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1996-12-18 ) ,) ORIGINAL QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING DECEMBER 18, 1996 INDEX Sign Variance No. 90-1996 Tax Map No. 36-1-35 Use Variance No. 94-1996 Tax Map No. 147-1-1.1, 1.2 Area Variance No. 110-1996 Tax Map No. 1-1-35.2 Area Variance No. 111-1996 Tax Map No. 44-2-4 Notice of Appeal No. 6-96 Tax Map No. 33-1-13 Use Variance No. 112-1996 Tax Map No. 33-1-13 Area Variance No. 113-1996 Tax Map No. 41-1-14, 17 Use Variance No. 115-1996 Tax Map No. 48-3-50.14 Notice of Appeal No. 7-96 RE: Tax Map No. 13-1-10 Area Variance No. 105-1996 Correction of Motion Tandy Corporation 1. James C. Kislowksi 1. Continued on Pg. 22. James DeNooyer 2. Christopher G. Marchand 8. Stephen J. Borgos for Leo Lombardo 13. Leo Lombardo 17. Douglas & Deborah Petroski 17. John & Georgene Anderson 23. John Cushing 34. Jane L. Crannell 52. 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. ( "- I '-' (Queensbury ZBA Meeting 12/18/96) QUEENS BURY ZONING BOARD FIRST REGULAR MEETING DECEMBER 18, 1996 7:00 P.M. OF APPEALS MEMBERS PRESENT CHRIS THOMAS, CHAIRMAN BONNIE LAPHAM, SECRETARY DONALD 0' LEARY LEWIS STONE WILLIAM GREEN ROBERT KARPELES EXECUTIVE DIRECTOR-JAMES MARTIN STENOGRAPHER-MARIA GAGLIARDI MR. THOMAS-The first thing on the agenda is Tandy electronics, Radio Shack. They have asked to have their application withdrawn because they have made their sign into a conforming sign. 80 Sign Variance No. 90-1996 has been withdrawn by the applicant. Second is a discussion item that the Staff has asked the Board to talk about, and that's regarding Area Variance No. 89-1996 John, Jr. & Kathleen A. Salvador. What's the question on that? It says something about the environmental assessment. MR. MARTIN-The latest word we have is that the Board is free to act on this 'as the particular action that you're looking at is not subject to an APA permit, as far as we've heard from APA. We have a letter in writing them to that effect. So the particular action that you're dealing with here, which I believe originally was a variance for not having proper frontage on a public right-of-way, that specific action is not subject to an APA permit. So therefore you are free to go ahead and consider the SEQRA review. So I think, with that understood now from APA, you're in a position to move ahead if you'd like. We have a letter from the applicant, though, that asks for a tabling until January. I talked to Mark Schachner about that this afternoon and he said he would recommend tabling it until January, in accordance with the applicant's request. MR. THOMAS-Okay. MR. MARTIN-I think you'll be free, in January, to head to the point of a decision. MR. THOMAS-Yes, okay. MOTION TO TABLE AREA VARIANCE NO. 89-1996 JOHN & KATHLEEN SALVADOR, Introduced by Chris Thomas who moved for its adoption, seconded by Lewis Stone: Until the January meeting. Duly adopted this 18th day of December, 1996, by the following vote: /I AYES: Mr. Stone, Mr. O'Leary, Mr. Karpeles, Mrs. Lapham, Mr. Thomas NOES: NONE ABSENT: Mr. Green USE VARIANCE NO. 94-1996 TYPE: UNLISTED LI-1A JAMES C. KISLOWSKI OWNER: JACK LEBOWITZ SOUTH SIDE OF CORINTH ROAD, JUST TO THE WEST OF PINELLO ROAD APPLICANT PROPOSES TO OPERATE A RETAIL - 1 - (Queensbury ZBA Meeting 12/18/96) SHOWROOM FOR MOTORCYCLES, SKI -DOOS, AND OTHER SMALL MOTORIZED PRODUCTS; RELATED RETAIL APPAREL; SERVICE SHOP AND PARTS AND ACCESSORIES SALES. THE PROPOSED USES ARE NOT PERMITTED USES UNDER THE CURRENT ZONING DESIGNATION, LI-1A. RELIEF IS BEING REQUESTED FROM THE USES ALLOWED IN SECTION 179-26. CROSS REF. SPR 69-96 WARREN COUNTY PLANNING 10/9/96 TAX MAP NO. 147-1-1.1, 1.2 LOT SIZE: 1.30 ACRES, 0.44 ACRES SECTION 179-26 MARK LEVACK, REPRESENTING APPLICANT, PRESENT MR. THOMAS-I guess next on the agenda is James C. Kislowski. We had a motion and a second and the vote came up to a three/three split. MR. STONE-Three/two. * MR. THOMAS-Was it a three/two split? I think Mr. Stone made the motion. Would you like to make that again? Before we start, is there anything the applicant would like to say to the Board before we make a motion? MR. LEVACK-Mark Levack, Levack Real Estate, as agent for Jim Kislowski. We understand that Bill's on his way, and we'd like to postpone our hearing, our order in the meeting until we have a full panel. MR. THOMAS-Okay. MR. LEVACK-Thank you. NEW BUSINESS: AREA VARIANCE NO. 110-1996 WR-3A/CEA JAMES DENOOYER OWNER: SAME AS ABOVE 1142 ROUTE 9L, NORTH SIDE OF ROUTE 9L, WEST OF BAY ROAD INTERSECTION APPLICANT PROPOSES THE CONSTRUCTION OF A 14 FOOT BY 14 FOOT ADDITION TO AN EXISTING HOME. WITH THE ADDITION, THE HEIGHT OF THE HOME AT THIS LOCATION WOULD BE 37.6 FEET. THIS HEIGHT DOES NOT CONFORM TO THE HEIGHT REQUIREMENTS FOR THE WR-3A ZONE. RELIEF IS BEING REQUESTED FROM THE HEIGHT REQUIREMENTS OF SECTION 179-16, WATERFRONT RESIDENTIAL 3-ACRE. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 12/11/96 TAX MAP NO. 1-1-35.2 LOT SIZE: 0.80 ACRES SECTION 179-16 GERALD FLYNN, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 110-1996, James DeNooyer, Meeting Date: December 18, 1996 "APPLICANT: James DeNooyer PROJECT LOCATION: 1142 Route 9L Proposed Project and Conformance with the Ordinance: The applicant is proposing to construct an addition to an existing home. The proposed addition would not conform to the height requirements of the WR-3A zone. The current height of the home, 30 feet according to the applicant, does not conform to the 28 foot height requirement for the district. The new 7 foot 6 inch addition would bring the total height of the building to 37 feet 6 inches. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to build an addition to an existing home and also stop water damage to an existing roof. 2. Feasible alternatives: The applicant may have the ability to construct a peaked roof in order to eliminate water damage. A peaked addition would also need less relief from the height requirements. 3. Is this relief substantial relative to the ordinance? The applicant is seeking 8 feet 6 inches of height relief. 4. Effects on the neighborhood or community? The proposed addition may reduce views of Lake George from surrounding properties. Additional comment may be provided at the public - 2 - ~ __Ii' (Queensbury ZBA Meeting 12/18/96) hearing. 5. Is this difficulty self created? The need to prevent water damage to this structure makes it difficult to conform to the current height requirement. Staff Comments & Concerns: The applicant has stated that relief is necessary to stop structural damage to the existing home. Staff believes that the current proposal may limit views of Lake George and may not be minimum relief. The applicant has other alternatives to solve the stated problem of structural damage. The ZBA may wish to see some type of drawing indicating what the entire structure looks like currently, and what is proposed. It has come to staff's attention that an addition of this type will require a building code variance. The ZBA may wish to table this application until such a variance has been granted. SEQR: Type II, no further action required." MRS. LAPHAM-IIAt a meeting of the Warren County Planning Board, held on the 11th day of December 1996, the above application for an Area Variance to maintain sinqle family residence, however, wishes to raise the roof. was reviewed, and the following action was taken. Recommendation to: Approve II Signed by Linda Bassarab, Vice Chairperson. MR. THOMAS-Is the applicant here, or his agent? Would you come to the microphone, please. MR. FLYNN-Good evening. I'm Gerald FlYnn. MR. THOMAS-Okay. application? Is there anything else you want to add to the MR. FLYNN-I have pictures of the structure existing now, and I can give it to the Board to look at. Do you want me to bring those up to you? MR. THOMAS-Yes. MR. FLYNN-If you'll notice in the pictures, from the road, and due to the steepness of the hill, the house is constructed on the hill where this smaller addition to the top with a hip roof would not really obstruct any view from any other homes in the area. I do have a letter from the neighbors of their concern or what they think of the project, but there is a severe problem where there's a drain in the center of the roof for this 14 by 14 area, which has had a problem. It has a rubber roof, and there's retaining walls that go up the side. So it actually creates like a bath tub effect on the whole top of the house. So what I've designed to take care of the problem, would add additional space to the house which is also it's only summer time use of this home, and it would convert to, I guess it's one floor above their bedroom to like a reading room, separate area. I still believe that it does not block any view, because the road is behind it and there's a steep hill that goes up, it's Top of the World is directly behind it, and I believe you do have a drawing, too, don't you? MR. THOMAS-Yes, of the addition. II MR. FLYNN-Of the addition. , MR. THOMAS-Could you put just a roof over the existing flat roof and alleviate the problem, without putting the room on top of that? MR. FLYNN-Anything is possible. I'm just trying to keep in the design of the house. The house, if you look at the pictures, has some radical roof lines that's been designed into, I call it the Adirondack theme. Everything is shake shingled and designed to form to the shape of the hill. That's why we're just looking to do this. MR. THOMAS-But what you're saying is you could put a roof on there, - 3 - (Queensbury ZBA Meeting 12/18/96) just over this flat roof now, without putting this addition on here, with all the glass on it. MR. FLYNN-I'm supposing that something could be designed, yes. It's just that they would like to take advantage of the additional space as a reading room. MR. THOMAS-Do any other members of the Board have any questions for the applicant's agent? MR. STONE-It appeared to me there's been some curre~t roofing work done. II MR. FLYNN-Roofing work? MR. STONE-Yes, new shingles put on. MR. FLYNN-Yes, some shake shingles replaced. MR. STONE-Yes, that's what I just noticed, but that's not what we're talking about? MR. FLYNN-No, it's above that. There's a like rubber roof type up on the, if you looked at that picture, there's a squared off area, and that's actually like 30 or 36 inches high, the sides, and down below that is where this flat roof area is, that has had a drain that goes through the center of the house and the insurance company, they had an ice back up problem that did damage down through the center of the house from sheetrock walls where this drain was, and that's where the problems why. MR. STONE-Yes. I just wanted to be sure that the work hadn't been done. MR. FLYNN-No. There was just some, there was a problem behind the chimney and shake shingles have been replaced there. It's not that work at all. MR. STONE-I have a question for Jim. There's a t.v. dish on the top of this house. How is that covered? MR. MARTIN-There are sections relating to residential television dishes of that type. I believe it is 179. MR. FLYNN-That is going to be removed, by the way. He's not going to be using that anymore. That's going to be gone. MR. MARTIN-179-73 Satellite Receiving Antennas, and that was recently revised. I'd say probably three or four years ago, there were some recent changes to Federal law governing local zoning and regulation of satellite antennas. MR. THOMAS-Are there any more questions for the applicant? If not, I'll open the public hearing. PUBLIC HEARING OPENED MR. THOMAS-Any correspondence? MRS. LAPHAM-Yes, although I don't have it marked in here, but there's a letter. MR. THOMAS-Yes, just read that. MRS. LAPHAM-From Lionel o. Barthold from Schenectady, NY, November 25, 1996, to the Town of Queensbury Zoning Authorities, RE: Roof Modifications, DeNooyer residence on Lockhart Loop "I have been asked by Jim DeNooyer whether we object to conversion of the flat - 4 - ~ ',--, (Queensbury ZBA Meeting 12/18/96) built-up roof on the uppermost portion of his house to a sloped roof with a pitch similar to that on the rest of his house. We own the house immediately west of his. We have no problem whatsoever with this modification and the additional elevation it brings to the house profile. In fact I would strongly support this method of repairing a construction flaw that we've had to confront at our own house, designed by the same architect. The DeNooyers have made a number of recent improvements to their house, all well designed and all architecturally consistent with the original house. Even though their house is not visible from ours because of about 180 feet of woods separating us, we wish more homes on Lake George fit in as well with the landscape. Their house, like ours, is a subdued color and they too have taken pains to preserve as many trees as possible in its development. I am aware that certain height restrictions apply to homes on the Lake, but in order to be applying these to the DeNooyer house, one should view the house from both the Lake and from Route 9L. It is on a very steep slope, so even from the lake, the topmost part of the house is seen against a background of trees. That background extends upward many times the height of the house. Route 9L is much higher than the foundation level of the house, so the sense in viewing the house from 9L is one of looking down on it. I urge your approval of their request for a height variance, particularly since it will have a very positive effect on the overall appearance of the building. Lionel O. Barthold 10 Woods Point Lane, Lake George, NY 12845" PUBLIC HEARING CLOSED MR. THOMAS-Does anyone have anymore questions for the applicant? If not, I just have one question for Mr. Martin, and that's in the last sentence of the Staff Notes. "The ZBA may wish to table this application until such a variance has been granted", from the building codes. MR. MARTIN-I did get an update from Dave Hatin on that today, and he recommended that the Zoning Board act, one way or the other, and then there's a certain order of events here, then you would proceed on for the variance from the State in terms of building code concern. So we should take care of the local issue first before they get into a State issue, because otherwise, if you deny it, then there's no point in going to the State. MR. THOMAS-Okay. No other questions for the applicant? I'll start down there with you, Lou at the end. What do you think? MR. STONE-Well, I have great concern. The Town Board, in its infinite wisdom, has taken about a year to come up with the new waterfront zoning for waterfront properties. In this particular local law, height is a matter that is given a great deal of consideration. There's a great deal of discussion about what the number should be. The number happened to be 28 feet. I don't believe that we should, so early in the history of this local law, grant a variance from it. So, I am opposed to it. MR. THOMAS-Don? MR. O'LEARY-Wèll, looking further at the Staff comments that you just referred to, there is a suggestion that this may not be the minimal relief, especially for the damage that we're looking to alleviate, and I would like to explore the possibility of seeing some minimal relief. We're looking here at a variation of eight and a half feet. MR. FLYNN-It's seven and a half feet. MR. O'LEARY-All right. Mine says eight and a half. - 5 - (Queensbury ZBA Meeting 12/18/96) MR. THOMAS-Bob? MR. KARPELES-I agree. I think we're charged with creating the minimum variance, and the minimum variance to correct this situation I would not think would include this seven and a half feet extension. I would think that that roof that's going to be on top of the glass work could just be moved down on top of the existing roof, and correct the leakage damage. That's what we're really trying to do, isn't it? MR. FLYNN-Yes. MR. KARPELES-That's the only justification for the variance, is to correct the leakage, as far as ~ know. MR. FLYNN-Yes, right. MR. KARPELES-We have to do that and grant the minimum relief, and I don't think this is minimum relief. MR. THOMAS-Bonnie? MRS. LAPHAM-Well, I tend to agree with the other Board members. I can see why they might want to take advantage of this situation and get extra room out of it, if you have to go to the trouble of building, but correcting the roof is one thing. Building another room or an addition I think would be another time in front of us. MR. THOMAS-I agree with the other Board members. This is not minimum relief. This is an addition that's going up, rather than out, and minimum relief, to me, to alleviate the problem that they have is just to put a roof over the existing roof, a sloped roof over the existing roof, and that would take care of their problems. I can't see where putting an addition on top of it, with a sloped roof, exceeding the height of the Ordinance by seven and a half feet, would be justifiable. So I would have to go along with the other Board members. Having said that, would anyone like to make a motion? MOTION TO DENY AREA VARIANCE NO. 110-1996 JAMES DENOOYER, Introduced by Donald O'Leary who moved for its adoption, seconded by Lewis Stone: Request for construction to require repairs to roof and concurrently increase the height seven feet six inches above and beyond current variance. Such relief not being minimal in this situation to alleviate the problem sought to be fixed by the applicant, which is damage to the structure, which would be the minimum to alleviate the destruction as a result of damage to the roof, it was suggested that a minimal solution be sought as opposed to the increase in the roof height which would encompass an additional room. Again, with reference to Area Variance No. 110- 1996, with regard to benefit to applicant, it is felt that the benefit to applicant could be achieved with construction and repair to the roof that is now currently causing the damage. There would be a feasible alternative. There are feasible alternatives without including the addition of height in additional room and living space. The relief now sought is substantial relative to current Ordinance, in that it is requiring, well, we say seven and a half feet, but with regard to new requirements it came to nine and a half feet. Effects on the neighborhood or community I it may reduce views in the Lake George area and surrounding properties. The difficulty may not be self created and in fact it probably is not self created. The roof is worn with age, and as a result damage has been caused by weather. However, in summary, there is minimal ways and means by which to correct the problem other than what we're looking at in the proposed variance. - 6 - ~ ~ (Queensbury ZBA Meeting 12/18/96) Duly adopted this 18th day of December, 1996, by the following vote: AYES: Mr. Karpeles, Mrs. Lapham, Mr. Stone, Mr. O'Leary, Mr. Thomas NOES: NONE ABSENT: Mr. Green MR. THOMAS-The application is denied. MR. FLYNN-Can I ask a question? If we were still to put a pitched roof on there, it's still higher than what's there. So what's the next step to solving this? MR. THOMAS-To solving this? You'd have to make an application to the Building Department, and they would determine if that is higher than the. MR. FLYNN-The building right now is 30 feet, and we're going to have to, even to put a pitched roof on it. MR. THOMAS-According to the lower roof is under, or is under or equal, well, is lower than the existing height. I don't know what the difference is between the existing height and the existing flat roof. There's no dimensions on here concerning that. So, maybe you can get a sloped roof on there that's under 28 feet in height, the peak of it is under 28 feet, you won't have to come back and see us, but if it goes over 28 feet. MR. FLYNN-I know we can't. That's what I'm saying. MR. THOMAS-Okay. Then you have to make out another application, talk to the Planning Department and they can help you through that. MR. FLYNN-But it will be back here again. MR. THOMAS-Yes. MR. MARTIN-Well, lets come on in and show us what you have for a peaked roof design and see what that yields. I'm not sure one way or the other yet, but given the fact that, I understand that the reason to replace the existing roof was due to a weather condition. MR. FLYNN-It's just deteriorated and it was a poor design to begin with. If there wasn't, height restrictions on the building when it was built, I'm saying 15 years ago. MR. MARTIN-Well, if you get a chance, come in and see about what a peaked roof would do for height and we'll see what that does. MR. FLYNN-But it will still be back here. MR. MARTIN-I'm not sure about that, until I take a look at it. . MR. FLYNN-Because there are two existing pitched roofs that come up to that flat spot, so if you continued those up, just for the design of the house, you'd still be above the 28 feet that their talking about, and now the house is already 30. MR. MARTIN-What was the height of the old roof? MR. FLYNN-It's 30 feet. The top of the house is 30 feet. MR. MARTIN-What I'm saying is without looking and the plans and getting more details on the situation, you may be entitled to that 30 foot height as a pre-existing condition, but I'm not sure about - 7 - (Queensbury ZBA Meeting 12/18/96) that until I see the situation. MR. FLYNN-What I'm getting at then, the longer we wait, the more potential problems are to the interior of the house. The insurance company is involved. That's why they've sent me here. So I would come to the Building Department and that can be decided there? MR. MARTIN-Yes. MR. FLYNN-All right. Thank you. MR. MARTIN-Okay. AREA VARIANCE NO. 111-1996 TYPE II WR-1A/CEA CHRISTOPHER G. MARCHAND OWNER: GEORGE BOIVIN MOON HILL ROAD, RIGHT ON DINEEN ROAD, PARCEL IS THE VACANT LOT TO THE RIGHT SIDE OF THE ROW OF TREES APPLICANT PROPOSES THE CONSTRUCTION OF A SINGLE FAMILY HOME, WELL AND SEWAGE DISPOSAL SYSTEM. THE PROPOSED CONSTRUCTION WILL NOT MEET THE REQUIRED SHORELINE/WETLAND SETBACKS. RELIEF IS BEING REQUESTED FROM SECTION 179 - 6 OB, 1, C WHICH OUTLINES THE REQUIRED SHORELINE AND WETLAND SETBACKS. FW 2-96 WARREN COUNTY PLANNING 12/11/96 TAX MAP NO. 44-2-4 LOT SIZE: 2.17 ACRES SECTION 179- 60B,1,C STEVEN ELSBREE, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 111-1996, Christopher G. Marchand, Meeting Date: December 18, 1996 "APPLICANT: Christopher Marchand PROJECT LOCATION: Dineen Rd. Proposed proj ect and Conformance with the Ordinance: The applicant is proposing to construct a single family home, well and sewage disposal system on a lot on Dineen Rd. The proposed home will not meet the required shoreline/wetland setbacks. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to build a single family residence. 2. Feasible alternatives: The location of DEC Wetlands on this property limits where a home can be built on this lot. 3. Is this relief substantial relative to the ordinance? The applicant is seeking 30 feet of setback relief from the edge of the DEC Wetland. 4. Effects on the neighborhood or community? Staff anticipates no negative impacts associated with this request for setback relief. Although this construction requires setback relief from the on site wetlands, the home will meet the lot line setback requirements. 5. Is this difficulty self created? The location of DEC Wetlands on this property make it difficult to build a home which would conform to required wetland setbacks. Staff Comments & Concerns: At this time the applicant is also seeking a DEC Wetlands permit in order to build within 100 feet of a Wetland. Granting of that permit will decide whether or not the applicant can build the home and associated improvements in the proposed location. The ZBA may wish to postpone voting on this item until the DEC has granted a permit to allow this construction. SEQR: Type II, no further action required. " MRS. LAPHAM- "At a meeting of the Warren County Planning Board, held on the 11th day of December 1996, the above application for an Area Variance for the construction of a sinqle family home, well, and sewaqe disposal system. was reviewed and the following action was taken. Recommendation to: Approve Comments: With the condition that specific approval for the septic system and potable water be approved by DEC and that appropriate measures to prevent the driveway run off from running straight into the wetlands be implemented." Signed by Linda Bassarab, Vice Chairperson. MR. THOMAS-Is the applicant or his agent here? - 8 - -- ~ (Queensbury ZBAMeeting 12/18/96) MR. ELSBREE-Good evening. My name is Steven Elsbree. I'm a land surveyor. I'm here to represent Christopher Marchand for the construction of a single family dwelling for the lot as per the applicant, application. MR. THOMAS-Okay. Is there anything that you'd like to add to the application that we haven't read into the record yet? MR. ELSBREE-On this past Friday I met on site with Al Koechline from New York State Department of Environmental Conservation, and we walked the site, and he gave me insight as to where to situate the sewage disposal system and seemed to be optimistic that he would give approval on a design for that lot. MR. THOMAS-He didn't give you anything in writing though, right? MR. ELSBREE-No. disposal system, Department. We have to complete the design of the sewage which will also be reviewed by the Building MR. THOMAS-Okay. the Board? Any questions for the applicant from members of MR. STONE-I did have a question, looking at the lot here. term IIwater course", what does that mean? This MR. ELSBREE-There's a little stream. MR. STONE-The stream in the wetland? MR. ELSBREE-Right. Yes, the other, it's a little bit lower than the rest. MR. THOMAS-So what we're looking for here, Jim, is just a relief of 70 feet from the side line setback from the wetlands. MR. MARTIN-Correct. MR. THOMAS-That's plain and simple. MR. KARPELES-Seventy feet or thirty feet? MR. THOMAS-Well, it's 30 feet now, but there's 100 feet required. So they need a relief of 70 feet. See where it says the edge flagged wetlands? He has to be 100 feet back from that. MR. KARPELES-Yes, but this says the applicant is seeking 30 feet of setback relief from the edge of the DEC wetlands. MR. THOMAS-Is it 70 feet or 30 feet? Because it's 113 feet to the property line. What's the scale on that, one inch equals fifty feet? Yes. That's only 30 feet. MR. MARTIN-Yes. It would be relief of 70 feet. MR. THOMAS-Yes, that's what I thought. . MR. ELSBREE-Actually, that's sitting about 25 feet off the wetland. So it would be 75 foot of relief. MR. THOMAS-Seventy-five feet of relief. MR. ELSBREE-And if I could ask one question. I was under the understanding that I would need a variance for the 40 feet on a Town road, also. I don't see that listed in your packet. There were two separate. MR. THOMAS-Is Dineen Road a Town road? - 9 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-Yes. MR. THOMAS-It is? MR. MARTIN-Yes. MR. ELSBREE-It is. Okay. MR. THOMAS-So there's no, there's more than 40 feet on that front, that road. MR. ELSBREE-Right. I submitted an application for that, also. They decided it was. MR. THOMAS-Yes, that they didn't need that. MR. ELSBREE-Okay. MR. THOMAS-Because you have the road frontage on that. AnYmore questions for the applicant? If not, I'll open the public hearing. PUBLIC HEARING OPENED DAVE SPERRY MR. SPERRY-My name is Dave Sperry. I own property three lots north of this property. I'm not against it. I just wanted to ask, is this going to be a year round dwelling? MR. THOMAS-Yes, it looks like it is. MR. SPERRY-It is year round? MR. ELSBREE-Yes, it is. MR. SPERRY-Like I say, I'm not against this. I just wanted to ask that question, plus I wanted to reiterate the fact that this lot does go straight into the lake. So there is going to be people overseeing this so that there won't be runoff from the construction, and also the driveway runoff going into the lake. MR. THOMAS-Yes, the DEC and also the Town will be looking after that. So this project, I imagine, will be very closely watched, both at a State and local level. MR. SPERRY-Okay. Thank you. That's all I have. MR. THOMAS-Anyone correspondence? else wishing to speak opposed? Any MRS. LAPHAM-No. MR. THOMAS-I'll close the public hearing. PUBLIC HEARING CLOSED MR. THOMAS-AnYmore questions for the applicant? MRS. LAPHAM-Well, I'd like to see what the house is going to look like, unless I missed something in my packet. MR. THOMAS-No, there wasn't any elevations. MRS. LAPHAM-I have no idea what it's going to look like. MR. THOMAS-Can you tell us what it's going to look like? MR. ELSBREE-The prospective purchasers are here. Do you have an - 10 - ~ --' (Queensbury ZBA Meeting 12/18/96) elevation of the house? It's a two bedroom ranch style, single level. It's going to have a walk out basement to work with the grade of the lot. MR. KARPELES-But how many square feet, do you have any idea? MR. ELSBREE-Sixteen hundred square feet. MRS. LAPHAM-Bathrooms? MR. ELSBREE-One and a half. MR. MARTIN-It's in compliance with our new floor area ratio. MR. THOMAS-Okay. MR. STONE-And it's in compliance with the setbacks on the other side. How big is this lot? MR. ELSBREE-To the left side, the area. MR. THOMAS-Mine says 2.08. MR. ELSBREE-2.08. MR. STONE-It says 2.17 on the agenda. MR. THOMAS-All right. We'll start with Lou this time. What do you think? MR. STONE-You started with me last time. Obviously, we always have concern when it comes to wetlands, but it seems that the proper cautions can be taken, primarily during construction and in terms of the runoff from the driveway and the nonabsorbent roof of the house. It certainly is a lot that seems, I think it could certainly take a home, having walked by there and seen it. So I would be in favor of it. MR. MARTIN-Just to give you the proper perspective, too, in your relief being granted, the setback would be 50 feet from the shore of the wetland, per our local code. The 100 foot is the DEC requirement for a buf£er between the edge of a wetland and the extent of the buffer, but our setback from the shoreline of the wetland would be 50 feet. MR. THOMAS-So they need 25 feet of relief rather than 75. MR. MARTIN-Right. I didn't want you to think that there was. MR. THOMAS-Twenty-five feet of relief, rather than 75. MR. MARTIN-Per our local code. MR. THOMAS-I thought it still was 100, the same as DEC. MR. MARTIN-No. MR. THOMAS-That: one we did over there on West Mountain Road I thought was 100. MR. MARTIN-In the LC zone it's 100. MR. THOMAS-Yes, okay. Are you done, Lou? MR. STONE-Yes. MR. THOMAS-Lou? - 11 - (Queensbury ZBA Meeting 12/18/96) MR. O'LEARY-Well, I'm getting closer. and then it went to 50, now we're at 25 awhile, but 25 doesn't seem as bad as with regard to relief. I thought it was 70 foot, feet. So I'm going to wait when I first looked at it, MR. THOMAS-Okay. Bob? MR. KARPELES-I agree. I'm in favor of this. I think in two acres of land, I looked at the lot, I think there ought to be a place to build a house, and I can't see a better place to build it on that lot then where they're qoinq to build it. I understand they're going to pump the sewage across the road and seem'to be intending to do everything right. So I'm in favor of it. MR. THOMAS-Bonnie? MRS. LAPHAM-I agree should do its part proper safeguards. use of this land. with the other Board members. I feel that DEC to make sure that it's a good project with As far as the CEA, I think this will be a good MR. THOMAS-I'll agree with the other Board members. This is probably the best use of this land, with the proposed footprint of the house. The only concern I have, as stated in the Staff Notes, is the driveway runoff toward the wetland, and I believe that will be addressed, like I said before, by the State and by the local building inspector, during and after construction, so that there is no runoff from the driveway into the wetlands, and that the runoff goes away from the wetland. MR. MARTIN-Could that be done grading of the driveway, when it's installed to final grade, that it be pitched? MR. ELSBREE-Yes. What Al Koechline suggested is just to put as much distance from the runoff of the wetland, so direct it back on to the lot, and then filter it through the existing soil. MR. MARTIN-I think there's a little bit of care that could be done with no extra. MR. ELSBREE-Right. We talked about berming the outside edge of the driveway and running it down. MR. MARTIN-Sure. MR. THOMAS-Having said that, would anyone like to make a motion? MOTION TO APPROVE AREA VARIANCE NO. 111-96 CHRISTOPHER G. MARCHAND, Introduced by Robert Karpeles who moved for its adoption, seconded by Bonnie Lapham: The applicant is proposing to construct a single family home, well and sewage disposal system in a lot on Dineen Road. The proposed home will not meet the required shoreline wetland setbacks. The benefit to the applicant is the relief will allow this applicant to build a single family residence on this lot. There do not appear to be any feasible alternatives. The location of the wetlands on this property limit where a home can be built. The relief does not appear to be substantial. The applicant is seeking 25 feet of setback relief from the edge of the DEC wetland and I move that we grant that. It is not felt that this construction will have any negative impacts associated with this request for a setback relief. While construction is going on, it will be mandatory that runoff be properly handled. This difficulty does not appear to be self created. The layout of the property makes this the only feasible location to build a home on that property. Duly adopted this 18th day of December, 1996, by the following - 12 - -- ..-' (Queensbury ZBA Meeting 12/18/96) vote: AYES: Mr. Stone, Mr. O'Leary, Mr. Karpeles, Mrs. Lapham, Mr. Thomas NOES: NONE ABSENT: Mr. Green MR. THOMAS-As long as you get the DEC permit. MR. ELSBREE-Thank you. MR. THOMAS-Okay. NOTICE OF APPEAL NO. 6-96 [INTERPRETATION] STEPHEN J. BORGOS FOR LEO LOMBARDO OWNER OF PROPERTY: LEO LOMBARDO APPLICANT IS SEEKING A DETERMINATION CONCERNING THE DEFINITION OF A "PLACE OF PUBLIC ASSEMBLY" WHICH IS ALLOWED IN THE HC-1A DISTRICT. SPECIFICALLY, THE APPLICANT IS SEEKING A RULING ON HOW THIS DEFINITION APPLIES TO A CHURCH AS A LAND USE IN THE HC-1A ZONING DISTRICT. LOCATION: 1948 ROUTE 9, NEXT TO LEO'S LOBSTER, TAX MAP NO. 33-1-13 IN A HC-1A ZONE. STEPHEN BORGOS, REPRESENTING APPLICANT, PRESENT MRS. LAPHAM-November 27, 1996, memo to the Town of Queensbury Zoning Board of Appeals, from Stephen Borgos, Licensed Real Estate Broker, Associated with Maple Realty, RE: Tax Map No. 33-1-13, property of Leo Lombardo "Our client, Leo Lombardo, owns property on Route 9, approximately 1/4 mile north of the intersection of Route 9 and 149. Mr. Lombardo operates a restaurant known as Leo's Lobster, and a retail store on the same property. Mr. Lombardo has an opportunity to lease a portion of his existing retail store to people who would like to move their church to that location. The problem is this: Although the Queensbury Zoning Ordinance clearly permits 'places of Public Assembly' in the HC-1A zone, the list of permitted uses does not specifically include 'Churches' in addition to the 'Public Assembly' category. In fact, the only places in the Ordinance that the 'Church' designation appears is in 'residential' zones. We request that you determine that ' Public Assembly' includes 'Churches', and declare that the proposed use is permitted. The background of this situation is that the Town Board desired to permit 'Churches' in most residential zones, but not most other forms of ' Public Assembly'. By adding 'Churches' to the permitted uses in re'sidential zones, the desired outcome was achieved. We know of no other way to clarify this situation than to approach this Board. If this must be done for each 'Public Assembly' request, it appears that you will have a full agenda. Thank you for your consideration. II MR. MARTIN-There's one other definition I think that may have some relevance or may help you out as you look into this. On Page 179- 38, the definition of Public or Semi-Public building. I think there is probably some sort of a relationship between these three definitions, meaning churches, places of assembly, and this third definition of public or semi public building. I just wanted to point out, bec.use this does make references to places of worship as a public building, but as Zoning Administrator, I was charged with the strict reading of the Code, and I think the letter from Mr. Borgos explains it pretty well. Churches are not listed in the Highway Commercial zoning district. II MR. STONE-You said 179-38? MR. MARTIN-Yes, 38, definition of public or semi public building. MR. THOMAS-I don't see that. - 13 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-Your pages may be different in those books because of the revisions we have, but look up, you don't have a definition of public or semi public building? MRS. LAPHAM-No. MR. STONE-Not there. MRS. LAPHAM-We're talking about traffic hazards and wildlife. MR. MARTIN-No, page number at the bottom, 17935. \ MRS. LAPHAM-We were looking at sections. MR. MARTIN-With the changes it would be, in your books it would be 17938, Page No. 17938, Public or Semi Public buildings. MR. STONE-We do have places of public assembly in 17935. MR. MARTIN-Correct. That's the term that's used in the Highway Commercial zone as an allowed use with Site Plan Review. MR. THOMAS-Now, Mr. Borgos, would you like to come up. MR. BORGOS-I'm Steve Borgos, Real Estate Broker with Maple Realty. It's kind of funny how we got into this situation. When we found a perspective tenant for the property, we expected that there might be some modifications required for the building. So we contacted the Building Department, and they said, yes, there would be a few related to fire alarm systems, so forth, because the proposed use is a place of public assembly, and then they said, by all means, first go back and just check with the Planning Department to be sure that this will be a permitted use, and I went to the Planning Department and they said, well, it's not on the list. The only thing that's there is place of public assembly, and of course that's just what the Building Department told us it was. So we couldn't find any list of what is a public assembly use, and we didn't have much time. So we determined that the only way we could get the decision was to come to you, so we didn't miss the filing date. So that's why we're here. We believe it is ,a public assembly place. There's nothing else specified in the uses, just the larger term, the greater term public assembly. The background of this is that, as I stated in the letter, when the Town Board revised the zoning regulations quite a few years ago, we wanted to be very sure that churches were permitted essentially anywhere. So those were written in separately, but not all places of public assembly should be permitted anywhere, but in the case of this zone, it seemed to the Board at that time that any type of public assembly building should fit here. MR. MARTIN-Just as a point of clarification, this is not a membership based church. Any member of the public is free to join or attend services here? MR. BORGOS-As far as I know, you don't have to have any separate special criteria. MR. MARTIN-Okay. MR. THOMAS-Any questions for the applicant's agent? MR. STONE-I have a comment about the definition that I would like to express my confusion about, if I might. I'm taking from the Random House Dictionary, unabridged addition. It doesn't define public assembly unfortunately, but it does define "Public II and "Assembly". Public, as an adjective, open to all the people, a public meeting, for example. As a noun, which we're not using it as, it is a particular group of people with a common interest. - 14 - -- -~ (Queensbury ZBA Meeting 12/18/96) "Assembly" is a number of persons gathered together, usually for a particular purpose, whether religious, political, educational or social. Now, if I put those two together, I admit that there's some confusion between a public assembly when the public, not the total public, is invited to be part of this religious activity. So I'm confused a little bit. There is, certainly from a point of common sense, a bunch of people getting together might be considered to be the public, except under our law, we have specific inclusions, not including social clubs, sportsmens clubs and other private clubs, which kind of says that if it's closed to, it's not open to the total public, it's not a public assembly. It's a little confusing. MR. BORGOS-There's nothing, not to arguß with you, but there's nothing that I'm aware of in this church, and we have a representative with us, that says a member of the public can't come in. REPRESENTATIVE-It's open to anyone that wants to come in and worship the Lord. MR. THOMAS-On Page 17938 it says Public Meeting Area, which is as close to Public Assembly Area as 1. can see. It says, see "Convention Center". Over on "Convention Center", a facility offering meeting rooms and providing support activities to those meeting rooms such as food preparation, not including lodging. Well, that doesn't help very much, but that's as close to public assembly as I can find in here. MR. BORGOS-The closest we could find, again, in the Building and Codes area, is related to the capacity of the room. Once you hit 99 or go over to place of public assembly, it has to meet the building and fire code regulations, but that's what this would be. MR. MARTIN-Places of Public Assembly is defined. MR. THOMAS-Yes, but public meeting area or public assembly area is also defined under convention center, and on 179-23, Places of Public Assembly is allowed in that zone. Places of Public Assembly includes public buildings, schools, halls, convention centers and other spaces and buildings where general public may congregate, and under the definition of "Church", a building for public worship including a sYnagogue or mosque. To me, it looks like that is, it would fit in under "Places of Public Assembly". MR. STONE-Having the term "Public Worship" and then "Public Assembly", it kind of says that probably the church would be considered a place of public assembly. MR. THOMAS-But if you do like Jim does and take the strict interpretation of the ~oning Ordinance, not really, you know. It's strictly, because of the list there, there's specific ~ on that list. MR. MARTIN-That's the extent of my charge. administerial function. That was my . MR. THOMAS-Yes'. there. That's as far as YOU go, and we take it from MR. MARTIN-Right. You're given some latitude for interpretation. MR. BORGOS-Looking at that same list, I don't think you'll find anything that would be categorized as a specific type of public assembly on that list. It's just public assembly. MR. STONE-I guess what we need is a definition of public worship. Then we'd be totally confused. - 15 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-Rather than just partially. MR. THOMAS-Lets see, all uses in the Plaza Commercial. MR. KARPELES-Well, maybe I'm awful stupid, but doesn't this public, or semi public building cover this, any component, building or college, school, hospital, animal hospital, library, place of worship, museum, place of worship. MR. THOMAS-Yes. MR. KARPELES-Doesn't that cover it? MR. THOMAS-Well, the Code says Places of Public Assembly. Now Jim has to go by what's in the book there. He can't interpret. That's what ~ do. What do you think, Bonnie? Is it or isn't it? MRS. LAPHAM-Well, I think common sense ought to prevail, and it seems to me that the Ordinance is probably designed to keep all of the above out of residential areas, except for churches, and I can't see that Highway Commercial would necessarily want to keep a church out of, you know, their uses. They'd want to keep the Highway Commercial uses out of residential areas. So churches, there's a little grey area there, and it's up to us to decide, and I feel that this would probably go along pretty much. It would not harm the neighborhood. MR. THOMAS-Bob? MR. KARPELES-I agree. MR. THOMAS-Don? MR. 0' LEARY-I agree. MR. THOMAS-Lou? MR. STONE-Common sense says I agree. MR. THOMAS-Yes. I agree that a church is a place of public assembly, and as long as they don' t exclude anyone from that church, as long as anyone from the public can walk in there and worship God in whichever way you want, as long as no one is barred, it's a place for public assembly, and I think that should be allowed in that zone. The only thing that comes to mind, though, is parking, and I think that would be a Planning Board issue. MR. MARTIN-This has already received site plan approval, this addition, figuring a most intense retail use of one per 100 square feet. The church parking standard, I believe, is one per, it's tied to the number of people that can sit in a pew or something to that effect. MR. THOMAS-Yes, I remember that in that variance earlier this year over on South Western Avenue. MR. MARTIN-A cqurch is one for each five sitting spaces in the main assembly room, and I think we looked over that preliminarily, and they have more than enough parking. MR. THOMAS-Okay. So it's a less intense use than the one per 100 square feet. MR. MARTIN-Right, from a parking standpoint. MR. STONE-And that is with the one curb cut that's there now. MR. MARTIN-Right. That was part of the Site Plan approval that - 16 - '- ~ (Queensbury ZBA Meeting 12/18/96) came, that one access way was shut down. MR. STONE-I case it was shut down? MR. MARTIN-No, it had to be shut down as part of the Site Plan approval. MR. STONE-Okay. MR. THOMAS-Does anyone else have any comments, or would like to say anything? Is there anything else you'd like to a~d? MR. BORGOS-I'd be happy to have a good, positive vote. MOTION THAT WE FIND THE APPLICANT, LEO LOMBARDO, IS ENTITLED TO HAVE A CHURCH IN A HIGHWAY COMMERCIAL ONE ACRE ZONE, AND THAT MR. MARTIN'S STRICT INTERPRETATION OF THE ORDINANCE WAS CORRECT, BUT BECAUSE OF THE WAY THE ORDINANCE IS WRITTEN IN SECTION 179-23, SPECIFICALLY PARAGRAPH D(3) (b) (17) PLACES OF PUBLIC ASSEMBLY, THAT A CHURCH SHOULD BE ALLOWED IN THIS AREA., Introduced by Chris Thomas who moved for its adoption, seconded by Robert Karpeles: Duly adopted this 18th day of December, 1996, by the following vote: AYES: Mr. Karpeles, Mrs. Lapham, Mr. Stone, Mr. O'Leary, Mr. Thomas NOES: NONE ABSENT: Mr. Green MR. THOMAS-Okay. MR. BORGOS-Thank you very much. I hereby withdraw the request for the next one. MR. THOMAS-The applicant has withdrawn his request for Use Variance No. 112-1996 Leo Lombardo. AREA VARIANCE NO. 113-1996 TYPE II WR-1A CEA DOUGLAS & DEBORAH PETROSKI OWNER: SAME AS ABOVE LEFT SIDE OF FITZGERALD ROAD, 1/4 MILE PAST INTERSECTION OF MANNIS ROAD APPLICANT PROPOSES THE CONSTRUCTION OF A SINGLE FAMILY HOME ON A 0.61 ACRE PIECE OF PROPERTY. THE PROPOSED CONSTRUCTION WOULD NOT MEET THE SETBACK REQUIREMENTS OF THE WR-1A DISTRICT. RELIEF IS BEING REQUESTED FROM THE SETBACKS LISTED IN SECTION 179-16, WATERFRONT RESIDENTIAL 1- ACRE. ADIRONDACK PARK AGENCY WARREN COUNTY PLANNING 12/11/96 TAX MAP NO. 41-1-14, 17 LOT SIZE: 0.57, 0.39 ACRES SECTION 179- 16 MICHAEL O'CONNOR, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 113-1996, Douglas & Deborah Petroski, Meeting Date: December 18, 1996 "APPLICANT: Douglas Petroski PROJECT LOCATION: Fitzgerald Rd. Proposed Project and Conformance with the Ordinance: The applicant is proposing to construct a single family home on a .61 acre lot on Fitzgerald Rd. The new home would not meet the setbacks of the WR-1A zone. Criteria for considering an Area Variance, according to Chapter 267, Town Law. 1. Benefit to the applicant: Relief would allow the applicant to complete the construction of a home that would not meet the required side setbacks. 2. Feasible alternatives: Alternatives are limited due to the fact that construction has started at this location. 3. Is this relief substantial relative to the Ordinance? The applicant is seeking 5.8 feet of relief on - 17 - (Queensbury ZBA Meeting 12/18/96) the south side, and 3.65 feet of relief on the north side. 4. Effects on the neighborhood or community? No negative impacts are expected with this application for relief. Additional comment may be provided at the public hearing. 5. Is this difficulty self created? The applicant is seeking relief because the current foundation violates the setbacks which were allowed under a previous area variance. Staff Comments & Concerns: Staff believes this request would benefit the applicant and at the same time not present any major threat to the health, safety and welfare of the surrounding neighborhood. SEQR: Type II, no further action required. II " MRS. LAPHAM-IIAt a meeting of the Warren County Planning Board, held on the 11th day of December 1996, the above application for the construction of a sinqle family dwellinq that can not meet side yard setbacks. was reviewed, and the following action was taken. Recommendation to: No County Impact" Signed by Linda Bassarab, Vice Chairperson. MR. THOMAS-Before we get started, I'd like to correct the application. Where it says, any previous Planning or Zoning Board determination regarding this property, the applicant answered no. They should have answered yes for Area Variance No. 78-1996, granted on 8/21/96. MR. O'CONNOR-Okay. Mr. Chairman, I'm Michael O'Connor from the law firm of Little & O'Connor, and I have no registered as agent for the applicant, but Dr. Petroski is here and has asked that I speak on his behalf, and we can sign one or you can take his oral representation, however you want to do that. MR. MARTIN-Whatever the Board is comfortable with. sufficient? Is that MR. THOMAS-I'll take an oral. MR. MARTIN-Okay. MR. O'CONNOR-With me also is Charles Johnson who is the architect for the project, and we had a project that came before this Board and asked for a variance, when we were tearing down the existing house, and proposed this new house. By error, when this new house was constructed, it encroached upon the variance that was granted at the time of the earlier application. The encroachment is not as great as it was or would be because also I think since that time there's been a change in the Ordinance requiring a side line setback, now, of 20 feet, as opposed to what was then in existence. In any event, the house, as it has been constructed, has two corners of it that are less than 20 feet from the adjoining boundary. One is 17.5 feet, and the other is 16 feet to the corner. So for a small portion of the house, we're looking for a variance of 2.5 feet to 4 feet from the existing 20 foot setback. Daniel Barber, who is the builder here, is also present and is prepared to testify that to try to rectify this on site would cost something in the nature of $27,000. It really is a hardship that shouldn't have to be endured because there's very little impact on the adjoining neighbor or on the community by what has occurred here by an honest mistake. Mr. Johnson did write to the adjoining owner, Gordon Dineen, and they've been trading faxes, and I have a letter to submit to you which is a faxed consent by Mr. Dineen to your granting the requested relief, and basically it's a letter dated December 16th, addressed in part "Dear Mr. Chairman: I am writing to the Zoning Board of Appeals at the request of my neighbors, Doug and Debbie Petroski, regarding their most recent application before your Board. I live directly adjacent to the petroskis to the North." My understanding might be to the East, and I can show you the sketch where they live. This is the sketch that also was faxed to Mr. Dineen. The hatched area is his house, - 18 - --- ~ (Queensbury ZBA Meeting 12/18/96) and it would be the one that's most adjacent to the part of the house that encroaches. I'll submit this. The hatched area is Mr. Dineen's house. He's the closest. If you look at the sketch, before I get back to the letter, you'll notice that all of what we're talking about is behind his house totally. It's not out near the front of the lake, and it won't really effect his view or anything near his house. It also won't effect much on the lake itself because it's in the back corner of the house that we're talking about. Mr. Dineen goes on further to say, II As explained to me by the architect, I understand that this was an honest mistake and proper measures are being followed to remedy this unfortunate situation. The additional encroachment that has occurred is located primarily to the rear my home. Therefore, the impact to my use and enjoyment of the property is minor. I have no objection to the Petroskis being granted a variance permitting them to continue building their home. Sincerely, Gordon Dineen" And we have a signed copy of a fax to that. That's basically our story. MR. THOMAS-Okay. Is this additional footprint to the house, is the house, from what we granted back in August? Is this an increase in the size of the house, also, square footage? CHARLES JOHNSON MR. JOHNSON-Correct. There was an additional three feet added to the overall width of this house. MR. THOMAS-Why was that done from the original? MR. JOHNSON - I've gone back through my notes. I've gone back through old sketches, the drawings that were used to develop. I have no idea where it came from. A five was interpreted as an eight. I have no idea. I can't give you an answer as to where it came from, why it happened. MR. KARPELES-How did the three feet become six feet? MR. JOHNSON-Because as the site tapers back, the additional three feet in width and the taper of the site amplifies to equal six feet of net loss of setback. MR. KARPELES-I'm confused as to where we're talking about, because when I went out there and looked at it, it looks to me like it doesn't come to a 90 degree angle. The foundation is on a 45 degree angle. Do you know what I mean? MR. JOHNSON-Yes. MR. KARPELES-So where is the 22 feet from? You mean our drawing isn't right, that we've got here, right? MR. JOHNSON-Can I show you? MR. KARPELES-Yes. , MR. JOHNSON-Okay. What you have is correct, and the 22 feet is to this corner. We've nipped that corner out. , MR. KARPELES-The 22 feet is from here? MR. JOHNSON-Right. MR. KARPELES-See, this drawing shows a 90 degree angle like this, but it isn't really like that. It's like this. It's got a 45 degree angle, and I was just wondering where this 22 feet (lost word) is. He says it's still the closest point. MR. JOHNSON-Correct. - 19 - (Queensbury ZBA Meeting 12/18/96) MR. THOMAS-But that 16 feet is still an accurate measurement from the property line? MR. JOHNSON-Correct. MR. THOMAS-For that one corner at the top of that 45 degree cut, where it comes back into that northeast building line. . MR. JOHNSON-Right. MR. THOMAS-Okay. ~ MR. STONE-I've got questions about the other side. What's the width of this lot? I mean, I know it's a crazy shape, but I mean, the Ordinance says 50 to 60 it's 15 feet, 60 to 150 it's 20 feet. MR. O'CONNOR-The other side was granted a variance at the time of the other application, and that is in compliance with the grant, and in fact that's how I understood how this thing started a little bit, that it didn't get caught when the foundation was put in. They laid it out according to that line because that was a straight line, and measured from that line and got that distance and then said, lets go build the house, and didn't realize that the total width of the house had somehow gotten changed. MR. STONE-And the variance also included the front variance, front setback? MR. O'CONNOR-Yes. MR. STONE-Okay. I wasn't here. Okay. MR. THOMAS-Any other questions for the applicant? MRS. LAPHAM- I'd be curious to hear from the builder how this happened and why it would cost $27,000 to correct. MR. THOMAS-Well, would you like Mr. Barber to explain that? MRS. LAPHAM-Yes. DANIEL BARBER MR. BARBER-Well, did you go down, Mrs. Lapham, did you go down to the site? MRS. LAPHAM-Yes. MR. BARBER-Okay. The project was just tremendous excavation, and we poured 220 yards of concrete total there, okay, 440 tons, and the walls are 12 foot high in that whole back to pick up the grade of the building. They're a foot thick, in some areas 10 inches, but generally a foot thick, okay, and there's 10,000 feet of re-rot in the whole structure, but we have four foot deep footings, also to pick up grades all the way down through there, and then the 12 foot high walls on top of that in that area a foot thick. So it's a substantial, and all the concrete had to be poured with concrete pumpers. One pumper cost $1400 and some odd for the afternoon. It's just an extensive project because of the location and picking up grades and that kind of thing. That's why it would cost so much, and you'd have to cut the concrete with concrete saws and then jackhammer the concrete, and that would be all trucked out. We'd have to take the big footings out that are four foot deep for that area and move it over. We'd have to cut the concrete floors that are there back behind the floors that are there now so that we can get normal footings in, and it's all heavy cobblestones and very difficult property that whole ridge is very heavy rock. I mean, all of Glen Lake on that side is very difficult building, and - 20 - ',- -./ (Queensbury ZBA Meeting 12/18/96) that's why it would cost so much money, and then of course it would have to be all excavated, and then the concrete would be poured with trucks, and we'd have to tie the steel into the old concrete and we'd have to deal with the building inspectors again on all this and concrete pumping truck, of course, and tarring the foundation, backfill, drainage situations that were in there have to be taken outside. I mean, it's very abnormal. The foundation costs, with everything, over twice that, okay, the actual foundation, because we had concrete pumpers in there four different times, and that cost five grand alone. So it's very abnormal constructions, home and site. MRS. LAPHAM-I know it's a difficult site. I had trouble getting in and out of there myself. MR. THOMAS-Does anyone else have any questions for the applicant or his agent? I'll open up the public hearing. PUBLIC HEARING OPENED MARGARET AILEEN KANE MRS. KANE-My name is Margaret Aileen Kane, and I live on the west side of this property, and my husband Herbert and I have no objections at all. We're totally in favor of it. MR. THOMAS-Thank you. Anyone else wish to speak in favor of? DONALD MILNE MR. MILNE-My name is Donald Milne. We live at 31 Fitzgerald Road. I guess I'm not the best one to speak, but I'm in favor of this, and we are well aware that the Petroski's are doing everything they can to be environmentally sensitive in this construction project, and when they get done, I'm sure that the drainage problems that existed prior to, with the old house, will be corrected, and they've endeavored to save trees and whatever. So we are in favor of it, and there are other neighbors here as well. MR. THOMAS - Thank you. correspondence? Does anyone else wish to speak? Any MRS. LAPHAM-No. PUBLIC HEARING CLOSED MR. THOMAS-I'll start with you, Bob. What do you think? MR. KARPELES-Well, we've heard from a number of people that don't think it's going to bother them, and we've also heard it's going to cost a tremendous amount of money to correct, and I understand people making mistakes. I was an engineer, or am an engineer. I've made a few. I hate to see this kind of thing happen because it seems as though it's happening more and more often, but I would go along with it. MR. THOMAS-All right. Don? , MR. O'LEARY-I think it's relatively minimal, two and a half feet, four feet, especially in light of the fact that those on whom they are encroaching don't seem to have any difficulty with it. The neighbors don't have any difficulty. Certainly it would be a tremendous hardship to try and correct it. So, I tend to be in favor of it. MR. THOMAS-Okay. Lou? MR. STONE-I pretty much agree with Bob. I have my built in concern - 21 - (Queensbury ZBA Meeting 12/18/96) that the Zoning Board of Appeals should not bailout mistakes just because they happen to have been made, but in terms of the minimum relief that's sought, obviously the cost of doing it, as defined by Mr. Barber, I would go along with it. MR. THOMAS-Okay. Bonnie? MRS. LAPHAM-And I tend to agree with everyone else. I do agree with Lou, maybe we shouldn't be the one to bailout mistakes and so forth, but I do think this would be just a definite inexcusable hardship for the Petroski's, who didn't make the mistake intentionally. MR. THOMAS-Okay. I'll agree with the other Board members that, you know, I've made a few mistakes in my life, and I'm kind of sort of in the engineering end of the business, and I can see where something like this would happen. It doesn't happen often, but it does, and since there's no opposition from any of the neighbors, I would be in favor of it. So, having said that, I would ask for a motion. MOTION TO APPROVE AREA VARIANCE NO. 113-1996 DOUGLAS & DEBORAH PETROSKI, Introduced by Lewis Stone who moved for its adoption, seconded by Donald O'Leary: Fitzgerald Road. Applicant proposes the construction of a single family home on a 0.61 acre piece of property. The proposed construction would not meet the setback requirements of the WR-1A district. Relief is being requested from the setback relief of 2.5 feet and 4 feet from the east property line. The benefit to the applicant, the relief would allow the applicant to complete the construction of a home that would not meet the required side setback. Feasible alternatives are limit~d due to the fact that construction started at the location, due to an honest mistake made in reading the drawing. Is the relief substantial? The relief of four feet or two and a half is not deemed substantial relative to the Ordinance. No negative impacts are expected by granting this variance. Neighbors have expressed agreement that this is a good thing to do. The applicant is seeking relief because the current foundation violates the setbacks which were allowed under a previous Area Variance, and a changing of the foundation would be a very costly experience. Duly adopted this 18th day of December, 1996, by the following vote: AYES: Mrs. Lapham, Mr. Stone, Mr. O'Leary, Mr. Karpeles, Mr. Thomas NOES: NONE ABSTAINED: Mr. Green MR. THOMAS-The variance is granted. Lets hope we won't see you back here again for another one for this property. The next order of business, since Mr. Green has showed up, is the Use Variance No. 94-1996, James C. Kislowski. The last time we met we had three in favor of and two against. It was a no action. So we have to take another vote, and Mr. Stone made a motion. Would you like to read that motion again? MOTION TO APPROVE USE VARIANCE NO. 94-1996 JAMES C. KISLOWSKI, Introduced by Lewis Stone who moved for its adoption, seconded by william Green: Applicant is proposing to operate a retail showroom for motorcycles, ski-doos and other small motorized products, related retail apparel, service shop and parts and accessories sales. - 22 - ~ -- (Queensbury ZBA Meeting 12/18/96) Currently, the proposed uses are not permitted uses under the current zoning designation of LI-1A. There are four criteria that have to be considered in granting a Use Variance. One, Is a reasonable return possible if the land is used as zoned? Evidence has been shown by Mr. Levack that the owner of this property, Mr. Lebowitz, has not been able to do anything with this property from an income standpoint for two years and ten months, and at least Mr. Kislowski's use of this building would return a small amount of money for Mr. Lebowitz's investment. Number Two, is the alleged hardship relating to this property unique or does it also apply to a substantial portion of the district or neighborhood? It appears that the hardship in this particular case is unique to this particular LI-1A zone in the area. Is there an adverse effect on the essential character of the neighborhood? The buildings have been in existence for two years and ten months. They previously housed a permitted use which also provided some noise impact and other traffic impacts. I don' t believe that 'this business will provide any more adverse effect than that. 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? I believe that it is. In addition, in granting this variance, we should be guided by the purpose as stated in paragraphs 179-26 defining Light Industrial zones, and I quote a portion "Highway oriented and research businesses need opportunity appropriately located near major highways from which they receive their materials and to which they dispense their products". It seems to me that selling motorcycles certainly needs a highway to show how the product can be used. In granting this variance, we would place certain restrictions upon it, to the effect that this Use Variance goes only with the life of the business as conducted by Mr. James Kislowski, and expires the moment that he gives up that business or moves away from the property, and secondly, the applicant is on notice that any confirmed use of the Niagara Mohawk right-of-way by one of his customers constitutes an automatic retraction of the variance. Also, that there be no car sales on the property by Mr. Kislowski. The hours of operation were stated as eight to six Monday through Friday, excluding Thursday. Thursday would be eight a.m. to nine p.m. Saturday would be eight to two, and no retail sales or repair on Sunday. I would limit the number of vehicles outside to probably five, be it motorcycle, four wheeler, snowmobile, whatever, vehicles for sale out in the front. Duly adopted this 20th day of November, 1996, by the following vote: AYES: Mr. Green, Mr. Stone, Mrs. Lapham, Mr. Thomas NOES: Mr. O'Leary, Mr. Karpeles MR. THOMAS-Okay. We have a four to two, and you understand all the restrictions that are put on it? The first snowmobile that goes down that right-of-way and somebody sees it, and I imagine you're going to be watched real close. . MR. KISLOWSKI-Yes, I will. MR. THOMAS-You know, we pull it. You have to shut down. Okay. MR. KISLOWSKI-Yes. Thank you very much. MR. LEVACK-Thank you. MR. THOMAS-Thank you. USE VARIANCE NO. 115-1996 TYPE; UNLISTED RR-3A JOHN & GEORGENE ANDERSON OWNER; SAME AS ABOVE 31 YORKSHIRE DRIVE APPLICANTS PROPOSE TO USE A SINGLE FAMILY HOME AS A DUPLEX. THE PROPOSED USE - 23 - .. (Queensbury ZBA Meeting 12/18/96) DOES NOT CONFORM TO THE ALLOWED USES IN THE RR-3A ZONE. RELIEF IS BEING REQUESTED FROM THE ALLOWED USES LISTED IN SECTION 179-15, RURAL RESIDENTIAL 3-ACRE ZONE. TAX MAP NO. 38-3-50.14 LOT SIZE: 0.73 ACRES SECTION 179-15 JOHN ANDERSON, PRESENT STAFF INPUT Notes from Staff, Use Variance No. 115-1996, John & Georgene Anderson, Meeting Date: December 18, 1996 "APPLICANT: John & Georgene Anderson PROJECT LOCATION: 31 Yorkshire Drive PROPOSED PROJECT AND CONFORMANCE WITH THE ORDINANCE: The applicant is proposing to construct a second dwelling unit on a .73 acre piece of property on Yorkshire Drive. REVIEW CRITERIA, BASED ON SECTION 267-b OF TOWN LAW: 1. IS A REASONABLE RETURN POSSIBLE IF THE LAND IS USED AS ZONED? The applicant plans to submit information concerning the potential for a reasonable return and the value of this property. 2. IS THE ALLEGED HARDSHIP RELATING TO THIS PROPERTY UNIQUE, OR DOES IT ALSO APPLY TO A SUBSTANTIAL PORTION OF THE DISTRICT OR NEIGHBORHOOD? This property is located in a residential subdivision which seems to have the same development conditions and constraints as the rest of the neighborhood. 3. IS THERE AN ADVERSE EFFECT ON THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD? It appears that the proposed use, which calls for an addition to an existing home, would not have an adverse effect on the neighborhood character. 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 appears that it would be minimum relief if a Use Variance were to be granted. STAFF COMMENTS AND CONCERNS: As is the case with all Use Variance applications, the applicant is required to meet all criteria in order to be approved. The ZBA should determine if all these criteria have been met before taking final action on this application. SEQR: Type Unlisted, short EAF attached" MR. THOMAS-All right. We need to make a motion concerning the, if there is or is not an environmental. MR. MARTIN-Well, I would advise you wait until the public hearing is closed. MR. THOMAS-And make that motion? MR. MARTIN-Right. MR. THOMAS-Okay. That's it. We didn't have anything from Warren County? MR. MARTIN-No. It's not within 500 feet of any State or County property. MR. THOMAS-Okay. Is the applicant or his agent here? MR. ANDERSON-Can I ask that Mrs. Lapham read an additional statement into the record? MR. THOMAS-Lets see what it is. Read that in. MRS. LAPHAM-Okay. John and Georgene Anderson, 31 Yorkshire Drive, Queensbury, NY, "Variance Requested: Applicant request a use variance changing their single family dwelling to a two family home. REASON FOR REQUEST ELDER CARE A significant hardship currently exists! During 1996, both John and Georgene lost their fathers. Virginia Anderson, age 78 (John's mother) moved in with John and Georgene in August 1996 due to health reasons. The elder Mrs. Anderson requires regular supervision and medication, as well - 24 - '"'-' .....,.".. (Queensbury ZBA Meeting 12/18/96) as cooking, cleaning, and other necessary care. This care is provided by John and Georgene. Since John and Georgene have three children, the addition of John's mother to the family unit required extensive internal adjustments to their living arrangements. One child has given up a bedroom and relocated to the basement area. Georgene's mother, Virginia Westenberg age 71, has been living alone in the New York City area since her husband passed away in February 1996. Mrs. Westenberg is no longer capable of maintaining her home and is in poor health. Georgene and John are concerned about Mrs. Westenberg's well being and have made arrangements to add an addition onto their home at 31 Yorkshire Drive. The addition will relieve the overcrowding in the main part of the home, and provide a residence for Mrs. Westenberg. Mrs. Westenberg has expressed a desire to remain as independent as possible for as long as possible and is still able to cook, clean and do household chores. Based on Mrs. Westenberg's preference to maintain independent, John and Georgene wish to install a second kitchen as part of the proposed addition to their home. This second kitchen will technically change the single family dwelling to a two family dwelling. Commonly Asked Questions 1. Will the proposed addition be attached to the main dwellinq? Yes! The addition was professionally designed to be aesthetically pleasing to the eye, and avoid the appearance of a duplex apartment. 2. will the addition have a separate entrance? Yes! A side entrance has been designated which will provide Mrs. Westenberg a private entry way. 3. Will there be an entrance from the existinq house? Yes! The lower level of the addition is designed to be a family room, and the upper level is designed as Mrs. Westenberg's residence. An internal' stairway will connect both sections. 4. Will the addition be visible from the street? No! The addition is designed to attach to the back of the existing dwelling. The appearance of the existing dwelling will not change from the street view." MR. THOMAS-All right. Is there anything else you'd like to add? MR. ANDERSON-Yes. My name is John Anderson. This is my wife Georgene. I would just like to point out to the Board that there are already existing other duplex units in the Sherwood Acres subdivision. It's my understanding that they were grandfathered in as two family or duplex units when the zoning laws changed several years ago. Also part of the record, we have a petition from 13 of our neighbors. We went door to door with the plans and pretty much that story that was just read by Mrs. Lapham, and they all signed the petition. So basically the neighborhood is okay with this. Also, we took special pains to design the addition so that it would not look, it was not offensive. It did not look like it was a duplex unit. We've gone to some great expense and great lengths to make this fit in with the neighborhood. Again, I'd just like to stress that it's a hardship on us and that my mother-in-law, Georgene's mother, wishes to remain independent. We need that kitchen so that she can cook for herself and maintain that independence. That's pretty much it. MR. THOMAS-Okay. Does anyone on the Board have any questions for the applicant? . MR. STONE-Well, the question 1. have about the application, you stated you che~ked, Is a Reasonable Return possible if the land is used as zoned, you said yes. Technically, that defeats the application, as far as I'm concerned. Because that's one of the things that we have to consider, along with the other four attributes about a Use Variance. You said, it £Sà!! have a reasonable return as zoned. Therefore, that sort of says you can' t get a Use Variance. MR. ANDERSON-We have a letter from a real estate agent that said, may I present this? - 25 - (Queensbury ZBA Meeting 12/18/96) MR. THOMAS-Yes. MR. ANDERSON-Basically the property values in the area are declining and they have been declining for several years. So basically the house right now is worth the same or less than what we paid for it 10 years ago when we moved in. Basically the addition would improve the value of the home and the surrounding homes in the area. 1/1 MRS. LAPHAM-December 16, 1996 "To whom it may concern: I have previewed the property of John and Georgene Anderson, located on Yorkshire Dr., Queensbury, New York. They purchased the property in 1987 for $130,000. The property was purchased when the market in this area was at its peak. It is my professional opinion that the property would probably sell for the same amount as it was purchased for 10 years ago. We have been experiencing a declining market for the past 5 to 6 years resulting in no appreciation. If you need any further information, please feel free to call me at any time. I can be reached at 793-6628 or 794-6677 Ext. 407. Sincerely, Julia A. Cronin Licensed Sales Associate Prudential Manor Homes" MR. THOMAS-Any other questions for the applicant? MR. KARPELES-Well, I see construction has already started. MR. ANDERSON-Yes. If the Board decides that they're not going to grant the variance, we're proceeding with the addition anyway, and we're putting a, basically it won't be a kitchen. It will be a wet bar type of arrangement, and Mrs. Westenberg would be forced to either have her meals brought in to her or she would have to come in to our main house to eat. MR. KARPELES-So you've got a building permit? MR. ANDERSON-We have a building permit for an addition to our existing dwelling. MR. KARPELES-But not for a duplex? MR. ANDERSON-That's correct, sir. MR. STONE-Was a variance obtained for the side setback? As I read the Ordinance it's 30 feet, and it's showing 19 feet on the plan. MR. MARTIN-Not as of yet, no. MR. THOMAS-A building permit has been issued? MR. ANDERSON-Yes. MR. MARTIN-I think that was discovered after the permit was issued and that's why the application is here. MR. THOMAS-Did the building permit application show a kitchen do you know? It didn't show a kitchen? MR. MARTIN-No. As some of the more elder members of the Board will recall, like Chris, you discussed this very issue, in terms of an interpretation, about what constitutes a second dwelling, and the interpretation of the Board was that if a complete set of housekeeping facilities is not present, then a second dwelling is not present. MR. THOMAS-But in this case there is complete. MR. MARTIN-The plans as approved do not show a kitchen. - 26 - .---.....' -...../ (Queensbury ZBA Meeting 12/18/96) MR. THOMAS -Okay, but now the applicant's in here asking for a kitchen. MR. MARTIN-He's being honest, to his credit. MR. THOMAS-Yes. MR. STONE-And I certainly appreciate that, too. I understand what you're doing. My first comment was, Use Variances are very difficult for us to grant. We have to meet all five of the requirements, and one is, the reasonable return. You yourself answered you can get a reasonable return on your application, signed by you, which places us at a great disadvantage, considering. MR. ANDERSON-Well, is it possible that that question was misunderstood by us, Mr. Stone? MR. STONE-I don't know what went on in your mind when you checked off yes. Mr. Chairman, do you agree with what I'm saying? MR. THOMAS-Yes, I do. MR. ANDERSON-Well, we've proceeded with this, from Day One we wanted to do it right. We did not cut any corners. We did not do anything that went against the current laws. We're very up front. So if we made a mistake on the application, that's something else again. MR. STONE-Well, even if you checked off no, you would have to show, and I'm not sure your letter does to me, that you can't get a reasonable return on this residential property the way it is, the way it sits today. You could certainly put an addition on it, the way you're talking, but without the kitchen in it. That's certainly a possibility, too. MR. THOMAS-Before you started this addition, did you look into senior housing in the area? MR. ANDERSON-Yes, we did. My mother-in-law is from the New York City area. She's been up. She's visited us on numerous occasions. She's hesitant to go and forge new friendships. She wanted to be close by us. She wanted to have the support of our family unit, being close to her grandchildren. We have three children in our home. She wanted that closeness. The only other alternative for her, Georgene has a sister who lives in Florida. She did not want to go down there and be with her sister. She chose to come up here with us, but she wanted the support of us being close by. So we discounted that option. MR. THOMAS-Okay. I just have a question for Jim here real quick. Last year we granted a variance for housing up on Bay Road, right next to Evelyn's Flowers for, I can't remember the guy's name from Albany. Is he ever going to do that? MR. MARTIN-Apparently he's trying to get his financing together for construction. We've got nothing, formally, in our office, though, , yet. MR. THOMAS-Nothing formal. MR. MARTIN-And the other blow to the other, at least temporarily, was as I understand it the application to the Department of Housing and Urban Development for low income senior housing at Indian Ridge was denied, at least in this funding year. I understand they're going to re-apply, but they have a waiting list of approximately 70 people at Solomon Heights, which is like the sister project to the new proposed Indian Ridge project. - 27 - (Queensbury ZBA Meeting 12/18/96) MR. THOMAS-Okay, because this one here on Bay Road would be just about a mile down the road. MR. MARTIN-The other one that we've heard word of but with the sale of Hiland it got delayed, another senior housing project on Meadowbrook Road to be installed in the Hiland Park PUD, but with the sale of that project, it's delayed it, and that's at least two or three years away with all the State licensing that's got to be. MR. ANDERSON-My mother is, Virginia Anderson is exhibiting signs of senility. She has a problem taking care of herself. At this time she has to be constantly supervised. I work in ~lbany. All of this burden kind of falls on my wife. The intent of having her mother with us in the same dwelling or close by was to help take care of mY mother, helping to get her involved in some activities and taking some of the pressure off of my wife, so it wasn't such a burden. So this truly is a hardship that we're asking for relief from, and there's just numerous reasons why we feel it should be approved. MR. THOMAS-Any other questions for the applicant? open the public hearing. If not, I'll PUBLIC HEARING OPENED MICHAEL O'CONNOR MR. O'CONNOR-Mr. Chairman, I'm Michael O'Connor from the law firm of Little & O'Connor. I represent Sherwood Acres Corporation, Daniel Barber and Barbara Barber, who own property wi thin the Sherwood Acres subdivision. Much of what the applicant has said here is very worthy, but I think you have a basic problem with what is proposed. We don' t have mother-in-law apartments in the Town of Queensbury, particularly in single family zones. I don't know what makes this lot any different than any other single family lot in any subdivision. Their person circumstances certainly have a lot that would give you reason to be sympathetic to them, but we're talking about a property here, and we're not talking about their personal circumstance. Part of the problem that we would foresee is that after some time this would no longer be a family situation, and may be completely unrelated people, and might have some effect. When Sherwood Acres was set up, in 1970, it was set up specifically so that as you come in Sherwood Acres, which is Nottingham Drive, the main entrance road, everything to the right of that had permission to build two families. Everything to the left of that was single family. They, in fact, have restrictive covenants, that I'm not sure what Mr. Anderson intended to do with that would prohibit that. I understand that that's not this Board's providence, but the restrictive covenants specifically say that on his particular lot there shall be constructed only a single family residence. I think that's an issue or that's a thing that's related perhaps to character of the neighborhood. It's certainly not something you can enforce, but something you can consider in determining what the character of the neighborhood is. As Jim said, I think we have a problem in our area for senior or elder housing. I disagree with you the housing that's going to go into Indian Ridge was not turned down, at least they've told me that five different ways. It was not approved at this point because they didn't have funding for it. It got a rating of 92%, and with next funding available, it should be funded. MR. MARTIN-Your characterization is more accurate. MR. O'CONNOR-But that's something that's on the other side of Town, that probably won't get constructed for another year and a half. I sat through a lot of different applications with a lot of different people with the same sympathetic type request and need in their own particular family, but those houses in that area are - 28 - ",-/ "--,'" (Queensbury ZBA Meeting 12/18/96) selling as single family homes. By coincidence, I think I'm closing on one tomorrow. If not tomorrow, it's Monday. I get confused as to which ones are doing, but there's no evidence here that there's no reasonable rate of return. In fact, there's actually his own statement that says that he is getting a reasonable return. All the elements that you have, all five elements that you have for a Use Variance, I think they would have some difficulty in complying with, if you looked at it on a hard look basis. They have a very sympathetic application to you, but I don't think it qualifies for a Use Variance. I said, and I've got a note right here that I wrote to my client, they can do without a second kitchen, no permit necessary. They can have up to 10 bedrooms if they want, I think, as long as they don't encroach upon the setbacks, they don't encroach upon the percentage of the lot, and we acknowledge that, but when you build it into the two family type circumstance, that changes the application. MR. MARTIN-And I just want to speak to the Area Variance mention that was made to the side yard setback, this qualifies for the general exemption located in 179-76B. This is a Planning Board approved subdivision, under, I believe, the '67 Code. I think it's that old. MR. O'CONNOR-This got approved in 1970. MR. MARTIN-Yes. So we checked the old side yard provisions. It would be subject to the old Code of '67, and they are much less restrictive than, obviously, what we have now. MR. O'CONNOR-They were 10 or 15 feet. MR. MARTIN-Right. MR. O'CONNOR-In fact, I think when the houses were being built we ended up with 17 feet in our restrictive covenants, because we ended up with a house that was 17 feet away. We don't have an issue to the addition. We have an issue to the use of the addition, the potential later use of it, particularly that it not be a family situation, that it go on the record without parking, without all kinds of things that you typically would have with two stranger families living in one unit. So we think it fails to meet the hardship requirements for a Use Variance. Thank you. MR. THOMAS-Okay. Thank you. Mr. Anderson? MR. ANDERSON-I'd just like to respond to Mr. O'Connor's statements regarding the single family homes in that area. Right now there are, Mr. Barber himself has recently sold off duplex units that he built himself and that are, essentially, two family homes. So, to my knowledge, there are at least three or four within the subdivision that currently exist. Mr. Barber built them and recently sold them. He continues to build and sell duplex units in the same vicinity, within 500 to 1,000 yards of my home. So I don't understand how Mr. O'Connor could make that kind of a statement. As far as the deed restrictions go, there may be a deed restriction like that in there, but as far as my neighbors go, none of my neighbors,are present objecting to this hardship request. So there are other deed restrictions in there that have been overlooked in the past. For instance, there's a deed restriction in there, and Mr. Barber built them all in there, why I don't know, but for a simple tool shed, if you want a tool shed in your back yard, that's considered a violation and a deed restriction, but yet 75% of the homes in the area have a tool shed, you know, next to their house. So that's all I really have to say. Thank you. MR. THOMAS-Okay. Is there anybody else from the public who'd like to speak? - 29 - (Queensbury ZBA Meeting 12/18/96) MR. ANDERSON-Mr. Barber is coming here tomorrow night to request a splitting of his property which contains four duplex apartments which he endeavors to sell off, so I think he's speaking out of both sides of his mouth at this point. MR. 0' CONNOR - Mr. Barber does have duplexes. Again, they are wi thin the planning that was proposed for that development when it was established. The development, the duplexes that he has within the development are all to the south side of Nottingham Drive. The application that is before the Planning Board is for four duplexes that were permitted when built off of Bay Road. They are not part of Sherwood Acres subdivision. There are duple:*:es, again, the restrictive covenants says the Lots One through Five, the lands of Charles M. Barber and Helen Barber, Lots 22 through 50, as shown on the above referred to map shall be used only for residential purposes. No building shall be erected, altered, placed or permitted to remain on said lots other than one detached single family dwelling. Where he has built those duplexes are not those lots. If you'll notice there's a gap that says one through five, and then begins 22 through 50. I think I've got a Sherwood Acres subdivision map here I can show you that Lots Six through Twenty- one, which were on one end of the subdivision, which at the time that the subdivision was set up was a permitted use, is where those duplexes are. Not all of those lots have duplexes on them. Lot six through Twenty-one is paragraph two of the restrictive covenants. The restrictive covenants are in Book 544 of Deeds at Page 542. So, I think you're comparing apples to oranges. You've still got to take a look at your own requirements for a Use Variance, and you haven't heard anything near a dollar and cents argument here, even on the issue of hardship, if you don't have a problem, before you even get to the problem of character or effect on the neighborhood. MR. THOMAS-Anything else you'd like to add, Mr. Anderson? MR. ANDERSON-No, I don't have anything to add at this time. MR. THOMAS-Okay. Would anyone else like to speak, the last chance? Any correspondence? MRS. LAPHAM-Yes. I have a couple of letters here. Mr. Christian G. Thomas, Zoning Board of Appeals, Town of Queensbury, 742 Bay Road, Queensbury, NY "Dear Mr. Thomas: I am in receipt of the public hearing notice requesting variance from Section 179-15 by John and Georgene Anderson, residents of 31 Yorkshire Drive, Queensbury, NY. Although I am sympathetic with what I understand to be their stated desire to provide shelter for a family member, I none the less feel obligated to express my opposition to this requested relief. I am an immediate adjacent property owner and am concerned that converting present single family dwellings to duplexes would contribute to further depressing property values in the Sherwood Acres complex. I respectfully ask that this concern be addressed during your consideration of this request for relief. Most sincerely, Alfred E. Kristensen, M.D." "Gentlemen: We reside on Yorkshire Dr. within 500' of the applicants John and Georgene Anderson (Variance No. 114-1996). Recently, Mrs. Anderson came to our home and asked if we would object to a room being added to their home and we signed their petition. It is now our understanding that they intend to construct a second dwelling. We do not feel that this would be in the best interests of the neighborhood and request that the variance be denied. William F. Cox Deanna M. Cox" And I think that's about all. MR. THOMAS-Wasn't there a petition with about 23 signatures on it? MRS. LAPHAM-Okay. Let me look through here and see. MR. THOMAS-I think that was part of the application for the Area - 30 - ~ (Queensbury ZBA Meeting 12/18/96) Variance, but you'd want to read that in there, too. MRS. LAPHAM-Okay. IIJohn G. Anderson 31 Yorkshire Drive Queensbury, NY To the Town Zoning Board of Queensbury: I am a neighbor of John and Georgene Anderson who live at 31 Yorkshire Drive, Queensbury. It has been explained to me that it is their desire to add a finished addition to their home for Georgene's elderly mother to move into. It has also been explained to me that this addition will change their home to a two family, which I know there are several two- family homes already in the area. I understand that this addition, which was necessitated solely because of the death of both John and Georgene's fathers this year, will not change the cosmetics or the safety of the neighborhood. By my signature below, I am stating that I consent to, and have no reservations about the addition they wish to add to their home." Sherman Parker, John Mead, Ken Sawyer, Chris Bessen, Maria J. Fisher, Mike Fava, Joe Mondella, Sally Taibe, Margot Erceg, Deanna M. Cox, Mark Petramale, Susan Copeland. The addresses are 27 Yorkshire, 23 Yorkshire, 17 Yorkshire, 41 Yorkshire, 4, Yorkshire, 10 Yorkshire, 18 Yorkshire, 49 Yorkshire, 63 Yorkshire, 64 Yorkshire, 77 Yorkshire, 59 Nottingham, 58 Yorkshire Drive. MR. THOMAS-Wasn't there another letter? MRS. LAPHAM-Yes. Deanna Cox wrote a letter, she's the one that wrote the handwritten letter here that said she wished to be removed from the petition. MR. THOMAS-Okay. MR. ANDERSON-May I just address that comment? MR. THOMAS-Sure. MR. ANDERSON-One of the letters that went out to our neighbors said a separate dwelling. There was a misunderstanding among a number of my neighbors that we were building a unit that was not attached to our existing structure. They thought we were building another building in the back yard, and many of them commented about the wording of the letter. So I believe that that comment from Mrs. Cox is addressing that, and it's a misunderstanding. MR. THOMAS-Okay, and that's it for the correspondence? MR. LAPHAM-Yes. MR. THOMAS-I'll start with you, Bill, what do you think? MR. GREEN-Well, it sounds like a lovely, the problem being this is a Use Variance. We have to attack these questions, and if we come up with essentially one that we cannot answer positively, we have to deny this Use Variance. It's not a balancing with an area balance. I'm sitting here very hard trying to find a positive answer for each one of these questions. What's kind of hanging me up is the uniqueness of this property. Your situation may be unique, but the piece of property is what the uniqueness is relating to in' this question. I don' t think it would have any devastating effect on the character of the neighborhood, albeit the duplexes at this point are in another area. I don't see that being a problem. It would appear to be probably the minimum that would be needed to meet your needs. We do have some substantiation that the house is possibly not necessarily gaining economic return, although it is being used as a house and you're living there. So that's my two cents. MR. THOMAS-Okay. Don? MR. O'LEARY-Well, I'd sYmpathize. I think that given the positive - 31 - (Queensbury ZBA Meeting 12/18/96) attitude of a number of the neighbors that you've talked to and given the fact of the character of some of ,the homes that you've pointed out historically were duplexes, I tend to be sympathetic, but in the Use Variance, we seem to have a difficult time over and over again, at least Å do, with regard to the uniqueness of the financial hardship, and that's always a hang up, as it has been here on a number of occasions. So for that reason, I'm not sure I can deal with it positively, but I'll wait to hear the rest of the Board. MR. THOMAS-Okay. Lou? /II MR. STONE-Obviously, we are very sympathetic. Unfortunately, this is not an emotional issue. We are presented with five different cri teria, all of which must be answered yes, as far as we're concerned, and it is extremely difficult, as the two Board members ahead of me have stated, to answer all of these yes. We applaud the fact that you have come forward with an honest application saying, yes, we are going to put a kitchen unit in this thing, therefore making it a duplex, and that's a very noble thing to do. Unfortunately, the Use Variance is a very difficult one to grant, and I just don't feel that I can grant it on the basis of the information that's been presented. MR. THOMAS-Bonnie? MRS. LAPHAM- I feel the same way. I hate to sound like a real curmudgeon, but there's definitely, I feel, a reasonable return that you can gain if the land is used as zoned, which is a single family residence. Other single family residences are there. They are selling. Mike's closing on one. I have appraised several. They have not lost any value. They haven't gained a lot of value, but as this letter states, neither has anyone else in the last five or six years. I don't think there's any kind of unique hardship to this property, because all of the area is single family and the duplexes are over on one side and you would be introducing a duplex into a single family area, basically, which I would definitely be against, and I think it could have an adverse effect on the essential character of the neighborhood in time, if it becomes a non family situation and then suddenly you have an actual duplex appearance to the house because there's no reason to have a connecting staircase, and I don't think that this is the minimum. I think it's more than the minimum. The minimum would be the addition with the bedroom space, and when we did the duplexes I think you're referring to that Mr. Barber was selling, that came before us and the neighbors were just, I mean, they were out strong and against these duplexes and so forth. So I can't believe that they would condone a duplex in their yard now, which would be closer. MR. THOMAS-Bob? MR. KARPELES-Well, I basically agree. I don't think that a duplex in that neighborhood could help but negatively effect the character of the neighborhood. I think it's a beautiful neighborhood, and I know if I were one of the neighbors I wouldn't want to see a duplex go in there, and as far as a reasonable return, if we have to build a duplex to get a reasonable return, that would mean everybody else has to build a duplex to get a reasonable return, and that just isn't feasible. So I'm against it. MR. THOMAS-I agree with the other Board members that even though Mr. and Mrs. Anderson came forward, in all their honest, and I wish all the other applicants were as honest as they were, the five questions haven't been answered to my satisfaction, and I can't see building a duplex in this residential area that's not zoned for it. I do have one question for Mr. Martin. Covenants within a' subdivision, how do they effect us? - 32 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-Not at all. We do not have any jurisdiction over covenants in a deed. Those are, you know, Mike's an attorney. I would characterize them as civil matters between individual residents. If someone feels a covenant is being violated within their subdivision or neighborhood, that's a court proceeding to enforce that. It's not a local Code issue. MR. THOMAS-Okay. Thanks. Having said that and gotten that information, would someone like to make a motion? MOTION TO DENY USE VARIANCE NO. 115-1996 JOHN & GEORGENE ANDERSON, Introduced by William Green who moved for its adoption, seconded by Bonnie Lapham: The applicant is proposing to construct a second dwelling unit on a .73 acre piece of property on Yorkshire Drive. This addition has been described as a second dwelling unit rather than a simple addition to a home because of the inclusion of a kitchen unit, kitchen area. It does appear that a reasonable return is possible if the land is continued to be used as a single family home. There are a number of other homes in the area that are single family homes that have been selling at reasonable market prices. It does not appear that this þardship concerning the property is unique, again, based on the subdivision nature of this area, there are many single family homes in the area. In my opinion, I don't feel there would be an adverse effect on the essential character of the neighborhood by the addition of this second dwelling unit, and I feel that this probably is the minimum variance that would be needed to meet the Anderson's needs, but because this is a Use Variance and we need four positive answers to those four questions, I have to move to deny this variance. Duly adopted this 18th day of December, 1996, by the following vote: AY~S: Mr. O'Leary, Mr. Green, Mr. Karpeles, Mrs. Lapham, Mr. Stone, Mr. Thomas NOES: NONE MR. THOMAS-The application is denied. I'm sorry about that. We understand your plight, but you just didn't meet the criteria for it, and that also renders Area Variance No. 114-1996 John & Georgene Anderson invalid. MR. STONE-I did have a question, Jim. Is that a wetlands in there by any chance? MR. MARTIN-No. MR. STONE-It's not? I notice a lot of fill was put in there. MR. ANDERSON-There's no fill. MR. STONE-There looked like it. Okay. MR. ANDERSON-I must point out to the Board that the area is turning into a rental 'area, because my next door neighbor, in fact, Dr. Kristensen, the person that wrote that letter, moved out and rented his home. The house across the street has been rented. MR. THOMAS-There's no law against renting. MR. ANDERSON-No, that's true, but in your infinite wisdom, you've turned it down, and I'm not really happy about it. MR. THOMAS-I didn't expect you to be. - 33 - (Queensbury ZBA Meeting 12/18/96) MR. ANDERSON-I'm expressing my feelings now. MR. STONE-We understand. MR. ANDERSON-You have a man like this. going to grant him what he wants. Tomorrow night, you're MR. THOMAS-No, we don't have a meeting tomorrow night. know what Board meeting is tomorrow night. I don't MR. MARTIN-Tomorrow night is the Planning Board. MR. ANDERSON-It flies in the face of fairness. It really flies in the face of fairness. NOTICE OF APPEAL NO. 7-96 JOHN CUSHING APPLICANT (JOHN CUSHING) IS APPEALING A DECISION MADE BY THE ZONING ADMINISTRATOR FROM OCTOBER 3, 1996, CONCERNING THE LOCATION OF A FENCE LOCATED ON PROPERTY OWNED BY DOROTHY HODGKINS. THE FENCE IS LOCATED IN CLEVERDALE ON TAX MAP NO. 13-1-10. LOCATION OF HODGKINS PROPERTY IS ON THE WEST SIDE OF MASON ROAD, CLEVERDALE, APPROXIMATELY 100 FEET NORTH OF THE INTERSECTION OF LACKEY ROAD IN A WR-1A ZONE AND CRITICAL ENVIRONMENTAL AREA. JOHN CUSHING, PRESENT MRS. LAPHAM-Okay. "Dear Mr. Martin: This note is a letter of APPEAL to your office on your decision to allow an illegal fence to remain on the Dorothy Hodgkins property in Cleverdale. This fence adjoins our property which is immediately to the North of the Hodgkins property. The fence is 4 foot in height and runs from the lake to Mason Road, some 156+/- feet. This appeal is based several factors. 1. The town ordinance is crystal clear that this fence is in violation of section 179-60 B (5) (b). This section states, 'No fence greater than (100) square feet in area, measured by the vertical surface area of one (1) side as circumscribed by the perimeter shall be located within the shoreline setback'. When the fence was built the setback was 75' in effect. The fence therefore had 300 vertical square feet where only 100 sq. feet is allowed. 2. If the town had been diligent in its endeavors, they would never have allowed the fence to be built. But the town erred and gave permission. If it had been denied at the beginning, this situation would not have occurred. 3. The new scheme of leaving the fence as is but cutting several two feet breaks along the fence line, thus saying it is not a continuous fence is defenseless and defies all common sense. This would make the ordinance worthless and the law could be skirted at all times. 4. The length of time the town has had this issue in its hands is absurd, well over a year. This dragging of feet has allowed the Hodgkins to invent avenues to obstruct and bypass the town's ordinances. 5. When Paul Dusek was the town's lawyer, he notified John Goralski that the fence was illegal and that it was to be removed. Now the present town lawyer refuses to talk to me concerning the fence, but is willing to have a briefing with the Hodgkins about the fence. (see Hodgkins letter of Oct. 1996). It appears I'm a second class citizen and I truly feel discriminated against. Therefore and because of the above, I appeal your decision and will go to higher authority to obtain a fair hearing. Sincerely, John P. Cushing" MR. THOMAS-All right. There's a letter dated December 2nd. MRS. LAPHAM-Yes. Okay. Queensbury Zoning Board of Appeals, RE: Appeal from Decision of Zoning Administrator of October 3, 1996, with respect to the fence of Dorothy Hodgkins, Cleverdale, Tax Map No. 13-1-10 "Dear Chairman: We are the property owners to the immediate north of property owned by Dorothy Hodgkins located at Cleverdale in the Town of Queensbury. Pursuant to Section 179-98 of the Zoning Code, we are hereby appealing a decision made by the - 34 - '- -' (Queensbury ZBA Meeting 12/18/96) Zoning Administrator on October 3, 1996, which approved a plan submitted by Mrs. Hodgkins to install fences at her property on the property line and extending from the extreme rear of the Hodgkins property to close proximity with the shoreline. The fence layout calls for the construction of two (2) 4' high by 25' long (100 square foot) fences within the 50-foot shoreline setback. A copy of the decision appealed from with the attached sketch of the fence layout is annexed hereto and made a part hereof. The fence layout as approved by the Zoning Administrator is in violation of Section 179-60 (B) (5) (b) of the Zoning Code. Section 179-60 (B) (5) (b) provides that no fence greater than 100 square feet in area, measured by the vertical surface area of one (1) side as circumscribed by its perimeter, shall be located within the shoreline setback. Thus, if a fence is to be located within the 75-foot shoreline setback, it must be less than 100 square feet in area. The proposal attempts to short circuit the provisions of Section 179-60(B) (5) (b) by placing two 4' tall by 25' long fences, separated only by a short opening, within the 75-foot shoreline setback. This makes a mockery out of Section 179-60(B) (5) (b) and is contrary to the intent of said provision which is to allow a fence of 100 square feet or less within the shoreline setback. By placing two such fences within the shoreline setback, divided by a small separation of perhaps 1+/- feet, the Zoning Administrator has approved a plan which defies the purpose or intent of the section which is to limit the number of structures within the shoreline setback. Two fences at this location serve no legitimate purpose and will impact on our visibility of Lake George and our enjoyment of our property. Based on the foregoing, we hereby appeal the decision of the Zoning Administrator of October 3, 1996 and respectfully request that the Zoning Board of Appeals reverse said decision. Sincerely, John P. Cushing" MR. THOMAS-Read the letter that Jim Martin wrote, no, that Dorothy Hodgkins wrote. MRS. LAPHAM-I'll read yours. 56 East Glenwood Drive, Latham, NY 12110, October 1, 1996, Mr. James Martin, Executive Director, Department of Buildings and Codes, 531 Bay Road, Queensbury, NY "Dear Jim: This is in regard to John Goralski's letter dated January 26, 1996 pertaining to the fence installed with the Town of Queensbury's Code Compliance Officer's permission several weeks prior. The attached was verbally agreed to by those listed below along with my son, John, and by me in a later conversation with John Goralski. Very truly yours, Dorothy Hodgkins 13.-1-10 We, the below listed officials of the Town of Queensbury, are in agreement that the attached proposal meets all Zoning and Building Codes for the Town of Queensbury: APPROVED: John Goralski, Code Compliance Officer 10/3/96 APPROVED: James Martin, Executive Director, Building and Codes 10/3/96 Reviewed Fred Champagne, Town Supervisor 10/4/96, Reviewed Mark Schachner, Town Counsel 10/3/96" Okay. Mrs. Dorothy Hodgkins, 56 Glenwood Drive, Latham, NY 12110 "Dear Mrs. Hodgkins: As you are aware, I recently received a complaint from one of your neighbors on Mason Road, Cleverdale regarding the erection of a fence within the required shoreline setback. On January 18, 1996 I visited your property and found that you had erected a four foot high, green vinyl coated, chain link fence along your north property line from the road to the shoreline.' Several weeks ago you called me to inquire about the legality of erecting a fence in this manner. Although my first reaction was negative, I agreed with you after consulting Section 179-74, FENCES, of the Zoning Ordinance, that there was no regulation that would prohibit you from erecting a fence as described above. However, the person complaining about your fence referred me to Section 179-60B(5) (b). This section states that no fence greater than 100 square feet measured vertically may be erected within the shoreline setback. Based on the facts described above, it is my opinion that the fence along your north property line is in violation of Section 179-60B(5) (b) of the Town of - 35 - (Queensbury ZBA Meeting 12/18/96) Queensbury Zoning Ordinance. At this time you must either remove that portion of the fence that is in violation or seek a variance from the Zoning Board of Appeals. Thank you for your attention to this matter. Yours truly, John Goralski, Code Compliance Officer" Copy to Jim Martin. MR. THOMAS-Mr. Cushing. MR. CUSHING-Do you want me, Mr. Chairman, to get into this thing here, or is this the time for a hearing? MR. THOMAS-Yes, it is, since you're the applicant.' MR. CUSHING-I'm the applicant. Okay. Fine. Well, good evening, Gentlemen, and Mrs. Lapham. My name is Jack Cushing, and I'm a resident of Queensbury, owning two properties in Queensbury, one at 8 Orchard Drive, and one on Mason Road in Cleverdale. My property in Cleverdale is adj acent to the Hodgkins property, where an illegal fence has been built and my appeal is based upon a Town decision that says if certain alterations are made to the fence, then it will be allowed. This is a flawed decision and makes no sense, and if allowed to stand will make a mockery of the Town Ordinances, particularly Ordinances pertaining to fences. What I'd like to do now, very quickly, is to give to you some history, chronologically, on this whole thing. There will be some repeats, but each of the repeats that I have I'll try to put in something new on it to expand upon it. In the Fall of 1995, I discussed, briefly, the fence issue with Dorothy Hodgkins. I pleaded with her not to build a fence. I viewed it as a hate or spite fence with no rational and no reason to build it. I offered a suggestion, to share the shrubbery and trees on our joint border, that she could choose what to plant and I would share the cost 50/50, from the road to the lake, some 156 feet. Her answer was not cordial, but in essence, no way. Some time in late 1995 or early January, a fence was put in. Knowing the Town's Ordinances, I knew immediately that the fence is illegal, in reference to ordinance no. 179-60 5 A and B. I'll not read the Ordinance again because you're well aware of them. The shoreline setback at that spot was 75 feet, and the fence construction was a four foot high chain link fence. This means it was some 300 vertical square feet, clearly in violation of the Ordinance by some 200 square feet. I informed John Hodgkins of this violation, but he maintained that the Town had given him permission to build. Therefore, there was no violation. I told him I would be pursuing this with the Town authorities and Mr. John Goralski, the Town Compliance Officer, was the individual who gave permission. He admitted he was wrong, but no action was forthcoming. I then went to Paul Dusek, who was then the Town lawyer. He read the Ordinance and he noted that the fence was clearly in violation of the Ordinance, and I asked what could be done. His answer very specifically to me was, I will speak to John Goralski and have him order that the fence be brought into compliance. I would ask that Dusek told John Goralski what to do, not I. I did not have any further conversation in the regard. Later, as I had heard nothing, I went to John Goralski, the week of January 15, 1996, to determine what was happening. He told me that the lawyer, Dusek, had talked to him and asked him when he was going to notify the Hodgkins, and he hedged on this issue and said that it was low on his priorities, and that he was leery on going back because he had been in error and had given permission to build an illegal fence, but he promised he would get around to it. On January 24th I met with John Goralski again, and I gave him a letter, which I quote, this is not in your files. "Dear John: This note is to confirm our conversation of last week concerning the building of an illegal fence by our neighbor Mrs. Dorothy Hodgkins. You had agreed with me that the fence was in violation of the Town Fencing Ordinances, and you were planning to send a letter to Mrs. Hodgkins informing her of that decision. When you have written that letter, I would appreciate your sending me a copy - 36 - '-c ~ (Queensbury ZBA Meeting 12/18/96) for my files. Thank you for your help. II Shortly thereafter, another week went by, I went to the Planning Office and picked up the Compliance Officer's letter to Dorothy Hodgkins. He had never sent a copy to me. I had to discover that it had been sent. Now you have heard the letter, but I would to, I will not repeat the whole letter, but I would, for emphasis, like to repeat the very ending of this letter, when he says, IIAt this time", remember that, at this time, lIyou must either remove that portion of the fence that is in violation or seek a variance from the Zoning Board of Appeals." Those are the two options that he said were given at that particular time. He thanked her for her attention to the matter. There is no mention in that letter that lawyer Dusek was the one that ordered the change, not me. Once again, I was the culprit in that letter, and they were advised, also, to go to the ZBA to get a variance. They did not do that, probably because to go to the ZBA at that point, the Ordinance was very explicit, and probably would be turned down. That's a supposition on my part, but never the less, I had to have something there. John Hodgkins communicated to the Town, by voice I guess, telephone, regarding the fence, and the Town replied, and I wanted to read to you the reply to John Hodgkins from John Goralski. MR. STONE-Question. John Hodgkins, who is he? MR. CUSHING-The son of Mrs. Hodgkins. MR. STONE-Okay. MR. CUSHING-"Dear Mr. Hodgkins: I am writing in response to your recent inquiry regarding the number of fences allowed on a single lot. James Martin and I have reviewed sections 179-74 and 179- 60B(5) (b) of the Town of Queensbury Zoning Ordinance and have found no reference to the number of fences permitted on an individual lot. If you require any additional information regarding this matter please feel free to contact me. Yours truly, John Goralski Code Compliance Officer" You can see right there, see the direction that it's going to avoid the ZBA. Much time then elapsed and nothing was heard from either the Hodgkins or the Town. I kept inquiring, what have you heard regarding your letter of January 22nd, and I think January 22nd is very key, regarding complying with the Ordinance. Finally, after much procrastination and silence, the Town, in late September, cited the Hodgkins, and they appeared in court, where they pleaded not guilty. I repeat, this took eight solid months to get an answer from the Hodgkins. As far as I'm concerned, this is dereliction of duty on the part of our Compliance Officer and the Planning Department. To get action on an Ordinance violation, and it takes eight solid months to get any action, but we finally got some action, and I can only assume that the Hodgkins hoped that the Town would forget, but I would not let them forget, and I pushed forward, kept keeping them honest. However, after a court date been set, a letter and a plan came from the Hodgkins, dated October 1st. Now you have that letter, and I assumed you had it and you did because it was read here. They plan to alleviate the problem. Now I do want to comment on that particular letter, and it says that, IIWe the below listed officials of the Town of Queensbury are in agreement that the attached proposal meets. all Zoning and Building Codes for the Town of Queensbury: II It is signed APPROVED: John Goralski, APPROVED: James Martin. It was written in there APPROVED: Fred Champagne, but he crossed that out and put II reviewed" , and reviewed by Mark Schachner, the Counsel. This letter purported that the plan was agreed to by certain parties that I just mentioned, Fred Champagne one of them. I have talked with Fred Champagne, and he only heard from Goralski. He did not approve, and he crossed out the approval and wrote in reviewed. He said he only took Goralski's word that everything was legal and okay. I was distressed that Supervisor Champagne was involved and that Dorothy Hodgkins had used his name and position in this manner. I had spoken to Mark Schachner, , - 37 - (Queensbury ZBA Meeting 12/18/96) several weeks earlier, and he rudely turned me away saying he would not talk to me at all about that fence. That was in the prerogative of Jim Martin alone, and yet the letter gives you the inference that they all get together with the Hodgkins and discuss the issues. This is false and Fred Champagne never attended any single meeting except with John Goralski. This plan is flawed. It is ridiculous and circumvents the Ordinance and the ZBA and it's intent. After all is said and done, they would still have close to 300 vertical square feet of fencing, and I maintain that this is still in violation of the intent, the purpose and the meaning of that specific Ordinance. Cutting a foot or two away from the fence and calling it, by calling it two or three separate fences defies imagination. By the way, with this plan presented, the Town then " notified the court that this agreement is in the works, and requested to adj ourn this case in contemplation of dismissal. Really, two wrongs don't make a right. This is the chronological history, and it is a sad, sad commentary on due diligence, speed and logical thinking on the part of our Town Planning Department, and the Hodgkins deliberate and planned attempt to avoid a formal hearing with the ZBA. Other very pertinent comments that I'd like to make and I'll make them as short as I can. This Country of ours, democratic Country of ours, was founded on several important principals that have been in effect since the beginning of our Country. One of these important principals is evident here, and that is the prime concept of checks and balances, the setting apart of the administrative, executive and the legal departments. When one division exceeds it's powers or makes decisions that are harmful or makes decisions based on illogical thinking, then someone must intercede to correct these errors. The Planning Department is the administrative arm. The ZBA is, in effect, the legal arm, and it is your important prerogative to make sure Ordinances are correct, that interpretations are also wise, logical and correct, and if they find they are in error, it is your obligation to set the record straight, even if it is in opposition to the administrative arm. The fence Ordinance was set up for a good reason, intent must be examined for there will always be people who will try to circumvent the laws with technicalities, Philadelphia lawyers, if you will, who will succeed in creating confusion and will make a mockery of the laws and ordinances. If this decision is allowed to remain, we do not have. a Fence Ordinance, and anyone can do exactly what they want. When this Ordinance was pointed out, a survey, and I'm told this by Goralski, I didn't see this, but I was told this. When this Ordinance was pointed out, a survey was conducted by the Hodgkins to determine all the illegal fences in Cleverdale, with no regard to grandfathering rights or any other reasons. The Town, in turn, sent letters to many of these people saying their fences were in violation. If this new plan stands, not one of the fences the Town feels is in violation will be valid. All they have to do is cut a two, or a one inch hole or a gap in the fence and they are perfectly okay. If allowed to stand, your job becomes impossible, meaning the ZBA's job. Precedent will be set and judgements will be sorely tested. In your capacity, when precedent is set, it is very, very difficult to change. Fewer Ordinances and fair Ordinances make more sense to me. Avoiding the ZBA, as was done in this case, is wrong. The ZBA should have been given the opportunity to rule on that thing. What were they afraid of? People always try to change laws to suit their individual needs. They seldom think of the good of the community. I will remember when tandem trailers were okay. The law in Pennsylvania said that a trailer in that State could not be over so many feet. The Philadelphia lawyers in Pennsylvania said, a trailer of so many feet maximum. Okay. Well lets attach several but not exceed the trailer length as enacted by law. The law really wanted the truck and one trailer, not to exceed so many feet, but two or more trailers under the length limit would be okay the agitator said, never mind intent or safety. This is analogous to our fence situation. Never mind the Ordinance or the 100 vertical square - 38 - '- '-"" (Queensbury ZBA Meeting 12/18/96) foot rule. Lets build as many separate fences as we want, so long as each section does not exceed 100 square feet. Looking down the fence line, you cannot even see any small gaps. For all intents and purposes, it's one single fence. In conclusion, please examine the facts as I have stated them. The fence, as it stands now, is illegal. The plan, as presented, is flawed and defies logic. It will make a mockery of our Planning Department and the Ordinances under which we tried to live and obey. The plan tries to avoid the ZBA and all of this could have been avoided if the Town's Compliance Officer had done due diligence in the first place. This seemingly and strongly appears to be a save face maneuver on his part, and I would make one further comment, and that came out tonight, and it was not in my formal presentation, but I've heard a couple of times the comment, several times tonight, we should not bailout people because of errors and mistakes, and this is exactly what this is, a bailout and it destroys the established Ordinance. I thank you very much for listening to me. MR. THOMAS -Thank you. Cushing? Does anyone have any questions for Mr. MR. GREEN-Mr. Cushing, what do you consider the intent of the 100 foot Ordinance? MR. CUSHING-The intent of the 100 foot Ordinance? Cleverdale is a beautiful city. It's a beautiful section of the Town of Queensbury, and I think that it was meant to keep that beautification intact, do not clutter it up with a lot of different sizes and fences, barbed wire and wooden slats and everything else. I think it was an intent to keep that area beautiful, because it is a beautiful spot right now, and the more fences we get in up there, the more it's going to get cluttered up. It's as simple as that. MR. GREEN-Do you consider this fence unattractive? MR. CUSHING-Yes, absolutely. It destroys my view, when I'm sitting on the front lawn, over to the left of the lake. It is, in my estimation and my feeling very strong, I don't see any rationale for it. As I say, I wanted to have shrubbery there. I asked. I pleaded, to no avail, and then the only thing I can say, it's a hate fence. It's a spite fence, and I've had many, many neighbors agree with me. It's not liked in the neighborhood. MR. GREEN-How high would a typical shrub barrier be? MR. CUSHING-I don't know what typical is. I guess it's in anybody's judgement what typical is, but I have bushes that are three, four, five feet. I'm trying to beautify it by closing off the fence and building bushes on this side of the fence, so that I don't see it. MR. GREEN-A moment ago you said the fence was unattractive because it obstructed your view from the front yard. Wouldn't a four foot hedge do the same thing? " MR. CUSHING-Yes, it probably would, and as we got down to the front of the, I don't care what kind of shrubs are put in up at the top, if we had an ~greement and cooperated with each other, as we got down toward the front, we could work out something that was amenable to both parties and probably work it out. MR. THOMAS-Any other questions for Mr. Cushing? Would you like to make a statement, Mr.' Martin? MR. MARTIN- I'll pass on the statements made in terms of the Department. I'll put on the record I take exception to them, and I'll leave it at that. - 39 - (Queensbury ZBA Meeting 12/18/96) MR. THOMAS-Okay. Would you like to give us your interpretation of 179? MR. MARTIN-Yes. As I said earlier, my function is not to provide interpretation or purpose behind the Ordinance. That is your role. Mine is to make a decision based on what's found in the law. There is no plural use of the word "fences" here. There is no number of fences, and the words are what the words are, "circumscribed by the perimeter". To me the perimeter is established by the grade, the top rail of the fence and the fence post. That represents the perimeter of a fence, and the Board, in past treatments of these types of words, I'll point out, for example, the,use of the word "garage". It's been the Board's interpretation of that word that it is in fact singular, and it has great ramifications throughout · the Town. As a result of that, only one' garage is permitted on each individual lot, and that's interpreted, literally, to mean that, and citing that as an example in mY mind, that's why we're where we're at. The word "fence" is used there in the singular form. MR. THOMAS-When the Waterfront Residential law changed in October, was anything changed concerning fences in that? MR. MARTIN-No. This section concerning fences is really in the supplemental regulations, relating to shorelines and things like that. The major focus of the changes made recently were in the Waterfront Residential district itself, 179-16. MR. THOMAS-What about the fact that the shoreline setback went from 75 to 50 feet, or the average of the two houses either side, whichever's greater? MR. MARTIN-In this case, the change only aligns things. Before it was no fence greater than four feet in height as measured from the level grade at any point along said fence shall be erected within 50 feet of the mean high water mark, or the mean high water mark of the shoreline. Now our setback is consistent with that. Before it was somewhat out of alignment. So I think the change helped in that regard. The two numbers, now, are the exact same distance. MR. THOMAS-How does that gap in the fence circumvent the law that's stated by the fence? MR. MARTIN-Well, I understand his position. I can see where he's coming from in terms of, even if the gaps are provided, you essentially do have a fence that runs the length of the property line, but again, if I would have made the interpretation the other way, we'd be here at the same thing, and Mrs. Hodgkins would be sitting there and he'd be out in the audience. I mean, so we're going to be here one way or the other, as I looked at it, and I felt I'm best off being consistent, as I try to be in my duties as Zoning Administrator, read what the words say and act accordingly, and to me, it says fence, in the singular, and it says, circumscribed by the perimeter. The perimeter is defined by the grade, the top rail and the posts, and there is no continuation of the rail, top rail or the fencing material when the gap is provided. MR. THOMAS-Okay. MR. CUSHING-Mr. Chairman, I'd make two comments if I may. I was at a party the other night and I bumped into Paul Dusek. He wanted to know, he brought it up. He wanted to know where we stood in the fence thing, and I said, Paul, it isn't settled yet, and he was aghast, and he said, this is a long time since, and I explained what the situation was, and I'm telling you right now, and I'll take oath on this, lie detector tests or anything else, he says, this is a ridiculous plan. He said, it's unstable, it isn' t - 40 - -< --- (Queensbury ZBA Meeting 12/18/96) correct and it's not right. Throw that out. One other thing, if Paul Dusek had been the lawyer right now, it wouldn't have been here. He would have advised differently. One other point is that when Jim Martin and I discussed this fence and the breaks in it, I said, probably said, are you off your rocker by doing something like this, and he said, Jack, this is an extremely close call, and if you take it before the ZBA Board, I don't know which direction it'll go. MR. MART IN- Yes, and I say all the time, every time that I am appealed on something, I encourage it to be done, because it is certainly better for it to be heard here in a public format, among a seven member board, as opposed to one individual acting in an administrative capacity, and I am always open to appeal, because now, like it was very helpful on the previous application, for example, with that second dwelling unit. I had the experience of the past interpretation as to what constitutes a dwelling. Now I have something solid to act on. From this night forward, on fences, if I run into this again, or something similar to this, I'll have solid information to work on from the Board's interpretation. I encourage appeals. MR. CUSHING-And I'll stand on what I've said. All I'm saying is that all these fences that are in violation right now that they've written letters out to, they could put gaps of one inch in it and they'd be home free. This interpretation gives no leeway to the fence ordinance up there and it'll be a shambles. MR. THOMAS-Okay. Anything else before I open the public hearing? MR. CUSHING-I think from my point I've done my best. MR. THOMAS-Okay. I'll open the public hearing. PUBLIC HEARING OPENED MR. THOMAS-It's up to you, Mrs. Hodgkins, whether you want to speak or not. If you want to speak, now's the time to do it. MR. GREEN-I have a couple of questions for her. MR. THOMAS-Well, she hasn't made a statement. So you can't really ask her any questions. The appeal isn't against Mrs. Hodgkins, it's against Jim, or the Planning Department, Community Development. So if Mrs. Hodgkins doesn't wish to speak, you really can't ask her any questions. If you'd like to answer questions, okay. Now you can ask them. DOROTHY HODGKINS MRS. HODGKINS-My name is Dorothy Hodgkins. I've been here before. MR. GREEN-Why did you pursue this course of action versus a variance? . MRS. HODGKINS-Why, because the fence was there. I have spent and lost so much money in this Town, as other members of the Board know, because you weren't with us in the beginning. I have buried a $20,000 foundation because of mistakes by the Town and a neighbor's complaint, even though I was given the go ahead each time. I wasn't about to spend another $50 to come before you. I felt no reason. I had been given the okay to do it. I didn't feel I should have to, and it was beyond the 60 day period. MR. GREEN-But based upon your past experience with getting, shall we say approvals from the Town and then of those being reversed. Your apparent approval for the continuous fence and then apparently being reversed, I guess if it was me, I would have probably gone - 41 - (Queensbury ZBA Meeting 12/18/96) for the variance. MRS. HODGKINS-I don't have much confidence in the system here, I'm sorry. I just feel, I've just been through enough. MR. STONE-I have a question. You submitted a letter to Jim Martin dated October 1st. This is regarding John Goralski's letter. Can you tell me how this came to be? Was this actually on one piece of paper? MRS. HODGKINS-Yes. . , MR. STONE-I mean, you wrote a letter to Jim and then you had him sign on the bottom? MR. MARTIN-I want to correct the record, too, as to why the signatures appear there and why they are, the only legally binding signature on that letter that really means anything is mine as Zoning Administrator. In that capacity, mine is the legally binding signature ~n that letter. John, as Code Compliance Officer, has no final say as to how the Ordinance is administrated. That exists solely with me. He approved it because he had had past history with this particular situation and the reasons why approved were crossed out and reviewed was penciled in is because Fred Champagne, obviously, haS no standing in approving situation, and obviously Mark Schachner doesn't either. So they decided to indicate that they reviewed it. They saw no harm in that, and that's why that was done. MR. STONE-So in others, you submitted this plan. MRS. HODGKINS-It had been agreed to verbally. MR. STONE-And then you wrote this letter asking people to put their signatures on it? MRS. HODGKINS-Right, because I've made the mistake before of not getting letters signed. MR. MARTIN-That's correct. She indicated that she'd been,burned in the past and she wanted everything in writing now. MR. STONE-Okay. It was a strange construction. would have done it. Not the way I MRS. HODGKINS-But I'm not a lawyer and I'm not trying to practice law. MR. MARTIN-Just for the benefit of the newer members, and even some of the older members, in a quick synopsis, there is a lot of history that exists between these two properties, many various issues, and this is just one of them. MRS. HODGKINS-And I think I will also address the issue of sharing a lot line. I'm sorry, for what I've been through, I could not share a lot line, and share greenery. What I might want and what somebody else might want might be different. I feel that a fence makes for good neighbors. It defines it, and I've been told by neighbors up there that they find it much more attractive than what it was done before, and this is from a very close neighbor who has a lovely home. MR. THOMAS-Any other questions for Mrs. Hodgkins? MRS. LAPHAM-I was asking about the greenery buffer issue, and you had answered that. MRS. HODGKINS-Well, it was because my lot was used without my - 42 - -' (Queensbury ZBA Meeting 12/18/96) permission, and because this way the lot line is located, and I'm sorry, if I want to put greenery there, which I plan on doing, I will put what I want and the Cushings can put what they want on the other side. MR. STONE-Well, I thought Mr. Cushing said he would let you pick and he would help pay for it. He did say that. MRS. HODGKINS-Excuse me. He never said this choosing, my choosing. He wanted to share the lot line. You plant one thing, I'll plant one thing, okay. MR. STONE-That's not what he said. MRS. HODGKINS-I understand, but that, and I'm not calling him a liar. I'm just saying that was not what I understood, but even if it had been, I would not have gone along ''lith it. I don' t think, there's too much history. It's very sad and I'm very sorry, because I don't like this type of living, and I have a beautiful lot and a beautiful home and I'd like to be able to enjoy it in peace. MR. THOMAS-Any other questions for Mrs. Hodgkins? anything else you'd like to say, Mrs. Hodgkins? Is there MRS. HODGKINS-Well, I would like to say that someone had told me today that under the circumstances this person thought the fence was the best thing that could be on that lot line. MR. MARTIN-I'll stand up, and you don't have to be coy about it. I said that, and I'll put it on the record. It's a practical matter, separate and apart from the law. In my personal opinion, I think this fence is a positive influence in this situation. I'll leave it at that. I'll stand up and be counted. MR. GREEN-Mr. Cushing, would you agree to that? MR. CUSHING-No, absolutely not. May I make a couple of comments? MR. THOMAS-Sure. MR. CUSHING-Number One, Mrs. Hodgkins says that the fence was already up when we had. the discussion on the fence. The fence was not up, and I said this comment in front of a deputy that she had called up to have come up there because she felt some stakes had been moved, and the deputy came up, and he was right there in our presence when I said to her, lets not build a fence, because the stakes are already in, so far as the fence is concerned. Lets work this thing out. You put in what you whatever you want to from the road on down and I'll share the cost. I know it'll be expensive, but I would share the cost, and the fence was not even up at that point in time. So there was no expensive in tearing down anything, but it was there. You knew where it was. If you were to look at that fence, and looking down the steep slope to the water, .there' s about seven or eight feet that the fence goes down there. There's no rhyme or reason for a fence to go down there, in any form, shape or manner. The lot line is very steep at that particular point. You can't go dpwn there without falling and trying to get around anything. I asked Mr. Goralski, late in the game, when this suit was coming up. He asked me specifically, and again, if I were under oath I'd say the same thing. He says, Jack, is there anything that you could do to alleviate the situation? Is there any compromise that you can make? And I said, yes, there's one compromise that I could make, and I said, take the fence down from the corner of the house down to the water, and she can do anything she wants to from the fence on up. Anything, and I said, ask if that could be done. Several weeks later, I asked him, did you get to them? He said, they won't do anything. I've done everything - 43 - (Queensbury ZBA Meeting 12/18/96) that I can. I want to live in peace, too. My wife is in tears sometimes about this whole fence situation, about the whole conflab that has gone on from time to time. I'm not a fighting person, but I am when I'm backed up against the wall, and what Jim feels about the fence, and he and I were friends, and what he feels about the fence being the best thing, I think that's irrelevant. MR. MARTIN-I don't disagree with that either. MR. STONE-You were friends? MR. CUSHING-I hope we're still friends. /I MR. MARTIN-I think we're still friends. That's the first I've heard that one. I consider myself friends of both of these individuals. I have a job to do. I'm not popular with either one of them, and that goes with the territory. I accept that. MR. THOMAS-Anymore questions for Mr. Cushing? Hodgkins? MRS. HODGKINS-Yes. The discussion came up prior to the fence being up. I didn't think I said the fence was up when it was mentioned, but I had the Sheriff's Department up there because my survey stakes had been moved. I have no idea who moved them, but all my survey stakes had been moved. Those are expensive. It's expensive doing to have a survey done, and when my fence posts went in, the footings for the posts were destroyed on several of them and had to be re-done. Okay. Mrs. MR. THOMAS-Okay. Well, lets see, the public hearing is still open. Do we have any correspondence? MRS. LAPHAM-No. MR. THOMAS-There was one letter that came in today. MR. MARTIN-Yes, there is one letter there. MR. THOMAS-From John Hodgkins. It was sent up today. MRS. LAPHAM-Okay. Faxed transmission. Okay. Fax Transmission to Town of Queensbury, Attention: Zoning Board of Appeals and Chris Thomas from John Hodgkins, 12/18/96 "Please forward my letter to the ZBA members for tonight's 10/18/96 meeting Appeal No. 7-96 Thank you John Hodgkins" John Hodgkins, III, Lake George, NY, December 18, 1996, Zoning Board of Appeals, 531 Bay Road, Queensbury, NY 12804, RE: Cushing Appeal, Jim Martin's ruling of Hodgkins fence modification, October 1, 1996, Appeal No. 7 - 96 "Dear Board Members: I am writing to give you a list of events as pertains to the fence that is being discussed. As you are aware my mother constructed a new home on her property in 1995. Throughout the course of events, it became apparent that neighbors to the north were not happy with any improvements my mother wished to make to her property. A decision was made that a fence could help eliminate any disputes or questions. Nov. 13, 1995 Dorothy Hodgkins consulted John Goralski regarding installation of a fence on the north side of her property. (This is the fence that currently exists) Mr. Goralski ruled that the fence design meets the zoning regulations and no permit was necessary. This decision seemed proper since over fifteen other fences of similar design exists in the neighborhood. Dec. 01, 1995 Fence Post were vandalized. The lot line was re-pinned by the surveyor. Dec. 03, 1995 Fence post were vandalized. The Warren County Sheriff was called to visit the sight. Jan. 22, 1996 John Goralski writes letter to Dorothy Hodgkins stating he made error in his decision regarding the fence. He reviewed 179-74, but omitted a review of 179-605 (b) . NOTE: See section 179-74 Fence. The very first - 44 - -- '-' (Queensbury ZBA Meeting 12/18/96) sentence reads A. General provision fences shall be permitted as provided in this section and 179-60 5(b). NOTE: This letter came 70 days after his original ruling (See Section 179-98) 60 day appeal limit. Jan. 31, 1996 Hodgkins questions Jim Martin and John Goralski regarding other fences (15+) in the area (Rockhurst, Cleverdale) The Hodgkins told Mr. Martin and Mr. Goralski that they (Hodgkins) will wait for their decision regarding these other apparently offending fences before responding to Mr. Goralski letter. NOTE: To date none of these fences have been modified. Another has been built. I find no evidence in the records that a variance has ever been issued for a fence more than 100 feet within the shoreline setback. Feb. 02, 1996 Jim Martin asked to rule on number of fences allowed within the shoreline setback. Feb. 07, 1996 Letter from John Goralski copied Jim Martin stating the zoning laws do not limit the number of fences within the shoreline setback. NOTE: This ruling is consistent with the one being discussed tonight making the appeal void based on Section 179-98 60 day appeal limit. Sept. 09, 1996 John GQralski file suit against Dorothy Hodgkins for maintaining a fence within the shoreline setback. NOTE: Mr. Goralski never filed an appeal to this board regarding his original ruling. Sept. 17,. 1996 Hodgkins, Goralski and Martin agree to settle suit by: 1. Hodgkins modifying fence to make multiple fences (see ruling Feb. 07, 1996) 2. All charges dropped 3. This agreement be reviewed and signed off by Jim Martin, John Goralski, The Town Supervisor Fred Champagne and the Town Counsel, Mark Schachner. So done on Oct. 03, 1996. I believe my mother Dorothy Hodgkins has done everything she could possibly do to satisfy and comply with all town laws. I also believe that after reviewing the events of the past four years: 1. Dorothy Hodgkins has been singled out, harassed, and generally not treated fairly. 2. She has been forced to spend thousands of dollars due to the errors and omissions of others (i.e. town officials). 3. Proper and timely appeals were not filed, (i.e. Rulings were made by a zoning administrator and no appeal was filed within the time limits of Chapter 179-98. Dorothy Hodgkins has agreed to modify her fence as per the agreement signed on Oct. 03, 1996. We also believe that the fence as it stands was constructed in good faith, (asking for permission first on Nov. 13, 1995). Constructed of good quality, and exactly as other fences in the neighborhood have been constructed before and after. Yours Truly, John L. Hodgkins" Should I read the enclosures? MR. THOMAS-Yes. Read those three in. MRS. LAPHAM-Okay. This also is a fax transmission, to the Town of Queensbury, from John Hodgkins, dated 2/5/96 Message "Jim, I am still waiting on your ruling to the question how many fences are allowed within the shoreline setback. Without this information we cannot respond to John Goralski letter to my mother dated 1/22/96. You may mail your response to me at P.O. 4214 Queensbury, NY 12804 Thanks, John II John Hodgkins, WF Lake Corporation Adirondack Industrial Park, Queensbury Avenue, Queensbury, NY "Dear Mr. Hodgkins: I am writing in response to your recent inquiry regarding the number of fences allowed on a single lot. James Martin and I have reviewed sections 179-74 and 179-60B(5) of the Town of Queensbury Zoning Ordinance and have found no reference to the number of fences permitted on an individual lot. If you require any additional information regarding this matter please feel free to contact me. Yours truly, John Goralski Code Compliance Officer" January 22, 1996, Mrs. borothy Hodgkins, 56 East Glenwood Drive, Latham, NY 12110 "Dear Mrs. Hodgkins: As you are aware, I recently received a complaint from one of your neighbors on Mason Road, Cleverdale regarding the erection of a fence within the required shoreline setback. On January 18, 1996 I visited your property and found that you had erected a four foot high, green vinyl coated, chain link fence along your north property line from the road to the shoreline. Several weeks ago you called me to inquire about the legality of erecting a fence in - 45 - (Queensbury ZBA Meeting 12/18/96) this manner. Although my first reaction was negative, I agreed with you after consulting Section 179-74, FENCES, of the Zoning Ordinance, that there was no regulation that would prohibit you from erecting a fence as described above. However, the person complaining about your fence referred me to Section 179-60B(5) (b). This section states that no fence greater than 100 square feet measured vertically may be erected within the shoreline setback. Based on the facts described above, it is my opinion that the fence along your north property line is in violation of Section 179- 60B(5) (b) of the Town of Queensbury Zoning Ordinance. At this time you must either remove that portion of the fence that is in violation or seek a variance from the Zoning Board of Appeals. Thank you for your attention to this matter. Yours truly, John · Goralski, Code Compliance Officer" MR. CUSHING-The last time, I promise you, and then I'll end by wishing you a Merry Christmas. Just a couple of rebuttals, just to set the record straight, and that's what we all want, and in the John Hodgkins letter said there wasn't anything we liked on the property. Let me tell you this. We went to Europe last year. Before we went to Europe, I got a call from Dorothy Hodgkins saying, would I approve the new house that was going so that she would go to the variances and all that sort of business. I said I see no objection to it. I've looked at the plans. I think it looks like a very good plan, and I was about to embark on the airplane down in New York City to go to Europe, and I composed a letter to her, to the Town, stating that I was in complete agreement with that beautiful new house that she has up there, and my wife will confirm that. I spent time doing that before we were leaving, mailed it at the airport so that it would get here because we were going away for a solid month. I expected, at the least, some comment, thank you for the letter or something, and I mentioned that to Dorothy at some other future time, and she said that it wasn't worth the paper that it was written on. I don't know what more I could do in that kind of situation. The letter that John sent does say that they did a survey. There was some 15, I was told by Goralski, 15 to 20, so that that confirms what I said. It wasn' t just hearsay, and lastly I would simply state that, yes, this has been going on a long time, and she feels that she's being harassed by the Town. She's complied with the rules and regulations and the Town's Ordinances and things, she wouldn't have been harassed in any way. The only reason they were being harassed was because of these violations. I mean, I've got more complaints than you can think of. She bulldozed my leach field up, and I have to put a $10,000 system in because of that, but I'm not going to take it to court. I'm going to let the thing drop. Merry Christmas. MR. STONE-Jim, this appeal is timely? I mean, there was reference made to past 60 days. This is 60 days from your last? MR. MARTIN-In writing, yes, the last written ruling. MR. STONE-This is thé first time that we have seen this. MR. MARTIN-In my opinion, yes. If you want a legal opinion on that, I would advise you to consult with Mark Schachner. In my opinion, it was timely. MR. THOMAS-All right. hearing. Having said that, I'll close the public PUBLIC HEARING CLOSED MR. THOMAS-I'll start with you, Bob, this time. What do you think? MR. KARPELES-Well, first I've got a question for Jim. Jim, what do you think the intent of that Section in the Zoning Ordinance is, no - 46 - '---. _c (Queensbury ZBA Meeting 12/18/96) fence greater than 100 square feet in area measured by, you know the one I'm reading. MR. MARTIN-! think the intent, if you ask my opinion on that, is that it's trying to limit the size of fences in close proximity to the shoreline, because they could have a potentially negative impact on the visual character of the shoreline. MR. KARPELES-So I guess you're saying, then, that you agree that splitting that up into two sections, or three sections at that time, is circumventing that, the intent of that? MR. MARTIN-In this context, yes, I will share that with you, but again, that's not my function. MR. KARPELES-No, well, that's the way I feel. ! agree. is. Regardless of the bad blood between these people, has no consequence whatsoever. I think it's an circumvent the Ordinance, the Zoning Ordinance. I think it I think that a t tempt to MR. THOMAS-Bill? MR. GREEN-I don't know what to do with this one, really. I have to agree with Mr. Cushing that this seems to be one fence, even with a foot space in between, I think that was an answer, and even in Mrs. Hodgkins' own words, that she would do just about anything other than apply for a variance to correct the problem, rather than come before the Board. I don't like to go against the Administrator, but he is doing his job by going strictly by the rules as they are written. It is our job to interpret those words as written, and I feel that this is one fence. MR. THOMAS-Don? MR. O'LEARY-Well, I don't, with regard to coming before the Board for a variance before the fact, I don't think that it was necessary that there was competent authority to say that the fence was proper as proposed. However, I think what we want to do is nail down the definition of a fence, and I agree that a whimsical break in the fence anywhere to circumvent the definition doesn't really hold too much water unless someone can substantiate the need of those things and make a case for it, but I've yet to hear it. MR. MARTIN-Just so ! can put off the next round here and take care of it all tonight, she has just put it out, and indicated to me that the gap may be, in fact, two or three feet. So, I want to know, as you make this ruling tonight, one foot, two, three feet? I want it known, that's what she just shared with me, the gap may be as much as three feet. MR. GREEN-Well, my opinion, any sort of continuous fence in one straight line, all essentially doing the same thing, I mean, a fence generally is put up to keep things in or out. As soon as you start putting gaps in it, it totally looses that purpose as a fence. So now it becomes an aesthetic piece of building or development or what have you, and I don't, I think you could go, I don't know if I want to put a definition on a gap to make one fence to two, but I think it would have to be far bigger than three or four feet, in a continuous straight line, when it's merely an aesthetics sort of use. That would be my opinion of the gap situation. MR. O'LEARY-! would like to expand a little bit. I haven't seen a lot of fences that wouldn't keep anything in or keep anything out. MR. KARPELES-MY definition would be that there should be no more than 100 square feet of fencing within that shoreline setback, no matter how many gaps there are. - 47 - (Queensbury ZBA Meeting 12/18/96) MR. GREEN-Well that would be fine, too, for this situation. MR. KARPELES-I don't think you ought to have fences in there. MRS. LAPHAM-I tend to agree with Bob. MR. GREEN-So within the first 50 feet you could have a two foot high fence and still be under the 100 feet? Because it's only within the 50 foot shoreline setback that it would be a problem. You have 100 square feet. So you could have a two foot high fence, which would actually serve. MR. KARPELES-No purpose. MR. GREEN-Well, other than the same purpose that this fence is doing, is strictly as a lot line denomination. A two foot fence there would work the same, in my opinion. MR. KARPELES-Yes, you could, because the way this thing is written, I think you could have a two foot high fence. MR. GREEN-And it was serve the purpose that Mrs. Hodgkins, I feel, is trying to accomplish. MR. KARPELES-Yes. MR. MARTIN-Well, that may be the answer, and potentially a less costly one, is to simply just saw two feet off of this fence, which would be a lot less costly than moving fence posts and installing gaps. MR. THOMAS-Do you want to continue, there, Don? MR. O'LEARY-No. MR. THOMAS-Lou? MR. STONE-Well, I understand the history and the conflicts that have existed in this relationship for some time, but that's not our fault. We're not here to discuss that, the right and ,wrong or anything about that. It seems to me when the law ignores common sense, it's not a valid law. A fence is a fence. The fact that it's broken doesn't mean anything. It's a way of trying to circumvent it, and I'm not saying that Jim is wrong. He had an interpretation, and it's a perfectly valid interpretation, but I think a more, I have a more valid interpretation, that if you have two 100 square foot fences, it just doesn't make common sense to me, and the law seems to indicate, I think as Bob said, minimal fencing within the Waterfront zone. I happen to live on the waterfront, and frankly, I'll admit, fences are an anathomum to me. I don't understand why they exist, the need for them, particularly when you're trying, everybody trying to enjoy the total shoreline. I have the ability to share my neighbor's front yard on both sides of me, maybe unfortunate, but that's the way we are where ~ are. I just think, again, it comes down to the fact that the law seems to ignore common sense and therefore it's not valid, and I certainly do not, I disagree with Jim's interpretation. MR. THOMAS-Bonnie? MRS. LAPHAM-Well, I feel the same way. I can see why and how Jim made that decision, but I think it's our job to go one step further and say, is this law sensible. Does this make sense. What is the intent of the law, and I happen to agree with everyone else who feels the intent of the law was to restrict the number of fence by the shoreline and to preserve the natural shoreline and the beauty of the shoreline, and that the broken fence just circumvents that by using a technicality or a loophole, so to speak, and personally - 48 - -" (Queensbury ZBA Meeting 12/18/96) I'd rather see greenery anyway. I mean, I have chain link fences on illY property, because I have dogs. Believe me, they do nothing to beautify the world for anyone. So I would much rather see greenery to begin with, but that's illY personal opinion. MR. STONE-I have one question, Mr. Chairman. The Waterfront zoning law talks about setback. I believe it says, it's 50 feet or the average of the two. Mr. Cushing, what is your setback, and what is the southern neighbor's setback? MR. CUSHING-He's further back. My setback, when I purchased this property, and I had nothing to do with it, but I would say that the setback is quite a bit down further from Dorothy's house. MR. STONE-I understand that. I'm just wondering if the 50 foot is not, if there isn't a greater setback? MR. MARTIN-No, I don't think there is in this case, because I think Jack, and I just haven't been out there. You've got to be about 25, 30 feet back, I would say, roughly, just trying to visualize, okay, 45 then. MR. STONE-I'm talking about your setback. MRS. HODGKINS-I'm 75 feet back. MR. STONE-I know you are. I'm saying the one to the south of you, the average. It may not be 50 feet. It may be more than. MR. THOMAS-No, that doesn't apply in this case because that's for a building setback. This isn't a building. This is a structure. MR. STONE-We're talking shoreline setback zone, are we not? MR. THOMAS-Yes, erected within 50 feet of the mean high water mark of the shoreline. That's what the Ordinance says. It doesn't say anything like the new Ordinance for the building setback. MR. STONE-Okay. That first part is the mean high water mark (lost word) shoreline setback? MR. THOMAS-Yes, 50 feet. That's it. There is no average of any buildings because this is not a building. It's a structure. A building is a structure, but a structure is not necessarily a building. We went through that once this year. Okay. In my opinion, I think Jim is right. I think that that fence, as built and as shown on this map, is legal in my opinion, and Jim and I, we've banged heads before over different things, but this time I have to agree with Jim that one fence, the fence that is there now, there is no plural to fenceg in the Ordinance. Just like he stated the garage is not plural, it's one, singular. So I believe this is a legal fence sitting, as shown on this print right here that we have in front of us, as the law is written in the book there, in Section 179-60(3) (b) (5) I think it is. Yes, Section 179-60B(5) (b) of the Zoning Code. I do believe that fence meets that criteria for that Section of the Zoning Ordinance. So, having said that, I am looking for a motion. MR. STONE-Let me try. I move that the decision made by the Zoning Administrator of October 3, 1996, with respect to the fence of Dorothy Hodgkins on Cleverdale be overturned, that the appeal be upheld and that the Zoning Administrator's ruling be overturned, or be reversed. Do we need more than that in this case? MR. THOMAS-No. I would mention the Section of the Ordinance that we're talking about. MR. STONE-Okay. - 49 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-And it might be helpful to future people reading this, not just me, but any future Zoning Administrator, to say please refer to the minutes that precede this motion. I think that gives you a lot of information as to what the Board's. MR. STONE-Okay. Any reference to this appeal in future consideration should review the meeting minutes which talk about the fact that are two fences of 100 square foot each not the same as one fence of 200 square feet. We believe that two fences is misinterpretation of Section 179-60B(5) (b) . . , MR. GREEN-I would add somethlng about two fences separated by. MR. STONE-And furthermore that even a separation of two to three feet does not make it a valid situation. MR. MARTIN-I have a question after your motion, though. want to get a clarification. I just MR. THOMAS-Go ahead, ask your question, before we second it. MR. MARTIN-Well, my question would be, if we obviously now have a situation here to further rectify. As I look at this, one potential solution may be to reduce the height of this fence in that first 50 feet to two feet. So therefore, two times 50 is 100. That is a complying situation, right? . MR. GREEN-Yes. MR. KARPELES-As far as I'm concerned it is. MR. MARTIN-All right. effective, easiest. That's what 1. see as the most cost MR. GREEN-Or come and get a variance. MRS. HODGKINS-Not for a woman alone it isn't. MR. MARTIN-Well, I know, but you didn't do that yourself. A fence contractor did that for you, I would imagine. MRS. HODGKINS-Yes. MR. MARTIN-Yes, but you would have had to pay to install the agreed upon gaps. MR. GREEN-Or you can apply for the variance. MR. MARTIN-Or you can apply for a variance. I just wanted to clarify that that two foot high, 50 feet back would be conforming. MR. STONE-We can't argue that. That's not our call. applicant, I mean, if the Hodgkins want to do that. If the MR. MARTIN-All right. I'm clear. MR. STONE-I would like to think she would not do that, but she certainly could do that. MR. GREEN-I have another question for Jim, before we actually go ahead with this. What is this going to do to these other fences that are in the area? Are they grandfathered? MR. MARTIN-Actually, we have gotten the results back from that survey. A clear majority, I think if there were 15 there, I think we found 12 to be grandfathered. The particular Section of the Ordinance did not come into play, I don't think, until 1988 I don't think, and one of them was taken down in response to our survey, - 50 - --- - (Queensbury ZBA Meeting 12/18/96) and I am not sure about, I think there are two or three others that John would have to update you on, but the clear majority that got back to me anyhow were found to be grandfathered. MR. KARPELES-How about the others? What are you going to do on those? MR. GREEN-What are you going to do with those last two or three? MR. MARTIN-Take them to court. I'd be interested to know about this new one that's up. I've got to call John Hodgkins and find out about this new one that was put up since. MR. THOMAS-Anything else? All set? I need a second on the motion. MR. KARPELES-I'll second it. MR. THOMAS-Does everybody understand the motion as read by Mr. Stone? MR. O'LEARY-I'm not quite sure 100%. Are we saying that the definition of a fence, as we read it, continues to be valid, with or without breaks? MR. THOMAS-Yes, with or without breaks, anything within 50 feet of the shoreline has to be no more than 100 square feet of fence, no more than 100 square foot of fence within 50 feet. MR. O'LEARY-Nominal breaks notwithstanding. MR. THOMAS-Nominal breaks notwithstanding. MR. GREEN-You can have one fence or ten fences, but no more than 100 square feet of fence within the first. MR. STONE-Within the 50 foot setback, regardless of (lost word) . MR. THOMAS-On each property line. Now if you go to the other property line on the south side, they're allowed another. MR. GREEN-At each property line. MR. THOMAS-At each property line. Now they're allowed another 100 square foot fence. MR. GREEN-See, I would consider that two separate fences, because they're not in a straight line. They aren't serving essentially the same continuous purpose. MR. STONE-And five says fences. You can certainly have a fence on either side of your property line. MR. THOMAS-No, the Ordinance is singular. It's not plural. That's what Jim said and that's what I agree with. MR. GREEN-So, according to your definition, if Mrs. Hodgkins wanted to put one on the other side of her yard, she could not do that. MR. THOMAS-No, she could. MR. STONE-No, she couldn't. MR. GREEN-Well, you're saying that she could because she can have all the fences she wants as long as each individual one. MR. MARTIN-Exactly. MR. GREEN-Well, then we need to add to our thing that you can have - 51 - (Queensbury ZBA Meeting 12/18/96) 100 feet on each side. MR. THOMAS-On each property line. MR. STONE-Our interpretation is that you can have that you can have (lost words) on each side. MR. GREEN-Lets start again. Start again. MR. THOMAS-On each property line within 50 feet of the shore. MR. GREEN-Exactly. MOTION THAT THE ZONING BOARD OF APPEALS GRANT THE APPEAL SOUGHT FROM THE DECISION OF THE ZONING ADMINISTRATOR OF OCTOBER 3, 1996 WITH RESPECT TO FENCE OF DOROTHY HODGKINS ON CLEVERDALE., Introduced by Lewis Stone who moved for its adoption, seconded by Robert Karpeles: The decision of the Zoning Administrator was that more than one, 100 square foot fence could be put on a property line, on one property line, if there was a nominal break between 100 square foot sections. The Zoning Board of Appeals interprets regulation 179- 60B(5) (b) as meaning that no more than 100 square feet of fence within the shoreline setback, nominal breaks not withstanding, and a 100 square foot fence can be put on each side property line, within 50 feet of the shoreline, and that any future interpretations of the fence Ordinance should review the minutes of this appeal meeting of December 18, 1996. Duly adopted this 18th day of December, 1996, by the following vote: MR. THOMAS-All right. Everybody understands the motion made by Mr. Stone, that no fence within 50 feet of the shoreline can exceed 100 square feet in area, withstanding breaks, okay. That was the motion made. That's the way everybody understands it. Is that the way you understand it, Jim? MR. MARTIN-I'm clear. MR. THOMAS-Okay. AYES: Mrs. Lapham, Mr. Stone, Mr. O'Leary, Mr. Green, Mr. Karpeles NOES: Mr. Thomas MR. THOMAS-We have a new interpretation of the Fence Ordinance concerning shoreline setbacks. MR. MARTIN-Or a more clear one. MR. THOMAS-A more clear one. One more bit of business before we go. " MR. STONE-Another motion of mine. MR. THOMAS-Yes. We need to have you, Mr. Stone, withdraw your motion for Area Variance No. 105-1996, Jane L. Crannell. Would you so state? MOTION TO WITHDRAW THE MOTION FOR AREA VARIANCE NO. 105-1996 JANE L. CRANNELL, Introduced by Lewis Stone who moved for its adoption, seconded by Bonnie Lapham: Duly adopted this 18th day of December, 1996, by the following vote: - 52 - --- -- (Queensbury ZBA Meeting 12/18/96) AYES: Mr. Karpeles, Mrs. Lapham, Mr. Stone, Mr. O'Leary, Mr. Green, Mr. Thomas NOES: NONE MR. THOMAS-Okay, now, Mr. Stone, would you like to make a new motion? MR. STONE-Have we got all the numbers correct? MR. THOMAS-Yes, they are. MR. KARPELES-What is it, just numbers that are different? " MR. THOMAS-Yes. MR. STONE-Just numbers, it's exact numbers, I guess. MR. THOMAS-Yes, it's because the numbers have to be exact. MR. STONE-Okay. MOTION TO APPROVE AREA VARIANCE NO. 105-1996 JANE L. CRANNELL, Introduced by Lewis Stone who moved for its adoption, seconded by Chris Thomas: The applicant is proposing to modify the property line of two existing lots in order to provide conforming road access to a landlocked parcel, required by Section 179-70 of the Zoning Ordinance. The modification would result in two lots which do not conform to the area requirements for the WR-1A zone. The subject property is improved by one single family dwelling, located on Tax Parcel 22. The two resulting lots would be as follows: Lot 1 - Washington County Tax parcel number 24, plus an adjoining 29,414+/- square foot portion of Warren County Tax parcel 20-1-21, plus the 3,800+/- square foot portion of 20-1-22 which will provide access to Hanneford Road. Lot 2 - Warren County Tax Map parcel number 20- 1-22, minus the 3,800+/- square foot portion conveyed to Lot 1, plus the 8,624+/- square foot remainder of Tax Parcel 21. The benefit to the applicant: the relief would allow the modification of two lots into two nonconforming lots. The feasible alternatives: it appears there are no alternatives which could provide a lesser amount of relief and still provide minimum footage on a Town road for each lot. Is this relief substantial relative to the Ordinance? Both lots within the Town of Queensbury are presently nonconforming. The applicant seeks a minor modification in order to provide one of the lots with frontage on a Town road. No negative effects are anticipated on the neighborhood or community. The difficulty is self created, this due to the fact that one of the existing lots currently does not have frontage on a public road. The variance is conditioned on the fact that the new parcel with the 40 foot access on Hanneford Road incorporates a pond which is an integral part of the drainage system coming off the mountain going down to Lake George, and this should be continued to be maintained by the current owner and any new owner of the property. Duly adopted this 18th day of December, 1996, by the following vote: AYES: Mr. Stone, Mr. O'Leary, Mr. Green, Mr. Karpeles, Mrs. Lapham, Mr. Thomas NOES: NONE: MR. THOMAS-That takes care of that. All right. I guess that does it. I'll make a motion to adjourn. - 53 - (Queensbury ZBA Meeting 12/18/96) MR. MARTIN-Merry Christmas. MR. STONE-Merry Christmas. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Chris Thomas, Chairman - 54 -