined in the excerpt specifically focus on information relevant to expansion of a nonconforming use. This excerpt has also been supplied to the applicant's attorney. The seven points and inventory of information supplied to date is summarized as follows: A. AMOUNT PAID FOR THE PARCEL. According to a memo supplied by the applicant's attorney the purchase cost from 1985 is $750,000. The tax assessment records indicate a purchase cost of $364,000. The assessment records further indicate that this price included all parcels associated with this application. This is a discrepancy of $386,000. This discrepancy requires explanation as it may affect the rate of return. B. PRESENT VALUE OF THE PARCEL. According to an appraisal from the Beaty Agency dated August 8, 1996, the present value of the property if used residentially has been appraised at $338,000. Staff has not received an appraisal of the property for its current value as a marina. The current value as a marina should be documented. C. EXPENSES ATTRIBUTABLE TO MAINTENANCE. Expense statements for the following years have been provided: -Year ending September 30, 1993 -Year ending September 30, 1994 -Year ending September 30, 1995 D. AMOUNT OF TAXES. Real Estate taxes on property have been provided in the above referenced expense statements. E. MORTGAGE INFORMATION. A letter from the applicant's attorney states that a mortgage was taken on the property in October of 1994 in the amount of $400,000. The expense statements indicate an increase in building expense from $18,068 in the September 30, 1993 statement to $35,686 in the September 30, 1994 statement. It should be confirmed if this increase is due to the new mortgage of $400,000. The Board also should seek to learn the original mortgage, if any, taken in 1985 to finance the original purchase and what the annual paYment has been. F. INCOME FROM LAND. Income statement for the following years have been provided: - Year Ending September 30, 1993 -Year Ending September 30, 1994 - Year Ending September 30, 1995 G. OTHER INFORMATION RELEVANT TO THIS CASE. The marina has been in existence at this location since 1906. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? It is the opinion of the staff that this property by reason of its nonconforming status as a commercial marina is unique. The basis for this opinion is the existence of this marina in contrast to the predominantly residential character in existence on the bal?nce of the Cleverdale peninsula. The only other commercial¡ use in existence on the peninsula is in the form of a tavern to the north of the marina. The marina has been in continuous operation since 1906. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? In the opinion of the staff, the proposed expansion of this use would have some effect on the character of the neighborhood. At the conclusion of the environmental assessment a conditioned negative declaration was passed by the Zoning Board of Appeals as lead agent. The conditions approved served to mitigate the potential adverse environmental impacts. The operation of the marina facility and visual appearance of the structures associated with marina do have an effect on the neighborhood. 4. IS THIS THE MINIMUM VARIANCE NECESSARY TO ADDRESS THE UNNECESSARY HARDSHIP PROVEN BY THE APPLICANT AND AT THE SAME TIME PROTECT THE CHARACTER OF THE NEIGHBORHOOD AND THE HEALTH, SAFETY, AND WELFARE OF THE COMMUNITY? It is the opinion of the staff that the Board needs to arrive at a decision on the amount of variance, if any, needed to provide minimum relief after careful consideration of the financial information provided. Relevant - 6 - '-' -' (Queensbury ZBA Meeting 8/14/96) , questions in this regard are as follows: Given the amount of funds invested in the property from purchase, improvements and maintenance, can a reasonable return be realized if the property were sold to facilitate a use allowed under the WR-1A zone? If not, how much investment return can be derived from the property if used as a marina in its current configuration and size? How much income is derived from boat storage on a cubic foot basis? Given the income from boat storage on a cubic foot basis, how much expansion is warranted to yield a reasonable return? STAFF COMMENTS AND CONCERNS: In response to the SEQRA review of this application, the Zoning Board of Appeals issued a negative declaration of environmental impact. Should the Zoning Board of Appeals approve this Use Variance in accordance with Section· 267-b of Town Law, the conditions of the SEQRA review should be incorporated into any final approval. SEQRA: Type I, Full EAF previously reviewed." MR. CARVIN-I'm going to ask legal counsel. Should we read in the Staff Notes on the Area? We've just read in the Staff Notes on the Use. I think we should read in. MR. LAPPER-Since you read both applications, I think you should. --- STAFF INPUT Notes from Staff, Area Variance No. 83-1995, John Brock - Mooring Post Marina, Meeting Date: August 14, 1996 "APPLICANT: John Brock - Mooring Post Marina PROJECT LOCATION: Cleverdale Rd. Proposed Project and Conformance with the Ordinance: The applicant is proposing to construct five storage buildings on two existing lots currently being used as a marina. The proposed buildings would be an expansion of a nonconforming use and are subject to a Use and Area Variance. The proposed buildings would not conform to the side yard setbacks listed in Section 179-16, WR-1A Waterfront Residential 1 Acre district. Relief is being requested from the setbacks listed in Section 179-16. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to construct additions to an existing marina. 2. Feasible alternatives: Feasible alternatives have been considered under previous hearings for SEQR. Those alternatives have been incorporated into the current site design. 3. Is this relief substantial relative to the ordinance? The applicant is seeking side setbacks of 10 feet for the two storage buildings located at the northwest and southwest of the property. A setback of 4.15 feet is being sought for a storage building to be located just to the west of Cleverdale Rd. 4. Effects on the neighborhood or community? Effects associated with this request have been identified at past hearings and under the recently completed SEQR review of this projeTt. 5. Is this difficulty self created? The current difficulty i, one of trying to upgrade and expand a pre-existing nonconforming use in an area zoned for residential development. Parcel History' A marina has been in existence on this property since 1906 which was purchased by John Brock in 1985. Two previous variance applications for expansion of the marina have been heard before the ZBA. The first application for expansion (Variance No. 323) was reviewed by the Zoning Board on September 5, 1973 and was also approved by the APA in November of 1973. The second application (Use Variance No. 1402 was heard before the ZBA on August 24, 1988. This application for a 4100 square foot expansion of the marina was denied by the ZBA. A copy of the 1988 resolution is attached. Staff Comments & Concerns: The proposed site layout appears to have the least impact on the neighborhood by providing light and ventilation to adj acent properties. Proposed landscaping will also provide a natural buffer from noise and visual effects of the existing business. Drainage and stormwater management issues will be further addressed should this application be reviewed by the Planning Board as a site plan review. SEQR: Type I, Full EAF - 7 - (Queensbury ZBA Meeting 8/14/96) previously reviewed." MR. CARVIN-Okay. I would guide the Board to remember what the criteria for both the Use and the Area Variance are in hearing this application. I'd ask the applicant is the applicant is here? Is there anything that you'd care to expand upon or answer in relation to the Staff Notes possibly? MR. FRANKEL-From Iseman, Cunningham, Riester & Hyde, Richard Frankel of Counsel, attorneys for John Brock the applicant. Mr. Brock is sitting to my left. We can respond to a couple of items with additional information, if the Board would like. We have received a handout. I have already turned it into the attorney for the Board and to Staff this evening an updated opinion letter from Beaty Agency, as well as an updated letter from the accountant for Mr. Brock explaining the cost evaluation of the property to describe away the discrepancy. If I can approach, I can hand these out. MR. CARVIN-Okay. I'm not positive if we've read the September the 26th letter of 1995, which is referenced. MR. FRANKEL-That, I believe, was also transmitted to Staff Monday, I believe, prior to the notes going out to the Board. MR. CARVIN-I have it. I just don't know if we've put it into the record or not. MR. LAPPER-It was in a prior application, so it should be part of the record. ì MR. CARVIN-Okay. Does everybody on the Board here have that letter dated September 26, 1995, the Beaty Agency? MR. GORALSKI-That's the original appraisal letter which probably is in your looseleaf binder. MR. CARVIN-I was going to say, a lot of this may be in your white, or whatever colored manuals we have nowadays. If not, I have a copy here. Do you have an extra copy? MR. FRANKEL-This is my working copy, but I'm more happy to share it with the Board. MR. CARVIN-Okay. Is a correct assumption, if I can summarize this letter, it is in the opinion of this appraiser that the lake side parcel could sell for $2400 a front foot, or $288,000? MR. FRANKEL-That appears to be his opinion, yes. / MR. CARVIN-Okay. However, the cost of removing the gas pumps and holding tanks would be costly. The other parcel with no lake frontage could sell for approximately $50,000 if broken up into two residential lots of 1.2 acres each. However, the cost of removing the buildings would be costly. That is essentially what this appraiser has come up with. His letter dated August 13th, obviously it says "On September 26, 1995, I typed a letter of opinion for John Brock as to the probable value of his vacant lots if sold as residential parcels. The values which I arrived at then would be the same values today as the values have not changed within the past year." So these valuations are still apparently current. Okay. Anything else you'd care to add? MR. FRANKEL-Well, essentially, most of the comments from the memorandum that was sent up on August 4th have been read into the record. I believe that the accountant's statement clarifies the issue as to the assessed value on the tax bills versus the actual paYment. So that should answer Staff's questions in that respect. - 8 - "-' "-"" (Queensbury ZBA Meeting 8/14/96) In addition, we have the accountant here available to go over any questions that the Board may have as to the income statements and the expenses. Mr. Brock here is able to answer any Board questions pertaining to the viability of his business in conjunction with his accountant, which shows that it is presently running at a significant loss, given the fact that the buildings that have been used, were torn down, are no longer obviously in use, and this has affected the income and shows that even though there was a decrease of income from '93 to '94, I think the Board can see that there was a loss in '95. With respect to the mortgage information, I can provide to the Board a copy of the note that was signed by Mr. Brock when he purchased the building, as additional support, excuse me, purchased the property and buildings, back in 1985 anG make that a part of the record as well, if I could. MR. CARVIN-Sure. Okay. Thank you. MR. FRANKEL-The difference, I am told, between the note and the value of which Mr. Brock purchased the building was a cash infusion, and Mr. Brock could explain that further, if you would like him to do so. MR. CARVIN-Does everybody understand? Okay. Moving along. .Next. MIKE O'CONNOR MR. O'CONNOR-What was the note for? MR. FRANKEL-I believe, Mr. O'Connor, I indicated that the note was for and utilized to purchase the business and the property and the attendant assets back in 1985. MR. O'CONNOR-If you could at least read enough of it so that we know what the amount of the note is to be passed on. MR. CARVIN-Okay. I don't have a problem with that. MR. FRANKEL-We don't have any objections to that. MR. THOMAS-A note dated 4/19/85, "For value received, the undersigned promises to pay to the order of First National Bank of Glens Falls, $550,000 with interest at First National Bank Prime Plus 1 and 100% annum at any of the offices of the First National Bank of Glens Falls." MR. MARTIN-So as I read this, I'm to understand this was a 10 year loan? JOHN BROCK / I MR. BROCK-Yes. MR. MARTIN-And it goes on further to say the monthly payment was $7,891 a month. ·That calculates to an annual payment of $94,692 a year. MR. BROCK-That's right. MR. MARTIN-So this loan is fully paid off, now, at this point? MR. BROCK-Yes. That loan has been paid off. It was paid off a little over, just about a year ago. Just before I applied for the loan to do the new project, that loan was paid off, about a month prior to that. MR. FRANKEL-And I believe that Staff also was provided a letter by me, based upon a conversation that I had with Mr. Brock that he took out another loan in the amount of $400,000 for the - 9 - ) (Queensbury ZBA Meeting 8/14/96) construction of the original project, and I believe that letter was most likely dated this past Monday. MR. CARVIN-So at this point the $400,000 is the only current mortgage on the property, approximately? MR. FRANKEL-Yes, mortgage. It's a line of credit. MR. BROCK-It's a line of credit, right. MR. CARVIN-A line of credit. MR. MARTIN-So is, in fact, the increase in the line item, I believe it's referred to as "Building Expense" in your expense sheets. When that goes from approximately $18,000 to $35,000, from '93 to '94, is that a result of that note or that line of credit kicking in? MR. BROCK-That's a result of paYments to the building manufacturer for the building that I have ordered. The existing building is ordered. That's a deposit toward those buildings. MR. MARTIN-So has there been a draw on the line of credit? .-- MR. BROCK-Yes. MR. FRANKEL-What was the original draw? MR. BROCK-There's been a draw of $140,000. MR. CARVIN-Okay. Does Staff have any other questions, Jim? MR. MARTIN-I'll just go through in order. MR. CARVIN-Before you do that, are you looking at the? MR. MARTIN-My Staff Notes is what I'm using as a basis for. MR. CARVIN-Okay. Yes. Well, I've got some questions on the Staff Notes. MR. MARTIN-Yes. wait. I'll let the Board, you go ahead, then. I'll MR. CARVIN-Okay. Does the applicant have any other additional comments with regard to the Staff Notes? MR. GREEN-I've got a question about this income statement. MR. CARVIN-No. I want to get the Staff Notes clarified ~d then we'll go into the income statements. / MR. GREEN-Okay. MR. CARVIN-If you don't mind. MR. GREEN-No. MR. FRANKEL-The only other factors that we would bring to the Board's attention is the fact that, I believe that the memorandum addresses the concerns that have been raised by Staff's memo, seeing it's been read into the record. There's no need for me to be redundant and go through my presentation in that respect. We'd be willing to answer any questions. So we would like to ask of the Board the right to respond to any questions that might be raised in the public hearing, as it might facilitate answers for the Board for us to do so, and that, once again, we do have the accountant available to answer questions from the income statement. - 10 - .~ '--" (Queensbury ZBA Meeting 8/14/96) MR. CARVIN-All right. Well, we normally would allow you that opportunity. Okay. I do have a couple of questions. I'm still not clear. Now you've got to remember, we're not accountants up here, at least that I know of, nobody's an accountant. I still am not clear on the explanation on Staff Notes, Part A, according to the memo, the $750,000. I understand that figure. The tax assessment is at $364,000, and this is a discrepancy of $386,000, and Staff Note is pretty clear on this. Discrepancy requires an explanation, and again, maybe you gave it to me, but I'm thick as a brick. So you'll have to go slow. MR. FRANKEL-I had to have the accountant explain it to me, too, as well. From what I understand, as an accounting technique .is that a certain amount of the purchase price would be allocated to land and a certain amount would be allocated to other depreciable assets, in order for you to be able to expense and depreciate at different rates. So, most likely 10 years ago, when Mr. Brock purchased this property, I would assume that his accountant at that time allocated, and that's why, if the Staff went back and looked at the Deed Stamps, which I'm assuming that's what they did, that's how they came up with it. MR. MARTIN-So you're saying that the $386,000 is ~holly attributable to depreciable assets that were purchased? MR. FRANKEL-$386 which is your difference? MR. MARTIN-Yes. MR. BROCK-Yes. The figure with the Deed Stamps is for the land, the raw land, okay and the buildings. The depreciable assets would have been the equipment, goodwill, some of the docks, some of the stuff that could, and inventory, anything else related to the operation of the business, other than the land. MR. CARVIN-Other than the land and the building? MR. BROCK-Yes. MR. CARVIN-Okay. MR. GREEN-So your accountant basically said you paid $364,000 for the land and another $386,000 for the "business"? MR. BROCK-Yes. That's the way he broke it down at that time. MR. FRANKEL-As a viable, ongoing concern, and I think you can even note that, looking at Mr. Beaty's appraisal, if it were to be used as presently zoned, even just as raw land residential~l' there would still be a lose, based upon how the accountant bro~e it up, any significant loss. I MR. CARVIN-Okay. Jim, I'm assuming that when this, in 1985, we were at full valuation, as far as tax assessment? MR. MARTIN-Yes. MR. CARVIN-I mean, it's not like a 50% or a quarter or anything. That's a full valuation. Okay. Does everybody understand? Okay. MR. MENTER-I was going to say. time of purchase, is it not? commercial purchase like that. That is a fairly typical method, at That is a typical breakdown on a JIM MAITINO MR. MAITINO-My name is Jim Maitino and you have my letter before you, and I'll address any questions you might have on it. - 11 - ') ~ --'" (Queensbury ZBA Meeting 8/14/96) MR. MENTER-I guess my question was just, that's a fairly typical method of breakdown on the purchase of sale of a commercial property? MR. MAITINO-Yes, when it also includes the, you can purchase, you can make acquisitions in many ways. This particular acquisition had land, buildings, and a certain amount of inventory, a certain amount of equipment, and the docks. MR. 'MENTER-There's a certain amount of objectivity to that, in that, on your part, I guess? MR. MAITINO-Correct. MR. MENTER-So that would typically be, I'm just trying to get clear. The reason that that is the Town's figure on the value of the property is what? MR. MAITINO-That probably is reflective of the acquisition of the land and the buildings, without that other. MR. MENTER-So the figure they use is simply the purchase price, which is what you determined was the purchase price of ___ the property, basically, for the tax purposes of the Town? They said, okay, what was the purchase price. MR. CARVIN-Of the land and the buildings. MR. MENTER-Right. MR. CARVIN-Yes. Exclusive of any inventory or goodwill or non land or building items. MR. MENTER-Right. MR. CARVIN-Okay. Does everybody on the Board understand that, why there is a discrepancy? Is it normal to have that big of a discrepancy as 50%? I mean, you're talking $364,000 in land and building and another $386,000 in inventory. Would that be an unusual figure for something of this magnitude? MR. MAITINO-Well, there are many ways to acquire a business. One way is just to acquire the land and buildings it operates from. Another way is to acquire everything. In other words, if we were to go to the Marina tonight and I would say to John, I'll buy this for one million dollars, as it stands right now, that would include all his inventory, his docks, the land, the buildings, the equipment. All right. Now, I pay this to John, and then the attorneys do whatever they have to do to make that right, tlOcate the total acquisition, and there's a real estate problem, nd the Town really doesn't care about the differences between wha I paid for it and what I paid for the land and building. Okay.' I might not even partake in that decision. MR. CARVIN-Okay. I understand. Does everybody else understand? MR. KARPELES-Yes. MR. CARVIN-I have an additional question. Again, the present value of the parcel, according to an appraisal from the Beaty Agency dated August 8, 1996, the present value of the property, if used residentially, has been appraised at $338,000. It says that the Staff has not received an appraisal of the property for its current value as a Marina. Now we did get the information as far as, if it was to be used as zoned, but do you have any figure of what the value of that as a Marina, or if you have submitted that, can you identify those figures? - 12 - I '- ........, (Queensbury ZBA Meeting 8/14/96) MR. FRANKEL-We had an appraisal done based upon what we believe the case law to be, and that is if it were to be used as a residential parcel, which is what the property is presently zoned for. We do not have an appraisal available for the Board on what it would be able to be sold at today, with the buildings having been demolished, and with it running at the loss that it is. I don't think, however, it would take an appraiser, the point that I'm making is that I don't think it would necessarily take an appraiser to see that the value of the property as a nonconforming use in its present condition does not provide a reasonable return, if you were to look at the income statements and you were to note that the buildings have been torn down, in that the accountant who is sitting here has stated, in a previous letter, that the viability of the business is in jeopardy. If the Board requires or seeks that we obtain an appraisal, as a nonconforming use, we will have to retain someone to do that, to see whether or not there is a current marketability for this type of property, as a nonconforming use. MR. CARVIN-Okay. Which brings us to the income statements. Does anybody have any other questions on the Staff Notes at this point? --- MR. MARTIN-Well, I've just got one additional question. We've just been handed the mortgage amount, and the paYment of $94,692, and it was also stated that the mortgage was completely paid off by 1994, but even with the income statement of 1993, or I mean the expense statement, I see nothing on there that reflects a mortgage paYment of that magnitude. I see expenses listed. There's a reference to bank and interest expense, but there's nothing in terms of a mortgage expense of $94,000 a year. MR. CARVIN-Well, I have a number of questions on this income statement. So, do you have any questions? MR. MAITINO-Would you like me to address that particular question? MR. CARVIN-Sure. MR. MAITINO-The only portion of the mortgage paYment that would be reflected in the income statement would be the interest. The principal is on the balance sheet as a loan to that bank. MR. MARTIN-Okay. I just wanted to clarify that. MR. CARVIN-Okay. MR. FRANKEL-If we could also put on the record, income statements that have been provided to the you prepared the Board, coyect? I MR. MAITINO-Correct. MR. CARVIN-Okay. I have a question. With regard to the September 30, 1993, that was pre-demolition of the buildings. Is that correct, John? MR. BROCK-Yes. MR. CARVIN-Okay. In your consideration, would this be an A-typical or a typical year for the Marina? Was 1993 a good year, a bad year, an average year? MR. BROCK-I would say that '93 was probably a down year because naturally the late 80' s were the better years. Okay, and the income at the Marina has steadily been declining since we could not accommodate bigger boats, because of the size of the buildings and the doors we had to work with, and the boats being higher today, with arches and being wider, we had a tougher time accommodating - 13 - (Queensbury ZBA Meeting 8/14/96) those boats, and had to turn a lot of people away that wanted inside quick launch and storage. So it's been on a steady decline, and the only way we saw that we were going to be able to continue was to get a facility that would handle the boats of today, instead of a 25 foot boat being 25 foot long, six foot wide and four and a half feet high, like the old Cris Craft runabouts and other runabouts. The 25 foot boat of today is 25 foot long, but it's nine and a half foot wide, and with an arch on top, it's 10, or 11, 12 feet high depending on the boat. So that's why we've been in a steady decline. MR. CARVIN-Okay. So' 93 was worse than' 92, '92 was a better year? MR. BROCK-I can't specifically say it was worse than '92, but it was a lot worse than the late 80's and maybe '90, '91. That was when the market started to go down, the economy, basically, over the last five years hasn't been that great. MR. CARVIN-Okay, and now the buildings were removed in, was it November of '94, I'm trying to think, or October, November? MR. BROCK-I think it was late October or early November. It was real early November or late October. I can't tell you exact~y in '94. MR. CARVIN-Well, I'm saying then the September 30, 1994 statement would represent, again, a timeframe where the buildings were still existing? MR. BROCK-Yes, it would. MR. CARVIN-Okay. I have a question, going from '93 to '94, with regard to depreciation. In '93, you had a depreciation expense of $13,621, and in '94, it jumped to $44,978. Is there any explanation as to why we had a significant increase in depreciation? Because as I remember it, I think there were some buildings that were removed, and I don't think there was anything that was built. MR. BROCK-Yes. I also had an operation which included an accessory store as part of the Marina. It was part of the Mooring Post, but it was run at the Mall over at Route 9, at the Route 9 Mall. When we closed that accessory store, we had done a lot of improvements in there, the Marina did improvements in the store, and they were written off the year they moved out of the store, because they were no longer of an asset to the Marina. MR. CARVIN-Well, that leads me to my next question. figures just for the Marina or does this include other that you may be owning or controlling? Are these Op¡ations I MR. BROCK-All of these figures are strictly for the Mooring Post. MR. CARVIN-But you included depreciation. MR. BROCK-Depreciation, that store. MR. CARVIN-Yes, but how about wages? I mean, do you have people at the other store? I mean, are we looking at a wage expense that also includes the Route 9 operation? MR. BROCK-In what year? MR. CARVIN-In any year, '93, '94. I'm saying that if you're running the depreciation for the Route 9 store on the Mooring Post books, how about the other things? MR. BROCK-Everything was done, yes, the payroll was done through - 14 - '-' -- (Queensbury ZBA Meeting 8/14/96) the Mooring Post. That store was only open like two years, two or three years. We thought we could do some accessory business over there, and we tried it and it didn't work. MR. CARVIN-What years were those? MR. BROCK-Probably '91 through '93, in that neighborhood. MR. CARVIN-Well, again, I'm looking at an insurance expense. In '93 you had insurance at $13,836, and in '94, it jump to $26,876. MR. BROCK-That's because all the insurance, I had passed due bills, and the year I pay them is when they're expensed. If I had passed due insurance bills and they were paid after September 30, to catch up on passed due bills. MR. CARVIN-Okay, but in '95 your insurance was at $25,768. So there was, I think that's a significant jump from $13,6, in '93, which was a profitable year, to 1994, where we have $26, and '95 was about the same. So I mean, if X was looking at this, I'd say your insurance costs, at least for '94 and '95 are $26,000 and why wasn't it $26,000 in '93? I mean, did you have passed bills in , 95? / MR. BROCK-That's liability insurance of $17,000, on '95. MR. CARVIN-I'm just seeing a line item, Insurance Expense in 1995 of $25,768 and I see a line item, Insurance Expense in '94 of $26,876, and I see a line item of Insurance Expense of $13,846 in 1993. I've got to assume that, you know, that these are all inclusive insurance expenses. MR. BROCK-That store was not open the past three years. MR. CARVIN-Which store are we talking about? MR. BROCK-The one at Route 9, that outlet store has been closed all three of those years. So there was nothing to do with anything other than the Mooring Post, the insurance. MR. CARVIN-No. I'm just wondering why the insurance jumped so significantly between '93 and '94 and yet remained static in '95. MR. BROCK-I've just got to grab that statement you're looking at. MR. ,LAPPER-Mr. Chairman, I'd like to raise a legal issue. The standard for the Use Variance is competent financial information that the Board has to look at to determine whether they can make a reasonable return. If I'm not mistaken, what I heard ~~ that these are statements for the corporation, and the corporat~? owns this facility and also had this rental store on Route 9. I The Use Variance only applies to this facility. So we're going to need these to be allocated for just the Mooring Post Marina property in Cleverdale, and determine from those numbers whether or not they can get a reasonable return. MR. CARVIN-That's why I'm wondering. Again, they're saying that the only item in here at this point is the depreciation. Is that correct? Am I hearing this or am I hearing something else? MR. BROCK-These statements, the last three years that store has been closed. So any of the last three years' statements have nothing to do with anything other than the property on Cleverdale Road. MR. CARVIN-Except the depreciation expense, which you indicated was carried forward on the Route 9 property. - 15 - (Queensbury ZBA Meeting 8/14/96) MR. BROCK-The fixtures from that store, not anything to do with like the structure of the Mall. MR. CARVIN-Well, again, I guess I'm slow here tonight. The only item in these three statements that reflect the Route 9 property is the depreciation expense. Is that correct? Or are there other items in these numbers that may also reflect? I don't care if it's insurance, legal utilities, you know, office expense, because I think what counsel is saying is that we need a pure financial breakdown for the Marina that's being considered, and exclusive of your other outside holdings. As I said, I see a significant increase in depreciation from $13,6 to $44, and then I see, in 1995, a significant drop to $1,935. I'm seeing numbers t¡hat, especially on depreciation. Now, the '95" I can assume was because there wasn't anything to depreciate because there wasn't anything to depreciate because they were gone. MR. FRANKEL-Just for clarification, I believe the '94 and the '95 financial reflect only the Mooring Post property before this Board tonight. MR. BROCK-I know what it is. The buildings that were torn down were totally depreciated that year. That's the year, ' 94, I think, that you're saying it went from '93, it went up in '94. Is that your comment? MR. CARVIN-Well, I'm saying that you had, again, depreciation of $13,6 in '93. You went to almost $45,000 in '94, and then you were a little under $2,000, I'm talking depreciation here, then I see depreciation going to a little under $2,000 in '95. MR. BROCK-That's because the buildings were torn down and no longer depreciated. All the value of those buildings was written off that year because they were gone. MR. MARTIN-Yes, but the buildings weren't demolished until early October. MR. CARVIN-I was going to say, the problem with that is that you were writing it off prior to the destruction of the building, because the September the 30th, those buildings were still up. MR. BROCK-It couldn't be that, then. MR. CARVIN-No. Now I have a couple of other questions. On the' 93 statement, I see no line item for rent or rent expense. However, in 1994, I see a line item of $42,168, and in '95, I see $96,000. Can you explain to me what the rent expense is all about? These are your numbers. MR. BROCK-Yes. I was looking for those three statements. ]f would ,be much easier if I was looking right at them. All right. What happens with my income, the Marina, back in the early 90's, owned me like a number, we'll say, of $300,000 repaYment of loans that I had given the Marina, over the years. Like if it needed money, I may borrow, personally, $30,000 or $50,000 from Scotia Marine, and then I would write a check to the Mooring Post, as a loan. So these, over the years, built up to approximately $300 and some odd thousand dollars, to keep the Marina operating. If the Marina, if I had a good income from another source, such as the Mall or Route 9, rather than take rent, I would let the Marina pay back some of the loans to help their financial basis so that they could get rid of some of the loans they owed me. MR. CARVIN-And this would be classified as rent? MR. MAITINO-It's just appropriate tax planning. I think what he's saying is he's investing in the Marina, and now we have a choice of - 16 - I '---' --- (Queensbury ZBA Meeting 8/14/96) whether or not to, because the buildings are owned by him personally. He was paying the mortgage. All right. So you either get that from rent, which is the normal way to do it, unless you have this loan to stockholder, which would come to him tax free from the Corporation, and then he could pay his bills. Do you understand? It's a tax. MR. BROCK-Let me explain. It would be like, lets say this, that you owned a piece of property. I rented it from you, for a thousand dollars a month, but I was having some financial problems. So you let me borrow $10,000. If your income, lets say you had a good year in the stock market, was good, rather than collect rent from me, you might say, well, why don't you start, you pay me back $5,000 of the loan instead of $5,000 in rent. MRS. LAPHAM-So basically what you're saying here, that the Mooring Post is renting these buildings. MR. BROCK-That's a rent expense, and it's programmed on, it changes from year to year. We set up a number now, because I went and borrowed another $400,000, which comes to like $60 some odd hundred dollars a month that I'm going to have to pay back. So now, that's why the rent expense went up, because I'm going to have to pay~this back, and I want the money to come from the rent. MR. CARVIN-Again, I just want to know which way the money is going, I guess. The rent, when I see $42,000, all right. Is that coming out of the Mooring Post to you? MR. BROCK-Yes. MR. CARVIN-Okay, and what you're saying is that you've actually pumped in a significantly larger amount into the Mooring Post, and this is just a mechanism to get re-paid, because according to documentation, you're not drawing any kind of salary off the Mooring Post? It hasn't been fruitful enough to pay you a salary, yet in '94 and ' 95, it was significant enough to take almost $100,000 and pay you back some of that money. MR. BROCK-That's exactly what happened. MR. CARVIN-Yet you showed an $83,000 loss that year, in '95. MR. BROCK-It did not pay me the $95,000. It's on the books it owes me. It never did pay it. MR. CARVIN-Well, that's why I'm saying, where is it on the books that it owes you? I just see rent expense of five or six thousand. MR. MAITINO-These are income statements? / I MR. CARVIN-These are on your income statement, 1995, September. MR. MAITINO-I think the balance sheet would have that on there. It would probably be easier if you could see the loans being reduced on the balance sheet, and that is the loan that he just paid off, plus his own loan. You can see from year to year, you know, it would reflect the monies that he put in during the year and took out. MR. CARVIN-Again, I'm a lay person. hearing John Brock say that in 1995, Post to him, for whatever reason. loss of '$83,000, and I'm thinking, stays in the Corporation, he breaks I'm not an accountant. I'm $96,000 went from the Mooring Yet the Mooring Post shows a myself, that if the $96,000 even. MR. MAITINO-This income statement, the actual $96,000 is the first year that he ever made an accrual. - 17 - --- (Queensbury ZBA Meeting 8/14/96) MR. CARVIN-Well, no, that's not true, if you're telling me, because in '95 he took $42,000, or '94. MR. MAITINO-That actually represents a check issued to John by the Corporation. The $96,000 here represents a journal entry to the books, which credits an account that accrues this rent payable to John, and the debit is to the expense. It's an actual debt of the Corporation. MR. MENTER-Which is what you don't see. MR. MAITINO-That' s right. That's on the balance sheet side of your financial statement. MR. CARVIN-Okay. MR. MENTER-Yes. It's not A-typical. MR. MAITINO-Absolutely. MR. LAPPER-Mr. Chairman, perhaps we should ask for the balance sheet. ---- MR. CARVIN-I was going to say, we're going to need to see the whole picture, if we have a balance sheet for these years. MR. FRANKEL-I think, from a legal perspective, supplying the income statements, as long as we've followed standard accounting practices, and the accountant is here to indicate this, this is what the profits and losses of the business are, to show the profitability. I don't believe the balance statements, other than to show debts, are reflected by the Corporation. These are the expenses and the income of the Corporation. The balance sheets, I don't believe, would be relevant to determine the profitability and reasonable rate of return, under the standards that we have to follow. MR. LAPPER-You're trying to establish that you can't get a reasonable rate of return from that facility, and there's already questions about whether or not the expenses of the Corporation are just related to that facility, and I think, at a minimum, you have to be more concise here, to prove your case, that that facility will not get a reasonable return. MR. FRANKEL-I think there's been testimony that there's had to be infusion of capital by Mr. Brock personally into the Corporation to keep the business running, and this is an accounting methodology to repay Mr. Brock for that infusion. If I'm stating that incorrectly. MR. MAITINO-I think you're right. Let me just eXPlail this a little. This is an excellent question. We have, in one year, no rent. If I could just simply try and explain that in laYman's terms. On the balance sheet, we have an amount owed by this Corporation to John. John has the option. He requires the money, okay, and his bookkeeper issues checks to John Brock. His accountant, at the end of the year, determines, by first doing his personal income tax return, how much of those checks will be rent, and how much we will apply to the outstanding loan. Is that clear now? So, in the first year, you saw nothing, which means every check the Mooring Post sent to John I classified as a reduction of his loan. The next year represents cash by the Corporation out, and I classified only a portion of those to John's rent, okay. The other I reduced his loan. This particular year, the last year, $96,000, we simply made an entry to the books which denotes that the Corporation owes John rent, period. It represents no check to them. The Corporation didn't have it. So John had to pay the bills anywhere, and they came from elsewhere. Is that understood - 18 - I --. ...- (Queensbury ZBA Meeting 8/14/96) now? It's an excellent question. MR. CARVIN-Well, given enough time, and probably an economics lesson, I could figure it out, but I guess my question would be, where does the $400,000 line of credit come in? When did that come on line? MR. MAITINO-I believe when he broke ground. MR. CARVIN-In '94/'95? You see, I'm looking at a $400,000 line of credit, of which you said about $140,000 has been used. MR. BROCK-I would have to go back and look at the dates I got the permits, okay, the actual permit was issued. I went to the bank, right after that, and closed on the loan, like two or three days later, because right after I got the permits issued, the bank would not issue me the money until the permits were issued, and right after the permits were issued, like two or three days, I went to the bank, got the money, and then I sent a check to the building manufacturer, and hired the people to start demolition and everything else. I think that that happened, those permits were issued, I'd have to look and see if it was right after the end of the year, you know, because it was real close to September 30th. MR. CARVIN-Okay, but I'm assuming the $400,000 is on the Mooring Post, right? MR. BROCK-Yes, it is. It's all on the Mooring Post. Everything was for this building. MR. CARVIN-Okay, but at that point what I'm hearing is that you also had lent the Mooring Post a substantial amount, which is being amortized. MR. BROCK-Prior to that. still owed me a lot. Prior to that money, the Mooring Post MR. CARVIN-Okay. Well, if I can kind of put this in laYman's terms, in 1995 for example, the Mooring Post owed YOU money. You took out a line of credit, which basically is a pledge against the assets, right? MR. BROCK-Yes. MR. CARVIN-So, again, that's another loan. So how much, in 1995, was the total loan against the business? I just want to know how far in the hole this thing really is, if it's in the hole at all. MR. BROCK-It's a personal loan to me, because I own the ptoperty. The bank issued the loan to me, because the property's in¡my name. They wrote me a check, and I, in turn, deposited it in my personal account and wrote a check to the Mooring Post to pay their bills. MR. LAPPER-Mr. Chairman, under this first prong, they're trying to establish that they're operating the business at a loss, which shows that they can't get, or is part of the test that they can't get a reasonable return, and I guess mY concern, legal concern, is that I think we need to see a balance sheet, because we've heard explanation of this income loss statement that there are shareholder loans, but if we have a balance sheet, we'll get to see the whole picture. We have to determine, the Board has to determine, whether or not these expenses are legitimate expenses of this facility, and we don't have the whole story here. MR. CARVIN-How does the Board feel? MR. MAITINO-I don't know whether a balance sheet would help you - 19 - - (Queensbury ZBA Meeting 8/14/96) determine whether or not the expenditures of this Corporation are real. MR. LAPPER-You could supplement it in any way. I mean, there's an issue here. MR. MAITINO- I have always cautioned John about this type of disclosure. MR. LAPPER-Unfortunately, the standard for a Use Variance is financial. MR. MAITINO-One couldn't extract that information from the income statements? MR. LAPPER-Apparently, the Board's having a hard time. MR. MAITINO-And it's the opinion of counsel that the balance sheets will help? MR. LAPPER-Well, I'm certainly concerned that the depreciation, we're talking about fixtures on Route 9. I don't think that has anything to do with the Marina. So I think that that's a problem. MR. FRANKEL-I guess, to address that, I believe the testimony to date has been that, ~t worst, that was only in '93, and it's not reflected in '94 and '95. MR. MAITINO- It's been out of operation for three years and I believe the depreciation of the, the undepreciated amounts were fully depreciated in 1993. MR. MARTIN-The big bump in depreciation comes in the statement of September 30, 1994. MR. MAITINO-Well, that was for other equipment. MR. MARTIN-Yes, but your testimony earlier was it was for, in part due to the fixtures at Route 9. MR. MAITINO-In 1993, I believe we wrote off the Route 9 Mall depreciation. MR. MENTER-The depreciation went from $13,6 in '93 to $44,9 in '94, is the initial question as to that increase. MR. CARVIN-At the same time the insurance went up, which kind of indicates to me that there might have been something else ~~t was bought that pushed the insurance up from $15,000 or $16,OOO/to the $25,000. I mean, that would be mY laYman's reading of this, that there's another asset here that's being insured. MR. GREEN-Fred, could I ask a question? MR. CARVIN-Please. MR. GREEN-John, these figures for these three years, where did they come from? Do they reflect your income statements and tax statements for the last three years? MR. BROCK-Yes. Well, they were used to put together my tax return. MR. GREEN-These same figures? MR. BROCK-Yes. Every one of those are right off the tax return. MR. FRANKEL-Just for the record, why don't you explain how you - 20 - ',-, (Queensbury ZBA Meeting 8/14/96) prepared these. MR. GREEN-So these are the officially, federally recorded figures that you file income tax on? MR. BROCK-Yes. MR. GREEN-I don't think we can argue with them. If you want to try and verify that, fine, but if these are the figures that Mr. Brock is paying income tax on for the last four years, these are what was reported to the federal and state income tax people, who would probably do a far better job than us in reviewing them, I don't think we can really argue with them. MR. CARVIN-Well, I think we can. I disagree with that. MR. GREEN-These figures reflect the Mooring Post Marina Corporation? MR. BROCK-Yes. MR. CARVIN-I'm not positive I'm totally convinced of that, Bill. MRS. LAPHAM-Is it fairly common practice to loan your business money and then be expected to be repaid? MR. BROCK-Yes. MRS. LAPHAM-Essentially, that's what you've done here. You've pumped in personal money, invested it, or whatever term you want to use, and you're trying to reclaim some of that investment. MR. GREEN-Closely held corporations like this, money goes back and forth all the time. MR. CARVIN-Well, again, I'm seeing, and I'm not an accountant, but I'm seeing that in 1993, the Corporation was profitable. Mr. Brock has said that '93 was not as good as '83 or '85 or at some point in the past. However, starting in 1994, I see that this thing goes down significantly, yet, on the other hand, there seems to be cash that's moving out of the Corporation, which mayor may not necessarily make it break even, but there may, it may have been profitable. I don't know. That's where I'm having a hard time. MR. MAITINO-In 1993, there was no rent paid. If there is rent paid, then the income from the Corporation goes down. Conversely, if the money goes to John via a reduction of his investment in the Corporation. MR. MENTER-I think the Board understands that. I thipk what they're looking for is, do you have a statement of a/. capital account at the end of '93 or at the end of '92 that would/indicate a credit? MR. MARTIN-I'd just like to make a point here for the Board members. I think what's important to bear in mind is that you're looking for the actual cash return and actual values here, and not what are paper deductions and things like that that are allowed under tax law. You're meant to deal with the hard and fast cash and value in this property, and not those. MR. MENTER-They're one in the same, Jim. All this stuff is real. Yet, it's paper. Depreciation is real. MR. CARVIN-Yes, and I have another question, and I'm going to go back maybe right to the revenues. The revenues from the sales in 1993 were $706,000. The cost of the sales was approximately $400,000, netting a gross profit on sales of around $310,000 is that? I'm not sure. - 21 - ~' (Queensbury ZBA Meeting 8/14/96) MR. THOMAS-Yes, it says $310,000. MR. CARVIN-And in '94, again, we don' t have any significant change. We see the revenues from the sales dropped significantly from $700 down to $470, yet the cost of sales is $137 and the gross profit is $333. So you're netting about the same profit on probably a rough figure, probably 60% less revenue. Then in '95 we see the sales go up to $510. The cost of sales stays flat at about $172, and you net about $344. MR. BROCK-If I am selling boats, and I'm having a year where I'm buying a boat and I'm selling it the same season, okay, I'm probably making a profit on it. If I'm carrying it over, aBd if I paid $10,000 for the boat, and I sell it to you and say, shortly after I bought it for $14,000, I've made a profit. If for some reason that boat sits there and becomes a left over, a year old, and you come in, I'll sell that boat for the $10,000 I paid for it, absorb the interest, the loss, just to get rid of it. I might even sell it less and take a loss, depending on what you've sold each year, what you've had left over, what you've taken in trade. I may estimate a boat, look at a boat, and this happens a lot, that I think I can sell for $15,000 and I allow $15,000 for the trade, and find out that I've still got it a year later, and I have to sell it for $10,000. If that happens, I have to do that. Your income will fluctuate, depending on that type of situation. It also goes the other way. I get one that I paid $10,000 and maybe I make $15. MR. CARVIN-Are you saying in '93, because you had a record, it looks like a very good year sales wise, $706,000, I certainly know your cost at $400,000, net $310,000. Yet, in ' 94 your revenue from the sales is down significantly. Your cost of sales is $137, which is down significantly, yet you actually have more net gain. MR. BROCK-Yes, that's true. MR. CARVIN-Okay. Is there something in the cost of sales? I mean, what would be the components of the cost of sales? Would that be interest expense? MR. BROCK- Interest expense, freight, and any time I sell that leftover, that's sitting there accruing an expense as it sits there. In '93, that's just approximately when I was getting out of new boat sales. So I had to get rid of the inventory, as we call it, all the pigs you bought over the past 10 years. Okay. You've got to make them go away. So, you start getting rid of that stuff. Now you start, your expenses, you just don't make any money on them. So I was trying to get rid of my new boat inventory. In the early 90's, when the new boat market started to take a real dive, I was looking to get rid of that inventory as fast as Zssible. Okay, and the boat market's been terrible for the past fou or five years. So you try to lay very low, so that you don't get I urned by buying inventory and getting stuck with it. All right. If the market starts to look like it's going back, then you want to be a player. You have to try and play what happens with the market. I have to buy inventory. I'm buying '97 inventory for next year now, trying to hope that I'm making the right decision on what the buyers are going to want in the spring, and if I make the right decision, it's good. If I make the wrong decision, it's going to be bad. I mean, there's just no way of knowing that. I can't tell if next year they're going to want to buy Bough Riders or Cutties, but I can't wait until next year to make that decision. I have to make that decision now. MR. CARVIN-Well, no, I'm just looking at, again, I understand your dilemma, but I'm just running some very quick numbers, and I'm looking at the cost of sales in '93, was roughly 40%, yet in '94 and '95 the cost of sales was approximately 20 to 25%. - 22 - '-.-1 '--- (Queensbury ZBA Meeting 8/14/96) MR. BROCK-That's because in '94 and '95, okay, I can show you the difference in the statements of what was sold, okay. In '94, my sales were very little in new boats, okay. In '95 it's very, very little in boat sales. So that meant that I was strictly working on dockage, quick launch, storage, okay, and that income means that you're going to have less income, but you're not buying product. Okay. I'm not buying a boat and selling a boat. I'm selling a service, rental storage, that type of stuff. So your income to your cost ratio is almost going to be directly related to your payroll, your insurances and that type of stuff, not to buying product, which is also a cost of sales. MR. CARVIN-Well, again, your wage and payroll expenses· have remained fairly close. MR. BROCK-Fairly close. That's why I could do less income, okay, and have that result because I didn't buy a lot of boats. MR. CARVIN-I guess what I'm saying is '93, the cost of sales seemed to be almost double what the cost of sales was in '94 and '95, and I'm just trying to attribute if there's any depreciation allowance in the cost of sales that might be plugged into these things. --- MR. BROCK-No. MR. CARVIN-I mean, the cost of sales is pretty straightforward? MR. BROCK-Yes. There's no depreciation in the cost of sales. I don't depreciate, any boats that sit there we don't depreciate them at all. When they're sold, they just go in as a sale, okay. MR. CARVIN-And what constitutes cost of sale? You've indicated like interest on floor, right? MR. MAITINO-Cost of sales, on your accrual method, you'd begin with last year's inventory. You'd add your purchases, freight, subtract your ending inventory, and that's cost of sales. So what John is saying is, if you carry it forward, it'll be there. MR. GREEN-If you want to get back to, essentially, the purest point, the sale of the boats, should that be included in there if we're talking about quick launch and storage? MR. CARVIN-Well, I'm assuming that the revenue from sales includes all the quick launch and all the boat storage. Right? I mean, that's all sources. MR. BROCK-That's all included, and that's why you will find that if you have boat sales, your gross sales number is going to be much higher than when you're dealing strictly in dockage, stor~e and service, and it doesn't necessarily mean you're going to m~e more money, because you have to pay for the boats. You can make more money without selling boats, if you're lucky, but chances'are that won't happen. MR. CARVIN-Does anybody else have any questions here? I mean, I don't want to take all the thunder. MR. MENTER-Well, it looks to me like the sales are what the sales are, and it certainly is a difference in terms of what you're selling. You may be selling something that you need to pay for or something you don't need to pay for. The difference there is clear. I think the original question that you had was, there's a 100% increase in operating expenses over the course of those three years, half of which looks like it's rent expense. At least half of which looks like it's rent expense. The question is, you know, do you feel like you need that verified? If you do, lets acquire that and move on. - 23 - (Queensbury ZBA Meeting 8/14/96) MR. CARVIN-Well, I've got legal counsel saying that we probably need that. Is that correct? MR. LAPPER-Iguess if they've explained to us that it's not really rent, it's repaYment of a shareholder loan, that it certainly wasn't clear from what was submitted, I guess, that they explained that. MR. CARVIN-Okay. John? You're comfortable with these numbers, then, MR. LAPPER-I think, for the sake of analysis, that some of the things in these numbers probably don't apply. I think some -of the legal expenses, I think that you have to take these numbers and look at them a little closer, in terms of just determining what applies to the Marina itself, and see if the story is still that they've been operating a loss or not making a reasonable return. So I can't tell you if I have an answer on that yet, but I think that we have to go through these numbers. The questions that you've asked are the questions, what's the rent all about, what happened with the depreciation. What happened with the insurance. --- MR. BROCK-Can I establish, the reason you see, in ' 95, the difference in the rent, previously, if the Marina could not afford to pay me the rent, they strictly did not have the money, rather than put it on the books, and show a loss, I would forget about the rent. That's the same thing as if you, I would not put it on the books. I would not write in that the Marina owed me the money. Even though they owed it to me, I didn't have to put down that they owed me the rent. MR. GREEN-Because you didn't want to collect it. MR. BROCK-I'm not going to collect it. If I don't put it down, I'm never going to collect it. If I put it down, they owe it to me, it remains on the books, then they're going to have to pay it to me, or I'm going to have to write it off as a bad debt, personally. It's no different than if you were renting to somebody, and if they didn't pay you the rent, you have the choice of writing it off. Say, forget it. The difference is, my Corporation owes me the money. I'm more lax in saying, forget it. There's no sense. They're not going to, why make the Corporation look bad? So I have the option. I could say, okay. Forget the rent. ,Then I'm not going to get the $96,000. That means not only did I not get paid, I had to take money from another source to pay the mortgage. Okay, and the Mooring Post is sitting there not paying rent, not paying me any income or anything. That's the whole difference right there. standpoint, I look at '~as the because it looks like the Mooring MR. CARVIN-See, I guess from my better year to take the $96,000, Post actually had a net income. MR. BROCK-They did not pay any rent. They had an income. In order for me, knowing that I was going to have to borrow money, there's no way I could take a statement to the bank and borrow money, showing a loss, okay. So what I had to do is, forget about the rent, don't even show it, okay. So make the company look like there is a profit. So what you're doing is, the company does have a profit, okay. I'm not taking any rent out of it. MR. CARVIN-But when did you go to the bank, in '93 or '94? MR. BROCK-Well, I'm just saying, I can't have a continuous loss and make this company work. So I have to forget about the rent. Okay, and say there's no sense putting it on the books. They're not going to pay me. - 24 - ,--I '--" (Queensbury ZBA Meeting 8/14/96) MR. CARVIN-But I still maintain that '93 would have been the better year to draw the $96,000 out, because you drew $42,000 out in '94 and still showed a profit, and then '95, which in my laYman's idea, your buildings are down, your business is down. This is the year that you took the big hit. You took the big rent, in '95. MR. BROCK-In '95. MR. CARVIN-It seems to me that would be the worst time for the Corporation to pay the rent. MR. BROCK-They didn't pay it. It's accrued. They never paid it. It's on the books that they owe it, because I borrowed money. I had to pay that that year, okay. I borrowed money to pay it. MR. MAITINO-As long as I've been affiliated with the Mooring Post, which is a little bit more than five years, John Brock has not been on the payroll. Let me re-phrase that. John Brock has not taken any payroll, or has been paid in any other way, either in rent or reducing his loan. So, you might look at expenditures and say that they may go away with this problem or without that problem, but for five years, three of which you have before you, there is no expense for the key man, the man that ran that Marina those last ~hree years. MEMBER OF PUBLIC-Just a question on procedure. If the applicant wants to proceed on these numbers, the applicant should be allowed to proceed on these numbers. You've heard your attorney's questions. You've had explanations for the last 45 minutes, and then some, and I think it's the applicant's prerogative to proceed with these numbers, if that's what he wants to do. MR. GREEN-That was kind of mY point. These are the numbers that he's swearing to and turned in to everybody else, then I don't think we can question them. MEMBER OF PUBLIC-You can question them. It's the applicant's burden of proof to show that he's entitled to a variance, but if he wants to proceed with these numbers, that's his entitlement. MR. CARVIN-I would have to agree. MR. LAPPER-I just have a question. I think what I was confused about, and I now understand, is that Mr. Brock owns the property individually and leases it to the Marina Corporation, and I guess what may be missing in the numbers is the individual side of this, in terms of a reasonable return on his investment. I think what they're saying is that he hasn't made one, but I'm not sure, that he's made a reasonable return, and I'm not sure that we¿:e seen numbers, on the personal side, and that might, one way or nother, further explain the story. Maybe we could just get t:: at with testimony, since the accountant is here. MR. BROCK-What were you asking for again, Jon? MR. LAPPER-Not all of your personal finances. In terms of your investment in the Marina, you purchased the Marina individually, and you lease it to the Corporation that is the operating company. MR. BROCK-Right. MR. LAPPER-And you have not gotten a return on your investment because the Marina's not making any money. So in some years, you don't even take rent, and you're also an employee of the Corporation, but you don't take a salary. MR. BROCK-That's true. - 25 - '",,-- (Queensbury ZBA Meeting 8/14/96) MR. LAPPER-So the other side of this is the side the Corporation is making. I mean, if you're doing a reasonable analysis, there'd be a reasonable fair market rent that the Corporation would pay to lease property that's assessed at what this is assessed at, in a given year, and whatever that is, in most years, it hasn't been paid. MR. BROCK-That's true. MR. LAPPER-Okay. So your testimony is that you're not making a reasonable return as an owner of the property. MR. BROCK-Yes. MR. LAPPER-I think that that's the story you're trying to tell. I'm not sure that that story is told in paper. In terms of what you've submitted, I'm not sure that it's clear, and that's why the Board is having questions. I think that's what needs to be fleshed out. MR. BROCK-All the statements that you have, the only, I own the property. The Mooring Post leased it. The only return that I have gotten in any year from the Mooring Post is what it's pai~ me, okay, in rent. If it didn't pay rent, I didn't get anything, okay, and in the past three years, there's only one year that paid $43,000, okay. Last years rent is an accrual. I didn't receive it. They still owe it. MR. MENTER-So you're saying, based on your initial investment, from what I understand was personal money, $200,000, $550 which you took out the loan on, and the approximately $750 purchase price, that $200,000 you said you put in yourself. Is that accurate? MR. BROCK-That's true. MR. MENTER-So that plus the money you've put in, in the mean time? MR. BROCK-Right. MR. MENTER-Would be your investment basis. MR. FRANKEL-So, in other words, you're constantly putting money in to keep the business afloat, and how the accountant determines what is best for Mr. Brock, personally on his income tax return, that's between Mr. Brock and his accountant. The point being is that, for purposes of proving a reasonable return on his investment, there's testimony here, from both the accountant and Mr. Brock as well as income statements that show that he's constantly having to put money in to keep the business going. I mean, however it fal}s down on the ledger sheets, we could sit here all night and dis~uss, as to what would be a better tax planning, from the Board's view versus Mr. Brock's view. MR. CARVIN-Well, let me ask you this, John, have you made any return on your investment, as far as the Mooring Post is concerned? MR. FRANKEL-If I could ask the Chairman, what do you mean by return on your investment? MR. CARVIN- I mean over the last three years anyway. In other words, these last there years, there's been absolutely no return whatsoever on the Mooring Post? MR. BROCK-The rent for '94, $42,000, is the only return I've received in three years. MR. CARVIN-Okay, but that $42,000, essentially, went to payoff part of the $200,000 that you fronted? Is that an accurate - 26 - __I '-' (Queensbury ZBA Meeting 8/14/96) reflection? MR. BROCK-Yes, it is. MR. CARVIN-Okay. So that the $42,000 still is far short of the total amount of money that you've put in? MR. BROCK-Yes, it is. MR. CARVIN-And can you give us an approximate amount of what the Mooring Post still owes you in your own money? MR. BROCK-Yes. I could give you the balance sheet for, '95, 9/30/95, which shows my loan of $177,391, okay, and the $96,000 that it owes me. Under current liabilities, okay, it owes me those two numbers for that year. MR. CARVIN-So what you're saying is, essentially, we have about $260, $270,000. MR. BROCK-$272,000, roughly. MR. CARVIN-Okay, in monies that you've pumped into the Mooring~Post that have not been returned? MR. BROCK-Yes. MR. CARVIN-Does everybody understand that? MR. MARTIN-Just to be sure on the fundamentals, are the books kept, and all these income statements that are provided for each year, is that a cash basis or an accrual basis? MR. MAITINO-That's an accrual basis. MR. MARTIN-Accrual basis for each year? MR. MAITINO-Yes. MR. CARVIN-Okay. Any other questions? With that, I'd like to move to the public hearing. Does anybody have any questions? MRS. LAPHAM-(Lost words} the difference between the legal expense in '95 and barely $2,000 in '94. I think I have a good idea. MR. BROCK-Yes, you do. It's all gone right here. It's been over the building project, and that's it. MR. CARVIN-Okay. If you don't mind, I'd like to open up the public hearing. Lets open up the public hearing at this point. Tj?e Board does not have any questions. I MR. FRANKEL-May I have a five minute recess with my client to see if there's anything else he would like to present to the Board? MR. CARVIN-Do you want to take a five minute recess before we open up the public hearing? All right. We'll take a five minute recess. MR. FRANKEL-Thank you. MR. CARVIN-I would ask the applicant if he has any additional comments. MR. FRANKEL-After conferring with my client in considering the Board's concerns as well as their legal counsel's concern to the Board, the accountant and my client are willing to go through and provide additional information for the past three years pertaining - 27 - -' (Queensbury ZBA Meeting 8/14/96) to the investment by Mr. Brock into the Mooring Post that hopefully will provide a better and more coherent picture, as opposed to the description we've been attempting to make here tonight. I don't know if the Board wants to adjourn at this point or take public comments with the ability for us to come back to be able to provide that information. MR. CARVIN-Okay. Well, in deference to the multitude of folks out there and my desire to keep my skin whole, I think I will open up the public hearing. MR. FRANKEL-Have you reserved our right to be able to come back? MR. CARVIN-Yes. I think that it's pretty much a foregone conclusion that we'll not be able to move this this evening because I think we do not have definitive financial information. I will point out to the public that we will entertain your comments. If your comments relate to the financial aspects, obviously the applicant has indicated that there is more information that will be provided. So, I don't know what our scheduling will be, but I suspect that we will have another meeting on this at some point. Do you have anything else to add, because as I said, I would like to open up the public hearing. / MR. FRANKEL-Sure. I'd just like, for clarity's sake, to know, are we opening it up to the Use as well as the Area Variance, or are we still in just the Use Variance? MR. CARVIN-I would like to run the public hearings simultaneous, so that if anyone has comments relative or pertinent to the Area Variance, obviously I think the Use Variance is the more critical, but I will entertain any comments regarding the Area Variance. MR. FRANKEL-We would also like to reserve the ability to respond to those. MR. CARVIN-That's not a problem. MR. FRANKEL-Thank you. MR. CARVIN-Okay. I will open up the public hearing. PUBLIC HEARING OPENED MEMBER OF PUBLIC-Can I ask one procedural question before we go on? MR. CARVIN-Sure. MEMBER OF PUBLIC-Can we information is submitted? defer our comments until II / the MR. CARVIN-Absolutely. I suspect that I will leave the public hearing open on this because certainly there's going to be additional information that is going to be submitted. JOAN ROBERTSON MRS. ROBERTSON-I'm Joan Robertson, citizen of Cleverdale. I live immediately adjacent to the Mooring Post on the south side. I have written you a couple of letters which you have in your files, but I do have a short statement. The massive new building proposed for the Cleverdale Road presents and overwhelming, negative contrast to the well kept homes in the area, stacked boats and trailers versus colorful gardens and the green open spaces, the lawns. The most immediate result of the proposed building will be the vastly increased expansion of boats, vehicle traffic, and noise. The Number One Shed that Mr. Brock has, his largest boat storage building at this point, has been converted to an elaborate sales - 28 - ,-I '-", (Queensbury ZBA Meeting 8/14/96) and new boat display area. So he's lost all that space, and I'm wondering if this new building is to take over for the one he has changed the use of. This summer there's been a dramatic increase in quick launch, both public and private, resulting in longer hours of operation, more noise and more noxious fumes. We have nearly lost the use and enjoYment of our porch and gardens for relaxation because of the almost constant uproar, it goes on on all but rainy days. On a sunny day, particularly weekends, the roar of the tractors is constant almost all day long. We can't even carry on a conversation. The fumes of diesel and gasoline exhaust are overpowering and obviously are detrimental to our health and well being. There's always a breeze up there, and when the tractors go by, which is on an average of every seven to ten minutes, down and then back up, down and back up, the whole house is full of these fumes, and it is effecting my health. It seems neither right nor fair to allow the owner of one property to virtually destroy the quality of life, serenity and peace of mind of a whole neighborhood. We do not seek to deny Mr. Brock a reasonable use of his land. However, we who live there and pay significant tax bills also have a right to the reasonable use of our property. We've been there 40 years, and we've watched, John Brock is the fourth owner. Every other owner has made a very good living on this piece of property, not extravagant, not exorbitant, but a very --good living, and I think this can be done without this dramatic expansion. Thank you. PETER JOHNSON MR. JOHNSON-Good evening. My name is Peter Johnson. I'm a property owner in Cleverdale. I live four houses south of the Marina on the lake. I previously submitted a letter on this topic. I'll try not to repeat what's in the letter since my understanding is it's still a matter of record. I believe when someone purchases a property, which Mr. Brock did in 1985, one purchases it recognizing the constraints that one has to live with. I do not believe that the constraints on that property were unknown to Mr. Brock at the time he purchased it. It had a given capacity to store boats, to display boats for sale, and to dock boats, plus maintenance facilities and sales facilities. Why do the homeowners, the residents of Cleverdale, have to allow an expansion of this business to make it viable? There aren't too many instances where the public is asked to sacrifice so that a person who perhaps paid too much to buy a business and finds he has to expand the business, why the public has to bail that out, in terms of their quality of life and the impact on their living. If Mr. Brock paid too much for the Marina, because it had a constrained use, that's his problem, not our problem. I would also point out that the other assets that are purchased are not a part of the land agreement. They're not a part of the property. I bel~' ve Mr. Brock has admitted that he paid $364,000 for the land, b ildings and docks on that property. It is on that basis by w ich his return should be computed, not $750,000. I believe he put that in the testimony. So his return should be based on what he paid for the property, keeping in mind again, if he paid too much for a property that had restrictions, that's his problem, not our problem. Note that Mr. Brock's decrease in revenues in ' 94 and ' 95 were due to slow boat sales. He maintained his revenues and gross profits, as you pointed out, Mr. Chairman, from his dockage and quick launch businesses. Why does he get relief for slow boat sales by increasing quick launch capacity? It's not our problem that slow boat sales impacted his business. Apparently, from his own numbers and from your evaluation of those numbers, he's been able to maintain his revenues on quick launch, even given the fact that his buildings were torn down. I believe that is supported by some things that Mr. Brock said during his testimony. ' Has the applicant proven an impairment of his pre-existing capacity if his pre-existing capacity is replaced? Where are the numbers that show what he could earn from the business if the capacity that he had - 29 - ---' (Queensbury ZBA Meeting 8/14/96) before he tore down the buildings was restored? He's only glvlng you numbers for a business that's operated since the buildings were torn down, or an anticipation of the buildings being torn down. Of course that business might be impaired, but what happens if he is able to restore the capacity of the quick launch he had before he tore his buildings down? Is he still impaired? And if he was impaired, how did he survive from 1985 to 1994 in a business? Mr. Brock has not presented written documentation and evidence supporting the lack of return of him as an owner of a property. What happened to the original loan, $750,000? Has that been paid off? If that was paid off, wasn' t that paid off out of the proceeds of the business? As I listened to the presentation by Mr. Brock, I couldn't help but think the money seems to be going from one pocket to another. You have a sole owner of a corporation who is in all probability structured this deal to use it as a tax shelter. If he has used it as a tax shelter, it may be to his advantage to show losses. Who knows? To understand what is happening, the income statements must be compared to balance sheet transaction, and to the exchanges of money from his account to the business account, in order to understand what the true return for this business was. Is it only a coincidence that the Mooring Post expenses increased significantly in '93 and '95, which is when the owner knew he wanted to expand? That notation was also made by you, Mr. Chairman. Why did the expenses suddenly start going up? What happened? Did he anticipate that he wanted to show an impairment so he could justify his expansion? Who owns the land and the buildings? I understand Mr. Brock does. If he does, why did the Marina claim depreciation on demolition of the buildings? If he owns the buildings, how does the Marina claim depreciation expense for demolishing the buildings? At the same time he says he wants to collect rent for renting the land and buildings and docks to the Marina. What economic relief will be given the property owners who's property values will decrease upon expansion of this Marina? Why do ~ pay to make up for the owner's misjudgment when he bought the property? What causes decreases in property value to us? Traffic, increased traffic, increased noise, increased air and dust pollution, poor visual impacts, and I believe water quality degradation. I don't remember, ever, a large building attached to the existing showroom and office building. As Mrs. Robertson asked, what does that building represent? And why does it need to be added? Parking immediately adjacent to the lake strikes me as a ludicrous proposition. Absolutely ludicrous. I would also use the word "abomination". How can any sensible person or agency state that the visual impact and runoff impact from a massive parking area are negligible? I ask a question which the Board probably won't answer. Has the Board determined the capacity of the Marina as to quick launch immediately prior to demolition of the buildings, and has the Board determined the capacity of the Marina as to quick launch under the proposed plan? If theY,rre the same, I have no objection to what is happening, as lon~ as the capacity of that Marina for quick launch is not increased. I do not believe he has the right or has proven the need to expand his quick launch capacity to make up for what's happening in his business. Is the owner entitled to expand his business on a pre- existing, nonconforming centered in a residential area? If so, what can homeowners rely upon if zoning no longer protects them and their property values. There are givens if the current plan is approved, I believe, or any plan allowing expansion is approved. Traffic will increase, parking will increase, noise and air pollution will increase, and the lake degradation potential will increase. Boat traffic in the area and on Lake George will increase. Residential property values will decrease and Mr. Brock will get richer. Will the applicant commit, in writing to this Board and to this community, that he will have no greater number of boats on his property for quick launch than existed prior to the demolition? We don't mind larger boats. We only mind more boats. Thank you. - 30 - ,--,I '-" (Queensbury ZBA Meeting 8/14/96) HAMMOND ROBERTSON MR. ROBERTSON-Good evening. I'm the other half of Mrs. Robertson, and I'm not going to belabor all of the things that she talked about. I am here for a couple of reasons. One is that a rumor came to me, reported, that since we are the people south of the Marina, it didn't appear, that we were not concerned, and I obviously want to put that issue to rest, because we are concerned, as she indicated. I think the second thing that I, without covering a whole lot of ground, I would like to touch one more time on this tractor business. Diesel engines are an entirely different animal from an ordinary automobile. Present tractors, as was used in the environmental impact statement, all presently have mufflers on them. They have had for several years, probably as long as I can remember. I think there was a time when one of them didn't. So there is no mitigation of noise in the application of mufflers. They obviously do not detract from fumes. We have an additional thing that's really unique this year, and it's probably very appropriate to previous discussions. This is the first year in 40 years which we have been treated to two tractors, running one after the other, seven minutes apart. Two drivers, and sometimes a third one stuck in with a small trailer or a car launch. I would have to say this. In illY years, it has gotten to the point where we have to have some kind of relief on that particular issue, or without any threat or without any statement of anything, we will be out of here. We cannot live with an increase in business, over and above what presently exists right today with the sheds down, two tractors, all day Saturday, half a day Sunday, or all day Sunday, half a day Saturday. It isn't worth the candle to live there, and I have to say that. Thank you. JOHN SALVADOR MR. SALVADOR-My name is John Salvador. I'm here tonight with my wife Kathy. We are residents on Dunham's Bay. I would like to know what the Board will use as a guideline, or what you will use for a figure to determine the reasonable return on an investment in an operation similar to the Mooring Post Marina. It's been mentioned here tonight that you shouldn't protect Mr. Brock from a dumb investment. Maybe he paid too much to begin with, but if you establish that number, and I think you should, what is the reasonable return, you may very well be protecting him from a poor investment. What is the reasonable return to be expected from that type of operation? If you're going to entertain all of the data that leads up to that, then I think we should know your commitment to that number. That cannot be arbitrary. Do you have a figure in mind? MR. CARVIN-How about your number? What number would yOU ~el? MR. SALVADOR-I don't know. This is not my, you're requ~ring Mr. Brock. MR. CARVIN-Until I get all the information, I can't give you that answer. MR. SALVADOR-Well, you must have, I mean, you're making an issue out of this, the financial data, everything that, I mean, if I was Mr. Brock, I think I'd have told you none of your business long ago, okay, but since you have raised the issue, and since we're all participating in this, I would like to know what is the reasonable return you are going to recognize? MR. MENTER-I agree with Fred. I'll determine that when I see all the facts that I feel I need to determine that, and each one of us will have a different personal opinion of what that reasonable return is or needs to be. - 31 - (Queensbury ZBA Meeting 8/14/96) MR. SALVADOR-Okay. So you don't have that number. You don' t know what will trigger your decision that he is due a permit because he needs a reasonable return. You don't have that measure tonight. MR. MENTER-No, because we don't know all the information. MR. SALVADOR-No. I understand that we have to get all the beans in the columns where they belong, and we're going to have an equation some day, and the equation is going to read, return on investment. You're going to have to measure that against something you call reasonable return. I'd just like to know what your measuring it against. MR. LAPPER-Mr. Salvador, I'd appreciate it if you didn't keep yelling at the Board. We've been told to date that they've been operating it as a loss, and we're now questioning the financial information that's been supplied and analyzing it and if it's operated at a loss, and that's established, then we don't have to get to the next question, because that would be moot, and it would be, by definition, it wouldn't be a reasonable return if it's operating at a loss, and if it's operating at a profit, then they have to determine whether or not that's a reasonable return. ,/ MR. SALVADOR-Very good. Thank you. MIKE O'CONNOR MR. O'CONNOR-I'm Mike O'Connor from the law firm of Little & O'Connor. I'm representing Dr. Wheeler and other neighbors. I'm going to defer my comments, because I understand that you've said that the public hearing will be kept open, and I really have more of a wish list than anything else. It's very hard to analyze a moving target, and we argued for probably three months to four months as to what size the buildings were that were removed. Finally after we subpoenaed a surveyor we found out what size the buildings were. I think you're getting presented the same scenario with the financial information, and I don't want to spend three months or four months and the good money of my clients trying to jump through hoops that are unnecessary. I'm not even sure, as I sit here, as to who the applicant is. As I understand it, and correct me if I'm wrong, but the property is owned in the name of John Brock and Anthony Brock. Is there a deed of record different than that? As I understand it, the property was deeded, in 1985, to John A. Brock and Anthony J. Brock by deed at Book 670, Page 150, and I think that's public record. If there's another record of what that is, then fine. I think you started to get close to the analysis when you started to talk about what is the return, and is it reasonable for the owner of the site, the owner of the land and buildings. You've got a lot of information here from a corporation, and you only began to ask some simple questio'¡s about it and found out that there are other operations included/in this, to some degree. I think you have to understand who the players are. I don't know who the Mooring Post corporation is. I've not seen the Mooring Post corporation on anything other than in the discussion tonight that I'm aware of, and I apologize if my recollection is wrong. I wonder how old the Mooring Post corporation is. I wonder what the source is of the debt of the shareholder to that corporation. Was it for when they were involved with Scotia Marine? Was it when they were involved with Route 9? What he's basically saying is rather than paying himself rent out of this operation, he paid off old debt to the corporation, or to the shareholder, but what relationship does that debt have to this operation and your analysis of whether or not it's reasonable or not reasonable? I'm really confused. I was surprised, tonight too, to see why we're talking about the $750,000. If you look at the transfer tax stamps on the deed for the Marina, and the transfer tax stamps are the sworn statement that you file, or is now, probably wasn't in 1985. I think it was - 32 - ~ --./ (Queensbury ZBA Meeting 8/14/96) in 1985, you filed a TP584 that said, this is what you paid for that property, and you paid $4 a $1,000 for your transfer tax stamps, and if you look at the deed, on the back of the deed, there are $1,300 or something like that, in transfer tax stamps, which means he paid $364,000 for that property. Why haven't we seen the Contract of Purchase? The first thing, if you look at the Court of Appeals, of the first seven items that you look at as to reasonable return, is establish the purchase price of the property. We're off in Never Never Land, I think, unless everybody is stipulating that the purchase price of this property is $364,000. I'm not sure, but I also understand that $200,000 at that time, went to his personal residence, which was where X was getting into some of the difference. If you look at all the deeds, there are four difLerent parcels up there that were conveyed in 1985. One is his residence, and that had stamps on it that would indicate $200,000. Another was the two lots that are occupied by cabins, and that wasn't even conveyed to the Mooring Post or to John Brock. That was conveyed to Anthony Brock, and that had stamps on it indicating $50,000, and the other vacant lot is the lot that we have an issue here. There were stamps on that that would show $50,000, as well, the 50 foot lot. So I don't think you're getting half the picture, and you're going to end up with the same mess that we had before, and if we need to go through that route, we'll go through that route, but I think you need to know a full analysis of the expenses, cost and return of this property and this property owner, whether they took it out in rent, whether they took it out in re-paYment of debt. They can do their own income tax thing, whatever they want, but we shouldn't have mixed operations, and we should probably have, as the last speaker indicated, maybe just the storage of boats. I don't understand the boat sales. The boat sales I thought was always by Scotia Marine. It wasn't directly by John Brock, and I don't know his business well enough to know. The other thing, and I don't want to come back here six times, okay. If you take a look at some of questions, you're going to see the source of them right in the, take a look at 2310 through 2324 of Anderson on Zoning. That tells you all about reasonable return. I'm not going to try to quote to you or whatever, but it's got some simple answers in it, and I think the answer's a little bit contrary to what you've even heard tonight, and I have some other points, but it says specifically, an applicant who maintains a nonconforming use or structure must show not only that all permitted uses will be unprofitable, but that his nonconforming use of the premises is incapable of yielding a reasonable return. We've got, at most, a meager real estate appraisal of residential lots or residential use. There's no attempt to appraise what this value is, as far as being an operating marina, with or without the buildings. There's two sales recently that you're going to look at, that you're going to hear about, that's going to give you a value that tells you that the present day value, if you were any place near the numbe7s that Brock has, he can make 300% on his investment. This is inf~ation that's public information, that's information we're going! to have to go through, paragraph by paragraph by paragraph, but I don't want to have to pull teeth. He talks about an appraisal, or he talks about a mortgage of $400,000. Do you think that mortgage of $400,000 was granted on that appraisal by Beaty which said the property was worth $288,000? I mean, there's probably a good AIA appraisal of that property. Where is it? Why isn't it on the table for you? I mean, why don't we have reasonable information to be able to make an analysis? And I'm not trying to be cute. I have a whole set, prepared comments and whatever. I gave you one summary of an analysis that was done by Paul Dowen who is here with us tonight, who's a CPA who looked at the figures that were submitted, and I'm a little curious even as to those figures. Why was there a revision of 1995, if they were taken from the tax returns? Did we change the tax return, or did we decide we wanted to change the figures? I mean, we've had two different sets of this same financial statement issued for 1995, and they are different. If they came out of the same source, I don't understand - 33 - ,-. (Queensbury ZBA Meeting 8/14/96) the difference. We've set forth a comparison of both columns. I don't know why you don't have, as backup, the actual tax returns, and why you don't have certified statements from the accountant. These are prepared, I'm not sure, I guess they were testified, prepared by the accountant, but I'm having problems following it, the same thing as I had problems with the square footage, and it's not problems that I have, it's problems that they have created. With the October 25th statement that was submitted by Mr. Brock, he also gives you projections of ' 95 income. They're contrary to what Mr. Nace submitted in his March 15th statement as to the '95 levels of business. I mean, we can go on and on and on, but you're not getting a straight picture. You also are not, in accordance with your SEQRA findings, you do not have a complete application. I don't see any screening or landscaping plan that has been submitted in conjunction with the new configuration of buildings. I also don't see any delineation of hardsurface parking where the winter storage will be delineated, and there are a couple of other deficiencies also in the submittal. So, I'd like to get on with this, get it over with, but lets have something that's reasonable, so that we can do it in a reasonable manner. Thank you, and I do reserve my right to finish my comments after we see what is actually submitted. --- KARL KROETZ MR. KROETZ-My name is Karl Kroetz. I have a few comments about the building itself that has been proposed. This is the new arrangement of storage buildings, and the objection to it is the same as it has been for all the other arrangements. It's too big. Calculations show that the usable cubic foot of volume of the proposed five storage buildings is twice the volume of the five demolished buildings. This means at least twice as many boats can be stored in this new arrangement that has been presented to us, at least twice as many boats. Someone spoke, Mr. Johnson, spoke about no one is talking about how many boats that are going to be stored. Well, the volume is twice as big with the new buildings as it was with the old buildings. It takes no stretch of the imagination to see that we can store twice as many boats. Now, there is also one other very important fact. With these five new buildings, which can handle twice as many boats, regardless of size. Every single boat can be quick launched. Every single boat is available for quick launching and that is a lot of additional boats, and it is the servicing and hauling in and hauling out all of these additional boats that will cause even greater stress to the Critical Environmental Area of Sandy Bay and to the Cleverdale Community. We've already heard about property owners not being able to use their lakefront for swimming and other acti vi ties, because of boat noise, traffic and water pollution, and many other things that have already been talked about. These and ma~~ other concerns effecting the welfare of the community have alre~y been expressed by many of the concerned residents of Cleverdale. This increase in quick launch activity is bad for Cleverdale'and it's bad for Lake George, and therefore I ask that you do not grant the variances required to allow this large expansion of the Mooring Post Marina to occur. I'll be glad to answer any questions that you might have of anything I've said. MR. CARVIN-Does anybody have any questions? I guess, thank you. BILL WETHERBEE MR. WETHERBEE-My name is Bill Wetherbee. I live on Mason Road at Cleverdale. May I assume we have the same rights to reprise that the counselor for the applicant asked for, that we may come back for a later comment after all comments have been heard? Do we share the same opportunity to respond further? MR. CARVIN-Once everybody has gone through, yes. - 34 - , l ---- -~ (Queensbury ZBA Meeting 8/14/96) MR. WETHERBEE-Okay. I just wanted to make sure of that circumstance. This proposal, as others have indicated, is clearly excessive, will unalterably and irrevocably destroy residential character of Cleverdale. Make no mistake about that. It will finalize the lifestyle of whatever we have become accustomed to. It makes a mockery of the provision of law which stipulates that any granted variance shall be "the maximum necessary and adequate to address whatever hardship exists". This is so far in excess of any variance that needs to be given that it makes a mockery of that section of the law. You have been led to believe that this is the only provision that can be approved, that there would be nothing else that would be acceptable. There has been no evidence whatsoever submitted that suggests that there are not other alternatives which could be acceptable and liveable to all of us, which could be used, other than this massive intrusion upon the residential character of our community. This is particularly alarming since the proposal appears to have been devised, articulated and advanced by the Zoning Board itself, and hence it manifests an extraordinary and frightening lack of any understanding of the relevant particulars of the circumstances that apply in this matter. Reference has already been made on a number of occasions to New York State's Town law, Section 267-b, with which I assume you are all completely conversant. That stipulates that a variance, if granted, will not alter the essential character of the neighborhood. The massive increase which we are witnessing in this proposal will unalterably, as I've said, change the character of the neighborhood, emphatically and irrevocably. You heard a previous speaker talk about the level of quick launch boats that these massive buildings would permit. I believe your own stipulation was 140, 140. If you wanted to take the time to do a little research and go up there right now and take a count, as I have each week since July, you would find that in the cavity now to be provided for the buildings, the number of boats ranges from 60 to 70, and that's assuming they're all quick launch. Some are still shrinkwrapped in blue, haven't been near the water all year. Some are inaccessible by the tractors, and some would sink instantaneously if ever placed in the water, but I'm giving you the benefit of the doubt. There are 70 on the site now. So you can just double that. If you think 70 are intrusive, as you're hearing from people, imagine what a 100% increase will occasion. I don't quite understand why there is so much confusion regarding the numbers. You have unrefuted, sworn testimony in your records from the previous owner as to what the level of quick launch activity was, at the time the present applicant assumed ownership of the property. In 1985, the previous owner of the property swore, in this room, in this location, under oath, as to exactly what that level was. That seems to have been forgotten, thrown away and ignored. Why is that number not significant. Nobody has refuted it. Nobody has challenged it. We are all prepared to l~¡e with it, and facilities that would accommodate it would sOl,e this problem instantaneously, but instead we are lead to believe that there must be a 100% increase. I would like to address another provision of the stipulation. Is the hardship self created? You were lead to believe, in testimony by the applicant and his counsel, some time ago, that the product that has caused his sales to fall and his business to decline is the fact that without the kinds of facilities he needs he cannot function. In 1988, a Zoning Board faced a far less intrusive application, unanimously denied it, and turned down a similar thrust at increase. The time that the business began to decline dates from that date, and anybody who has lived in the area will attest to this. At that time, 1988, there began a systematic, deliberate and overt complete denial of any maintenance, any housekeeping, any care, any preservation, any concern whatsoever for the facilities. They were permitted to decline, to fall apart. The grounds became overrun with garbage. There was a dumpster that was populated more by rats, rodents and other nightly predators than by human beings. The odor became such that many of us in the neighborhood could no longer stand it. The - 35 - ~ (Queensbury ZBA Meeting 8/14/96) areas between the buildings became overgrown, filled with trash lumber, with the relics of old boats that were discarded. Why would anybody want to put his boat in storage or in quick launch in that kind of an environment? Whether the figures regarding financial decline are illusory, as Mr. 0' Connor suggests, or factual, as the applicant suggests, all of you who have any familiarity with business are aware that the survival of a business, let alone its prosperity, requires some attention to the infrastructure of that business. You can't go six, seven years, let a business fall into the ground, and then wonder why people aren't running to your door and knocking on it begging to do business with you. Why would anybody want to put his boat in that kind of an environment? And you don't need to take my testimony as completely factual. As anybody who lived in the area and witnessed the degradation, deterioration and self perpetuating decline in the facilities. They failed because the owner, in 1988, decided there was only one recourse, run them into the ground and come back again. The applicant would have you believe that, on the one hand, the previous facilities were sufficient to accommodate quick launch clients far in excess of that which the testimony has revealed. On the other hand, you are told that the facilities proved inadequate in maintaining the level of activity, which sworn testimony has indicated existed. Which is it? Were they adequate or weren't they adequate? They were or they weren't. They can't be both, depending upon which side of the argument you choose to be on at the time. If you apply the statutory criteria for the granting of a variance, this application fails on virtually every standard of measurement. It is not remotely close to the minimum necessary and adequate to address the issue. It is uniformly destructive to the character of the neighborhood. It will lower property values significantly. We do not understand why our property should be depreciated because somebody else has decided that he made some judgmental errors and neglected his property. It endangers, not protects, the health, welfare and safety of those of us who live proximate to it, and we are here only because the alleged hardship has been self created through a systematic process of deliberate neglect and indifference. In 1988, a Zoning Board, sitting in the same posture as this one tonight, found that the proposal which was less complete and less intrusive was an overburden and was asking too much of too little land. You've got that motion in your possession tonight. I urge you to review what the Zoning Board found in 1988. It is no less relevant in 1996. Granting these variance applications would manifest a cYnical and frightening denial of the basic precepts of government of, by and for the people, and would offer a chilling and revealing endorsement of government inspite of the people. Thank you. MR. 0' CONNOR-Let me just ask one question, if I might. Did I understand, when I was out talking with a client, that Y9u said that the public hearing is going to be kept open? / / MR. CARVIN-That's correct. MR. O'CONNOR~I just wanted to make sure. JUDY WETHERBEE MRS. WETHERBEE-Judy Wetherbee. I live directly behind the Mooring Post, and as a former accounting student and bookkeeper, I can tell you, it's very common business, or very common procedure to not pay payroll to the key man. The key man's advantage, tax wise, is often the reason for this. So it shouldn't be construed that, the poor man gets no income. If Mr. Brock can plead financial hardship, does that mean that those of us with mortgages on our property and when Cleverdale properties are devaluated because of the issuance of this variance to Mr. Brock, does that mean we all have recourse from the Town for our financial loss? I mean, it seems like he's coming to you looking for recourse for a financial - 36 - I --- ~.'''' (Queensbury ZBA Meeting 8/14/96) loss, and I'm just wondering, do we all have that same advantage? I don't think anybody wants to answer it, and I guess Mr. Karpeles doesn't even want to look at me when I ask the question, but it's a legitimate question. Are we who own the property, do we have to pay the consequences for a poor investment by Mr. Brock, and the fact that boating has become a depressed business in the recent economy? I mean, I think it's a very legitimate question. The assessed value of property within the 500 feet limit of the Marina totals $14 million ten thousand two hundred dollars. Now all that property's going to be effected. Other people beyond the 500 foot area have written and/or appeared in opposition to this expansion and their assessment equals $13 million five hundred and thirty- seven thousand dollars. Are you going to ignore the wishes of all these property owners whose assessments equal almost $28 million? No one objects to Mr. Brock building a more modern, one story more efficiently laid out building to replace the torn down facilities, period. Not more cubic feet. Not more parking areas. Not more outside lights for expanded hours. Not more noise and odors from equipment. As has been noted, there have been boat facilities at the Mooring Post Marina site since 1906, and for all those 90 years, the residents in Cleverdale have been able to live at an enjoy their property, along with a financially successful boating business, until now, suddenly. The expansion Mr. Brock is asking for is excessive, and will destroy the character of Cleverdale, decrease property values of residents, and most importantly be a detriment to the waters of Lake George. Thank you. WILLIAM BLACK MR. BLACK-My name is William Black. I am a resident of Cleverdale and a tax payer of Cleverdale. My wife and I have enjoyed living in this area for about eight years. We've been landowners for a little over five. We have two small children who enjoy it, and we are south of the Marina. I have witnessed, on weekends, holiday weekends, and even during the week, the same amount of traffic over the last 10 years as I witnessed last weekend or on the July 4th weekend. I don't see an increase. I haven't seen an increase. What I have seen are residents of the community who drive that road every day, driving haphazardly. I have a six year old daughter that almost got hit, and it wasn't from a person driving up to use their boat or a quick launch. It's people who are used to the area, as everybody knows all accidents happen within 25 miles of home. They don't pay attention, and that bothers me more than anything else. Everybody in this room is granted a remedy by law. If they don't agree with what the Zoning Board of Appeals or the Town Board has done, somebody has erred here. Mr. Brock applied for a permit. He was granted a demolition permit and a building permi t . Regardless of what has happened over the last three years, everyone in this room is guaranteed that remedy by law. If the group that opposes it doesn't want it to be there, they're ~ing to continue to fight. What I ask is that they fight with their own money, not my money as a tax payer. I don't want the Town Board representing them and not me. Right now, today, I'm paying taxes to fight Mr. Brock, and I don't oppose what he's doing, and I have not had any dealings with Mr. Brock. I bought gas from him. That is the full extent of my dealings. The biggest problem that I see happening is we're looking at this financial burden. The burden of proof is on the applicant. I fully agree, yet I believe that Zoning Board of Appeals has the responsibility to professionally evaluate the information brought forward. That means they should be brought up to what the accounting principals and practices are, and not second guess whether Mr. Brock's financial tax returns that were given to the government are adequate or not. If he's filed them with the government, that's for them to determine, not this Board, and if they need to have a professional opinion brought in, I, as a taxpayer, believe that this Board should hire a professional person to evaluate it, and then give them an understanding, after evaluating it. Not air Mr. Brock's personal - 37 - '--' (Queensbury ZBA Meeting 8/14/96) financial laundry in front of 100 people in a room. I don't believe that that is good business sense. I don't believe it's everybody's business in this room to see how much he's put into a business, how much paid out of a business. I am a small business owner. I built the business from nothing, and I'm proud of it. Yet, I am the key person. I have to have a salary. I have to have support my family. I want them to grow up in an environment that is good and clean, and I want to give them the best I can. So when somebody says, you know, key people don't take it, well I'm the key person, and I'm sure, if I didn't take it, there wouldn't be any food on the table for that six year old. What I've seen from the ZBA tonight, it would be easier to go through an IRS audit than it would be to get a permit in this Town, and that's not right. I think you need to really evaluate which way you're headed with this. I've heard a lot of things tonight that really bothered me. Everybody in Cleverdale is against this. Well, I'm a resident of Cleverdale. I'm right down the road. I'm south of the Marina, and I am not against it. So don't speak for me. Nobody has come and asked me. Nobody has come to my door. I read this in the paper last week, and that's why I came, and I wasn't, I didn't think it was going to, the article was wrong, but I'm glad I came tonight. The one thing, I've heard about noise and I don't live right next to the Marina. So I don't want to say, I haven't been therev. I don't know what these people are up against, but I do know, from where I live on the lake, I listen to boats north of my house, between there and the Mooring Post, that wake me up with their loud mufflers. I can't hear Mr. Brock's tractors, but I can sure hear those boats at 10 o'clock at night when they go out for a night ride, and when everybody wants to build their house and change the dramatic appearance of Cleverdale, which I have seen, building brand new homes, year round homes, which I believe everybody is entitled to. They have taken my views away. They have gone up three stories. That wasn't fair to me. I didn' t come and complain. It's their right. They want the best for their family, and what I'm hearing in the background, I hear people talking about me, right now as I'm speaking, no differently than when you people were trying to conduct the meeting and they're saying they can't hear. I can't believe people will not give a courtesy to someone, and that's what's been going on tonight. Everybody's talked about water quality degradation. I've walked up and down some of the roads in Cleverdale, not Mr. Brock's property, but when you take the loop in Cleverdale, and you walk around the circle, after a large rain storm, you can see the remnants of septic system material going down the road, from these built up septic systems that were "state of the- art", best built that money can buy. There's something wrong with them. Just because they're the best that money can buy, things like this need to be evaluated. If we're going to look at Mr. Brock, lets look at everybody. Look at me. Look at everybody up and down that road. There is water quality degradation, but it's not just from Mr. Brock, if;fhey so think it is. Regardless of what the ZBA decides they're going to do, either way, I would support them, because I am a taxpayer, and I want to see the financial burden not get any worse for the taxpayer. If the people opposing it want to fight Mr. Brock, let them do so with their own money, and if Mr. Brock wants to fight them, let him do so with his own money. Don't use my money. Use it for something worthwhile. Regardless of what happens, I'm sure this Board has been well aware that there will probably be an Article 78 filed against the ZBA. As I sit here tonight, there is no doubt in my mind of listening to everybody. So lets try to make it as painless for everybody concerned, get on with it, and one thing I would like you to really consider is to have a professional brought in to review the financial data, and not try to beat a dead horse, because everything Mr. Brock is trying to explain to you, in a small business, happens every day. Thank you. KATHY VILMAR - 38 - ,-I -- (Queensbury ZBA Meeting 8/14/96) MS. VILMAR-My name is Kathy Vilmar. I'm the director of Land Use Management for the Lake George Association. The Lake George Association has been involved with the review of this project, this Marina expansion, since Day One, and since Day One, the Lake George Association has thought the lead agency on the project should be the Lake George Park Commission. The Lake George Park Commission is a State agency designated to review just this sort of a project, a Marina expansion. It's regulations are geared toward protecting Lake George water quality. Instead, the Town decided to keep lead agency. Since then the review of the project has focused on land use issues outlined in the Town Zoning Ordinance. Unfortunately, the Town Zoning Ordinance has no regulations governing marina operations, and unfortunately the Zoning Ordinance lacke the standards needed to really protect Lake George water quality. The Lake George Association does not agree with the conditional negative declaration adopted by the Zoning Board on this project. First off, the meeting held last spring was supposed to be a public hearing, but the people who attended were not able to speak because of a mistake made by the Town in advertising the meeting. Public comments should have been heard on the review of the EAF prior to the decision by this Board. During that meeting, I remember having a hard time sitting in my seat when I heard a Zoning Board member say, while discussing some of the issues brought up by the~Lake George Park Commission and their review of the project, the Zoning member said that the Lake George Park Commission will cover those issues, and the Town need not worry about them. Lets talk a little bit about this and how it relates to the conditional negative declaration. A conditional negative declaration is when the lead agency places conditions on a project, called mitigation measures, to take care of any and all significant adverse environmental impacts that could occur from the project. Under SEQRA Regulations, 617.7, a conditional negative declaration is required to have mitigated all significant environmental impacts identified during the review process. Since the Lake George Park Commission is an involved agency and this Board has attempted to conduct a coordinated review, as required for a conditional negative declaration, do the conditions of the negative declaration incorporate the impacts identified by the Park Commission as significant? They don' t. Look at the conditions. The Lake George Park Commission identified many issues in their 1995 letter, and also in their June 1996 letter that are significant concern to them as a State agency on Lake George mandated to protect Lake George water quality. Many of these issues have not been addressed by the Town, and the statement by the Board member at that meeting last spring to let the Park Commission address that contradicts with what is required of this Board as a lead agency under SEQRA. The Zoning Board, as lead agency, is required, for the conditional negative declaration, to review all the significant issues from involved agencies and mitigate them in the conditional nlgative declaration. Does the conditional negative declaration ~itigate the impacts from increased use and septic system brought up by the Park Commission. It does not. Does the conditional' negative declaration mitigate the impact to neighborhood character? It does not. Does the conditional negative declaration mitigate the congestion? No. Mitigate aesthetics? No. Water quality impacts from non point sources? No. Odors from machine exhaust? No. Boat washing impacts? No. Impacts from boat traffic in the Bay? No. These impacts have been identified as substantial by the Lake George Park Commission in a letter to the Town this spring, and they have not been mitigated by your conditional negative declaration. The Town needs to know that when this project makes its way to the Lake George Park Commission for a Marina permit expansion, if the Park Commission finds that these impacts have not been identified in the CND, the Town will be required, under SEQRA, to issue, to rescind its conditional negative declaration, issue a positive declaration, and require preparation of an EIS. The Lake George Association will be pushing for this. I would respectfully request time later on to review the issues for the Use Variance, - 39 - (Queensbury ZBA Meeting 8/14/96) after all the information is submitted, but I would like to say that according to the Zoning Ordinance, the way I read it, the Zoning Board may not grant a Use Variance, only in the event all the circumstances are found to exist by the Zoning Board, and it lists the criteria for that, and it says, note the word "only". One of the circumstances, Number Four, says the Zoning Board must find that the variance would not be materially detrimental to the purposes of this Chapter or to property in the district in which the property is located. I have seen no proof that the expansion of this Marina will not be detrimental to neighboring properties and to Lake George. In fact, just the opposite is true. Impacts have been identified that will occur to adjoining properties and to Lake George if this project is permitted as planned. ~hese impacts, as I stated earlier, have not been mitigated by the conditional negative declaration. The ZBA cannot find that the variance would not be detrimental to properties in this district. The other part of criteria number four says that the Zoning Board of Appeals must find that the variance would not conflict with the description or purpose of the district or the objectives of any plan or policy of the Town. The purpose of the Waterfront Residential Zone is to protect the delicate ecological balance of all lakes, while providing adequate opportunities for development that would not be detrimental to the visual character of /the shoreline. The ZBA cannot find that this project conforms to any plan that the Town has for this area. In fact, this project upsets the delicate ecological balance of Lake George and betrays the visual character of the shore. Number Four, the third part of it, says that the ZBA must find the variance requested is the minimum variance to relieve any identified hardship. Is this request the minimum variance? If not, the ZBA cannot, according to its own Zoning Ordinance, approve this Use Variance. Thank you. MR. CARVIN-Anyone else wishing to be heard? MR. LAPPER-Mr. Chairman, I'd just like to set the record straight on two procedural issues that were mentioned there. The Lake George Park Commission is an involved agency and consented, of course, to this Board as lead agency. So they were consulted and they agreed, and they were served with notice of the conditional negative declaration, and requested that they comment if they had any concerns or criticisms with that conditional negative declaration, and they didn't respond with any questions or concerns. With respect to that public hearing, where there was improper notice, this Board determined not to hold a public hearing that night because it wasn't properly noticed, but there was, of course, another public hearing scheduled at the next meeting. So everyone did have their chance to speak. MR. CARVIN-Right. Well, again, I feel that we've gone thr0'7gh the SEQRA, and I addressed that at the opening of the meeting,/that I think our SEQRA determination is proper and complete. Anyone else wishing to be heard? MARY ELLEN MERRIGAN DR. MERRIGAN-My name is Mary Ellen Merrigan, and I live on Seelye Road, and I basically came here tonight to support my neighbors, and also to express my own concern about how the action that you take on this question affects the other marinas. Can I ask you how many marinas you have this type of jurisdiction over? MR. CARVIN-I'm not sure I have an answer. MR. MARTIN-I think there's nine. DR. MERRIGAN-Okay. I live next to one of them, and we are already struggling to keep them within their boundaries, and I really appreciated, tonight, that you did not respond to the question of - 40 - ,,-,I '--' (Queensbury ZBA Meeting 8/14/96) what number you would use as a reasonable return, because one of my concerns is that it just sets a target for the accountants of any marina wanting to show that they don't have a reasonable return, and my other concern is about the quality of life, particularly from the safety point of view, the people that use the Cleverdale Road, again, without sidewalks, are at jeopardy if you double the traffic coming back and forth from that Marina. Thank you. JIM MERRIGAN DR. J. MERRIGAN-My name is Jim Merrigan, and I also live at the end of Seelye Road with Mary Ellen. I won't be redundant here. The concerns of the neighbors have already been stated over and over again. I'd like to just say that I support my neighbors that live near the Mooring Post, in their concerns about the degradation of the Cleverdale peninsula, and their rights to a peaceful and serene environment. I would also like to support the neighbor's concerns that the expansion of the Marina also negatively impacts on the lake that is already overloaded with boats. You simply have to spend a little time out on the lake these days on a Saturday or a Sunday, and you could probably use those ear protectors that construction workers use on a Saturday or Sunday. I'm also concerned that the decision made here in this case will affec~,the behavior and future expansion plans of other marinas. We live adjacent to the Castaway Marina, as my wife said, and they have recently purchased the former home of William Howenstein, which is obviously a residential piece of property, and have attempted to expand onto that property through the use of its docks. I have had to make several reports to the Town, which they have investigated promptly, and they have urged the Castaway to participate in voluntary compliance. The Castaway and other marinas are following this case very closely to determine their own future expansion plans, and if you vote in favor of this particular plan, I think you'll be back here very soon with the Castaway Marina and probably seven other ones, for a total of nine. They also own the lot behind the Howenstein property, and it doesn't take a rocket scientist to figure out what their intentions are there. So I hope that you will consider all these factors because I think there's a domino effect here that you'll see rather rapidly if you allow this type of expansion. Thank you. MR. CARVIN-Anyone else? comment? Mike, you had another question, or MR. O'CONNOR-I have a question, just so we don't go off into right field here. Your notes indicate that's a Type I? MR. MARTIN-That's incorrect. It's Unlisted. MR. O'CONNOR-Okay. Then I think you ought to correct thatior the record. Because you can't do a conditional neg dec on a Type I. MR. MARTIN-Right. The notes are so correct. Unlisted. MR. CARVIN-Okay. Any other public comment? ELIZABETH WARD MRS. WARD-I'm Elizabeth Ward, and I'm a property owner on Cleverdale. I wasn't going to speak tonight because you've heard from me before at these hearings. I think the question that's rumbling in my brain at this point is why we're still here. In 1988, Mr. Brock brought forth a proposal for an expansion, not as extensive an expansion as this, but for an expansion, and the Zoning Board of Appeals, sat there. Listened to the neighbors, and said, ultimately, no. We're back here now and this has been going on for, what, a year and a half at this point, and showing very little signs of ever finishing. I'm beginning to feel like this is - 41 - (Queensbury ZBA Meeting 8/14/96) a career, and I think there are a lot of people here who pay taxes and who look to you people to provide the leadership, and I'm concerned that this continues to go on and on and on, and I begin to wonder when it's going to end. I'm looking at the resources that you people are pouring into it, your own time and energy, the resources of the Town, the resources that the people sitting behind me, most of them are putting into it, and I'm saying, is this becoming a waiting game or a who blinks first? So I'm really hoping that this can be brought to some kind of a resolution fairly soon. So that we don't all keep wondering what's going to happen. Thank you. MR. CARVIN-Okay. Any other comments? CHERYL EVANS MRS. EVANS-Hi. My name is Cheryl Evans and I live on Cleverdale Road, and I was just wondering if you're all aware of how we got to this position. Wasn't it Mr. Brock's numbers, sending them to the Town and the Town giving the variance? Why are ~ the ones that have to pay for the lawyers because of the impact? Why are we the ones that have to call in to Mr Martin and say there's boats all over the place. His water runoff with oil in it is leaking_down the road. Why does my septic system have to be in the notes saying where the water's coming from, which is totally false. I just don't understand why us, as residents, have to put up with the burden of my Brock's nonsense, if you will. I'm just very tired of this, and I think, since he tore down those buildings, would it be appropriate for the Board just to say, build up exactly what you had before? That's it. You tore down the buildings. You gave the wrong information to the Town. He knows what the residents want. It's not like we haven't told him before. Why do we have to have the burden of Mr. Brock? That's what I would like to know. There has been so much that the neighbors, you know, Mr. Black, for instance. You can tell that Mr. Brock had talked to him. Those words out of his mouth come from Mr. Brock. It's quite obvious. I mean, how does he know where that water runoff is coming from? The water runoff, you guys were all up there during the rain storm. Fred, did you notice? Mr. Brock had come to us and said something about our septic system. I said, to my husband, I say, I bet there's something here. I'll go look into it. We looked into it. The Town came up, looked into it. It's not the septic. The sludge that comes off of my property, and the water comes off of his property just drowns a lot of my property, and there's a lot of oil that comes off of his property where he had dumped a couple of tanks of oil,on the side of the property. You guys can go check and take some soil samples. I could probably give you an idea of where it is. I've seen it come off. As far as the expenses, we're talking about his financial burden. He has not provfd it, obviously, to you, his burden. He's given you a lot of ?Umbers. It's his job to come to you and give you the correct information and he has a list of numbers. Just give him his financial income tax forms. That's the bottom line. If he's going to be so true, where are they tonight? Why do we have to come back with lawyers, accountants., If I could prove to you, with the old buildings, he can run a successful business, if I could prove that to you tonight, I think he should just build what he had before. I think that's fair. Because right now, he's on my property line, and with these buildings, not doubling, Mr. Karl Kroetz was being fair with the numbers, but to really max out these buildings we're quadrupling, no actually, we're going three times what he had before, at our expense, because a 28 foot building along my property line, with the water runoff, 10 feet from my line, is going to be a mess. He might have stormwater management, but 10 feet, I think since he tore down the buildings, the property, now, does he have a right to have that line back again, with the height of the building? I don't know. Where do we, as neighbors, get, I don/t know, I'm just so upset about the way he's turning everybody - 42 - __l - (Queensbury ZBA Meeting 8/14/96) around, and we're going to end up coming back because we've got to look at his correct numbers again. He's just stonewalling you. Where are they tonight? Are you allowed to tell him he can just build what he had before and that's it? MR. CARVIN-Unfortunately, I wish it was that simple, because he'd need a variance. MRS. EVANS-That's true. Another thing I'd like to point out is, since these buildings have come down, there are boats allover the place. He's also expanding on that residential lot. He's never had boats on there before because everybody would call him in and he knew to keep them off, and I go down to the Town to talk Ëo Jim Martin, and he can't do anything because he's going for a variance. Shouldn't he do the setbacks now until he goes for the variance and gets a variance? I mean, if he's not allowed to be on the residential lot or use that lot? MR. CARVIN-Well, he has a right to the use, all right. As far as I'm concerned, and it's my opinion, if he were to put boats all over that lot, that is his right. He has a right to the use of a marina there, because it's a pre-existing nonconforming use. ---- MRS. EVANS-Not before the buildings came down. MRS. WETHERBEE-We're talking about a residential lot. MR. CARVIN-No. We're not. We're talking a Use Variance, and we're talking a Use Variance in relation to the building. He has a right to operate a marina at that site. He has had that right. That is a pre-existing right. We cannot take that right away from him. As much as a lot of these folks in here would like to see no marina there. MRS. EVANS-That's not true. MR. CARVIN-Well, I'm just saying that he has a right to operate a marina, and part of the operation of a marina is storage of boats. MRS. EVANS-But does he have the right to insult the neighbors? MR. CARVIN-Well, that's a different, that's not part of the zoning problem. MRS. EVANS-Well, I just feel that it's not our burden, but it is our burden. I think it's between the Town, I don't know, I just feel the Town needs to protect us because they're not doing it. MR. CARVIN-We're trying to protect everyone. unfortunatelY'Lthat's part of the charge of this Board. We have to be fair, not/only to the applicant but also to the community, and that's part of the weighing aspect, and you're right. I mean, this is illY file so far. MRS. EVANS-Okay. That's all I have to say. MR. CARVIN-Anyone else wishing to be heard? Anyone new? Anyone else? TED ARNSTEIN MR. ARNSTEIN-My name is Ted Arnstein. I happen to be the President of the East' Side Property Owners Association, a group of 294 property owners. Some of what we heard today was enlightening, but I think you misunderstood what Cheryl meant. The lot that she was talking about is a private, residential lot. It never before was a part of the marina. We're not arguing about the place where the other five buildings were. We're talking about a house that exists on Cleverdale Road, that has no right, at least at this time, to be - 43 - (Queensbury ZBA Meeting 8/14/96) used as a marina or to store boats. It's a new thing here, and that is the one point I wanted to get across. There's no use taking your time to be redundant, but please don't say that we want to do away with the Marina. I think there's very, very few people who feel that way. What we do want is a similar sized unit that was there before. Modern, fine, landscaped, great, not a monster, and this is what is happening here. Believe me. Mentioned before the couple from Seelye Road talked about the Castaway Marina. They paid, even using Mr. Brock's numbers. That went, and it's a matter of record, for over double his highest number. So you see, this property is worth far more than what is said it's been worth. Just recently, homes have been sold, just for the lot adjacent for five and six hundred thousand dollars, and we can produce those numbers. Jim has them, and these are small, comparatively small lots. So there's no hardship here. Believe me. Thank you very much. MR. CARVIN-Anyone else new, wishing to be heard? Anyone else? Did you have a question over here? MRS. WETHERBEE-No. My comment was, that right in my statement I said, no one objects to Mr. Brock's building a more modern one story more efficiently laid out building and replace the torn down facility, but not with more cubic feet. There's no one here~that wants to put him out of business. There's no one here that would object to it being put back in a more efficient manner, with the square footage that he had before, and somehow you people got the misunderstanding that we want to do away with the Marina, and that is not true, at all. MR. WETHERBEE-I would like to supplement that by adding that in mY comments you again misrepresented, as you are want to do. I said you are being led to believe that the only alternative is this one, that it's this one or nothing. That there are many other alternatives that would be fully viable. If we didn't want a marina at all, why would we say there are many other viable alternatives that would be entirely acceptable. I don't understand how that statement translates into "most of the people here don't want any marina". Perhaps you could articulate that a little more clearly. MR. CARVIN-Well, maybe at some other time, but not now. Are there any other questions or comments? Okay. Does the Board have any other questions of the applicant? MR. THOMAS-I've got letters. MR. CARVIN-Yes. We've got some letters. We're going to continue with the format, because we've had a number of correspondence in the past. So we will read the names into the record. ThTy will become part of the record, and Mr. Thomas will indicate/whether they're for the applicant or against the applicant. I MR. THOMAS-The first letter is dated August 13, 1996, addressed to Mr. George Hilton, regarding the Mooring Post Marina "Dear George: Review fees for this project will exceed $1,000. We are unable to accurately estimate what they will be since we cannot predict what will be required of us. Very truly yours, RIST-FROST ASSOCIATES, William J. Levandowski, P.E., Senior Vice President and Director of Technical Services" And a copy for Mr. Brock's lawyer. We also have previous comments from previous meetings, and we have 10 new letters on file. The first letter is dated August 5, 1996, from Joan and Hammond Robertson, and they are against it. A letter dated August 6, 1996, from Esther H. Frederick, she opposes it. A letter dated August 6, 1996 from Jane Freihofer, she opposes it. A letter dated August 7, 1996 from Stephen and Diane Kuric, they oppose it. A letter dated August 13, 1996 from Carol Freihofer. She opposes it. A letter dated August 9, 1996 from Susan M. Livingston and Douglas J. Livingston, and Francis H. Martin, they - 44 - ,-I -- (Queensbury ZBA Meeting 8/14/96) oppose it. A memo with letters attached, dated August 12, 1996, from Richard H. Meyer, he opposes it. A faxed letter dated August 16, 1996, from Frank and Mary Ellen Clemente, they oppose it. A letter dated August 12, 1996 from Robert L. Evans, he opposes it. A letter received August 14, 1996 from Linda & Mark McCollister, they oppose it. That's all we have. MR. CARVIN-Okay. Are there any questions of the applicant? Does Staff have any comments? MR. MARTIN-I think you have all of ours. MR. CARVIN-Okay. MR. FRANKEL-Mr. Chairman, I'm not sure that it was read into the record, the August 9, 1996 letter I submitted to Staff earlier in the week, pertaining to, from Beaty Agency, pertaining to the effect of values on the residential properties. That was part of the package that was forwarded up, I believe, on August 12th. MR. CARVIN-I haven't come across it. Have you, Chris? MR. THOMAS-No, I haven't. --- MR. CARVIN-I've got an August 13, 1996 letter. What was the date, you said? MR. FRANKEL-This one was August 9, 1996. MR. GORALSKI-If you'd like, I can read it into the record. MR. CARVIN-Okay. I'm sure we have it. Wait a minute. Here it is. Is this it? MR. MARTIN-It's attached to the Staff Notes. MR. FRANKEL-I just wanted, for the record that was provided, because I know that one comment was made about the effect on residential property, market values, and we've addressed that, and some of the other issues have already been addressed to the Board in previous hearings, such as the number of quick launch. MR. CARVIN-John, what's the letter, maybe if you've got it there. MR. GORALSKI-It's August 9, 1996 "To Whom It May Concern: I have had a chance to study the proposed new or replacement buildings for the Mooring Post Marina owned by John Brock and located in Cleverdale, N.Y. It appears that the new buildings are smaller in size than the original buildings which will be or have been removed. The setback lines have been increased from the jlriginal setback lines with the exception of one side line which will be reduced from ten feet to four feet. However, this side line is bordered by property already owned by John Brock and has no effect on someone else. The maximum heights of the new buildings will be 28 feet at the peaks and 25 feet at the eaves. It certainly appears to me that the proposed plan is much better than the original layout as far as having an adverse effect on the neighboring properties. Thinking as a real estate appraiser, it is my opinion that the proposed plan is an improvement over the original buildings and will not have an adverse effect on the market values of the residential properties in the area. Sincerely, N. Harwood Beaty Appraiser" MR. CARVIN-I don't have that letter. MR. GORALSKI-We'll make sure everyone gets copies. MR. CARVIN-Is it in the Notes to File? - 45 - -' (Queensbury ZBA Meeting 8/14/96) MR. MARTIN-I think it was attached to the notes. MR. THOMAS-That's where it was. MR. CARVIN-Okay. Here it is. MR. GORALSKI-Shall I read this, too? This is ai letter dated January 3, 1995, from Irene Fitzgerald, which I beli~ve states that there will be a decrease in the values, and then, in addition to it, dated August 14, 1996, "The revised plan does ¡not change my opinion. It still will have a significant detrime$tal effect on the character of the neighborhood." And it's signed Irene A. Fitzgerald. i I MR. CARVIN-Okay. Obviously, this Board has not ~ot sufficient enough financial information to make a determinationi I think some of the public has asked pretty good questions. I doþ't know, does the applicant have a list of some of the ideas or items that you are going to be providing? MR. FRANKEL-Mr. Chairman, I was making a list of, 4s people were speaking. I will have to review them with my client to see which ones we believe to be pertinent to be responded to, ~n relation to the Use and the Area Variances. Some of them deal with the SEQRA review, which have already been taken care of in ptior hearings, and we would reference back to the SEQRA hearing inithat respect. With respect to, you know, the financial inform~tion and the reasonable return on investment, we will endeavor t~ put together further information to present to the Board at the n~xt hearing. MR. CARVIN-Okay. I would also address your attent~on to item, I guess this is 23.14. I'm not sure, this is the Ne~ York Law, is it? The seven items. MR. MARTIN-Those have been provided to the applican~. MR. CARVIN - I was going to say, this has been pr¢>vided to the applicant. ¡ . i h MR. MARTIN-I don't mean to be a st1.ckler at such a l~te our, but, in the interest of not having to go through future I evenings at a late hours, the best approach to this is to hammer out a comprehensive, complete list, on the record, right now, so we don't have to dance around again, and make it make sure t~e explanation is complete and detailed as to what we're lookingi for, in what form. So it's clear, and the next time, we don't have another delay, and another long night or several long night$. I I MR. CARVIN-I think that those seven items, obvious1y, hav, to be addressed directly. In addition, I've made a couple¡ of no~es here that, and I think Mr. O'Connor has a pretty extensive list, and I do concur with most of what he had on his list in that 'we really want to see the Mooring Post numbers. So the other item that I have is, and I'm not sure who indicated it, but I thiink I'd like to see a real separation between boat sales and other, iin other words, the boat sales being just what that sounds, and the~ other is the rental of the dock spaces and the quick launch and ~ll that other stuff. I'd like to see those two items somehow i separated, if possible. I also have a question on the $400,000 l~ne of credit, and again, I don't remember who brought it up ~ but I'd be interested to see how many properties are involved with that line of credit, in other words, what was the basis for that line of credit. Because during the public testimony ~ was of the impression that it may not be just the Mooring Post, that it may include your residential or other Mooring Post item~. MR. GORALSKI-I think possibly what you're thinking olf is something that Jim raised in his Staff Notes, and that is, wh~t is the value I - 46 - ',-,I -../ (Queensbury ZBA Meeting 8/14/96) of the Marina as it exists today. MR. CARVIN-Right. Yes, that's something else in addition. MR. MARTIN-And as an example, my earlier comment, I think we should have a basis for the appraisals that are given, because it is a, I don't know what the term is, like sales or recent sales in the area, or is it an income basis. That's typically what's done with appraisal when they're done, and it's stated as to what format they're using, or often times both formats are given, an analysis of like sales or on an income basis. MRS. LAPHAM-And reproduction, also, cost of reproduction of the facility would be the third. MR. MARTIN-Replacement cost, yes. MR. GREEN-And that is to come up with the value of the Marina as it stands now, essentially? MR. GORALSKI-Correct. MR. FRANKEL-With the buildings removed, as they're presently removed. MR. CARVIN-And also, I don't know if it's possible to have a nine month statement, you know, of the operations, or even a six month, through 1996, to see what, we've got through September of '95, but what's '96 been shaped up, you know, what's that looking like? MR. BROCK-I might have a problem with that, only because we just put new computers in, less than a month ago, and changing all the data and trying to do it. It's going to take some time to get that. I have a whole new computer system that I put in, and it's not all in there. I might be able to get some information, but to give you a full blown statement, that's just not going to be ready. MR. CARVIN-Well, if you can provide some numbers for 1996, I think it would hopefully substantiate what your claim is. MR. MENTER-Yes. better. I think more information you can provide, the MR. CARVIN-Yes, and I would hope you could present it in a manner that a lay Board can understand. MR. MENTER-I don't anticipate us coming up with another list at another meeting. MR. BROCK-What I'll do is, over the past three years, I'~ just take the statements and break them down, as to what exactly the Mooring Post~ MR. CARVIN-No. I want pure numbers here. I mean, you've apparently, on a couple of incidences, intermixed other non-items, especially the depreciation. I mean, it really is, in this Section 23, it's pretty specific. It has to relate to the property in question. So I don't want to see numbers on Route 9 or. MR. FRANKEL-Mr. Chairman, I think that was clarified, but we'll break it down even further. MR. CARVIN-Okay. MR. FRANKEL-And we'll endeavor to, I'll discuss this with my client and endeavor to respond to these. MR. CARVIN-Which leads me to, my next question is time. - 47 - -- (Queensbury ZBA Meeting 8/14/96) MR. GORALSKI-One other thing that I think there was some discussion on that I think the Board should be clear about and the applicant should be clear about, and that is that there was a discussion as to the Mooring Post as a corporation and then the owner of the property being two separate entities, and I think the Board wants to be clear, when you're determining reasonable return, as to exactly what you're talking about. If it's relevant to have both the owner of the property and the Mooring Post as a corporation addressed, then that should be done, but I think you should be clear as to exactly who's financial statement you're considering. MR. CARVIN-Looking at. question? Yes. Does the applicant understand the MR. BROCK-You're looking for any finances I retrieved from the Mooring Post, as such. MR. CARVIN-Right, as such. MR. LAPPER-I think Mike O'Connor also raised a lot of issues that the Board is also thinking about, as Fred said, that ought to be addressed, in terms of the finances. We can provide you with the minutes of the meeting, but it'll probably not be for another-week. When we have them, we'll provide them. MR. FRANKEL-Thank you. MR. CARVIN-I doubt we'd be able to get this into August at any point. Right? MR. GORALSKI-You've got a meeting on the 21st and a meeting on the 28th, your regular meetings. MR. CARVIN-I will be available until September the 14th. MR. MARTIN-I was thinking of, potentially, the 29th, but I don't know how you'd feel about coming out two nights in a row. MR. KARPELES-Of August? What's that, a Thursday? MR. MARTIN-Yes. That depends on, obviously, how quickly the information comes and then how much time is warranted to review it. You don't want to receive it that day, obviously, the day of the meeting. MR. CARVIN-No, not if we can help it. MR. MARTIN-We need time for the public to review it. MR. GORALSKI-What if you go the first Wednesday in sePte,ber? I MR. MARTIN-Well, that first Monday is a holiday. That's the long weekend, but the first Wednesday would be the fourth. MR. CARVIN-Does anybody have a problem with the fourth? MR. MENTER-Not as far as I know. MR. MARTIN-But if that's the meeting night, what date would you like to have the information by? That's the next thing to establish. MR. CARVIN-Hopefully by the end of August, hopefully. MR. MARTIN-Yes, but you need time for analysis. That only leaves you two days, if you do that. Today is the 14th. If we said by Monday the 26th. That gives a full week and a half of review by you, the Board, and other concerned parties. - 48 - ,--1 "-'Of (Queensbury ZBA Meeting 8/14/96) MR. O'CONNOR-Something that may be worthwhile is you may ask the Town Auditor to maybe take a look at it, from an accounting point of view, as well, and report to you. I'm not going to give you my analysis of those statements. Paul Dowen is going to give his analysis from an accounting point of view of those statements. I think you're going to want to add apples to apples. MR. CARVIN-Yes. MR. LAPPER-That's the Board's job to review. MR. CARVIN-Well, I think if we can get the information by, what did you say, the 26th, Jim? MR. MARTIN-Is that acceptable? MR. FRANKEL-What's the meeting date that you're planning? MR. CARVIN-It would be September the 4th. MR. MARTIN-We're looking at Wednesday the 4th, September the 4th, and we're discussing the idea of a submission of Monday August 26th, say the end of that business day. / MR. BROCK-As far as getting balance sheets and statements and break downs, I want to make sure I've got exactly what you want broken down on each item. I'll have them. MR. CARVIN-Well, this gives you a little over two weeks. So, hopefully. MR. MARTIN-Well, almost two weeks, a week and a half. MR. FRANKEL-We'll endeavor to do the best we can to make that deadline. If we run into a problem, we'll contact Staff and counsel and let them know. MR. CARVIN-I was going to say, that's all we can do. MR. O'CONNOR-As I said, the application per your SEQRA Review is still incomplete. TOM NACE MR. NACE-I would take issue with that. MR. CARVIN-I was going to say, I would take issue. We've submitted the SEQRA and it's come back. Nobody else has taken exception to it. I MR. MARTIN-Well, then that was a point in the Staff Notes about, if you do have any approving to this or whatever, that 'the SEQRA conditions be made a part of that resolution. MR. CARVIN-Yes. MR. O'CONNOR-My comment isn't as to SEQRA. I apologize. In your SEQRA, your talking about the landscaping. What landscaping? They've completely re-figured the buildings. You also talked about conditioning the approval on delineating on a map the hardsurfacing in the buildings on which the winter storage would be done. It's one of the bullets in your SEQRA. MR. CARVIN-If it comes to that, then I think we can condition the variance with those items. MR. O'CONNOR-How can you make a reasonable response to what impact you think you will have until you see it? If you want to leave it - 49 - -- (Queensbury ZBA Meeting 8/14/96) incomplete, you do, leave it whatever you want. I'm not trying to pull things out meeting by meeting. I would just as soon have you vote tonight, folks. MR. CARVIN-It's been specified, so it will be addressed, Mike. That's all I can tell you. MR. LAPPER-It's been specified in writing. I don't know if they've drawn the plan yet that shows it. MR. CARVIN-I guess we're meeting date remain open. don't know. Whatever we've got here. Okay. So I looking for a submission date by the 26th, and a on September the 4th. The public hearing is and will I don't think we notice anything, do we? MR. MARTIN-We'll do our best to get the word out, and we can contact the neighbors directly and let them confirm the September the 4th night. MR. CARVIN-Anyone having an interest in seeing the new submission, as I said, we are asking for a submission date by the 26th. So hopefully that information will be available at some point thereafter for that public review. ~ MR. MARTIN-It will be available. MR. CARVIN-Okay. If there's no other comments or questions, then I'm going to call for adjournment. Meeting adjourned. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Fred A. Carvin, Chairman / I - 50 -