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2010.11.17 (Queensbury ZBA Meeting 11/17/2010) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 17, 2010 INDEX Area Variance No. 20-2009 Mary Sicard 1. Tax Map No. 289.6-1-1, 2, 3, 5, 17 289.10-1-4 Area Variance No. 32-2010 Meredith Kerr 2. Tax Map No. 309.6-1-69.1 Area Variance No. 54-2010 Jerry Brown Auto Parts 9. Tax Map No. 303.19-1-49 Area Variance No. 57-2010 Adirondack Retirement Specialists; 9. Sean Berger Tax Map No. 296.20-1-55 Notice of Appeal No. 4-2010 Mary Monthie 14. Tax Map No. 302.14-1-79.2 Area Variance No. 58-2010 Matthew Sokol 47. Tax Map No. 301.8-1-17 & 18 Area Variance No. 59-2010 9099 Corporation d/b/a Monty’s 53. Discount Wine & Liquor Tax Map No. 296.17-1-38 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. 0 (Queensbury ZBA Meeting 11/17/2010) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING NOVEMBER 17, 2010 7:00 P.M. MEMBERS PRESENT JAMES UNDERWOOD, CHAIRMAN ROY URRICO, SECRETARY JOYCE HUNT RICHARD GARRAND JOAN JENKIN BRIAN CLEMENTS JOHN KOSKINAS, ALTERNATE LAND USE PLANNER-KEITH OBORNE TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-CATHI RADNER STENOGRAPHER-SUE HEMINGWAY MR. UNDERWOOD-I’m going to call the November 17, 2010 meeting of the Queensbury Zoning Board of Appeals to order, and starting out I want to quickly go through our procedures, once again, for anybody that perhaps is new here. As we handle each application I’ll call the application by name and number. The secretary will read the pertinent parts of the application, Staff Notes and Warren County Planning Board decision if applicable into the record. Then we’ll ask the applicant to present any information that they wish to present to the Board. The Board will ask questions of the applicant, and then we’ll open the public hearing. The public hearing is intended to help us gather information and understand it about the issues at hand, and it functions to help the Board members make a wise decision. It does not make the decision for the Board members. There will be a five minute limit on all speakers, subject to, if it’s some major campaign I may extend the courtesy to the public, if there’s something they want to talk a little longer about, but in general we’ll limit it to five minutes, and then we will allow speakers to speak again after everybody’s had a chance to speak, but not for more than three minutes, and only if after listening to the other speakers, a speaker believes they have new information to present, and, Board members, I’d suggest that because we have the five minute limit that we not interrupt the speaker with questions while they’re speaking. Rather we should wait until the speaker has finished his five minute period and then ask the questions. Following all the speakers, we’ll read in any correspondence into the record, and then the applicant will have an opportunity to react and respond to the public comment. Board members will then discuss the variance request with the applicant. Following that, the Board members will have a chance to explain their positions on the application, and then the public hearing will be closed or left open depending on the situation, and finally, if appropriate a motion to approve or disapprove will follow. OLD BUSINESS: AREA VARIANCE NO. 20-2009 SEQRA TYPE: I MARY SICARD AGENT(S): JARRETT ENGINEERS, PLLC OWNER(S): MARY SICARD ZONING: RR-3A & WR LOCATION: NACY AND JAY ROADS, GLEN LAKE APPLICANT PROPOSES TO SUBDIVIDE 6 PARCELS TOTALING 42.38 ACRES INTO 16 LOTS RANGING IN SIZE FROM 0.35 ACRES TO 11 ACRES IN THE WATERFRONT RESIDENTIAL ONE ACRE ZONE ADJACENT TO GLEN LAKE AND THE RURAL RESIDENTIAL THREE ACRE ZONE TO THE EAST OF GLEN LAKE ROAD. RELIEF REQUESTED FROM LOT SIZE, LOT WIDTH, ROAD FRONTAGE, ROAD ACCESS, SHORELINE FRONTAGE, SIDE SETBACKS AND MORE THAN 1 ACCESSORY STRUCTURE PER LOT REQUIREMENTS. CROSS REF.: SUBDIVISION NO. 13-2008 WARREN COUNTY PLANNING: N/A LOT SIZE: 40.97 ACRES TAX MAP NO. 289.6-1-1, 2, 3, 5, 17 / 289.10-1-4 ; SECTION: 179-3-040; 179-4-050, 179-5-020D MR. UNDERWOOD-And we did receive a letter from them. This was from Tom Jarrett. It says, “The Sicard family has suffered a health setback and as such we request tabling of the variance application from the November agenda until a December agenda. Thanks, Tom” So I think I’ll make a motion that we table them until December, and we’ll leave it up to them which meeting they want. I don’t think we have that much on the agendas. MR. OBORNE-Well, let’s get a specific date on that, if you could, December, your choices are thnd the 15 or the 22. 1 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-Okay. So do you have any idea how many we have? We’re very slim, right? MR. OBORNE-Yes, I wouldn’t worry about hat at this point. th MR. UNDERWOOD-So we’ll put them on for the 15, and if they want further tabling, we can do it at that time. Okay. MOTION TO TABLE AREA VARIANCE NO. 20-2009 MARY SICARD, Introduced by James Underwood who moved for its adoption, seconded by Richard Garrand: th Nacy and Jay Roads, Glen Lake. Tabled to the December 15. th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mr. Urrico, Mr. Clements, Mrs. Jenkin, Mr. Koskinas, Mrs. Hunt, Mr. Garrand, Mr. Underwood NOES: NONE AREA VARIANCE NO. 32-2010 SEQRA TYPE: UNLISTED MEREDITH KERR AGENT(S): VAN DUSEN AND STEVES OWNER(S): MEREDITH KERR ZONING: NR LOCATION: 212 SHERMAN AVENUE APPLICANT PROPOSES A TWO LOT RESIDENTIAL SUBDIVISION; LOT A TO BE 0.26 ACRES; LOT B TO BE 0.23 ACRES. RELIEF REQUESTED FROM THE MINIMUM LOT SIZE REQUIREMENT FOR THE NR ZONING DISTRICT. CROSS REF.: SUBDIVISION NO. 7-2010 SKETCH PLAN WARREN COUNTY PLANNING: AUGUST 11, 2010 RE-SUBMIT FOR NOVEMBER 10, 2010 LOT SIZE: 0.49 ACRES TAX MAP NO. 309.6- 1-69.1 SECTION: 179-3-040 MICHAEL O’CONNOR, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-Now we had previously heard this one, and we had been asked to re-hear it, and I think, Roy, the Staff Notes will probably explain that. STAFF INPUT Notes from Staff, Area Variance No. 32-2010, Meredith Kerr, Meeting Date: November 17, 2010 “Project Location: 212 Sherman Avenue Description of Proposed Project: Applicant proposes a two lot subdivision of a 0.49 acre parcel into two lots of 0.26 and 0.23 acres on the corner of Sherman Avenue and Harris Street. Relief Required: Lot size relief required for both proposed lots. Specifically, proposed Lot A requires 0.74 acres or 32,234 square feet of lot size relief and proposed Lot B requires 0.27 acres or 11,761 square feet of lot size relief as per §179-3-040. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor to moderate impacts to the neighborhood may be anticipated as a result of this proposal. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. The limitation of the lot and the nature of the request preclude any feasible alternative other that an area variance. 3. Whether the requested area variance is substantial. The requests for 0.74 acres or 74 percent relief for Lot A may be considered severe relative to the ordinance. The request for 0.27 acres or 52 percent relief for Lot B as per §179-3-040 may be considered moderate relative to the ordinance. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. 2 (Queensbury ZBA Meeting 11/17/2010) 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, etc.): SUB 7-2010 2 lot subdivision Pending 8/24/2010 SUB 15-1999 3 lot subdivision Approved 8/24/1999 Staff comments: This application will require relief for both proposed lots from the Zoning Board of Appeals for lot size as the requirement for the Neighborhood Residential District is 0.5 acres per dwelling unit if not connected to both public water and sewer. Please note that the parcel is served by public water only. Currently, the parcel has an existing Duplex and the minimum lot size needed would be one acre for Lot A and 0.5 acres for Lot B assuming a single family dwelling is proposed. SEQR Status: Type II – No action required MR. UNDERWOOD-Okay. Mr. O’Connor? MR. O'CONNOR-Mr. Chairman, thank you. I’m Mike O’Connor, for the purpose of your record, from the firm of Little & O’Connor, and with me at the table is Meredith Kerr who is the applicant and the owner of the property in question. I’m new to the application. I wasn’t here at your prior meeting, and I think I came on board after that, but I think there’s some information that would be helpful in going back to your earlier consideration, and I know the Board would (lost words) and we’ve probably got an uphill battle here, but I think if you really take a look at it, this is something that you should approve. This began with a recommendation or an appearance before the Town Planning Board. The purpose of that appearance was two-fold. One, to get Sketch Plan approval and begin the SEQRA, or do SEQRA for the subdivision, and then, Two, to make a recommendation to this Board. The Planning Board gave a Negative Declaration, which I’ll get to later, because they considered many of the things that you people discussed when you talked about whether or not this was an appropriate use or whether the lot in question would have the capability of supporting a house that was suggested on there. Secondly, they did recommend to you that the variance be approved, based upon their SEQRA review. Then this went to the County Planning Board. The County Planning Board recommended denial, and I’ve since been back to the County Planning Board, and they now have changed their determination to a determination of No County Impact, and basically I think, in the discussions that I had with the Planning Board, the County Planning Board, their concern was that another duplex was proposed for this, and unfortunately, nobody was there to answer their questions, and that seemed to be the basis for which they then recommended a denial. The proposal here is for creation of a lot for a single family home. It’s not for another duplex. I know that they then appeared before you and there was much discussion. A lot of that discussion seemed to focus on the character of the neighborhood, and I don’t know what materials you actually had before you, as to the character of the neighborhood, but I think that this fits within that neighborhood very well. If you take a look at the tax map, and I’ll pass this to you, this is the block in question. The area in pink is the area that’s occupied by the duplex. The area in yellow is the proposed vacant lot that would be occupied by a single family lot. There will be no additional curb cuts on Sherman Avenue. The duplex is presently served by a driveway off of Harold Street, and that’s, if you go up and look at the street signs, they say Harris Street, but on the tax maps they call it Harold Street. The new driveway for the new lot will also have its driveway on Harold, or Harris Street. While we’re looking at this, I would ask you to specifically take a look at the lot sizes in this particular neighborhood. On Sherman Avenue there are six lots with an average size of 1.7. There are four homes on those lots. This is a modest neighborhood. Some of the houses in there are old. Some have been recently built. Along Harold Street, there are four homes, and those lots vary from 2.6 to 1.1, .11, .44, .24. On the north side of Harris Street, there are five homes, and a couple of those are brand new. Those are on .30, .28, .26, .43, and .22. On the south side of Harris Street there are even smaller lots. There are presently six homes there, and there are apparently two other lots that are for sale. Those two lots appear to be .19 each, and they’re going to be sold for single family homes. Here are residential property listings for two of those homes that are on the south side of Harris Street. They were both built on lots smaller than what we’re proposing. They have 50 feet frontage, where our particular lot I think has 75 feet frontage. I’ll pass these along. If you went up and you drove around the neighborhood and looked at these homes, you would see that, I think very clearly, that they improve the neighborhood. They don’t detract from the neighborhood, and that they’re in character with the neighborhood. This proposal, as you have read off, is to leave the duplex as is, and that would 3 (Queensbury ZBA Meeting 11/17/2010) be on a .26 acre lot. It wouldn’t change the access to the lot. It wouldn’t change the use to the lot. The people that have occupied that duplex haven’t occupied more than .26. You can see by the actual trees and some of the material in the backyard, they have not used that backyard. I gave Keith some pictures, too. MR. OBORNE-Yes, we’re having technical difficulties. MR. O'CONNOR-Okay. I’ve got hardcopies of the pictures. That’ll give you a little bit more of input as to the neighborhood. Miss Kerr, Meredith, has actually tried to sell the property, all as one piece. The old standard for Area Variances used to be practical difficulty, and we would talk about that as a practical difficulty. The new standards, which have been codified, new probably within the last 10 years or so, don’t require you to show that, but I have submitted, and I think it was sent on in your packet, I hope, a letter from American Properties, indicating that she has tried to sell this property, but has not been able to sell the property because the people that have looked at it don’t want to have that excess property in the back to care for as part of their duplex. So there is a practical difficulty with this. I noticed in your discussions before you were concerned about the sanctity, if you will, of the master plan. I think the master plan is great when you have an open space that’s going to be planned and developed, but I think it’s very difficult when you have a neighborhood that you’re talking about infilling lots, although in this case it kind of helps our argument. If you look at Page 13 of the master plan, it says this area is most connected to public water and sewer so the community should encourage density here. Density, if well done, offers housing choice that is an important driver of vibrant communities. That’s on Page 13 of your master plan. The master plan, though, is a guide. It is not your Zoning Ordinance, and I don’t mean to sound like I’m lecturing, but if you look at the definition of Neighborhood Residential, it reads in part, “The Neighborhood Residential district encompasses areas of older, more traditional, high-density neighborhoods.” So the Ordinance itself has characterized this as a high density neighborhood. “Areas subject to intense development pressure, located near service areas, are similarly zoned. Areas intended to protect and enhance traditional, high-density neighborhood character while providing the opportunity for infill and high-density housing.” That’s exactly what we’re trying to do here. We’re trying to follow that. The other thing which I think is important in the Ordinance itself. If there were a sewer line running down the middle of that street, we wouldn’t even be here. Because you can build on 10,000 square foot lots. So when you talk about character of the neighborhood, what’s placed on the lot, what difference is it if the house has a sewer that’s underground or a sewer that’s goes out to the street or a sewer in the backyard. I find that very hard to distinguish. If they had an out of district contract with Glens Falls that ran the sewer line out to Sherman Avenue, and I don’t know if you can do that because I don’t know what kind of sewer line that is, we wouldn’t even be here. It would just be a 10,000 square foot lot. They could make one lot smaller, and you’d still have the same housing. You’d still have the same impact on the neighborhood. So the only difference here is whether or not we have sewer or we don’t have sewer, truthfully. It’s not density, because density is already provided for and it’s permitted in the Ordinance. When I read your minutes and your comments, I don’t know if that point really registered with you, that you could do 10,000 square foot lots in there. Simply, it’s a matter of how you handle your sewer, and that question was pretty well addressed by the Planning Board when they did their SEQRA review. I don’t know if you’ve looked at their SEQRA review. In part, it says, and these are the questions that they ask. Will the proposed action affect surface or groundwater quality or quantity. No. Will the proposed action alter drainage flow or patterns or surface water runoff. No. It goes through air quality, endangered species. It goes through everything. Will the proposed action affect aesthetic resources. No. Will there be an effect to existing transportation systems. No. Will the proposed action affect the character of the existing community? No. The Planning Board has made the SEQRA determination, and I think you really have to weigh that in your determination, and you have to weigh that in your determination with the Ordinance as it’s written. This is a high density area, and we’re talking about an infill which seems to be promoted within the Ordinance. The only difference, truthfully, to everybody here, is whether or not we are connected to a municipal sewer or we can put it in a private septic system, and that’s a decision that the Planning Board will make when they do a review on the subdivision. We will have to show them that we have the capability of having adequate sewer for this lot, and I’m not trying to pass the buck or suggest that you pass the buck or suggest that you pass the buck, but that is something that is part of the consideration. If we get to the end of the rainbow, and the Planning Board says no, we can’t, don’t have the capability of having adequate sewer on here, it doesn’t go any place, but that’s part of their review, but in their SEQRA review that they’ve already completed they said that, and I think in their comments, in their resolution which you’ve seen. I don’t know, you probably didn’t get a copy of their SEQRA business, but in their resolution they said any impacts that would be brought about are minor and can be taken care of in the application, or in the approval process. So, you come back to your four basic questions as to whether or not you should grant an area variance, and I think your staff has agreed with me on most of them. There’s one that I don’t agree with their comment, and it says will the project create an undesirable change in the character of the neighborhood. Your Ordinance sets the character of the neighborhood. The Planning Board says it won’t have an effect on the 4 (Queensbury ZBA Meeting 11/17/2010) character of the neighborhood, and we don’t think it will. If you take a look at those two small houses, and they’re modest houses. They were built on 50 foot lots directly behind, they’re not directly behind this lot, but in that little loop there, I think they add to the character of the neighborhood, they add to the housing availability within the Town on an affordable basis. Can the benefit be achieved by some other method. We all agree no, there is no other adjacent lands. There’s no other vacant lands that can be purchased and added to this lot. Is the variance substantial? That’s where I differ with the comments by Staff. On one of the lots they say it’s moderate relative to the Ordinance. The other says it could be considered severe. We’re not talking about changing Lot A. We’re not talking about changing the use of Lot A right now or in the future. That is there, and it’s in existence, and what we’re simply talking about is creating a new lot, Lot B. So I don’t know if that really is germane. When I sent the letter in, I sent the letter in and covered some of the history in zoning on this property. Somebody had a concern as to why the Kerr family, not Meredith. Meredith didn’t own this when it was subdivided before, but her family owned. Why they didn’t create the lots then, and they could have under that Zoning Ordinance. If you take a look at it, they could have done exactly what we’re doing now. For some reason they didn’t, but that shouldn’t really, I think, weigh heavily in your determination. When you look at impact, whether it’s substantial or not, and I’ve argued with you before, it’s not a mathematical determination. It’s an actual impact determination. If we can build a house there by hooking up to a City sewer, what is the difference if we build a house there with a private sewer, what is going to be the impact to the neighborhood? What is going to be the impact to the community? There is none. There’s no difference. So I don’t think the variance, as requested, is substantial, and will it have an adverse impact on the physical or environmental conditions in the neighborhood or district? I think the answer is simply no, and the Planning Board, in its SEQRA review, agreed with me. Was the difficulty self-created? No, because I think in 1999, when Meredith created, or purchased this property, and she purchased it from members of her family, it was then permissible to create the lot that she’s creating. What happened was the Ordinance changed. It’s not something that she did with the property. So I don’t think you can say that it’s self-created. That’s our argument. I think it’s a sound argument, and I think it addresses the comments, the concerns that some of the Board members had. I don’t know if you really focused on the idea that this could be built if we had a Town sewer. It’s not any different. MR. UNDERWOOD-Do you guys have anything you want to discuss at this point in time? Any questions from any of you guys? MRS. HUNT-Yes, I have a question. MR. O'CONNOR-Yes. MRS. HUNT-Now Lot B is .27 acres. What is the dimensions of the lot? Do you have them? I know I have the total square feet. MR. O'CONNOR-I’m sorry. I thought you had the map. MRS. HUNT-I don’t think the numbers are on there. MR. O'CONNOR-It’s 75 feet frontage on Harris Avenue. 159.36 on the south boundary. MRS. HUNT-159? MR. O'CONNOR-159. The back boundary is 69 feet. The northerly boundary is 134, 135 feet. There’s three dimensions there. MRS. HUNT-Thank you. MR. O'CONNOR-Do you have a map? Okay. MR. GARRAND-Can you tell us why the County Planning Board recommended we deny it first time and now we have No County Impact? MR. O'CONNOR-Because they, well, okay. First of all, nobody was there. Nobody from the survey firm went. Meredith didn’t realize that it was going to County Planning Board. She may have gotten a letter. There’s a little mix up with her mailing address. Some of it’s going to the wrong number on where she lives, and Matt Steves said he never got a, his office never got a notice that it was going to the County Planning Board. They didn’t think it was going to the County Planning Board. The reason it goes to the County Planning Board is Sherman Avenue is owned by the City of Glens Falls, or they have some ownership there so that they can run their sewer pipe from the Industrial Park property up by fireman’s field, into the City. When they annexed the fireman’s field, they annexed part of Sherman Avenue, but it’s part of the street that 5 (Queensbury ZBA Meeting 11/17/2010) they annexed. The Planning Board members expressed to me that they were opposed to it before because they thought it was a duplex. They thought it was going to be a duplex on this lot. MR. KOSKINAS-What permits that? MR. O'CONNOR-The zoning. It’s not a permitted use as zoned, in this current zone. MR. KOSKINAS-I believe it is. MR. O'CONNOR-I was told it’s not, not on this size of the lot that we’re proposing. MR. KOSKINAS-Well, with a variance, it’s, in the zone, duplexes are allowed. MR. O'CONNOR-Okay. Somebody that was at the Planning Board meeting, County Planning Board meeting, said it was not permitted. I have no problem with you conditioning your recommendation that it not be used as a duplex. MR. KOSKINAS-So a prohibition against the construction of a duplex is okay with you and your client? MR. O'CONNOR-Yes, it is. That’s not their intent. MR. UNDERWOOD-Would you comment to the effect, you know, this original lot occurred as a result of a subdivision from 1999, it was a three lot subdivision. This was one of the lots that was created at that time. MR. O'CONNOR-Right. MR. UNDERWOOD-And I think that, you know, we’re in a position now, down on that part of Town, where we have a lot of lots that are a little bit bigger than what’s in the neighborhood, and I think we have the Subdivision Regulations that, you know, refer it to the Planning Board, refer it to us in some instances because of relief needed for property size, but, you know, we have plenty of instances where our Board grants relief for people to build houses on substandard sized lots down in this end of Town. That’s nothing new or anything like that, but I’m just wondering, if we continue to subdivide subdivisions, what the end result is going to be. I mean, are we going to take the smallest lot in that end of Town and say, everybody can subdivide down to that size? Because I think there has to be some sort of a checks and balances eventually. MR. O'CONNOR-The size that’s recommended by your own Zoning Ordinance is 10,000 square feet. We’re in excess of that. I think that that is the size you go down to, and, you know, every lot in the Town of Queensbury right now is a subdivision of some nature. MR. UNDERWOOD-Right. MR. O'CONNOR-The Great Patten lots were all 80 acres or 60 acres each, a long, long time ago, and they’ve all been subdivided to some degree. So there is a downsizing, but the Ordinance allows a house on 10,000 square feet if you have a municipal water and sewer. MR. UNDERWOOD-Okay. Any other questions from Board members at this time? I think I’ll open up the public hearing. Anybody from the public wishing to speak to the matter? PUBLIC HEARING OPEN MR. UNDERWOOD-Do we have any correspondence? MR. URRICO-No correspondence. MR. UNDERWOOD-Okay. Anything else you want to add, Mr. O’Connor? MR. O'CONNOR-No. MR. OBORNE-If I could make a comment. You reference a Planning Board SEQRA determination for this, and I don’t believe this has happened on this subdivision at this point. The only this the Planning Board has issued has been a recommendation. MR. O'CONNOR-I have a copy of their resolution. 6 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-So this is still going to have to go back to Planning Board and be reviewed by them before it passes muster. MR. OBORNE-Sure. MRS. JENKIN-Was this just a verbal okay from a County Planning Board, or is there something written? MR. O'CONNOR-No, I presume they sent something. MRS. JENKIN-I didn’t get anything. MR. O'CONNOR-Keith, do you have a report from the County? MR. OBORNE-Jim, you should have the report for the No County Impact. MR. UNDERWOOD-All we have is just No County Impact, and I think that refers to County services in the district. MRS. JENKIN-Okay. So that is in there. MR. O'CONNOR-Yes. MRS. JENKIN-Because we’re not getting these anymore. MR. URRICO-Craig, are you satisfied with that SEQRA review? MR. OBORNE-Keith? Yes. MR. UNDERWOOD-Okay. I think what I’ll do then is I’ll poll the Board, and we’ll start see what the Board’s feelings are. I’ll start with you, Brian. MR. CLEMENTS-Okay. Thank you. I guess that my questions the last time were, Number One, the last time it was subdivided, they didn’t divide this lot up, and you answered that question, and the other one was, I thought, at the time, the house was a duplex. Therefore, a double size lot and a duplex house, I assume that all the other houses that are on these smaller lot on this street have single, are single family. I don’t know that. I’m just assuming that. As I drove up and down through there, it looked like that. MR. O'CONNOR-I’ve got the assessment cards. I really didn’t look at for that, but I kind of presumed it in my argument. MR. CLEMENTS-But I also, you know, you answered another question for me is on the County Planning Board, I wondered why they gave it a negative, you know, when they, the last time, and now they’ve changed it over and said there’s no impact, and I assume that the reason for that was because you’ve talked to them about a duplex not being there and having a single family there. MR. O'CONNOR-And I also I think probably made the same argument with them that I did with you, as to the character, the existing character of the neighborhood and the character that’s set by your statute. MR. CLEMENTS-I understand. So I guess, at this point, I would be inclined to say that I would approve it. MR. UNDERWOOD-Can I just clarify a point for Brian? There is a duplex there now. They’re proposing, if they split the lot, there will be a single family residence in the back, plus the duplex that already exists. Just so you understand that. MR. CLEMENTS-I understand that. MR. UNDERWOOD-Okay. MR. O’CONNOR-And we would stipulate to that and accept that as a condition of approval, if you were so inclined. MR. UNDERWOOD-All right. I’ll move down to you, Joyce. 7 (Queensbury ZBA Meeting 11/17/2010) MRS. HUNT-Thank you. Yes. I don’t think there’ll be an undesirable change in the neighborhood. I think there will be a benefit, and it certainly won’t be on the smallest lot in the area. I think you were mentioning the 10,000 square feet. I, myself, had lived on a home on Long Island of 4,000 square feet property, and it was fine, and I think that it’s good to have housing available to people of modest means, rather than, you know, building all these McMansions, and so I would be in favor of it. MR. UNDERWOOD-Roy? MR. URRICO-Yes. To me the critical issue here is the Area Variance, whether that’s substantial or not, and regardless of whether the Warren County Planning Board changed their minds or not, the situation is still the same. It’s a substandard lot. We have to consider whether the substandard lot fits into the neighborhood, and I think it does, and as long as they’re willing to stipulate that there will not be a duplex on that second lot, then I would be in favor of it. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-My original hesitance of this project was because of the density, because when you look at the property itself, and when you go there, that it seems as if a house would be, because of the size of the duplex beside it, that any other house would appear to be crowded in, but I read your letter carefully, and I agree that that area is a high density area. It really is. The lots are small. The homes are small, and I assume that the house that is planned for that lot would be within the setbacks and would be a reasonable size for the lot. I’m hoping that would be, but I do agree. I think the other concern was with your argument of the septic field as opposed to the sewer system. I think that sewer allows for much less property because you don’t have to worry about the size of the septic system and the land that’s required for the septic system, but in this case, there seems to be ample space in the backyard for a septic system, provided the house is of a reasonable size. So I will change my previous vote, and I would be for this. MR. UNDERWOOD-Okay. Rick? MR. GARRAND-I think Joan is absolutely correct with her assessment of septic versus sewer. Septic the waste is treated on site. Sewer, the waste is shipped off to Glens Falls. We’re not tasked here with making sure the applicant receives a maximum amount of return on the property. We’re tasked here with granting the least amount of relief necessary to achieve something here. I don’t think it’s a whole lot of relief asked for. I think last time around the County Planning Board left a lot of unanswered questions with their asking us to deny this application. The size of the lots in this neighborhood are small. It’s not going to change the character of this neighborhood, putting one more lot there. MR. UNDERWOOD-Okay. John? MR. KOSKINAS-I can’t argue with anything any of the other Board members have said, counsel’s comments notwithstanding. The zoning is half an acre, or if you’d like to say 10,000 square feet you can, but there is no sewer system there. It’s half an acre per residential unit. The duplex is two residential units, another house is a third, and when you say there’s no impact on density, I don’t agree with that at all. The two new homes that sit on that street, as you go around the corner, their backyard views are directly impacted by the construction of a new home. It’s a compact area. There’s no doubt, but it’s going to be much denser to the eye. There’s more traffic. There’s more noise. There’s an impact on the neighborhood. Having said that, I recognize that people want a return. I don’t think that’s our domain. So I think it’s dense enough there. Traffic’s heavy enough, and there are plenty of buildings. So I’m, personally, not in favor of it. MR. UNDERWOOD-Okay. To summarize, then, I, too, would go along with this request. I think that, you know, we have to be concerned, though, there are certain areas of Town that are very dense areas of Town, and I think that we get into issues, when we have water problems and things like that, that do affect the, whether you have a Town sewer or you’re on septic tanks in the backyard. In the instance here, we’re well familiar with this area of Town as basically sand down there. It’s not any concern at all. It is infilling. It is excessive, the request, in due respect to what you’re saying here in your argument, but nonetheless it’s not going to change the neighborhood character by adding one more lot to it, but I certainly would not believe that the Board’s intention, when the Town Board adopted the new Code, would be to have everybody go down and pick the smallest lot and make that argument that everybody could keep re- subdividing, because we do have the regulations for a purpose, and John being the guy who has a different tact on it and a different look at the way this is, is just as correct as the people who are going to go along with this tonight, and I, too, will go along with your request, reluctantly, but at the same time, I think that we need to dial in this. Most all the zones in Town, the last time we 8 (Queensbury ZBA Meeting 11/17/2010) did a revision of the Code, we upped the amount of land that was necessary, and some of that has no real bearing in reality because no one in the neighborhood has a lot that approaches that size, but in this instance here, the 10,000 seems to me to be adequate, and I think that it’s not going to be out of character. There’s been no neighborhood opposition to it, and so I will go along with it. So does somebody want to take this one? MRS. HUNT-I’ll take it. MOTION TO APPROVE AREA VARIANCE NO. 32-2010 MEREDITH KERR, Introduced by Joyce Hunt who moved for its adoption, seconded by Brian Clements: 212 Sherman Avenue. The applicant proposes a two lot subdivision on a 0.49 acre parcel with two lots of 0.26 and 0.23 acres on the corner of Sherman Avenue and Harris Street. The lot size relief required for both proposed lots specifically, Lot A requires 0.47 acres or 32,234 square feet of lot size relief, and proposed Lot B requires 0.27 acres or 11,761 square feet of lot size relief as per Section 179-3-040. The criteria for considering an Area Variance, according to Chapter 267 of Town Law, in making the determination, the Board shall consider whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance, and I think there’ll be minor impacts to the neighborhood as a result of this. The second lot, Lot B, will not be the smallest lot in the area, and will be in excess of the 10,000 square feet which would be allowed if they had a sewer. Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue other than an area variance, and I think the limitation of the lot and the nature of the request preclude any alternative other than an area variance. Whether the area variance is substantial. Well, the area variance of 74% relief, 0.74 acres for Lot A might be considered severe, but that home is already in place there. The request for .27 acres or 52% relief for Lot B, as per Section 179-3-040 may be considered moderate, and whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. I think there’ll be minor impacts on the physical or environmental conditions. The egress from the lot will be to Harris Street and not Sherman Avenue, and we could say that the difficulty was self-created, but I would also like to add that only a single family home could be built on that lot. I propose that we approve Area Variance No. 32-2010. th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mr. Urrico, Mr. Garrand, Mrs. Jenkin, Mr. Clements, Mrs. Hunt, Mr. Underwood NOES: Mr. Koskinas MR. O'CONNOR-We thank you. Can I get back your surveys, if I can. AREA VARIANCE NO. 54-2010 JERRY BROWN AUTO PARTS SEQRA TYPE: II AGENT(S): TOM HUTCHINS, HUTCHINS ENGINEERING OWNER(S): JERRY BROWN ZONING: HI LOCATION: 26 LOWER WARREN STREET APPLICANT PROPOSES CONSTRUCTION OF A 900 SQ. FT. METAL STORAGE BUILDING. RELIEF REQUESTED FROM SIDE YARD SETBACK REQUIREMENTS. CROSS REF.: BP 2010-012 SHED; SP 63-2010; BP 94-620 WAREHOUSE; BP 89-305 STORAGE BLDG.; BP 2006-652 COM’L ADD; BP 2004-044 ALT. WARREN COUNTY PLANNING: OCTOBER 13, 2010 LOT SIZE: 13.78 ACRES TAX MAP NO. 303.19-1-49 SECTION: 179-3-040 MR. UNDERWOOD-And we have received a letter from Hutchins Engineering who was representing them, addressed to Mr. Keith Oborne, over at the Town of Queensbury, On behalf of Jerry Brown’s Auto Parts we hereby respectfully withdraw Area Variance application number 54-2010, and Site Plan Review application number 63-2010, both of which relate to the proposed 30 foot by 30 foot shed which the applicant no longer wishes to pursue. Please contact me if you would like to discuss this matter. Signed Tom Hutchins. So I’m going to move that we excise this one from the rolls until we hear back from them, in case they want to revive it at some point in the future. So we’ll just withdraw that one. MR. OBORNE-Yes, they’ve withdrawn it. MR. UNDERWOOD-Okay. NEW BUSINESS: AREA VARIANCE NO. 57-2010 SEQRA TYPE: II ADIRONDACK RETIREMENT SPECIALISTS; SEAN BERGER AGENT(S) RUCINSKI HALL ARCHITECTS, ETHAN HALL OWNER(S) JAY K. WASSERMAN ZONING CI LOCATION: 351 BAY ROAD APPLICANT 9 (Queensbury ZBA Meeting 11/17/2010) PROPOSES TO CONSTRUCT A 139 SQ. FT. ADDITION TO THE CURRENT OFFICE BUILDING. RELIEF REQUESTED FROM MINIMUM SETBACK REQUIREMENTS FROM BOTH THE CI ZONE AND TRAVEL CORRIDOR OVERLAY ZONE. IN ADDITION, RELIEF REQUESTED FROM MINIMUM DRIVE AISLE WIDTH REQUIREMENTS. FURTHER, THE EXPANSION OF A NONCONFORMING STRUCTURE REQUIRES RELIEF AS WELL. CROSS REF.: SPR 68-2010 WARREN COUNTY PLANNING: NOVEMBER 10, 2010 LOT SIZE: 0.19 ACRES TAX MAP NO. 296.20-1-55 SECTION: 179-3-040; 179-4-090 JON LAPPER & ETHAN HALL, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 57-2010, Adirondack Retirement Specialists; Sean Berger, Meeting Date: November 17, 2010 “Project Location: 351 Bay Road Description of Proposed Project: Applicant proposes to construct additions to existing office building. Relief requested from minimum setback requirements from both the CI zone and Travel Corridor Overlay zone. In addition, relief requested from minimum drive aisle width requirements. Relief Required: Parcel will require area variances as follows: 1.Travel corridor setback-Request for 52 feet 9 inches of relief for the proposed southern vestibule and 32 feet 0 inches relief for the proposed northern entrance as per §179-3- 040. 2.Front setback- Request for 52 feet 9 inches of relief for the proposed southern vestibule and 45 feet 2 inches of relief for the proposed northern entrance as per §179-3-040. 3.Rear setback- Request for 2 feet 6 inches of relief for the proposed northern entrance as per §179-3-040. 4.Drive Aisle Width-Request for 10 feet 6 inches of relief for the western drive aisle and 9 feet 6 inches of relief for the eastern drive aisle as per §179-4-090. 5.Relief request for the expansion of a non-conforming structure as per §179-13-010. . Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor impacts to the neighborhood may be anticipated. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Concerning the drive aisle width issue, a feasible alternative would be to increase the size of the western drive aisle to be more compliant or compliant. Feasible alternatives for the remaining requests appear to be limited due to lot limitations. 3. Whether the requested area variance is substantial. The request for 52 feet 9 inches or 70% relief from the 75 foot travel corridor and 75 foot front line setback for the southern vestibule as per §179-30-040 may both be considered severe relative to the ordinance. The request for 32 feet or 43% relief from the 75 foot travel corridor requirement as per §179-3- 040 for the northern entrance may be considered moderate relative to the ordinance. Further, the request for 45 feet 2 inches or 60% relief from the 75 foot front setback requirement as per §179-30-040 for the northern entrance may be considered moderate to severe relative to the ordinance. Additionally, the request for 2 feet 6 inches or 10% relief from the 25 foot rear setback requirement as per §179-3-040 for the northern entrance may be considered minor relative to the ordinance. Further the request for 10 feet 6 inches or 44% relief for the western drive aisle and 9 feet 6 inches or 40% relief for the eastern drive aisle as per §179-4-090 may both be considered moderate relative to the ordinance. Finally, the ZBA is requested to approve the expansion of a non-conforming structure per §179-13- 010. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created 10 (Queensbury ZBA Meeting 11/17/2010) Parcel History (construction/site plan/variance, etc.): Site Plan 68-2010 Professional Office Pending Staff comments: The site is located on the corner of Bay Road and Glenwood Ave west of Lowes. The applicant proposes to reconfigure traffic flow on site to include dedicated parking for staff accessed off of Bay Road with client parking accessed off of Glenwood Avenue. An increase in permeability is proposed as well as new landscaping. Two entrances are planned and it is these structures that require setback relief from the Zoning Board of Appeals. A wheelchair lift is proposed for the northern entrance. Planning Board recommendation dated 11/16/2010 attached SEQR Status: Type II-no further review required” th MR. URRICO-The Planning Board reviewed this last night, November 16, and they made a recommendation to the Zoning Board of Appeals that based on its limited review it has not identified any significant adverse impacts that cannot be mitigated with the current project proposal, and that was approved unanimously. MR. UNDERWOOD-Okay. The only thing I would add would be that the County Planning Board th also reviewed the project on the 10 of November and they also said No County Impact at all whatsoever. So do you guys want to tell us a little bit about the project, what it is. MR. LAPPER-Yes. Good evening. For the record, Jon Lapper, project attorney, with Ethan Hall, project architect. I hope after we discuss this that you’ll agree that this is really a very modest proposal on what’s admittedly a tricky site. The entire building is located within the 75 foot Bay Road traffic corridor setback. So today you couldn’t build anything, and because of the proximity to the corner and limited size and traffic issues, there aren’t a lot of issues that would be appropriate, but we think that we found the right use. An investment advisor would have, you know, ordinarily one or two clients at a time. So a real low traffic generator, and what Ethan did with the site, to block off the drive aisle going out to Bay, to create those two separate parking areas, makes it so that you can’t have people trying to cut the corner and cut through the site, which would be more controlled than how it is now. Also, Dr. Wasserman’s practice was a very big dental practice. So certainly, in terms of the traffic and parking needs, it far exceeded what would be needed for this proposal. The only reason that we’re here is because there’s a need for handicapped access. So this minor size, 130 square foot vestibule on the north side that would have the handicap ramp and new stairs, then the new entrance for the staff on the south side, they replace what was the doorway facing Lowe’s on Bay. So in that respect, by taking off that doorway, it’s becoming less nonconforming by moving it slightly back from Bay. More importantly, the site is more permeable than it is now, by taking off pavement. One of the important changes that Ethan came up with was to reduce the size of that curb cut on Bay Road, and that creates green area. The only, what he left on that section of the parking, was just enough so you can do a three point turn and obviously no one’s going to back out onto Bay Road. So just two spaces with a place to turn around. The architecture of the building obviously hasn’t been updated in a long time, and what Ethan has proposed is cultured stone, new siding. It really will look a lot sharper than it does now. That, coupled with new landscaping, we think, you know, it’ll look like a fresh, modern corner. Obviously important intersection, visually, a lot of traffic. So we’re updating it, but really for what we consider and hope you’ll consider an appropriate and minor use for this building. With that, I’m just going to ask Ethan to walk you through each of the area variance requests, to explain why we really don’t have any alternatives. MR. HALL-Basically, as Jon stated, the existing building, the 75 foot setbacks from both Glenwood Avenue and Bay Road, encompass a good share of this lot and the entire building, in fact, sits within those two setbacks. The building, obviously, pre-dates all the zoning requirements. It’s our intent, with that front porch that’s along Bay Road, it’s not used now, the landscaping that’s around it is significantly overgrown as you can see by some of the pictures that I’ve provided. It is the intent that that porch and its roof, along with the door, are going to be removed as part of this project. There is no sidewalk coming from that porch to the main walking path, and there’s no real way to get into the building over there to begin with. So we’re going to take that off, which will increase the front yard setback from what is currently 10 foot 6 inches to what will be 14 foot 7 inches. So we’re increasing our front yard setback to the best of our ability. We obviously can’t move the front part of the building. In the back of the building, there’s currently five steps, big concrete steps, that come up from the parking area into the back of the building. That is the main entrance to the building. All of the parking for the patrons will 11 (Queensbury ZBA Meeting 11/17/2010) be in the back. The two parking spaces that we’re leaving off from that front curb cut will be for staff only, and it will be signed as such that that is staff parking only. We are taking the curb cut out there from, I believe it’s a 26 foot curb cut now. We’re going to knock that down to a 14 foot 6 inch curb cut so that it would be just one car at a time coming in and out of there, to kind of deter people from using that other than staff, but the steps that are in the back render the building so that no one can get in it. There’s no handicapped access to this building as it exists right now. We are intending to remove those steps. We would be providing a porch, covered porch on the back of the building. We would be adding a wheelchair lift which will be underneath the porch, as well a new sidewalk from the three parking spaces on the north side, so that there would be a handicap parking space on the north side of the building. A concrete walkway, the wheelchair lift and some stairs which will all be under the porch, under the new porch. As you can see from the elevations of the building, the back of the existing building has a low slope shed roof on it right now. It would be our intent to add a pitched hip roof to kind of match the front part of the building, to kind of bring all of the architecture together on this building. We would be taking all the siding off of the existing building and we would be putting new horizontal siding on. It’s our intent to kind of dress the building up and to split, at the story level, we’re providing a freeze board for the building, horizontal siding on the bottom with cultured stone at the bottom, and then a shake pattern up on the upper portion of it to kind of break it up and give us a little bit of aesthetic value to the building. Outside of that, that’s really the only changes to the exterior, other than the new entry for the staff, which right now currently goes into the basement. As you open the back door, there’s a set of basement stairs. So in order to make that whole area work, we have to add a vestibule which will have a coat closet and stuff, and that will strictly be just for the three staff members that will be utilizing the building. We’ve tried to increase permeability. Obviously all of the existing landscaping is going to come out and be replaced with new landscaping and we’ve tried to take out as much pavement as we can and still maintain the required amount of parking that these folks and the Code would require. So we would hope that you would look at it with favor. MR. UNDERWOOD-Any questions from Board members at this time? MR. CLEMENTS-I just have a comment. Essentially what you’re doing here is you’re squaring the building off and you’re moving the porch from the front to the side. MR. HALL-Correct. MR. CLEMENTS-Okay. MR. UNDERWOOD-Anybody else? MR. URRICO-Where does the staff park now? MR. HALL-On this site when Dr. Wasserman was using it? MR. URRICO-Yes. MR. HALL-I don’t really know because there aren’t any real striped parking spaces. It’s my assumption, from having seen people in and out of there, that they park parallel along the entry drive on the south, but nothing is really striped. There’s no striping at all over there. I can only imagine that, he had three chairs in there at one time, based on what we can see from what was removed. If he had three dental chairs in there at one time, I’ll bet parking was a mess on this lot. MRS. HUNT-Yes. I have a question. Now the staff parking will not, you can’t go from staff parking to the (lost words). MR. HALL-Yes. There will be no vehicular space through that access. We’re going to put a landscaped berm in between there. MRS. HUNT-Good. MR. HALL-And that will further cut down our flow of, right now everything kind of drains from the high point, which is in the back of the building, out that drive, that big, wide driveway, into the roadside swale along Bay Road, and then gets picked up by the stormwater system out there. By adding, by narrowing the curb cut, adding green space, and adding this landscaped berm, we’re going to decrease the amount of flow that comes out that driveway to just what would be done by the two parking spaces that would be remaining there. MR. UNDERWOOD-Anybody else? All right. I’m going to open up the public hearing. Anybody from the public wishing to speak on the matter? 12 (Queensbury ZBA Meeting 11/17/2010) PUBLIC HEARING OPENED MR. UNDERWOOD-Any correspondence? MR. URRICO-No correspondence. MR. UNDERWOOD-Okay. I think everybody’s pretty clear. It’s that tiny little addition going on one side. You’re taking off the porch on the side towards Lowe’s. MR. HALL-That is correct. MR. UNDERWOOD-Traffic flow does not seem to be over difficult to contain, based upon what the Planning Board has said in their preliminary, and you’re going to go back to the Planning Board, and they’ll probably make the decision whether they split the parking or keep it the way it is, or, you know, that’ll be their purview. I’ll just make the comment that it’s a good re-adaptive use for a building that’s still got a long life left in it, and the plain Jane nature of it now, it’s probably going to look a lot nicer with what you suggested, you know, it’s going to fit nicely on that corner, and I think, you know, depending upon what the use was proposed for, but in this instance here it sounds like you’re only going to have one or two people there at any given time. MR. HALL-Yes, they’re a financial advisor, and they really only see people on scheduled appointments. In fact, a lot of their appointments they actually go to people’s houses to talk with them. They don’t really get a ton of people that come to their office, and when they do, it’s one or two people at a time. MR. UNDERWOOD-So as far as the impact compared to what used to be there, it’s an improvement in most respects. MR. HALL-Yes. MR. UNDERWOOD-Board members, do you want to discuss this one, or does it seem simple enough to you? Does anybody have a problem with this one? MR. KOSKINAS-I just want to compliment you. I think that building’s going to look great there, compared to that big white box. I think you’re doing something nice for the community. MR. HALL-Thank you. MRS. JENKIN-Yes, I’ll second that as well. I think that there’s a lot of positives in the project, absolutely, with the landscaping being a big thing, which I heartily agree with. I think that putting the berm up is very, very important, only because people are always in a rush, and being able to use that as a drive through, I know people do it and they can, and so that’s a real very important consideration. I think that providing a handicapped access is important for the business, but it’s also important for any kind of building we’re trying to make positive changes to. I think that that’s important, and having it covered it another important thing. I think that, the one, there’s no division between the mailing business next door and that, so actually I wonder if people coming in just use whatever parking is available. MR. LAPPER-We checked and there are no recorded easements of record. So, I think, as a practice, they certainly both use it as a drive aisle, but there are no rights to it, as far as we can tell. So that’s why we’ve tried to make the drive aisle as big as we could so it would work on this site, if that other site changed. MRS. JENKIN-Right. Good. MR. HALL-The other big thing is that the side of their building that faces this parking lot is the back of the building. It’s split. There’s a construction company that has a small office in there as well, and the back door is the entrance to the construction company. The Mailings Made Easy portion, they’re on the other side and there is parking beyond that on the other side of that building. MR. UNDERWOOD-All right. Anybody else? All right. I think we all recognize that the Travel Corridor Overlay and all the improvements on Bay Road probably aren’t going to get changed from what they are because it’s about maxed out as it’s ever going to be. You’ve got a turning lane and that’s it as far as the road goes there. MR. HALL-There is still a permanent easement along the front of this property as well, so they can cut the corner some more if they have to. 13 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-And it is, everybody recognizes it’s a busy corner because we’ve all driven through there numerous times and hit it at high traffic times, but the Board doesn’t seem to have any problem with this one. Does somebody want to take this one? John, do you want to do it? MR. KOSKINAS-I’ll take it. MR. OBORNE-Mr. Chairman, please close the public hearing. MR. UNDERWOOD-I’ll close the public hearing. Sorry. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 57-2010 ADIRONDACK RETIREMENT SPECIALISTS; SEAN BERGER, Introduced by John Koskinas who moved for its adoption, seconded by Richard Garrand: 351 Bay Road. Granting Area Variances as follows: One, 52 feet 9 inches of relief for the proposed southern vestibule and 32 feet 0 inches relief for the proposed northern entrance; 52 feet 9 inches of relief for the proposed southern vestibule and 45 feet 2 inches of relief for the proposed northern entrance; and 2 feet 6 inches of relief for the proposed northern entrance, all per Section 179-3-040. Two, 10 feet 6 inches of relief for the western drive aisle and 9 feet 6 inches of relief for the eastern drive aisle as per 179-4-090, and, Three, relief for the expansion of a nonconforming structure as per 179-13-010. Criteria for considering an Area Variance according to Chapter 267 of Town Law follows: One, minor impacts to the neighborhood may be anticipated. Two, feasible alternatives appear to be limited due to lot limitations. Three, the requested Area Variance is rather substantial but acceptable, in light of the existing conditions on the lot. Four, minor impacts on the physical and environmental conditions in the neighborhood may be anticipated, and, Five, the difficulty may be considered self-created. Note that it’s SEQR status Type II and no further review is required. Mr. Chairman, I move for approval. th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mr. Clements, Mrs. Jenkin, Mrs. Hunt, Mr. Urrico, Mr. Koskinas, Mr. Garrand, Mr. Underwood NOES: NONE MR. HALL-Thank you very much. MR. LAPPER-Thanks very much. Mr. Chairman, before we get started on the next one, I have a procedural question. My clients are Hayes and Hayes LLC. They’re the property owners and they would be considered the real party in interest because it’s their permits that are in question. MR. UNDERWOOD-Sure, and I would say, at this point in time, I’ll give you as much time as you guys need to explain your end of it. MR. LAPPER-That’s great. MR. UNDERWOOD-I would agree. I think the next one we’re going to be spending considerable time on. So, I don’t know if anybody wants a quick break before we get into this next one or not. Everybody all set? All right. NOTICE OF APPEAL NO. 4-2010 SEQRA TYPE: MARY MONTHIE OWNER(S): HAYES AND HAYES, LLC ZONING: NC LOCATION: DIXON ROAD APPELLANT IS APPEALING A ZONING ADMINISTRATOR DECISION OF SEPTEMBER 14, 2010 REGARDING LAND DISTURBANCE AND NEED FOR SITE PLAN REVIEW ON PROPERTY AT DIXON ROAD OWNED BY HAYES AND HAYES. WARREN COUNTY PLANNING: N/A LOT SIZE: 8.5 ACRES TAX MAP NO. 302.14-1-79.2 SECTION: 179-6-010 JOHN STROUGH, JOHN HENDLEY & JIM ROUND, REPRESENTING APPLICANT, PRESENT MR. UNDERWOOD-In the interest of what we’re doing here, we had a request, just to explain the situation, I walked in down to Town, just last time I believe when we were setting the agenda for this month, and Craig handed me a piece of paper that was from the neighborhood down in the area of Dixon Road, and I would just say at this point in time, a little background on the project. Hayes and Hayes Construction, the builders, have proposed to build a sequencing of, I believe, seven duplexes down on the lot that’s presently there off Dixon Road, and in the area of 14 (Queensbury ZBA Meeting 11/17/2010) the 8.5 acres, there will be seven duplexes. The neighborhood, at the time, I guess, was appealing Craig’s most recent Zoning Administrator decision of September 14, 2010 regarding land disturbance and the need for Site Plan Review on the property at Dixon Road, owned by Hayes and Hayes, and so I’ll read in, I’m going to have Roy read in what he’s got. Now, Cathi Radner’s here tonight representing Craig Brown. MS. RADNER-Actually I’m here as Town Counsel. So I’m here to answer questions for the Board. I can answer questions for Craig or answer any questions you may have. MR. UNDERWOOD-Sure, okay. Not at the request of this Board, however. At the same time, I think what we will do here is this. I had requested some maps to be printed for our Board members. Were those maps printed out today? MR. BROWN-Yes. MR. UNDERWOOD-Okay. I want to get those maps passed out so everybody’s got something to look at. Now, as far as the background of this case here. MR. GARRAND-Mr. Chairman, at this time I’m going to respectfully recuse myself. MR. UNDERWOOD-Rick is going to recuse himself because he does live in that affected area, and I believe he’s had substantial conversations with the neighbors down there in regards to the project. So he’s going to be out of the picture on this one. Okay. Just for the benefit of the public, we’ll talk a little bit about what’s going to happen here. Hayes and Hayes broke ground on a project this year, and this project involves the building of duplexes currently under construction down on the site there. As far as this Board goes, our Board has not reviewed this project. The Planning Board has not reviewed this project, and I think there’s a question in some people’s minds as to the applicability of the rules, and I think Craig’s going to explain his position as to how he reached his decision to allow this project to proceed, and at the same time, I think what we’re going to do here this evening is try and reach some resolution as to what might happen with the project, whether it’s going to proceed as presently is in progress or whether there’s going to be some roadblocks to progress at some point in time, based upon the decision making of our Board here. It’s not a normal procedure, but occasionally during the year, Craig makes a decision, and someone disagrees with it, and the public has the right to appeal any decision that the Zoning Administrator makes, and that’s why we have a Zoning Board of Appeals in Town. It’s not a simple thing where you just say, I don’t like this so I don’t want it. There has to be some substance to the argument in both cases, and in most cases, I think when we look at projects that occur, and I’m talking multiple projects that involve the building of multiple dwellings in Town here, almost always the sequencing occurs after Site Plan Review occurs. Site Plan Review is very important, and I think the Town, over the years, and Mr. Lapper, it doesn’t matter who the attorney is, Mr. O’Connor, you know, I mean, they’ve appeared before us numerous times, and in the Site Plan Review process, there’s adequate time for everybody to put their two cents into anything. You can propose any project you wish in the community, but at the same time, I think we recognize the importance that there’s input from all the parties that might be affected. Our Board just simply received, at the beginning of, the day I walked in, our Board was handed a piece of paper, and that was the appeal from the people in this neighborhood who, I guess, were upset that this project had ensued, and that’s all the information that this Board has received. So, today after I went over to visit the site, I was over there first thing this morning, very early in the morning, and there is a box on site with a map showing what’s going on in the project area, all right. It shows the arrangement of what’s going to happen of what’s going to happen in there, and I did take a look at the map, and I thought that it would be important for our Board to have something in front of them, because a simple piece of paper doesn’t really explain much to me about anything. I will say, on behalf of the Board members, because we were not provided with any information about this project whatsoever, other than the Appeal, I was a little bit taken aback by that, and usually I’m placed in a position where I have to go back down, dig up the archives, read the old past record about what the property was before, what the property is proposed to be and what it might be in the future, and then reach some kind of a general conclusion on that, and that’s why we’re here tonight as a Board. We may reach a conclusion tonight. We may not reach a conclusion tonight, but I will say this. It’s been suggested, and the next thing that I’m going to have occur here is I’m going to have Roy read in the Staff Notes. Now we have numerous people that work in the Community Development Department besides Craig, but Craig is the Zoning Administrator, and he’s charged with reviewing every project that comes in, and making sure it’s in compliance with the zoning regulations as they exist, and I think, first of all, what I would like to do, is have Roy read in those recommendations. Craig wrote these notes, in defense of his arguments, and then I think what I’m going to do is turn it over to Craig, because I’d like to have Craig explain the timeline here, and how he reached the conclusion of the current building process here. Now, the one question I have in my mind, right from the get go, is this. Jamie, you were on this Board for many years. We always appreciated your commentary, and I will 15 (Queensbury ZBA Meeting 11/17/2010) say, on behalf of Hayes brothers, they’ve taken some very difficult sites in Town. In general they’ve had pretty good luck with what they’ve built and things like that, and I know in this instance here, on this site here, there’ve been other projects that pre-existed, you know, before this project ensued here, and in both instances this went to the Planning Board for review because those were subdivisions. This project is not a subdivision, and I think there’s probably some confusion from the public in regards to that, and that is that the Hayes brothers are going to maintain ownership of this property, and it’s going to be duplexes that are rentals, I believe, and that would be under the guise that it came in on. So that’s the difference between a subdivision where you actually build houses and then sell them off to whoever wants to purchase them, but I think you guys also have been in the position where you’ve built duplexes or quad plexes and then had to sell them off, and I believe that would be the ones over on West Mountain Road. You got into a little trouble over there because of site problems and decided to divest yourself of them, at some point in time in the past. So, Roy, why don’t you read in what you have here, and then I’m going to turn it over to Craig for a while and Craig’s going to explain the happenstance of what we did here so far. STAFF INPUT Notes from Staff, Notice of Appeal No. 4-2010, Mary Monthie, Meeting Date: November 17, 2010 “Project Location: Dixon Road Description of Proposed Project: Appellant is appealing to the Zoning Board of Appeals relative to a September 14, 2010 Zoning Administrator determination regarding a land disturbance activity. Staff comments: First, Standing: Was the appeal taken within the appropriate 60 day time frame and is the appealing party aggrieved? ? The application was signed on October 10, 2010 and filed with the Town on October 15, 2010. ? Mary Monthie is listed as the property owner of record at 1 Hughes Court which is immediately adjacent to the subject property. The application appears to be timely and the appellant appears to have standing. Second, Merits of the argument: It is the appellants position that Town Code Section 179-6-010; Extensive clearing of vegetation and grading requires that the subject property undergo a Site Plan Review by the Town Planning Board pursuant to that section of the code. Further, the appellant references; “Positive seqra declaration regarding project/property” with no additional reference for clarification. It is the Zoning Administrators position that the subject property must go through Site Plan Review with our Planning Board as noted in the September 14, 2010 letter to the property owner. Based on the specific section reference in the appeal and the specific details of the September 14, 2010 determination letter, it would appear as though both the appellant and the Zoning Administrator agree that the project in question must have Site Plan Review for the extensive clearing of vegetation and grading on the site. No other sections of Town Code were referenced in the September 14, 2010 determination letter therefore no other sections of the Town Code are appealable in this instance. If both the Appellant and the Zoning Administrator agree that the project needs site plan review for the land clearing then it would appear that an appeal on this item is without merit. With regards to the “Positive seqra declaration regarding project/property” reference in the appellant’s papers, no determination or mention of the applicability of SEQR for this project was offered in the September 14, 2010 letter from the Town Zoning Administrator therefore, an appeal on this matter is without merit. Facts: The Zoning Administrator determined that the subject property needed Site Plan Review for the extensive land clearing. The Appellant’s papers suggest that the subject property needs Site Plan Review for the extensive land clearing. The Zoning Administrator has made no determination relative to the applicability of SEQR for the project/property.” 16 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-Okay. I’m going to need the people who are representing Ms. Monthie to come up to the front, to the microphone. MR. URRICO-Do you want me to read that in, too, that letter that we received tonight? MR. UNDERWOOD-Well, I mean, I think we have that on record, you know, because we’ve got the list, but is someone going to be representing the applicants, do you want to come up, please. All right, to begin with here, I think it’s important for us to develop a little bit of a timeline here, because our Board has no idea when this project started. All right. I was just simply handed a piece of paper. That’s all I’ve ever seen. The first time I ever went to that site was today when I walked around the site this morning about nine o’clock this morning, after the rain had quit, and so, Craig, I wish you would fill us in at this point in time. I would like to know when this project first came to you, and I assume you had some kind of a conference with the two brothers. MR. BROWN-Yes. Mr. Chairman, I can certainly go first. Typically with an appeal, you know, the courtesy is to have the appellant provide their side, and then. MR. UNDERWOOD-That’s fine, but I think we need a little bit of background as to a timeline here, and I want to develop that first of all. MR. BROWN-Okay. I guess a timeline would start probably in May of 2009, when the Town Board adopted a new Zoning Ordinance which changed the zoning on this particular property, from I believe it was SFR, which is single family residential, to NR, which is Neighborhood Residential. As part of that zoning change, the Table of Allowable Uses also included a reference to duplex as a PU, which is a Permitted Use. There’s no mention of a Site Plan Review, which is typically found in a column where use requires Site Plan Review, and if you guys are familiar with that table and you understand that, if there’s a use listed in the left column, if it’s allowable in a zone, it’s either a PU, a Permitted Use, an AU, an Accessory Use, SPR, which is Site Plan Review, or SUP, which is Special Use Permit. In this case duplex in the NR, Neighborhood Residential zone, is listed as a PU, Permitted Use, not required to have Site Plan Review. MR. UNDERWOOD-Okay. So under the normal context, then, we would assume if you had an empty lot in a Neighborhood Residential zone, and you wanted to put up a duplex, you could apply and you would probably get a permit to put up a duplex. MR. BROWN-Under the current Zoning Ordinance, that’s correct. MR. UNDERWOOD-Because now, the coding had changed to allow for a dwelling to be erected as a duplex. MR. BROWN-That’s correct. MR. UNDERWOOD-Okay. MR. BROWN-Yes. MR. UNDERWOOD-Now, my question is this. I know there’s been nuance and some innuendo from everybody involved in the project. In this instance here, we went from a single family residential neighborhood, to a neighborhood residential that permitted duplex use, and so I would think that in the broad context of the paint that was used by all the people on PORC Committee and all the people who were working diligently to achieve something, and we had builders. We had all kinds of, I see Mike in the back of the room and people that spent hours and hours and hours trying to make sure this thing is going to work for people, that in the initial drafts that came through, everybody was in agreement that duplex was going to be allowed in that Neighborhood Residential zone. This wasn’t something that was done with a swift pen, like at the last minute or something like that. MR. BROWN-No, absolutely not. The Comprehensive Land Use Plan, I’m glad you mentioned that. Part of the process developed a Plan Recommendation’s Map, and on that map, it shows the area in question to be potentially zoned Neighborhood Residential. In the Comprehensive Land Use Plan Recommendation A-2 talks about providing for duplexes and multi-family buildings and dwellings within the Neighborhood Residential zone to allow for increased density, and that all comes right from the Comprehensive Land Use Plan, which was the work that the PORC Committee did, or a result of the work PORC Committee did. So, the zoning changed according to the Comp Plan. 17 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-I think there’s something in there to the effect that a mix of housing is what they were looking at, that they assumed that you weren’t going to have only single family like you used to have, but you were going to have duplex use as an allowed use in that zone. MR. BROWN-That is what I understand the recommendations say. MR. UNDERWOOD-All right. I’ll continue on, and with the timeline. So Hayes brothers came in with an application to you to put in seven duplexes. MR. BROWN-In March, I think March or April of this year they filed the building permits, seven building permits for the duplexes. No conversation, no pre-meeting. It’s an allowable use in the zone. They’re wise enough and have counsel enough to figure out what our Zoning Code and tables. So they filed the building permit. MR. UNDERWOOD-Okay. So if you were in a Neighborhood Residential zone, your take was that if you had the allowable area for housing, and in this instance here we’re talking, what, eight acres? MR. BROWN-Yes. MR. UNDERWOOD-Okay. So you’re take was that they were allowed to build eight duplexes on that site with no Site Plan Review by the Planning Board, or any other review necessary. MR. BROWN-That’s the way the Code’s written, that’s correct. MR. UNDERWOOD-Okay. So in other words, and would that apply to other zones in Town besides the Neighborhood Residential zone? MR. BROWN-If they’re listed as a PU, a Permitted Use, in that zone. That’s correct, and they have the proper density. MR. UNDERWOOD-Right. So if you were on Route 9, and you owned a large parcel, like say that all those empty lots up on Route 9, up by the new gas station that’s going, that just was finished up there, the Stewarts up there, then you would be allowed to put eight gas stations on a lot with no Planning Board review if you wished to do so? MR. BROWN-Well, you kind of picked a poor example. I mean, Route 9 is all commercial, obviously, and all commercial uses require Site Plan Review. MR. UNDERWOOD-But a gas station would be a permitted use in that zone, would it not? MR. BROWN-Gas station is a permitted use, subject to Site Plan Review. MR. UNDERWOOD-Okay. MR. BROWN-Yes, all commercial uses are. MR. UNDERWOOD-So would you explain your rationale why no Site Plan Review is necessary in the instance of multiple dwellings being created? Because I have a question. In other words, we, at numerous times, have reviewed subdivisions in Town. This is not a subdivision, but, nonetheless, it’s an eight acre lot, and you’re saying, if I owned that lot, I could put eight single family dwellings up on it with no questions asked, or eight duplexes. That would be the choice of the builder who owned, the owner at the time? MR. BROWN-The way the current Code is written, that’s correct. MR. UNDERWOOD-Do you think that’s a good idea? MR. BROWN-What I think are good ideas or bad ideas. MR. UNDERWOOD-Well, I want your opinion. Do you think that’s the way that the Town Board drafted the new regulations, that that’s what they had in mind? Because I wish to know your own personal feelings on that. Yes or no. MS. RADNER-That’s not really an appropriate question to ask. MR. UNDERWOOD-No, it’s a very appropriate question, and I don’t want to be interrupted. I asked the question. I want an answer. 18 (Queensbury ZBA Meeting 11/17/2010) MS. RADNER-Okay. MR. BROWN-Do I think that that is a good idea? Is that your question? MR. UNDERWOOD-Yes, do you think that’s acceptable? MR. BROWN-I think it’s appropriate, based on the way the Code is written. MR. UNDERWOOD-Okay. Thank you. That’s all. MS. RADNER-Just for point of clarity, though. This Board doesn’t have the authority to challenge the validity of the Town Code. That’s the Town Board’s decision. I just want to make sure it’s clear for people here in the room that what you’re doing here tonight can’t be to go back and re-visit whether or not the Town Board appropriately determined what the zoning is. The determination is whether Craig’s interpretation is consistent with what we’ve got before us. MR. UNDERWOOD-Craig’s interpretation is consistent with what Craig’s opinion was at the time, right, based upon his judgment, and that’s, he’s entitled to that. That’s perfect. MS. RADNER-Right. MR. BROWN-Well, yes, I can certainly speak for myself, but. MR. UNDERWOOD-All right. Just to finish up. When the application came in, then, you decided there was no further formal review necessary, that this project could proceed. MR. BROWN-Correct. MR. UNDERWOOD-The other question I would have for you is this. Is this a cluster development? Because these houses are all kind of packed in close together from what I see? MR. BROWN-No, I wouldn’t consider it cluster development. I mean, there’s a cluster provision, it’s in the Zoning Code, in the Subdivision Code, but this isn’t a subdivision. It’s not a cluster development. MR. UNDERWOOD-Okay. There’s no further construction anticipated, because I know that there’s a lot of open area over on the site. MR. BROWN-There’s no further development that’s been proposed to our office. MR. UNDERWOOD-Sure. Okay. All right. I think what I’m going to do next then, is. MR. BROWN-Do you want me to continue through with the? MR. UNDERWOOD-Yes, because I think next was, did you get any kind of, I mean, ground was broken about what time on this site? MR. BROWN-I don’t know. I don’t do the field inspections. I don’t know when the first inspection was done. I would have to guess probably after frost was out of the ground. Maybe late May, June. MR. UNDERWOOD-Okay, and at that time was there any questions from the neighborhood? Was there anything brought to your attention as far as like people wondering why, all of a sudden, this was happening? MR. BROWN-No. I don’t remember anything. I think the first instances were questions that were raised by Mr. Strough. MR. UNDERWOOD-So just most recently? MR. BROWN-It was in July, maybe, we were in a Town Board workshop and we. JOHN STROUGH st MR. STROUGH-July 21. st MR. BROWN-July 21, we were at a Town Board workshop and the issue came up of, we were in the process of revising the Zoning Ordinance and this issue came up, and that was the first time that. 19 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-Okay. So ground was broken on the site. I mean, you had this same plot provided to you. I assume that’s the one that you looked at? MR. BROWN-Yes, with each of the building permits there was a drawing, yes. MR. UNDERWOOD-With each of the building permits on there, and with all the perc and all that stuff on there as far as the site goes. MR. BROWN-Right. MR. UNDERWOOD-Okay. So at what point did you make the discovery that they had exceeded the amount of clearing on the site there, and I guess that was an oversight on your part? MR. BROWN-Yes, that’s correct, and it was immediately before. I don’t know the date and time, th but it was immediately before the letter that I wrote on September 14. MR. UNDERWOOD-So you didn’t anticipate that building eight buildings was going to clear more than a quarter of an acre of the lot, or is that a new regulation, too, we have? MR. BROWN-Well, it’s actually an error in the Zoning Code right now that we’re in the process of revising and changing to one acre which is going to be consistent with the New York State DEC stormwater requirements, and their threshold is one acre. In one of the drafts two years ago a quarter of an acre was in there, at the behest of one of the Town Board members at the time, and that was too small. Somehow it stayed in the draft, and that’s the standard that’s used today. So did I overlook, did I mistakenly misidentify the fact that they were going to disturb more than a quarter of an acre, yes, I missed that. MR. UNDERWOOD-How much actual clearing has been disturbed over there would you estimate? MR. BROWN-Actually the applicant has submitted their stormwater, I’m sorry, their Site Plan Review application for the disturbance, and I haven’t reviewed it to get a clear handle on the disturbance, but I would say maybe an acre and a half, would be my guess. MR. UNDERWOOD-Okay, and you have to include the access road I would assume? MR. BROWN-Yes. Again, I haven’t done the calculation or reviewed their application, but it’s, my guess is going to be over an acre. MR. UNDERWOOD-Okay. So this project is going to be on Town water, but it’s going to be on septic systems, from what I see off the plot? MR. BROWN-I believe that’s correct. MR. UNDERWOOD-Okay, and electric utilities is up to them. They can come in overhead or underground whatever they want because there’s no Site Plan Review in regards to the project as you’ve said. Right? MR. BROWN-I believe that’s also correct. MR. UNDERWOOD-Okay. All right. I think that brings us up to date, then, with, you know, how we got to this point in time, and I think what I’ll do now is turn it over to the people who have filed the appeal. So do you guys want to introduce yourselves, please, for the record, so we have it on tape. MR. STROUGH-John Strough. JOHN HENDLEY MR. HENDLEY-John Hendley. JIM ROUND MR. ROUND-Jim Round. MR. UNDERWOOD-Okay. MR. STROUGH-And I’d like to start. 20 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-All right. What I’d ask from you, then, is I would like the same background story from you. He was given an opportunity to give his side of the story. What I would like from you is sort of a timeline established from your point of view. MR. STROUGH-Yes, and I’ll give that to you, Mr. Chairman, but first I’d like to just share with you a letter that I got tonight, preceding, just preceding this meeting, from a Pat Malone. Although I can’t attend a neighborhood meeting, or he said Town Board, he meant the ZBA meeting this week, I would like to add my name to the list of people who oppose sneaking in a project of this scope. The Hayes Group was responsible for problems with their development at the old concrete plant on West Mountain Road that caused flooding and closure of a County highway for an extended period of time. I reside at 11 Queensbury Place and have supported you, referring to me, in every election. So now I’m hoping you will keep your property values and your neighborhood intact. Another one says, we can’t make the meeting tonight, we are all concerned about this construction and the impact of the drainage system. As you know, our basement was flooded two years ago and we’re concerned that will happen again. How did this project ever get approved without a public hearing? There is a lot of wildlife in that area, and an Environmental Impact Study should have been done prior to approval. Thanks so much for your support of the people in this ward. Mary M. is in the hospital at the moment, very stressed out about this situation. So that’s why we’re here. Mary Monthie is in a wheelchair and ailing and couldn’t make it here, and as a result, as you see, she’s in the hospital, but a lot of the local people in back of me are very upset and very stressed and very concerned because they weren’t given a Site Plan Review. They weren’t given an opportunity for a public hearing, and I’ll speak to why they should be entitled to a full Site Plan Review in a minute, but I want to make another clarification, too, because I note, in the paper, in reference to Town Law, New York State Town Law, 267-A, Paragraph Four, Hearing Appeals. Unless otherwise provided by local law or ordinance, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision interpretation or determination made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article. Now that’s no surprise. We all know that so far. Here’s the point I’m trying to make. Such appeal may be taken by any person aggrieved, or by any officer, department, board, or bureau of the Town. Okay. Let’s legitimize the situation. All right. Now, if I may. MR. UNDERWOOD-What I would like to do is this. I think the Board members all recognize that we allow anybody to appeal any decision in this community. I mean, we don’t exclude people, and it doesn’t matter, I think, if you’re a Town Councilman, you would be welcome to appear before this Board at any point in time, and I think everybody recognizes that if Mrs. Monthie is very elderly in a wheelchair, certainly she’s probably not prepared, in a public forum, to speak before a board of any type. It is an intimidating thing in some instances, especially when you’re in a room full of people, and I think that we’re fine with listening to whoever represents the neighborhood down there, but what I would like you to do is this. We will get into the semantics of what our duties are as a Board and things like that, as we continue in the evening here, but what I would like to have you do is stay on task, and I would like to run the meeting as we’ve done before, and that is have you give us a little bit of a timeline, because I want to make, I want to establish the timelines. I want to establish whether anybody noticed that this project was going in and made a concrete appeal prior to this latest one that I received about, you know, less than a month ago I’m going to guess. MR. STROUGH-Okay, and our argument is going to be basically that this particular Hayes and Hayes project has a unique history that has to be addressed. It cannot be dismissed, and there’s some unusual abnormalities in the law of the Code of the Town and the way it was handled. So we feel that we are entitled to our day before the Planning Board, our Site Plan Review, okay, and we’re talking about land disturbance. We’re talking about building disturbance, roadway, driveway in there disturbance, vegetation disturbance, stormwater disturbance. We’re talking about land disturbance. We’re talking about the big picture. What Mrs. Monthie wanted was a Site Plan Review, not limited to hydrology or stormwater, a full- fledged Site Plan Review, and I will explain and I’ll get to my point at the end, and I will give the overall picture for the group to abbreviate the following comments. We’ve already agreed to this, okay. All right. The brief background, and the timeline. Last March of 2010, Hayes and Hayes Developers were quietly issued a building permit for seven duplexes, 14 units, on an 8.7 acre parcel, lot number 302.14-1-79.2. No public notice was issued. No Planning Board review was scheduled. Our Planning Board was not even asked about the newest Hayes and Hayes proposal. The previous issues identified by the previous SEQRA Positive Declaration were not addressed. The unaware public was, understandably surprised when one day the construction crews showed up and began a fast and furious building program to construction seven duplex buildings, 14 units. Because the Hayes and Hayes last proposal was so controversial, I received numerous phone calls from irate neighbors asking how could this be permitted and why were we not notified? I was equally astounded because their last development proposal was 21 (Queensbury ZBA Meeting 11/17/2010) not substantially different from this one. So I have three points that I would like to make, and the timeline’s inherent in here, Mr. Chairman. The points are, and my main points, I tried to abbreviate my discussion by putting my main points in red, and a further elaboration is in your regular script, and I’ll try and stick to the red for brevity, and for making my points. So my three points are going to be, Number One, at the bottom of the handout that I’ve given you, that SEQRA here does come into play, in the sense that you cannot dismiss the previous history of a project so similar to this one, okay, and some would argue that SEQRA needs to be completed, and you might argue SEQRA needs to be completed by law. You might also argue that that’s not the argument here, but I’m going to argue that it is. The second thing is the abnormalities in the Code. As our Zoning Administrator referred to a table and a permitted use for a duplex, singular, as a result, didn’t need to do Site Plan Review. I claim it’s denial of Site Plan Review and it was an unfair denial of Site Plan Review. I also want to make the points that there’s other things involved here, and I’ll call that the also category. So those are the three categories I’m going to approach. First let me talk about SEQRA, and on Page Two, it’s been argued here, by Town Counsel and others, that SEQRA wasn’t needed. Now, why? It’s a different project. Now, I’m going to argue it’s not a different project. It’s basically the same project as he had before. The project before was 12 single family residential units. That’s the project that was proposed in 2004, and you have to keep that date in mind, 2004. Why am I emphasizing 2004? Because that’s the date, on September 28, 2004, that the Planning Board made a positive SEQRA declaration. Okay. In summary, what is a positive SEQRA declaration? It is when, and for the sake of the public, it is when the Planning Board has identified potentially substantial negative impacts, and it’s called a Positive Declaration. Now, in brief, I gave you the SEQRA declaration in total, but I’m going to just summarize it, allow me. Number One, they identified negative impact on water resources and high water condition. Number Two, negative impact on aesthetic resources, tree removal on natural views, Interstate view and rural character. Three, negative impact on surrounding neighborhood vegetation removal would hinder the buffer from pollution, noise and odors, and, four, the cumulative effect of the above. All right. Now what is next in the Planning Board is that the developer has to address those impacts. It doesn’t prohibit them from developing, you know, of some kind, of some form. It only says that they have to address those negative impacts, those potentially substantial impacts. That’s where we left off on September 28, 2004. Now the reason why I keep emphasizing 2004 is if you look at the very same plan in front of you, what date is on there? 2004. Okay. Whether we’re talking about 12 units or 14 units, it’s not substantially different. Any impacts of 12 units or 14 units is not going to be substantially different. So, SEQRA still applies. Now these neighbors in back of me, they met with the Planning Board on April 20, 2004. They met with the Planning Board on May 18, 2004. They met with the Planning Board on June 22, 2004. They met with the Planning Board on July 20, 2004. They met with the Planning Board on August 17, 2004, and they were also here on September 28, 2004 when the Positive Declaration was made, in a project that’s basically, basically the same project that they had offered before. Now, SEQRA law, are you going to say that if I offer 14 units instead of 12, that my SEQRA obligations from 2004 are erased? If that’s the case, hurray for all the developers because all you’ve got to do is submit one proposal, if it gets a Positive Declaration, submit another proposal, make it even bigger even, okay. I maintain that they have SEQRA obligations that they have to address. Now you may not agree with the SEQRA, but ultimately what I want you to agree with us is that this project deserves a full Site Plan Review by the Planning Board. That’s all we’re asking, but there’s more to this than just the SEQRA issues, okay. Point Two, PU or Permitted Use. We’re going to argue that this permitted use that was used as the excuse to deny Site Plan Review wasn’t a legitimate excuse to deny Site Plan Review. MR. KOSKINAS-Could you please repeat that? MR. STROUGH-Yes. The Zoning Administrator has argued that the zoning changed. You have Neighborhood Residential, and that there was a table, and the table was titled Allowable Uses in a Residential zone. Now in that table, and I have a copy of that table, and I assume that you’ve seen that, but you haven’t. MR. KOSKINAS-We have it. MR. STROUGH-You do? Okay. In that table, duplex is listed as a PU or Permitted Use in a Neighborhood Residential zone. It, again, duplex, doesn’t say duplexes, and I think the Chairman was making a point that we, too, want to make a point. Because something’s listed as a permitted use, like a bank in a Commercial zone or a house in a subdivision, another words, the intent here was if you’ve got an approved subdivision, and it says that you can have houses on that, then you could put a house on a given lot, a house on a given lot, and it’s okay. You don’t have to go through Site Plan for that. That was the intent of a permitted use. Not eight banks on a given lot off of Route 9 in the Commercial zone, that wasn’t the idea, or seven duplexes on a given lot, that wasn’t the idea. We made that idea clear, even the Board agreed and made clear to our Zoning Administrator that the wording should be changed to make it clear because he seemed to misunderstand the understanding, and, you know, I’ve got to say, I agree 22 (Queensbury ZBA Meeting 11/17/2010) with Craig Brown, 99% of the time. I think he’s a great person, a great asset to the Town. I just disagree with him on this one thing, and I think we understand where each other is coming from. There’s no maliciousness or animosity intended. I’m just disagreeing. I think these people deserve a Site Plan Review, and we’re looking for you to agree with us, but we’ll see if that’s the case. I have more to make. All right. On the permitted use, my main points here, because this was the Zoning Administrator’s basis for his allowance of the issuance of the building permits, we’re arguing that’s not valid. The table that was referred to, the table that’s in front of you, the table of allowable residential uses, or allowable uses in a residential district, that table, that table, I’m going to argue, is invalid, okay. Why? All right. It’s funny, when this whole thing started to occur, I looked at my Codebook, and I was looking through the brand new 179, that we had adopted in 2009, and I couldn’t find this table. The table wasn’t there. So I went on line, to see, well, maybe I misplaced it, and the table wasn’t on the on line version of 179 either. Curious. So I went, and checked the resolution, okay, that approved the new Code. No table. This is the same resolution that was made available to the public. Okay. The reason why I say that is because in the resolution approving this Code, it says in the resolution, the Town Board resolution approving the new Code stated that we’re approving as that that was being presented at this meeting, it says it in the resolution. It also goes on, and available for public review at this meeting, and it wasn’t there. MR. KOSKINAS-I apologize. Can you tell me what table you’re missing? MR. STROUGH-I thought you had a copy of it. MR. KOSKINAS-Are you talking about the area table? MR. STROUGH-It’s the allowable uses. MR. UNDERWOOD-I will say this. Joan Jenkin called me and asked me where the duplex was written in the Codebook, and I had the same problem, because I kept going through it over and over and over again looking for it, and I said, it’s just not there, and I know that the explanation has come from you in the past that I guess when the Town Board was doing its final revision, Stu Baker was taking all the notes and stuff like that, and was sort of overwhelmed with all the information load that was coming through, and somehow this got left out or something, but it did get acknowledged as being put back in late, after the fact. MR. STROUGH-Well, let me, yes, I’m getting to that. Okay. MR. KOSKINAS-Well, the tables are on line. MR. STROUGH-Well, the tables are now, but there’s more to the story. All right. So now the table was not a resolution available to the Town Board. When the Town Board approved the new Code, the table wasn’t part of that approval, and as it says in the resolution, at this meeting, the part, this, that was available to the public for review, did not include that table, as it stated in the resolution. He we are, we are approving the resolution and the Code that’s being presented here tonight at this meeting. Okay. Now, something’s funny here. Now everything’s starting to make sense. Why it’s not in my Codebook. Why, when it was sent to the publishers, it came back and none of the Town Board’s Codebooks included this table, and it was never sent to the State. So I called the State, Department of State. I said, when does a law come into effect, and they said, Mr. Strough, the law comes into effect upon the filing with the Secretary of State. I said, so it wasn’t in effect until then? He said no. I said, how about if the official copy was in the hands of the Town Clerk, and he said that doesn’t make any difference. It’s not official until it’s in our hands, and I said, I’ve got another question for you. What if the table wasn’t in the resolution in the new Code that we were approving, and I read them, the same words I just read to you. He said, Mr. Strough, what I’m going to do, you are on firm ground. We’re not allowed to intervene in municipal affairs, but what I’m going to do is I’m going to send you a document and you will see, and it will confirm to you, that you are on firm ground. Here is the document, sent to me by the Department of State, after they explained I was on firm ground. Adopting Local Laws in New York State. Okay. This document basically reinforces what I’m saying, that the permitted use, that the table that included allowable uses in residential districts and stated that in a neighborhood residential zone that a duplex was a permitted use, was never legal. It was not legal until last month, okay. It wasn’t legal at the time that the permits were issued in March. It wasn’t legal. As a matter of fact, I could make the argument it’s not legal right now, because you know what, the public’s never had their chance to have a public hearing on it because it wasn’t in the document presented for the public hearing. It wasn’t in the resolution approved by the Town Board, and you could argue that the safe route, that our counsel should tell us, is, you know what, you better put that table, schedule a public hearing, have your public hearing, and if you approve the table, then make it part and then send it to the Department of State and it will become part of your code. All right. So you might say, okay, I don’t have an argument there, but listen, I’m not done, but my point is this, is that the very foundation that the Zoning 23 (Queensbury ZBA Meeting 11/17/2010) Administrator used to deny Site Plan Review is in question. That’s what I’m saying. It’s in question. It’s clearly in question, and I’m not talking just from my own experience, and I’ve been in community planning for 15 years, okay, and I’ve never seen a project of this magnitude not go through Site Plan Review. Never. Okay. That brings me to my third point. My third point is there are other reasons, which I call the also. It has been the custom of this Town to insist on Site Plan Review of projects of this size. I cannot think, in the 15 years I’ve been involved in community planning, of one project of this magnitude that did not go through Site Plan Review All right. So what we did here was out of character, out of protocol. It wasn’t part of our historic experience, and I think it threatens the integrity of the Town standards, by not allowing a Site Plan Review. I think in order to get back to establishing the integrity of the way this Town does business, we have to insist on Site Plan Review. The community interests, they’re represented here. They need to be represented. They need to be reviewed. They need to have their day. And all of New York State laws and local laws need to be addressed. All potential impacts need to be examined. SEQRA, as you know, this project has a history to it. You cannot deny that history, okay. So, stormwater, groundwater, erosion, flooding, traffic safety, emergency vehicle access, interstate pollution, human health, traffic site distance from the proposed entry and exit area, character of the neighborhood, public controversy, flora, fauna, endangered species, natural resources, open space, noise levels, waste production, intensity of use, public controversy and many other potential and possibly cumulative environmental impacts could be present here, but how does anybody know because we never had a Site Plan Review, but there is a history suggesting that there are some significant impacts, and it cannot be dismissed. It has to be addressed. So, in conclusion, this Town should be correcting its mistake, not defending its mistake. Applying SEQRA we can defend. Not applying SEQRA is something we cannot defend. Denying SEQRA in this case, denying Site Plan Review is indefensible and any effort to do so is reprehensible. We should not be defending our mistakes. We should be correcting them. We should proceed to finally adopt a code, a table of allowable uses in residential districts, because we currently do not have, in my opinion, a legally adopted allowable use table for residential districts. Let’s not continue to deny these neighbors and the residents of land use due process. Similar to any after the fact application, we’re asking the ZBA to stop work, stop work on this, pull the building permits if you feel that’s necessary to stop the work, but insist on the fair solution. Insist on a Site Plan Review. A full Site Plan Review. Now, I can take questions, but I also want to give everybody the opportunity to make their presentations to you, but even after the public hearing, if you want any of us to come back for questioning, we’d be glad to do so. MR. UNDERWOOD-Okay. Do you guys want to have like a little two minute break here to hit the ladies or men’s room? I certainly want to. That’s why I keep interjecting. So I’m going to take a two minute break and hit the men’s room, and then I think what I’m going to do next is have you guys come up here because I want to get your side of the story, and then we’re going to go back to you guys again, all right. I would rather keep this a point, counterpoint discussion because I think it allows us to get the, draw some conclusions to get the big picture here. So we’re taking a two minute break here, or longer. Okay. If everybody could take a seat, please. And I think that due to the fact that we have a large crowd here tonight, I would like to minimize the amount of side line conversation going on. If you want to have a conversation with your pal next to you, you can go out in the back room and discuss it to your heart’s content, but it becomes very difficult for people to hear, you know, the conversations and to people that are trying to take notes and things like that that are going to address the points as we proceed. All right. So you guys want to introduce yourselves for the record, please. JON LAPPER MR. LAPPER-For the record, I’m Attorney Jon Lapper with Mickie Hayes and Jamie Hayes, who constitute Hayes and Hayes, LLC, the property owner and the developer. I’ve got sort of a long list just in response to John’s speech that I’ve got to go through in terms of pulling this back to what the legal issues are and what the Appeal is before this Board, and, you know, what’s appealable and what’s not, but before I do, he made a lot of statements about the law that was in effect at the time and what Craig did, and I wonder if, before I start, if we should let Craig respond, because John was talking about what Craig was doing. MR. UNDERWOOD-No, I think what I’d like to have you do is, I would like to hear from you in regards to the timeline, just the same thing. I’m going to allow Craig to respond, you know, because we have not gotten to the Appeal, and I’m not sure, this evening, if we’re even going to get to the Appeal, because it looks to me like we’re going to be here until Kingdom Come with this one, and in essence I think that probably we could have our own evening, if we wanted to, maybe several evenings, before we resolve what’s going on here. I don’t think this is an easy matter, and I think it’s one that our Board is very uncomfortable with at the present time, given the fact that we had no knowledge of the project and we haven’t been provided with anything at all. I mean, I know some of the Board members I made the suggestion that they go in and read the record of all the past things that have occurred on the project, and I think they understand 24 (Queensbury ZBA Meeting 11/17/2010) the fact, and I think you can bring up the fact that previous SEQRA determinations, I think everybody understands that those are not applicable. Nonetheless, I think that it is important that the Board members keep in mind what this project is, and we will come back to task here. So if you want to go through your list, have at it. MR. LAPPER-Well, I’ve got a list of issues that John raised that I’ve got to respond to, but in terms, and it certainly relates, in part, to the timeline. So I’ll start with that, but I’ll have to come back to that, just to be responsive to what you’ve asked, Jim. In 2004, there was a project that was proposed that was a 12 lot, single family residential subdivision with a Town road that would have included and involved the disturbance of most of the eight and a half acres, because you were taking a whole bunch of the land to do individual single family homes, and that project was Pos Dec’d. So an Environmental Impact Statement would have had to have been prepared for that project. Some of the neighbor’s concerns were about drainage issues, which had to do, not with, there’s no wetlands on the site, but there’s a drainage way that comes off the Northway on the southern part of this site. It didn’t make sense at that point for that project to continue and to go through the expense of an Environmental Impact Statement for 12 single family lots. What subsequently happened in the timeline is that in 2009, when the Town Board changed this so that a duplex or duplexes are a permitted use, and just on that issue, you only need a half acre for each duplex. So it’s not one duplex. It’s a duplex per half acre and it’s in the density Code, in the area chart it says a half acre per duplex unit. The advantage of that for this applicant is that they were able to use a whole lot less of the land to congregate these closer to Dixon Road and stay all the way away from the southern end of the site. We’ve got the two maps here. So it’s a completely different project, in terms of the site development, the area of disturbance, but in terms of the use, a permitted use without Site Plan Review, a PU, means you can go in and get a building permit, just like if I want to build a house on a subdivision lot I can go and get a building permit. So with something, I heard the words sneaky, no one got notice of it. The Town Planning Board didn’t hear about it, it’s not required because if you’re going to build duplexes and it’s a permitted use under the Code, that the Town Board approved, and John was on the Town Board, you don’t have to go to the Planning Board. So, and that’s why when Jim says we never heard about it, that’s because it didn’t require going before the Boards, but then what I also heard, which is just a little bit troubling, is when you say, you know, we don’t know a lot about this in terms of what’s before us and the maps and the plans, the person that’s appealing has the obligation to lay out their case, to submit to you whatever, if they’re trying to make an argument, when they file this Appeal, they have to give you what their arguments are, and I’m looking at Miss Monthie’s appeal, and it says sections of Zoning Ordinance for which you are seeking an interpretation, and remember they can only interpret the determination, we’re th challenging what’s the four squares of Craig’s September 16 letter, and this says 179-6-010, Need for Site Plan Review Positive SEQRA Determination Regarding the project property. So need for Site Plan Review, and the SEQRA determination on the project or the property. Well, there’s nothing in Craig’s letter that talks about SEQRA. I mean, that can’t be an issue before you, if they’re challenging Craig’s letter. It’s a question of Craig’s letter talked about that they have to come back for Site Plan Review for the stormwater on this project, and no one’s disagreeing with that, and the Site Plan application was submitted this week to go before the Planning Board. So on the issue that they’re appealing, Craig has said that it’s subject to Site Plan Review because it’s gotten over the quarter of an acre threshold of disturbance. We acknowledge it’s over a quarter acre of disturbance. It needs Site Plan, which is a stormwater management plan that will ultimately have to go to DEC as well, and that’s been submitted for review, but in terms of the project itself, it is vastly significant in terms of that timeline, that the Town Board came in, in 2009, and changed the Town Code and said that duplexes are permitted on this site as a permitted use without Site Plan Review. So Mickie Hayes had building plans prepared and submitted them to the Planning Board, to the Planning Staff for Planning Staff review. It has to go to Planning and then it has to go to Building and Dave Hatin has to review it for Code issues. He got his building permit on March 15, 2010, got his st subcontractors lined up and started constructing in June, the 1 of June. So John said at the end, he ended saying I hope that you revoke the building permits. The building permits are not before you, because if somebody wanted to appeal the issuance of the building permit, that would have had to have been within 60 days after they were issued, because the applicant is allowed to rely on the fact that after 60 days, it’s not appealable. I’m looking at Article 14, Appeals and Variances. There are a couple of points that I need to make about this, but for the time being, the time of, sorry, time of appeal. Such appeal shall be taken within 60 days after the filing in the Town Clerk’s Office of any order, requirement, decision, interpretation or determination of the Zoning Administrator. So when he issued the building permit, the time to appeal that was 60 days after that. So, in reliance upon the building permit, Hayes and Hayes has constructed seven masonry foundations, and four of the units are nearly completely framed and the rest are partially framed. Hundreds of thousands of dollars have been spent. A permitted use, not requiring Site Plan Review. The building permits were issued. Sixty days passed. That’s not appealable. I want to get back to Miss Monthie’s Appeal, you know, and again, whatever they appeal, they have the right to ask whatever questions they want about th Craig’s letter, but they appealed Craig’s letter of September 16, and they can only appeal what 25 (Queensbury ZBA Meeting 11/17/2010) he determined, and there’s not a whole lot in his letter, and if they wanted to appeal the building permits, that time has passed. So, again, Craig didn’t talk about SEQRA in his letter. The need for Site Plan Review, and we all agree that Site Plan Review has been submitted, and there’s nothing in his letter about SEQRA. So I don’t see that there’s, you don’t have that in front of you in terms of anything to review. The SEQRA wasn’t in his letter. You can only review his letter. John is making policy arguments to you. He’s saying historically there’s always been Site Plan Review for a project of this size, and, you know, if it was in a zone that required an SPR, Site Plan Review use, it would require Site Plan Review, but it’s in a zone where it’s a PU, a Permitted Use. So that’s not a legal argument. That’s a policy argument, and in fact, you go back to the Town Board and talk about that, which he can, and he’s on the Town Board. I have to say this, although it’ll annoy you, but in the application for Appeal, it says applicant’s name, Mary Monthie, and then it says agent’s name, none. So I know, in terms of your procedure, that if no one’s listed as an agent, they don’t have authority. I mean, the applicant submitted this. She’s not here. They said that she’s not here, and, you know, if she’s an older lady in a wheelchair, as I heard, that’s unfortunate, but if they were going to be her applicants, or her agents, that ought to be, she has to give him authority because I mean, I think somebody prepared this for her and she signed it and that’s whatever, neither here nor there, but they don’t have authority to appear before you. So, on that basis, in terms of how you usually handle these things, no one has authority to appear, but I’m just mentioning that for the record. It’s just unusual in terms of the procedure. Moving on. John talked a lot about the adoption of the Code in April or May of ’09, of that new chart, and when Town Board takes an action, the Statute of Limitations is four months. So if somebody wanted to challenge that, they can go to court and bring an Article 78 to challenge whether that was properly adopted. All I know is that there have been opinions from Town Counsel that it was properly adopted. I believe that those are attorney client privilege, and I haven’t seen them, but I believe that you’ve seen them, as to whether that was proper or not, but regardless, it’s not something that’s before you because the adoption of the, the Town Board adoption of that law is not part of this Appeal, and it can’t be because, I mean, it’s certainly, your jurisdiction is 60 days after something happens, if somebody’s going to challenge it. The Statute of Limitations for an Article 78 is four months on a Town Board action. None of that happens. So, I mean, John’s making an argument. My understanding is that the other four Town Board members have checked with the Town Clerk and that the record is complete, but I’m not weighing in on that, because I wasn’t there. All I’m saying is that it can’t be part of your determination. That’s not properly before you as an appeal. You don’t review whether the Town Board properly adopted something, and, regardless, 60 days have passed and four months have passed, and I know that John’s upset about this, but that’s not properly part of the Appeal. It’s not in Mary Monthie’s Appeal, and it’s too late, regardless. So in terms of the SEQRA issue, I’d like to show you. This is, and I’ll turn around for the audience, a 12 lot single family residential project that was proposed, a subdivision that would require the development of the whole site, 2004. This is what they got building permits for six (lost words) seven duplex units, and you can see what’s colored in in green, that’s a completely different project than it was because (lost word) the Town Board said you can do this as a permitted use, they changed their project just to take the path of least resistance. It’s a permitted use. So it’s something that the Town Board encouraged them to do. Vastly different, in terms of what, any kind of environmental impacts, because you’re leaving most of the site completely undisturbed, and that’s why the SEQRA wouldn’t apply because that was a different project. AUDIENCE MEMBER-Is it staying green like that, or are those trees getting cut down? MR. LAPPER-They’re not getting cut down. It’s staying green. They’re not being disturbed. In terms of SEQRA Law, the issuance of a building permit is considered an administerial action and it, in and of itself, is not subject to SEQRA. So, nothing was done wrong. Somebody said the word sneaky. When you go to the Building Department and apply for a building permit to build a house, that’s not subject to SEQRA, even if you’ve gone through a project for building a shopping mall, when you finally get to the building permit, building permit isn’t subject to SEQRA. It’s considered an administerial action. You’re trying to determine whether it’s designed in accordance with the New York State Fire and Building Code. That’s a building permit. It’s not subject to Site Plan Review because it’s a permitted use. The Hayes grew up in Queensbury. They’ve done a lot of projects. There was some reference to West Mountain. They took a site that was a former concrete plant, that was an absolute mess. There was a stormwater issue which has now been corrected by making the pond three times the size. They did turn that into a townhouse project, and sold townhouses. This is an apartment project. They own dozens of apartments elsewhere in Town to keep and maintain, and it’s not a subdivision. So it didn’t require approval from the Planning Board as a subdivision. It didn’t require approval from the Planning Board as a Site Plan because it was a permitted use without Site Plan Review. Nobody did anything sneaky. They simply did what the Code allowed. John referred to his ah ha moment was 2004 is on both plans, and that’s because both plans relied on a 2004 property boundary survey. So that doesn’t mean that anybody envisioned that they were going to be doing a duplex project in 2004. They couldn’t because it wasn’t permitted at that time. It was under the 2009 Code, but both of those maps go back to the same survey, of course, 26 (Queensbury ZBA Meeting 11/17/2010) because there’s no reason to send a survey crew out. Nothing’s changed on the site. So they used the 2004 survey when they submitted this, but that doesn’t, there’s no legal significance to that. It’s the date of the survey. Jaime mentions that the Town did a SEQRA when they did the re-zoning, when they looked at the Zoning Code and change it to a permitted use in that zone. When John makes an argument about the custom of the Town, that Site Plan Review of a project of this size, I mean, that’s not a legal argument, because it’s a question of, if this is a permitted use, it didn’t require it, and again, the building permits are not properly before you for Appeal. We concede that this has to go to the Planning Board for a review of the stormwater plan. We’ve submitted a Site Plan application to provide for that. Craig required it. We agree. We don’t think that they’re saying that it doesn’t, but to blow this up, because the neighbors would like that project to stay undeveloped. To blow this up into challenging the Town adoption of a law which was almost two years ago, or the issuance of building permits which were last March, that’s not properly before you. So, I hope that we can get rid of this tonight and say that it has to go to the Planning Board for Site Plan, which we all agree for the stormwater plan, and let it go at that. Nobody did anything sneaky. Nobody did anything wrong. Anything else that you guys want to add at this point? Okay. MR. UNDERWOOD-Yes. I have a question for you. In regards to the take on the project. I know one of the controversial issues currently before the Town is the water shed property in the Town that’s owned by the City of Glens Falls, and I know they propose to do multiple dwellings out there. How many acres are we talking there, Craig, 3600 acres or something? MR. BROWN-The water shed property? Yes. It’s a significant parcel. MR. UNDERWOOD-Thirty-six hundred acres. So that would be approximately, if we went back to 10 acre zoning. MR. BROWN-I think the math is, if you go back to 10 acre zoning, you subtract all the wetland and pond areas, I think they would be entitled to 68 units, I think is the math I heard. MR. UNDERWOOD-Sixty-eight? MR. BROWN-Yes. Okay, based upon that, and they could, under the current regulations, start building, you would issue them a permit for building those tomorrow? MR. BROWN-Under the current regulations? MR. UNDERWOOD-If they came in tomorrow with an application, would you issue them a permit? MR. BROWN-It’s not 10 acre right now. It’s not zoned LC-10 right now. It’s zoned LC-42. MR. UNDERWOOD-Yes, but I’m just saying, if it were zoned LC-10 today, they could come in tomorrow and start building anywhere they wanted out there, as long as it wasn’t wetlands, right, in any arrangement they preferred? MR. LAPPER-Can you have duplexes in an LC-10? MR. BROWN-Are you talking about duplexes. MR. UNDERWOOD-No, I’m not talking about duplexes. I’m just talking anything. MR. BROWN-Well, again, based on the lot size and the density requirement per unit, the way the current Code is written, it’s based on lot size and density, land required per unit. There’s no provision in the current Code that says one parcel, one building. It’s not in the current Code. MR. UNDERWOOD-So any large property in Town tomorrow could come in and, under the guise of what you’re saying here, they could propose the maximum number of dwellings allowed on that lot with no Planning Board review whatsoever? MR. BROWN-Well, when you say any, that’s a pretty broad statement. There’s, you know, 50 different scenarios that could come in. MR. UNDERWOOD-Well, no, I’m just saying, in this instance here, we allowed this project to ensue with absolutely no review whatsoever, you know, other than it was in compliance with the Zoning Code as it exists and it met all the setbacks and things like that. It needed no variances in regards to that. MR. BROWN-That’s correct. 27 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-So everybody in Town would be entitled to do whatever they wanted with property. MR. LAPPER-That’s not true. There are very few PU uses in any of the zones. Permitted Use, I’m looking at the table that all of them, and, I mean, there are probably six PU uses in the whole Zoning Code. Everything is site plan review. The Main Street zone, you can do apartment house, condos above first floor as a permitted use. MRS. JENKIN-Which chart are you looking at? MR. LAPPER-I’m looking at the Summary of Allowed Uses in Commercial Districts. MRS. JENKIN-And what date is on that? MR. LAPPER-I think it says April of ’09, approved April of ’09. I’m getting old, I can’t read that small. MR. LAPPER-So I see on this whole chart, I see two permitted uses there, and I see industrial districts, about a half dozen permitted uses in the Veterans Field Light Industrial and a produce stand as a permitted use without Site Plan Review. So it’s very rare. I mean, mostly everything that you do would require Site Plan Review, but if you have a permitted use under the Zoning Code, if somebody doesn’t like that, the Town Board needs to change it. On the Residential Code. MR. UNDERWOOD-What do you think the rationale was for allowing this in this zone? I mean, I’m mystified. I’m just saying, you know, you guys have come in numerous times and gone through the process, and, you know, the Planned Unit Development process is not something that’s always happy because of, you know, certain Board members that you have to deal with and things like that. I know it’s never an easy time for anybody, but you jump through the hoops and usually things work out in the end. MR. LAPPER-Yes, they do. MR. UNDERWOOD-And in this instance here, I’m just wondering how this one slipped through the cracks, you know, and it really does seem a unique circumstance, under the guise of what you’ve done here on the site. MR. LAPPER-But you can’t say that it slipped through the cracks. If the Town Board. MR. UNDERWOOD-No, I’m not arguing that point, Jon. I’m just saying, just from a standard of fairness, and that is that, in other words, people come to expect that there’s a normal review process, and you make your living from that review process, too. The builders in Town, the people in Town who purchase homes here, hope that there’s more availability of reasonable housing in the community, but at the same time, I think, you know, when something like this happens, it’s unnerving, not in the sense that it’s right or wrong or anything like that, but I’m just saying it’s unnerving to all of us, and to just swab it off as, well, don’t worry about this one, it’s okay. MR. LAPPER-Well, Craig gave you the answer. The Town Board, in the Comp Plan, the Town Board said that duplex units were permissible, and then they codified it in this zone by saying they’re permitted units. So, you know, and you’re making a policy argument, also. MR. UNDERWOOD-No, I’m not making an argument. I’m just saying, I’m just stating, I listened to your argument. You make a cogent argument. I’m not arguing your points. I think you’re all right on task with what you’re supposed to be doing. Do you have anything else that you guys want to add at this point? MR. LAPPER-We’ll probably want to after the public hearing. We’ll probably need to comment, but that’s pretty much our story. MR. UNDERWOOD-Sure. Okay. I anticipate, we had two other people who were waiting on their projects this evening, and that was Matt Sokol’s project, and the 9099 Corporation, and that was Monty’s Discount Liquor and Wine Store, and, you know, I’m thinking, you know, we’re going to be here, I don’t know how long, I can only guess, you know, looking at the number of people that are in the room, and I don’t know how many people are going to want to speak. Can I just get a show of hands as to how many people want to give testimony here tonight, raise your hand, please. Okay. So it looks like we’re up about 15, 20 people or something like that. All 28 (Queensbury ZBA Meeting 11/17/2010) right. Then I think what I’ll have you guys do is go sit back down, and we’re going to open up the public hearing. MRS. JENKIN-Jon, would you mind if I looked at that, because I can’t find that chart, and, just to see what yours looked like. MR. LAPPER-Absolutely. MR. UNDERWOOD-Okay. I think what I’m going to do, well, let me just stop for a moment here. The other applicants that were on tonight, and out of fairness to them, Matt Sokol, are you here? Matt, do you want to wait until Kingdom Come, or would you like to table this and come back? MATT SOKOL MR. SOKOL-I would like to go before. MR. UNDERWOOD-I mean, out of a sense of fairness, I almost feel like I should let you, and we should take a break from this and postpone this, but, you know, we already started. The pecking order, I don’t make it up, you know, so I apologize for you guys being held up here tonight. I don’t know if you have a suggestion. MR. BROWN-Yes, I have a suggestion. I think some of the points that Attorney Lapper made are important, in that the items that are appealable tonight are only the items that are taken from the letter that I wrote. So I think if we’re going to go through the public hearing process, if you only solicit comments based on those items, and those items don’t include building permits, SEQRA, allowability of the use, use tables, those aren’t issues that are appealable. So comment on those items make take up unnecessary time that’s not focused on appealable item tonight. MR. UNDERWOOD-All right, Craig, I’m going to appeal to my own Board here at this point in time, all right, because I know you guys are the ones who are going to be making the ultimate decision here. What are your feelings as to what we should do? MR. URRICO-I think we ought to let it ride tonight. We’re here. People are here. MR. UNDERWOOD-Okay. People are here. I’m going to open up the public hearing, and I think what I’m going to do is just go from side to side. I’ll take somebody from the left side of the room. So somebody pop up here and, up to the microphone, please. Ma’am, do you want to come up? All right. I’m going to remind everybody that I’m going to limit you to five minutes a time. So no major dissertations, and again I would ask you to stay on task, in regards to the project, and again, the Appeal was such that, as it now stands, this project is going to go to the Planning Board, and the Planning Board’s going to make a decision, too. In other words, you’ve given us very narrow parameters that the Planning Board and we are going to operate under, saying that nothing is appealable except what you say, but what you said was your opinion, and I want to remind the Board members that, as a Zoning Board of Appeals, we are empowered with all the powers that you have. You made your decision. That’s all you’ve said, and if we make a determination amongst ourselves, if we feel that you omitted, or there were omissions, I want to just remind you, if you had made this determination on Day One, what would the result have been? MR. BROWN-The determination that? MR. UNDERWOOD-That they were going to clear too much land based upon what you had on the Site Plan? MR. BROWN-It would be the same determination that I made in September. MR. UNDERWOOD-So that would be that it would go to the Planning Board. MR. BROWN-For Site Plan Review for the clearing of the land. MR. UNDERWOOD-Only for the clearing of the land? MR. BROWN-Absolutely. MR. UNDERWOOD-Okay. All right. That’s what I wanted to know. MR. BROWN-And that’s what the law says. The law says you can only appeal what’s in the determination. 29 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-Okay. You can only appeal what’s in a determination, but when you go for Site Plan Review, Site Plan Review has to be subject to SEQRA. MR. BROWN-Sometimes. MR. UNDERWOOD-All the time. It’s written right in. MR. BROWN-Type II actions aren’t subject to SEQRA. MR. UNDERWOOD-Yes, but, in other words, let me ask you this one, then. You never made any determination as to what the SEQRA type was. In fact, on this sheet tonight it’s still blank, and I asked you the other day in the office, why is there no SEQRA determination? You said I don’t have to make a SEQRA determination because it’s not a subdivision, or something to that effect. MR. BROWN-You didn’t ask me that question, but this is an appeal. Appeals aren’t subject to SEQRA review. That’s why there’s no SEQRA type on the agenda, because this is an appeal. MR. UNDERWOOD-Okay. What is the SEQRA type that you’re going to assign to the Planning Board? MR. BROWN-For the Site Plan for the extensive clearing and grading? MR. UNDERWOOD-Yes, what is the SEQRA type. MR. BROWN-I don’t assign it. Staff doesn’t assign it. The assignment of a classification of a SEQRA type is up to the Board doing their review. Our Staff suggestion will probably be an Unlisted use. MR. UNDERWOOD-Yes, and what does that mean? MR. BROWN-It means the Board can do, the Board can perform any type of SEQRA they want. Typically, applicants will submit a SEQRA Short Form. If the Board, the reviewing Board, determines that there’s enough information in the Short Form to perform an adequate SEQRA review, they do. If they request additional information, they’ll ask for a Long Form which is one page or two pages, versus 25 pages. So that would be the potential SEQRA review, if the Planning Board decided to go that way. MR. UNDERWOOD-Okay. The Planning Board is going to be the ultimate authority here, because they’re the ones that have the purview as far as what’s going on here, as far as the excess clearing. MR. BROWN-That’s correct. MR. UNDERWOOD-Does the Planning Board, under its normal regulations that it functions under, only confine itself to a narrow review, as you have suggested, or is it usually a very broad based review? I mean, in general terms. MR. BROWN-That’s a fair question. In general terms, if it’s a full blown Site Plan Review, if you go through the use tables and find a use and it’s in that zone, it’s allowable through Site Plan Review, it’s a full blow Site Plan review, soup to nuts. In this particular case, the specific section of the Code that I’ve referenced and the appellant’s referenced, was a section that deals with extensive clearing and grading. So the need for Site Plan Review is, in this case, narrowly focused on the clearing and grading and the stormwater associated with that disturbance. MR. UNDERWOOD-You had a submission made today, or yesterday? MR. BROWN-Deadline day, which was Monday. MR. UNDERWOOD-Okay, and that’s the Stormwater Pollution Prevention Plan? MR. BROWN-It’s a Site Plan Review application that has a stormwater management report in it, along with, I believe there’s a SWPPP in it to be. MR. UNDERWOOD-Okay, and that has to go to the DEC for their check? MR. BROWN-Well, the DEC requirements say that if you’re going to disturb more than one acre of land, at any one given time, you have to gain coverage under their SPDES permitting 30 (Queensbury ZBA Meeting 11/17/2010) program. So, and again, I’m guessing that this is about an acre and a half. They’re going to be required to gain coverage under the New York State DEC. MR. UNDERWOOD-So you’re going to have to do SEQRA for DEC, whether you want to or not. MR. BROWN-Well, we don’t do SEQRA for DEC. So, the only reason our Planning Board would do SEQRA was if the type of use requires it, and then the level of SEQRA review is up to the Board doing their review, and they also pick what type of review it is, and that’s based on, and those choices are based on criteria that are set up by the DEC. There are Type II lists and Type I lists and everything that isn’t on either one of those lists is an Unlisted action. MR. UNDERWOOD-Sure. Okay. All right. Ma’am, do you want to identify yourself. PUBLIC HEARING OPENED CAROL LA POINTE MRS. LA POINTE-Yes. My name is Carol LaPointe. I live on Hughes Court, and if you’ll excuse me, I’ve had a cold, so I hope you can understand me, and don’t get nervous over this because I’m not going to read it all. I thought about it, but, nah. I’d like to start, talking about timeline. I’d like to say when someone purchases land, thought should be given as to is this the right land for the right purpose. I’m not sure that this was what happened. No matter what they tried to put out there, it seems that somebody’s going to jump all over it, and I went down to the Town offices as soon as I heard about it, maybe about two or three days after I’d first heard about it, and I talked with Dave Hatin and Craig Brown. He was very gracious, telling me what I had to do to get to this point, but it was made very clear by both he and Dave Hatin that this is the way it is, and this is the way it is, there’s not much I can do about it. So I’ve just kind of sat back a little bit and then when I see the project going on out there, I looked and I see, I want to make this brief, but there’s, Building Number Five, which is the last one, I think from what the blueprints show here, the septic system’s supposed to go out in back. Now we’re talking about clearing land. That building is right up to the trees. I’m not quite sure how they’re going to put the septic systems in, if they’re going to go out in back. They’re going to have to take the trees down in order to do it. So that’s something I just think that someone needs to keep an eye on that, and do that. Now, I don’t know, Mr. Strough has been a real big help to us, because when you don’t know where to go. I’m not a lawyer. I’m just nobody here, but I think there should have been a Site Plan Review, and who knows what would have happened. They would have either said against us or for us. Should they not be able to put anything out there on that property? No, they should be able to do something with it, but not what is happening. Now this pile of papers right here, the Planning Board has a copy of every one of these, and what this is is this is part of that SEQRA. These are the hazards for health, what comes off the Northway, emissions from the cars, everything right down to the tires rolling on the road and the noise. The noise is unbearable, and anyone living there with no trees. This is completely cleared here just about, and it’s going to be very noisy. The pollution is going to be there, and if we’re going to, as the Town of Queensbury, put kids in there, the health risks to those children is great, and it’s there. The Planning Board has all of this, and if anybody wants this I can make another set of copies. I’ll go to Staples, but it’s here. It’s all the studies of what happens when you live that close to an Interstate highway. Let’s see, now the location where they are right now is pretty much void of trees. So they don’t have to worry about cutting down the trees, which was the issue before, and exposing everyone to the Northway down in the back part of the lot. I’m just worried about the people out in front, what’s going to happen, the noise that’s going to be there and the kids that are going to be exposed to all of this. We’ve got to think about that as people here, and as residents of Queensbury, and I thank you. MR. UNDERWOOD-Thank you. MRS. LA POINTE-But check that Building Number Five and see what they’re going to do about the trees. MR. UNDERWOOD-Okay. I would like somebody from this side of the room, do you want to come up, sir? JOHN SALVADOR MR. SALVADOR-Good evening. My name is John Salvador. I am not a resident in the community. I’m a resident in North Queensbury, and I’d like your assurance that I have standing here to speak tonight. MR. UNDERWOOD-Anybody in the public has standing. 31 (Queensbury ZBA Meeting 11/17/2010) MR. SALVADOR-Thank you. This issue of the density, and the fact that a large lot like this can accommodate more than one duplex defies logic. You mean if I have a 10 acre lot, and the zoning is five acres, I can build two residential dwellings on that? Have you ever heard of that? I never have. What you’re forced to do is a subdivision, and that’s what these people should be made to do. Now Mr. Brown says that the Code doesn’t address this. It’s self-evident. That’s why it doesn’t address it. With regard to SEQRA, if this goes before the Planning Board, they must make a SEQRA determination. That’s part of their job, and I’m sure that the past work that they did will have a heavy bearing on the subject. We’re here tonight, appealing the Zoning Administrator determination, and I’m reading from Staff Notes, it talks about the merits of the argument. I’m reading the last paragraph, first sentence. It is Zoning Administrator’s position that the subject property must go through Site Plan Review with our Planning Board as noted in the September 14, 2010 letter to the property owner. What are we here for? He’s already made the determination it’s got to go. I went to the Town Hall and took a look at the application on this, and I don’t know if everyone realizes this, but these people made an application for, they made seven applications for building permits. Each individual building has its own application. Now, we have a procedure for applications, and it’s a lengthy one, spelled out, and after you do all things like two sets of plot plans, structural drawings, registered architect’s engineer’s stamp, New York State Energy Conservation Code, all of these things you get together, it says all applications are subject to Zoning Administrator, Code Compliant and structural plan review. Now these people did all of this work to get a building permit, it’s a lot of work and it’s a lot of expense, without reasonable assurance that they were not going to get a permit? Without reasonable assurance that they were not going to get a permit? Nobody does that. You proceed with a concept and get an understanding that what you need as far as variance goes. There’s an article in this morning’s paper that sheds a lot of light on this project. I’m quoting a paragraph here, Hayes and Hayes, LLC, developers of the project, designed the duplexes as, quote, high end rental units, said Jonathan Lapper, a lawyer for the developer. Now high end rental units are not residential units. These people are planning to go into the commercial business of renting, and I know the Assessor, if you’re in the business of, I don’t know, what is it, more than three apartments on a parcel, rental units on a parcel, you’re considered commercial, and I think that’s what’s going on here. I think they need a Use Variance. They plan to go into commercial business renting, and we have two Building Codes in this State. One is the Residential Building Code and the other is the Building Code, and the Building Code covers the commercial, and it’s a little more stringent than the Residential Building Code. So these people made application for a residential building permit, and it doesn’t apply to what they intend to do. So I think there’s a bit of misrepresentation there. MR. UNDERWOOD-I’m going to have to cut you off. You’ve got your five minute limit. We’ll let you come back later, though. MR. SALVADOR-I’d like just a couple of more things, if I could. MR. UNDERWOOD-We’ll give you just one more minute. MR. SALVADOR-Yes. With regards to the septic systems, to lay out 14 individual septic systems, they way they’ve done, is something that’s going to need a SPDES permit from the DEC. That’s going to need a SPDES permit. The discharge is going to be greater than 1,000 gallons on one lot, and that’s going to need a SPDES permit. They haven’t made application for that. They don’t have approval for that. Health Department, when it comes to commercial use, and wastewater discharge to the ground, the Health Department plays a role in that. So the very fact that the use is going to be commercial, I think requires a re-do of the whole application. MR. UNDERWOOD-I’m going to have to cut you off. If you want to come back later, we’ll allow you to. MR. SALVADOR-Well, you should see these two, and then I’m finished. MR. UNDERWOOD-I can’t do it right now. I’m sorry, but we’re going to have to cut you off. Okay. We’ve got a lot of other people. Do you want to come up, sir? AUDIENCE MEMBER-I was going to ask (lost words) chair, I’d be happy to allot the time that would be allotted to me to Mr. Salvador. MR. UNDERWOOD-Okay. He’s going to yield his time to you. So why don’t you continue, then. MR. SALVADOR-Thank you, sir. In looking at the file today, the Zoning Administrator has made determinations, if I can find them, it’s not that. There’s subsequent, in the file there’s his letter of th September 14, where he talks about writing in response to the, this letter is sent to Hayes and Hayes, and he says I understand you and your agents are in the process of preparing the necessary application materials that are applications for this Site Plan Review, and if you have 32 (Queensbury ZBA Meeting 11/17/2010) any questions, then subsequent to that, they must have supplied some information, then on the th 26 of October, Mr. Brown wrote a letter to Hayes and Hayes, I am writing to you in response to th my review of your recent submitted October 20 materials for Site Plan Review, due to the excessive land disturbance on your Dixon Road project site. I have briefly reviewed the materials submitted and find several deficiencies as follows, and there are five listed here. He notes. As no Site Plan Review application was submitted, additional deficiencies may be identified upon review of additional submitted information. Please note that as the project currently has no Town approval or DEC coverage, no further work shall be done on this site until all approvals/coverages have been obtained. The only exception to this will be for the installation of erosion control fencing as shown in your project plans. As the site has already been disturbed, it is acceptable and imperative that this protection be in place immediately. You th must have completed applications submitted to the Town by no later than November 15, or an appearance ticket with the Town of Queensbury Justice Court will be issued to you. Please note our requirement for pre-submission meeting to ensure application completeness. I think he’s th admitted that they need Site Plan Review. Then these were written after the September 14 letter. These were all written after the September, and before this hearing. If there’s any more time, gentlemen. MR. UNDERWOOD-Okay. Somebody else? Do you want to come up, sir? ED PETRUSH MR. PETRUSH-Hi. My name is Ed Petrush. I live on 36 Pershing Road on the corner of Hughes Court. I just want to address three things that the esteemed lawyer for Hayes and Hayes alluded to in his comments. The first thing was is he was trying to negate Mrs. Monthie’s appeal. Okay. The first thing was that, according to Mr. Strough, there’s doubt that the actual PU, the form that was in the thing was missing, so therefore that is not included, so therefore you can’t use that. Secondly, the building permit is supposed to be, if you’re against it, you have 60 days to file, right. Well, the building permit was issued in March, as per their information. They never started building until June. How are the local residents and the neighbors, and anybody, including the Board, supposed to know that we had 60 days to file against a building permit if nothing was happening? It seems like they waited more than the 60 day to elipse the permitted use, and so many of the things in this situation seem to have just been able to make the residents and the local people oblivious to what was happening, so they could go ahead and do what they were doing without the necessary approvals and the neighborhood, and third thing I want to mention is within this neighborhood which we, Broadacres or whatever, there are virtually no units, there are a few, but virtually no units that are not single houses, owned and lived in by the owners, all right. Now the other side of the Northway is a different story. Our side of the Northway, we’ve had a very unique situation, which we would have brought up, right, all single family units, right, and we’ve never had that opportunity to either bring it before the Planning Board or the Zoning Board or anybody. Thank you very much. MR. UNDERWOOD-Thank you. Somebody from this side. JOHN WESTNEY MR. WESTNEY-My name is John Westney. I live at 28 Broadacres Road. Right about here. I know I need to talk into the microphone, but within about 100 yards of the subject property. I knew something was proposed, I had no idea foundations were in, footings were in, framing was going on. I was waiting to get a notice, and the first notice I received was the notice of this meeting, which I received about a week ago. So it was kind of a big surprise. I’ve done development. I’ve done Special Use Permit applications, all kinds of applications. I was shocked that something was being done 100 yards from my house, and I had never received a notice about it. Mr. Brown stated that all commercial projects require Site Plan Review. Unless this is owner occupied, all 14 units, it is a commercial project. There should be Site Plan Review. Secondly, the Use Table says that a duplex is permitted. Mr. Lapper has asserted that duplexes are permitted. There is a big difference between a duplex and duplexes, and he should choose his language carefully and support whatever assertion he makes. The fact that a duplex is permitted does not mean that duplexes are permitted without Site Plan Review. That’s all we’re asking for is Site Plan Review. We’re not asking for forever wild. We’re not asking to, the Hayes brothers to sacrifice their right to use their property fully. We’re asking for Site Plan Review, which is as it should have been done obviously, and when any developer, now, is Mr. Hayes being treated unfairly in that we are now asking for Site Plan Review and for him to stop building? Well, the Town doesn’t need to withdraw a building permit, but when someone applies for a building permit, without Site Plan Review, and without it having been done, then they take the risk that when they clear more than a quarter acre, and that’s an issue that is appealable, right, that they’re then triggering a Site Plan Review, and if that Site Plan is then not approved, that’s not the Town’s problem. That is the problem of the person that made an application without having public notice been given, without neighbors having even been aware that 33 (Queensbury ZBA Meeting 11/17/2010) something was approved, and when they become aware of it, it’s timely for us to ask to review the Site Plan, and that’s a business risk that the Hayes brothers took when they decided to apply for a building permit without Site Plan Review having been done, and it may not have been a prudent risk, but it’s not the Town’s risk. It is the builder’s risk, and, you know, I have accountants. I have lawyers. I’ve talked to those people and they say, you know, the reason you do a lot of things when you do them is because you put people on notice, and then they, and then you have your public hearing, and then after that new stuff can’t be brought up, but when you do a building permit without asking for Site Plan Review, you’re putting yourself at risk that something could be shut down later on because you’re clearing more than a quarter acre or whatever wire you’re tripping, and then if you’re current plan is not approvable, it’s not the Town’s problem. It’s not the problem of the Town that gave the building permit. It’s the problem of the guy that’s started a project without Site Plan Review. Thank you for your consideration. MR. UNDERWOOD-Thank you. Somebody from this side over here. JIM ROUND MR. ROUND-Jim Round, 34 Pershing Road. I just want to comment on one thing that the Hayes’ attorney said. Currently he said that the requirement is a half acre per duplex. Is that correct, Craig, half acre lots per duplexes? MR. BROWN-In this zoning district, a half acre is the baseline. If there’s water and sewer there, lot sizes could be as low as 10,000 square feet. MR. ROUND-Okay. So they could build this out another eight duplexes, under the current. MR. BROWN-Two. They have eight acres, half acre per unit, gives you 16 units, and they have 14 permits right now. So there’s a potential for two more units. MR. ROUND-Okay. MR. KOSKINAS-Craig, is that right? MR. BROWN-Eight acres. MR. KOSKINAS-No, is what you just said right? I read the table as a non-residential, it says .5 acre, or 10,000 square feet per residential unit. MR. BROWN-Right. MR. ROUND-So it’s two units. MR. KOSKINAS-So it’s two residential uses. So it’s an acre. MS. RADNER-Right. One half acre for each unit, so for eight acres, he can have. MR. ROUND-So the max is eight on that property. MR. BROWN-Eight buildings. MR. ROUND-And again, you know, outside this project, Chairman, I’m in agreement with you. The interpretation, the way the Zoning Ordinance is written right now, leaves the Town open for, you know, like you said, I own 10 acres, wetlands, you know, if it’s zoned that way and the Town has mis-zoned something, which happens, you know, no one’s fault, I can go in and build ten buildings on it, right? If it’s zoned that way, permittable use, go in and do it. MR. BROWN-There’s a lot of factors. That’s a pretty general question. It’s possible. MR. ROUND-If it’s a permittable use, right? You basically issue a permits if you’re not doing a subdivision. MR. BROWN-If you have the density. MR. ROUND-My point is that the Zoning Ordinance really needs to be looked at, okay, and be amended, so that this doesn’t occur over and over again in the Town of Queensbury. All right? MR. UNDERWOOD-Yes. Thank you. Somebody from this side, come on up. TIMOTHY KNAPP 34 (Queensbury ZBA Meeting 11/17/2010) MR. KNAPP-I just have a quick statement. My name’s Timothy Knapp. I live at 4 Dixon Court. The Zoning Administrator bypassed established protocol and procedures by issuing permits without Site Plan Review. Further, the Zoning Administrator’s current determination is incomplete, calling for only Site Plan Review when a full review under SEQRA is in order, especially after the Positive SEQRA in 2004. I respectfully ask that the Zoning Board of Appeals revoke the building permits and issue a Stop Work Order, as well as a Lead Agency Status under SEQRA. In the words of the Zoning Administrator, in advertently overlooked does not begin to describe the malfeasance here. Thank you. MR. UNDERWOOD-Somebody from this side of the room. JANET DALTON MS. DALTON-Hi. I’m Janet Dalton. I live at 5 Hughes Court, which means that’s me. Mary’s there and all these buildings are right there. I’m not a lawyer. I’m a homeowner, and I’ve been there 16 years, and I recognize that it’s not the Hayes’ fault, and I do know that they do good work. I bought this, I was actually told and it was in the MLS book, that it was forever wild land back there. So picture me surprised when it turns out to be a 100 year trust, and I bought an 89 year. I watched them put these buildings up so quickly it was stunning. I knew that they got shot down years ago. I assumed, because I’m not a lawyer, that they had to go through procedures. I was unaware that there were timeframes that I had to do this, or what I could even do. All I know is that they have cleared out a ridiculous amount of vegetation, really screwed up any kind of habitat that was back there, and it’s all open now, and they are so close to me, and it’s like three stories. The basements are out of the ground. So I don’t know what’s legal. Although I keep hearing that they should have stopped work, they haven’t, they didn’t. They’ve been starting before dawn, I know because their headlights blast into my bedroom and wake me up. They work weekends and they work sometimes until it gets dark. So, to say that nobody was trying to rush this or be sneaky, I felt snuck up on, and to think that rental property is not a business, this is a residential neighborhood. It’s business all over the place. To think that the single family houses wouldn’t have had safer, more house proud people in them, I’m hoping that they don’t turn into what people have referred jokingly when talking to me, you know, the slums. I doubt it will, but you’ve got people who are just renting. They don’t have a stake in living there. I don’t feel as safe as I did knowing that the worst thing I had to worry about were the deer or the rabbit. I’ve got people I’m going to have to worry about, and I was not notified. This is totally different from the last time that this was approached, and there’s no way you can logically convince me that this is a better use for the land than what was proposed in the first place. The people are denser. They’re closer to the people who are there, and there was no notice. I was expecting some sort of notice, and again, the only thing I ever heard was just starting, like mid- summer, the rumblings, and the rumblings had already started, so I was assuming something’s going on. I didn’t know there was a timeframe that you had to call foul. So that’s my point, and I hope that you can do something to at least make sure that my basement doesn’t flood because that’s the other thing that I keep hearing is that, oh, once they start building, the water table shifts, and I’ve got a dry basement and dry land now. So I’m wondering, in advance of this problem, who do I make sure that it’s noticed that my property is dry now, so that in two years when I start getting flooded basements, who do I go to see, who do I sue? Thanks. MR. UNDERWOOD-Thank you. Anybody else from the public wishing to speak on the matter? Do you want to come up, please. MIKE WILD MR. WILD-Thank you. My name is Mike Wild. I live at 11 Blackberry Lane here in Queensbury, not near the development, but some of you may know me as a developer, a part-time builder, someone who is on the board of the Builders Association and also someone who was a member of the PORC Committee, which was the committee formed by the Town Board to help re-write the zoning laws that we’re talking about today. Fortunately or unfortunately, I spent a lot of time with Mr. Strough on that same Committee, and we had many unique discussions about the intent of the law, and the intent of the Master Plan, which was really the basis for this, and one of the things that I took out from my opportunity to serve on that was that writing laws is really hard. It’s really hard to get them right. I often opposed John on the standpoint of landowners rights to be able to develop their property, to be able to not be restricted based on laws that might interfere with the ability to obtain value from their land. It was an interesting discussion with John, and John brought up some points today, and I think one of the things that I’d really like to say is you guys have a really tough decision. Some people might think it’s pretty cut and dried, it’s pretty simple. Here’s the law, here’s how you go about it, and others might think, you know, it’s a really complex decision, and I can’t make that for you, but I’m going to give you some of m my insights, and in the spirit of full disclosure, I’ve got to let you know that I really dislike Mickie Hayes, I really do, and I can tell you a story, but I won’t today, but it’s a story about living next to 35 (Queensbury ZBA Meeting 11/17/2010) a builder who had no concept of property lines, and taking fill and taking trees, and using the legal system to avoid doing what’s right. The choice that you guys have has consequences, and you can choose to require a review and stop this project, temporarily, until it gets a better look. The consequences of that is that there’s a delay, and people get a chance to voice their opinion, and the Hayes get a choice to voice their opinion, but the other choice of ignoring this and letting it proceed may very well have a consequence of allowing someone else to use the legal system to avoid doing what’s right. That’s all I had to say. Thank you. MR. UNDERWOOD-Thank you. Anybody else wishing to speak on the matter? Do you want to come up, please. KATIE STAMMEL MS. STAMMEL-My name is Katie Stammel and I live at 133 Dixon Road, the big yellow house right across the street from the clearing. I’ve lived in the house almost 11 years. When the construction first began, we had no idea the construction was beginning. If permits were issued in March, and construction doesn’t begin until June, there’s no way to know that, A, anything is going to be going on or that, B, we’ve suddenly lost out on our timeframe to complain or to voice our concerns or to vote, to try to file an appeal for the action that’s taking place. It’s three months past the permit issuance. I find it absolutely ludicrous that a person who works on the Planning Board has no idea that seven units will occupy a quarter acre or even a half acre, and more importantly the builders themselves have absolutely no idea how much space this is going to occupy. Any person who owns seven duplexes is in the commercial business. If you own seven duplexes in seven different streets, maybe not so much a commercial exposure, seven duplexes in one eight acre area which will all be on one road, that’s a neighborhood, you own it, it’s the same as owning an apartment complex like the John Burke apartments or something of that sort. It’s all in one place. It’s several units. It is a commercial exposure. There’s absolutely no cause why anyone should not have gotten any sort of Site Plan Review, why there were no considerations given to the former SEQRA rulings that had been found, there’s no consideration to the neighbors and the neighborhood, for the aesthetics of it. People were not warned. I understood that it was common practice, if not a regulation, that people in the neighborhood were supposed to be, within a certain distance, notified of things that were going on, be it the building of a house or the building of several houses, be it for duplexes or an individual location. We’ve seen examples here tonight of people that own commercial properties that are required to come before you for minor adjustments or what appears to be minor adjustments to buildings that are already zoned for the types of uses that they have. They need permission, but someone can come in and build seven structures in a location, and there are no checks and balances. They’re just handed an okay. Nobody’s any the wiser, and now by the Planning Board’s own admission, yes, there does need to be site review, six months too late, but now there needs to be site review. Those are my feelings. NEIL PRESSER MR. PRESSER-Hi. My name is Neil Presser. I reside at the same residence. My question would be, Mr. Underwood, when you, you said you went to the property this morning? MR. UNDERWOOD-Yes. MR. PRESSER-Out of curiosity, where do you find the building permit? MR. UNDERWOOD-Everything’s stapled to a tree, as far as I can see, the green permits are on the tree. MS. STAMMEL-How far off the road? MR. PRESSER-How far off? MR. UNDERWOOD-They’re not even close to the road. They’re way inside on the interior of the site, and I know that there was a note on there that there would be no further inspections until a box was put up with the plot plan, and that’s, when I went over to the box this morning, and pulled out this map, because I hadn’t been provided anything by the Town Development Department in regards to the project. I didn’t know what I was getting into as a Board member, because we’re not the Planning Board. We’re the Zoning Board. MR. PRESSER-Well, you can understand our frustration that when we live immediately across from the entrance up to, I’d say two weeks ago, they’d been using to go in and out of this project. We had visibility that something was going on there. We didn’t know exactly what. Now, the way this operation is worked is the construction began at the most hidden location on that property and has worked its way outward, and the timeframe that you said, the 60 days you 36 (Queensbury ZBA Meeting 11/17/2010) have from the issuance of the building permits for the residents of the area to complain, to start any proceedings, in that whole timeframe, and by your own admission, still, these building permits aren’t visible. You can understand the frustration of people. This clearly feels like something’s been snuck in the back door. How can you complain about something you’re not aware of? That’s really my only comment on this. MR. UNDERWOOD-Okay. Thank you. Anybody else from the public wishing to speak on the matter? Raise your hand if you want to come up. Come on up, please. CAROL ECKLER MS. ECKLER-My name is Carol Eckler. I live at 3 Bentley Place, which is off Hughes Court. My biggest concern is right now my sump pump is running. In the Spring my backyard has a pond that I’ve even had ducks living in there, and I’m just concerned as to what’s going to happen with that many buildings, and my water. That’s all. MR. UNDERWOOD-Thank you. Anybody else from the public wishing to speak on the matter? Okay. Do we have any correspondence, Roy? MR. URRICO-There was one letter that was submitted tonight, and I will locate it. It says “To Those in Concern: I am sorry I’m unable to be at this meeting tonight as it means much to the people in the neighborhood. I’m 90 years old so the impaction on me will probably not be for long! But for those here and those to come, it will pose a problem! It will affect all in different ways and I want to show my support to my neighbors and friends. Thank you. Mary Baker 20 Dixon Court” MR. UNDERWOOD-Okay. That’s it? MR. URRICO-That’s it. MR. UNDERWOOD-Okay. All right. MS. RADNER-Jim, would you like me to comment on any of the legal issues that were raised? MR. KOSKINAS-Could you wait until we ask our questions? MR. UNDERWOOD-We’re going to have a question period now, and it’s the Board’s turn, and if we need some answers we’ll ask those questions at that point. MS. RADNER-All right. MR. UNDERWOOD-Why don’t I go to you, John. MR. KOSKINAS-Thank you. First, to all of you here, this Board is sensitive to your concerns. Queensbury is a, I used to love it when it’s painted on the trucks, a great place to live, Queensbury, a great place to live, and I believe it is, and I’m also sensitive to the requirements of builders and developers, and this issue came to our attention, and I’ve done a little research on it, and I’m going to take an approach that I‘ve prepared here, and we’re looking, we have to make a decision, and we have to make a decision that’s going to have to be substantiated by regulation and code and point of law, and we’re going to, while I’m sensitive, personally, to the emotional appeals, eventually anything we decide has to be supportable by law and in deference to the law. So, let me go forward, and I’m going to give specific references, and these are not given as a decision making because we’ve made no decisions, but I would like comments from counsel, ours, yours, yours, if anything about this is wrong and inappropriate, if applies or doesn’t apply. So if you’ll indulge me. As Staff Notes indicate that the appellant and Zoning Administrator agree that a need for Site Plan Review regarding land clearing. My interpretation of the grievance is that Planning Board review should be required to encompass all aspects of the project, and in doing so take into full regard all provisions of State and Town Statutes. Not as a separate issue, but in the context of meeting the requirement for a comprehensive Site Plan Review, the appellant references a historical Pos Dec on the parcel as an applicable reference. I’d like to share the result of my own research with no conclusions on my part, to the parties in hopes of constructive feedback, correction or comment, and the interest here is to enrich this Board in the challenge that’s sitting at our table. First, need for Site Plan Review. Section 179-6-010B, application, I think that’s already been acknowledged. This is, within a 10 year period, all extensive clearing of vegetation or grading over an area of land greater than one quarter acre is not associated with site development for an approved subdivision or site plan development is prohibited without first obtaining site plan approval. There’s my reference. 179-9-010, Purpose. The purpose of site plan review is to ensure that a site can properly accommodate proposed new structures with minimal effect on neighboring 37 (Queensbury ZBA Meeting 11/17/2010) properties and the general area within the vicinity of the site. Now, I’m not reading the context of these statutes word for word, but rather salient parts. Everything I’m reading is directly from the text, but I’m sometimes leaving out pieces in the middle, and I’ll leave that for counsel. 179-9- 020, Applicability. A. Site plan review is required for any land use or development involving a new use. The issuance of a building permit or zoning permit for any such use shall not be undertaken unless and until the Planning Board has approved. No building permit for a use requiring site plan review shall be valid without site plan approval. 179-9-040. Pre-application Conference. An applicant must schedule and attend a pre-application meeting with the Town planning staff. The purpose of the meeting is to review the applicable regulations and application requirements, as well as procedure for review and policies and procedures of the Planning Board. 179-9-050, Application for site plan review. Application shall be made to the Planning Board using forms supplied by the Board. Absent any waiver or waivers, an application for site plan review shall include, among other things, Item J, a stormwater pollution prevention plan, for all land development activities on the site that result in land disturbance of one acre or more. A comprehensive site plan review is an absolute requirement for projects of this type and scope with numerous examples of enforcement of this requirement protocol by the Zoning Administrator on record. Any building permit issued without site plan approval is, by regulation, quote, invalid. That’s 79-0020. The second issue on the Appeal, and that’s all we’re looking at is the piece of paper that’s presented to us. Positive SEQRA Declaration regarding project or property. I see the development of this parcel has had its challenges for the owners, as evidenced by the time elapsed, the diversity of usage proposed, and the substantial archives that have been created in the Town. Included as part of this history are the following. The Town th of Queensbury Pos Dec dated September 28, which has been referenced, of 2004. A Little & O’Connor correspondence from March 28, 2005, and a Town of Queensbury correspondence April 13, 2005. Summarized, the Planning Board issues a Pos Dec regarding 12 unit subdivision of the parcel identified as Tax Map 302.14-1-79.2 for the SEQRA Status Unlisted. Hayes counsel (lost words) acknowledges the Planning Board had issues regarding the site and seeks to explore, quote, other possibilities for the site, quote, without withdrawing the existing application. Among the proposed 14 units of townhouse construction accomplished by clustering, Zoning Administrator back to counsel advises single family dwelling clustered subdivision is an allowable use only with an applied for and granted variance. 179-9-050 U, if an application is for a parcel or parcels on which more than one use is proposed, for purposes of reviewing an application, and for SEQRA compliance, all proposed uses on a single parcel or o on contiguous parcels shall be considered together. Given the history of the property and that alternate uses had been proposed by the owners, the interpretation of 179-9-050 U, may make applicable historical evaluations by previous agencies regarding these premises. Subject to interpretation, it appears that different uses for a single property, whether on one application or individual applications, should, quote, be considered together, making the SEQRA Pos Dec for one use of the parcel at least relevant to any other, not necessarily applicable, but relevant for consideration. Mr. Bob Ewing, in DEC’s permits office, verified for me that any Pos Dec is project specific, and does not carry forward as a legacy to a parcel, like a variance would. It applies to one project. You change the project, that’s set aside, and will be considered anew. Should a historical Pos Dec be considered in light of any new project? Certainly, but it’s not binding, nor does it preclude a subsequent Type II interpretation of a project by the Zoning Administrator. So does the current project qualify as a Type II action? 6 New York CRR 617.5 Type II Actions. Actions of this section are not subject to review under this Part. Paren C Paren 9, construction of a two-family residence on an approved lot. 6 NYCRR 617.2 Subparen AK. Unlisted Action means all actions not identified as a Type I or Type II action in this Part, or in the case of a particular agency action, not identified as a Type I or Type II action in the agency’s own SEQR procedures. Our Code 179-5-100, Multiple-family dwellings. A. Density. Each unit in a duplex or a multi-family structure shall be required to have the minimum lot area for the district in which it is located. In our case that’s 179 Attachment One, Table of Area Requirements. Sub Paren One, Duplexes, quote, because of the similarity in appearance of duplexes to single-family detached homes, all area and bulk requirements set forth in Section 179-3-040 apply to each building. Compacting buildings into an area below limits specified in the Table of Area Requirements on a parcel, whether identified as clustering or not, would constitute an Unlisted action, not unlike the subject action, not unlike the subject action in the referenced Pos Dec. If the Zoning Administrator made an error in his review of the current project, and it’s requirements, it’s not unreasonable to think that experienced developers or learned counsel, in my view, would recognize the necessity for comprehensive site plan review. I give these references and asking for feedback. Are they applicable? Should we interpret them literally? And whether we hear, today, Mr. Chairman, or we want written feedback, I think it’s important to us. MS. RADNER-We can quickly go down some of that list. Some of what you’ve listed is absolutely correct, and some of it’s a little out of context. MR. KOSKINAS-Maybe, and that’s what we need to know. 38 (Queensbury ZBA Meeting 11/17/2010) MS. RADNER-Right. MR. KOSKINAS-But if you’re going to answer, I appreciate your answer now, but we’d like to have it in writing. MS. RADNER-All right. I think some of the answers have already been given in writing, but certainly we can, if that’s the pleasure of the Board, get it to you in writing as well. A historical Pos Dec, as you indicated, does not run with the land. A new project gets a new environmental review. You cited a section about can the past Pos Dec have applicability for future SEQRA review, and you correctly noted that it can. What we have to remember, though, is that we have to have an event that triggers SEQRA review. SEQRA review doesn’t apply across the Board. If a person wants to make adaptations for single family residence, in most cases, there is no SEQRA review involved. Yes, you can have environmental impacts. A lot of things that people do can have environmental impacts, but there has been no decision making process that triggers the need for environmental review. So it’s kind of like saying, you know, defibrillators save lives. Well, they save lives, but you only apply them when somebody’s in cardiac arrest. That’s the only time that the defibrillator saves a life. The SEQRA only applies once it’s been triggered. MR. KOSKINAS-What would the triggers be? Type I, Type II or Unlisted? MS. RADNER-Well, a determination. It’s triggered by the need for a determination. The purpose of SEQRA, the State Environmental Quality Review Act, is to get environmental concerns into the decision making process. So the SEQRA review process worked exactly as intended back in ’04. The consideration of environmental factors was brought into the process early. A number of potential environmental impacts for that project were identified. Now these weren’t definite environmental impacts. These were potential environmental impacts. They were identified. The applicant could, at that point, have found ways to mitigate them, lessen them, or he could have said, yes, this will have the environmental impacts that cannot be mitigated, and the project could even have gone forward with environmental impacts. The applicant can to decide to withdraw that application, to not pursue it. So that review then went by the wayside. When the Town Board determined to adopt a new Zoning Ordinance, which changed the zoning for this parcel, that determination was also subject to SEQRA review and they had to go through the whole SEQRA analysis in determining whether or not to change the Town Zoning Ordinance, and at that point there were public hearings. People had the opportunity to give input on the potential environmental impacts of changes to the Zoning Ordinance. That review happened. Now we have a project that is an allowed use. So there has been no, to date, decision making process. There’s been no discretionary or non-discretionary act. There’s been nothing to trigger a SEQRA review. Craig has conceded that he made an error in not identifying that this stormwater management plan needs SEQRA review. So that determination whether or not to approve or disapprove of the stormwater management plan, that will trigger a SEQRA review, and Craig has made that determination. He’s said, Planning Board, you must take a look at this. You must determine whether allowing this clear cutting or this grading of more than a quarter of an acre will have potential environmental impacts. If so, can they be mitigated. MR. KOSKINAS-If I’m understanding you correctly, then, SEQRA review is triggered by the type of action. MS. RADNER-SEQRA review is triggered by a determination needing to be made, and then the level of SEQRA is what those actions decide. Being a Type I, a Type II or an Unlisted determines the level of SEQRA review. MR. KOSKINAS-But not whether SEQRA’s required? MS. RADNER-Correct. The one section I think you may have mis-applied to a certain extent is the section regarding a new use and whether it requires site plan review, and there’s some little modifying language in there that basically says as set forth in this Chapter. So when the need for site plan review is triggered, then you can’t go forward and issue building permits, etc., without that site plan review or you’re in violation, but until you’ve triggered that need for site plan review, you don’t get to that section. I also want to point out to you, and I think you just barely touched on this. MR. KOSKINAS-That’s Section A under applicability. MS. RADNER-179-9-020A, and let me flip to that section of the Code, site plan review is required for any land use or development involving a new use or expansion or change of a use noted in this Chapter as requiring such Planning Board review. So it’s triggered when the 39 (Queensbury ZBA Meeting 11/17/2010) change of use, otherwise in this Chapter, indicates it requires Planning Board review. It’s a little circular, but it doesn’t apply to each and every change of a use. MR. KOSKINAS-Does it apply to this one? MS. RADNER-The Zoning Administrator has made the determination, and that’s your job to decide whether that’s a correct determination or not, that the site plan review has been triggered as to the stormwater management plan, the clearing and the grading. The final thing I want to point out to you is that we do have definitions in the Zoning Ordinance, of residential use, of commercial use. This does meet the definition in our Code of a residential use. A commercial is a sale of a good or service. A residential use is a use as a dwelling and the profit or not profit aspect of it, that may have implications for assessment, but it doesn’t have implications for zoning. Did I touch on the legal issues you had questions about or was there another you wanted me to address? MR. KOSKINAS-Yes, I’m unclear, myself, on the, because it’s been brought up by the appellants, the issues of the construction of a duplex or a two family home. In the table, it’s allowed, but I want to know how we get multiple buildings on a lot. Why is that not considered another use? When the text says we use, we will consider a duplex, because of their similarity to a single family house, all the, if my interpretation’s correct, I don’t know that it is, it’s a problem for me, but it says that we will apply the requirements per building. MS. RADNER-And I think that is what Craig has done, and that’s why he’s indicated to you that there is a limit on the number of duplexes they could build based upon the density or the maximum acreage. MR. KOSKINAS-Well, that’s not by law, if I read the table correctly, my interpretation of the Area Use Table was based on, and if you look at the left hand column, it’s based on zoning delineation. So for this zoning, here’s the density. MS. RADNER-Right. MR. KOSKINAS-Where I’m struggling is not for the zone. I understand that Neighborhood Residential zoning gets duplexes at a certain density, but what about individual parcels? MS. RADNER-There is nothing in the Town Zoning Ordinance, and Craig can correct me if I’m wrong, because he’s much more familiar with this Zoning Ordinance than I am, it says, and in this zone you may only have one structure per parcel. There’s nothing that disallows a complex currently, of two or three duplex units if you have enough density. Now that is something that the Town Board has the authority to change, but as I understand it, it’s not currently there. MR. KOSKINAS-I guess I’m a little confused myself on, when you have a duplex, and then if you look at the definitions provided in the zoning, we have a definition for duplex. We have a definition for multi-family, and when I end up with two duplexes, I fall into the multi-family. If I have seven, I’m well into it. MS. RADNER-Well, I think that would be a determination I’d have to defer to Craig, but I don’t think that determination’s every been made that several duplexes equal a multi-family. MR. KOSKINAS-It’s just by the number of residential units or dwelling units that reside there. MS. RADNER-And again, I think that that would be a determination for the Zoning Administrator. MR. LAPPER-It’s how many units are in a building. MS. RADNER-That’s not what the Appeal was made for, though. MR. LAPPER-John, you asked if you could hear from all counsel on this. MR. KOSKINAS-Yes, please. MR. LAPPER-I just have some really simple answers. You said, when you were reading what Cathi was quoting site plan review for uses that trigger site plan review, and because this is a PU, a Permitted Use, the building permits didn’t require site plan review. MR. KOSKINAS-I understood that, but the permitted use, as I read you, is for A, single family house, a duplex. 40 (Queensbury ZBA Meeting 11/17/2010) MR. LAPPER-And the answer is, you can have, each duplex requires one acre for the two units, half an acre for each. So on eight acres, if they chose to subdivide it so that they could sell each of the units, for example, they would have had to come in for a subdivision approval to the Planning Board, but if you want to build them on one lot, which you would do if you want to have a rental property, all you need is that density. They could have up to eight units on this property, and they chose to apply for seven, or fourteen units, seven buildings. So they comply. MR. KOSKINAS-So it’s your interpretation that in a zoning, like we have for Neighborhood Residential, that regardless of the text, that because of the similarity in appearance of duplexes to a single family detached homes, all area and bulk requirements set forth in 179-3-040 apply to each building. You don’t think that means? MR. LAPPER-They met those requirements. They comply with the area and bulk requirements. That’s why Craig issued the building permit, for each building. MR. KOSKINAS-For each building, but each building should be considered separately, and that would be an acre per building. That’s how I read it. MR. LAPPER-I mean, that’s a density calculation. It doesn’t mean it has to be on a separate lot. Because there’s not a requirement that you can only have one building on a lot. MR. KOSKINAS-Okay, well, that’s where I’m unclear. MR. LAPPER-But I guess, just getting back to what we’re doing here tonight, SEQRA is not before you. I mean, it’s just not part of what you need to spend any time thinking about, because it’s not part of the Appeal, because they’re appealing Craig’s letter from September th 14, and it doesn’t talk about SEQRA, but again, the building permits are not what’s in front of you, either, because those were issued, and the buildings have been built. So what’s before you, I understand the neighbors aren’t happy about it, but the Town Board changed the zoning to say that this is a permitted use without site plan review. The building permits were issued. The buildings were built, partly built, the buildings were build. MR. KOSKINAS-In 179-14-040, and, counsel, I’d ask you to turn to that also, because I heard, again, the appellant’s concern about stopping work. That’s actually what Mr. Strough asked for when he sat down. Subsection E, Stay Upon Appeal. An appeal shall stop all proceedings relating to the action appealed from. MR. LAPPER-And what’s appealed from is the letter that has to do with stormwater. So, if Craig issued a letter saying they can’t do any stormwater, and they’re not doing any stormwater, but that doesn’t have anything to do with the building permits which were issued months ago. There’s no appeal on the building permits. It was not in his letter. The building permits weren’t in his letter. They weren’t appealed. Whether they knew or they didn’t know, this is about the law. It’s the law. People are allowed to get building permits and to build. MR. UNDERWOOD-Joyce had a question she’s asking counsel. Go ahead. MRS. HUNT-I mean, I feel for both sides, I really do, but I thought we were here just to, for this Appeal to the Zoning Board about the determination of the Zoning Administrator. That’s all that we’re here to do tonight. We can’t, can we do anything else? MS. RADNER-I would agree with you. You’re limited in your jurisdiction as appellate only, and you had a determination issued by the Zoning Administrator. An Appeal has been brought from that. To address a question you had earlier, Jon, there was an agency form filed. The individuals that spoke did speak on behalf of the appellant. MR. LAPPER-I wasn’t aware of that. I only have the original application. MS. RADNER-Yes. So just for that point of clarification. So the appellant’s arguments were made, and you have to determine whether, based upon the record before you, the Zoning Administrator’s, set forth in that letter, is correct or incorrect. MR. LAPPER-I think that’s really important, because this has gotten to much broader issues than what the Appeal is. Joan, you had a question? MRS. JENKIN-No. You said the Stop Work Order. I wondered if that was applicable to the site. You it wasn’t applicable to the building permit, because that’s been applied, but is it applicable to the site? MR. LAPPER-To the site work, meaning the land disturbance. 41 (Queensbury ZBA Meeting 11/17/2010) MRS. JENKIN-Only the site for the land disturbance. MR. BROWN-That’s correct. No more grading or clearing until the approval’s been issued. MRS. JENKIN-Okay, but the buildings can go on. MR. BROWN-The buildings have valid building permits. MRS. JENKIN-Okay. MR. KOSKINAS-But the text in 179-90-020 says no building permit for a use requiring site plan review shall be valid without the site plan approval. MR. LAPPER-Buildings don’t require site plan review. MR. KOSKINAS-I didn’t say anything about buildings. I said building permit. MR. BROWN-Right. The site work, the grading and clearing doesn’t require a building permit. MR. KOSKINAS-Well, they’re way past that. MR. BROWN-Before they even started, the filling and grading or tree clearing doesn’t require a building permit. MS. RADNER-But it does require site plan review. MR. BROWN-But it does require site plan review. So if you’re going to build the structure, that requires a building permit. Clearing of land doesn’t require a building permit. So, if you have a use in the Use Tables that’s been referenced here tonight, and that use says SPR, in that column under the zone, that requires site plan review. That triggers that section, that applicability section that you’re talking to. If you have a use that’s a PU, that doesn’t automatically trigger that section. MR. KOSKINAS-Got it. Thank you. MR. BROWN-Okay. MR. UNDERWOOD-John, are you done? MR. KOSKINAS-Yes, sir. MR. UNDERWOOD-Okay. Brian? MR. CLEMENTS-I think I just have one question for Craig. Say there were no houses there, no building permit, and they decided to go in and just clear that land, not put anything on it, don’t need a building permit, correct? MR. BROWN-Correct. MR. CLEMENTS-Would they need anything? Would they be able to clear that land as they see fit? MR. BROWN-If it’s under a quarter of an acre. MR. CLEMENTS-If it’s under a quarter of an acre. MR. BROWN-Right. If that just generic clearing of the land exceeded a quarter of an acre, they’d be in the same position they are today, requiring site plan review for that clearing, because that’s the threshold for land disturbance. MR. CLEMENTS-Okay. MR. UNDERWOOD-Is that it? Joyce? MRS. HUNT-I don’t know. It seems to me pretty simple, and actually you agree with the appellant, so, you know, I have no problem with your decision. I think it was a good one and it took care of the problem. 42 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-Joan. MRS. JENKIN-Yes. I think most of my questions have been answered from the discussion here tonight, but if we do uphold your determination, then it’s up to the Planning Board to decide if full site plan review is required? Can they do that? If you go and you say that it is for stormwater, site plan review is required for stormwater management, and it’s limited to that, when the Planning Board gets this, are they going to be limited to a review for stormwater regulation as well? MR. BROWN-I would have to say they would be, because the review, the action that triggered the review is a specific action. It’s the clearing and grading. So the only need for review is review of that clearing and grading. The allowability of the use, the density, those things aren’t in question. Those are permitted under the Code by right, the way the Code is written. So there’s no need to review those things. The only action, again, the only action that triggered the review is the land disturbance. So that’s what needs the review. Can the Planning Board find issues that are considered, you know, part of that, this land disturbance associated with other aspects of the project? They could. They have to be reasonably associated with the land disturbance, and I’m not sure how they would do that, but to answer your question, they would be focused on a limited review. MRS. JENKIN-Some of the requirements for site plan review, and I just wondered if they could, if they, if the site plan review is for stormwater, is it possible that they can say, well, with this stormwater, there’s an adverse impact on the ecological, recreational or open space, any of the other requirements that are supposed to go through site plan review? MR. BROWN-Right. I understand the question. MRS. JENKIN-Operation of the proposed use will create public hazards, traffic congestion, that isn’t applicable, is it? MR. BROWN-Well, that’s up for the Planning Board to decide, but. MRS. JENKIN-But they could decide. MR. BROWN-They have the jurisdiction to do a SEQRA review to the extent they see fit. MS. RADNER-Well, they have an obligation to do SEQRA review, but what they identify as potential environmental impacts are within their purview, and as they identify potential environmental impacts, they may need more information for their review, and those sorts of issues you’re raising, they could determine are related to this grading, clearing, etc. MRS. JENKIN-Okay. Thank you. MR. UNDERWOOD-Roy? MR. URRICO-My question centers around the 60 day period. You made another determination th on October 26, a letter that you wrote to the Hayes brothers at that time, about what their requirements were at that time. Does that trigger another 60 day period for people to make an appeal of that determination? MR. BROWN-Yes. Any decision or determination that I make is subject to appeal. I think the substance of that letter was a review of their application for site plan review for the clearing and grading, and it’s a letter of, hey, your application is incomplete. Here’s the things that are missing. MR. URRICO-So we can rule on the first appeal, and the second appeal, another appeal could still be made, since there are some determinations that have been made after the September th 14 date. MR. BROWN-Again, anything that I write, any building permit, any letter, any determination that I make is subject to appeal if somebody sees fit. MR. URRICO-Okay. Thank you. MR. BROWN-Sure. MR. UNDERWOOD-Is that it? 43 (Queensbury ZBA Meeting 11/17/2010) MR. KOSKINAS-I have one more question for counsel. Is it permitted in the Code for this Board, and I apologize for my ignorance on the matter, but is it permissible for this Board to request a position from the Planning Board before we make a decision here? MS. RADNER-There is no provision for that in the Zoning Ordinance, so I would have to say, no. You’re limited, in your jurisdiction, to what’s been appealed. You can issue Use Variances. You can issue Area Variances, and in this case you’re being asked to review a determination. You don’t have authority over other Boards. So you can’t require action by a Planning Board. You can’t require action by the Town Board. MR. KOSKINAS-I said request. MR. UNDERWOOD-We can request. MS. RADNER-I think you could request, but I think you’re starting to get on shaky grounds because the purview of your review is limited to the record that’s made, and when you start seeking things and creating a record, I think you start to get on shaky grounds. AUDIENCE MEMBER-You’re violating due process. MR. UNDERWOOD-Well, before we’re done, I’m going to re-open the public hearing one more time. AUDIENCE MEMBER-Thank you. MR. UNDERWOOD-I have not closed the public hearing. Okay. All right. I’m just going to put my two cents in here. It’s an inconvenient truth that things are not as they should be in this community, and that’s as a result of the fact that there is an awful lot of stuff that goes on here that’s done under the table, off record, in kind, for whatever reason, you know, whether people just want to be a part of it or not be a part of it, and this Board, and I think the Community Development Department, has suffered greatly over the past five years, and I’ll say this just in general terms. The PORC Committee, and all the people that were involved in promulgating the new rules and regulations for this community, spent an awful lot of their free time in public service trying to come up with a Code that personified what we wanted as a community, and when all was said and done, when the Saratoga Associates came through with the final product and presented it to the Town Board, there were certain members of the community were upset with the final outcome, and as Mike Wild said, you know, this wasn’t a product of the green tree hugging crowd or anything like that. This was a product of the builders. It was a product of input from community meetings where anybody could attend and put in their two cents and things like that, but at the same time, when all was said and done, the Town Board, the elected officials of this community, took it upon themselves to go in and subject all that work, all the effort, all that professionalism that was exhibited throughout that whole process to a grand cut and split and Stu Baker unfortunately gets castigated as the bad guy her because Stu had to sit there in those meetings that occurred, and those were basically busy meetings over in the Supervisor’s headquarters, and try and keep a handle on everything that was going on as far as the final product, and the result was that we ended up in this situation here. In the last two years, I mean, we used to have two books that were this thick that were the Zoning Code, and the planning code for Subdivision Regulations in the community, and now we get onto, this is what our Board got as a final product, a stack of paper, and then every single meeting this year we’ve been handed, probably at every other meeting that we’ve had as a Board, we’ve been handed some new change that’s occurred in the book to accommodate something, some building project that was proposed in Town. In other words, we used to have a Zoning Code that drove building in Town, a builder could go to it. He could pretty much dial in what he needed to do and things like that, and we ended up with something that was a lot more complex. It was even thicker than this when it came in the end product, but it really dialed in almost everything that needed to be done, and it said succinctly in the writing exactly how things were, but certain individuals in this community were very upset with that, because it didn’t give them leeway to play with it and monkey with the rules and things like that, and I think what we see here this evening is an example of that. You found a small loophole, and you used it to your maximum. Craig Brown aided and abetted it because he didn’t bring it up, and the reason he didn’t bring it up is because we don’t have a Community Development Director in this community anymore. Ever since Chris Round left, we went through a series of people that didn’t work out, and the general feeling of the Town Board was, they didn’t want anybody to cow tow to them or to stand up and do things properly. They wanted to have their own gerrymandering going on in the background all the time, and this is a perfect example of that. You guys have built projects all over Town, and I don’t discount what you’ve done. I think you’ve done some really good work. I know John Koskinas and Joan live up on Chestnut Ridge and they look down at your duplexes down on the end of Haviland Road there, and I don’t think there’s ever been a complaint about the kind of people that you rent your dwellings to or anything like that, but I think in this instance here, what 44 (Queensbury ZBA Meeting 11/17/2010) happened was, you took advantage of what was on the books, and it couldn’t have been more choreographed and done more to a tee. In other words, you went in and got your building permit. You sat down with Craig, and I think everything worked out perfectly so far, and that is, you know, you didn’t start building until way past the deadline when anybody could have complained or bitched about it. At the same time, when Craig finally had to make a determination that you cleared too much land, I said to myself, you know, Craig’s reviewed hundreds, if not thousands of projects in the Town, Planned Unit Developments, no matter what it was, and I said to myself, why did he just hand me like a single piece of paper with Mary Monthie’s things. He just handed it to me in the hall and said, this came in, you’re going to have to deal with it, and I did, and I said, well, I said, I don’t know anything about the project. I don’t know anything about the history of the project. So I went down one morning and I spent about two hours reading through everything that was there. As it was described, you know, they went through several renditions of possibilities down here on the project, and the Positive Dec by the Planning Board shot it down, and I can imagine it was very frustrating for you as the guys that were proposing the project, you know, you’re saying single family residential in the area. I want to put up single family residential. It seems like a go, it seems like it’s going to be a reasonable thing to do, and I would agree with you. I looked at the record prior to when you were doing that, and it seemed to me that you already had a water problem recognized in the neighborhood. It wasn’t anything new that you were going to trigger, but you might possibly make it worse, and I said, that probably made sense in that respect, but then the last thing that happened was that when Hayes and Hayes got turned down the last time, all right, Mike O’Connor was representing you, and what I want to do is I want to read the letter, because when I read this letter, and I thought about what you did this time, and then I thought about the response that Craig made to this letter, I think it points you in the direction as to how we got to where we are here, and how the process broke down, because somebody basically fixed this up perfectly. This letter is addressed to Craig Brown, and this is back in March of 2005. Dear Craig: Following up on our conference with regard to the above application, the applicant, without withdrawing the existing application, would like to explore other possibilities for this site. The main issue of the Planning Board appears to be the proximity of the proposed residences to the Northway, and the necessity to clear some of the existing parcel to the permit same. We have submitted to you a rendering showing installation of self-storage units on the property, which eliminates the issue of persons living in close proximity to the Northway, and eliminates the issues of septic and impacts on groundwater, as we would not have a septic discharge. However, we recognize that this mix of use may bring about a result that the neighbors find more objectionable. We have also submitted to you a rendering which would show possibilities of use if this property were rezoned Professional Office space. Given the amount of clearing that would be necessary to accomplish that, questions probably still would be raised for septic and groundwater loading, although they would be less than residential. We do not believe that this is the course to follow. Probably the least intrusive would be to allow 14 units of townhouse construction as shown on the plan that we submitted to you. This would be less density than what is permitted on the property, but would be configured in a manner that would eliminate the need for any significant tree cutting and place all of the septic on the northern end of the parcel, and would eliminate the need for fill. What we would have is basically adjacent to Dixon Road, and we would have two four-plexes and three duplexes with a private road, shared septic, and maintenance free environment. This can be accomplished by clustering, and we acknowledge that the present zoning, with reference to clustering, states that clustering is prohibited in this zone. We are prepared to file an Area Variance application to allow the clustering and allow the construction with zero side line setbacks. Our question obviously to you is for an interpretation as to whether or not the application for a variance to permit clustering on this property is an Area Variance application or a Use Variance application. We would ask that you copy Craig MacEwan, the Chairman of the Planning Board, and John Caffry, the attorney for some of the neighbors, with your determination. If, as we believe, this requires an Area Variance application, we would meet with the neighbors prior to the application for the purposes of obtaining their input, and that’s signed by Mike O’Connor. Craig then spent some time on this, and then he sent back the following reply to them. Dear Mr. O’Connor: I am writing to you in response to your March 28, 2005 letter regarding the above referenced parcel. This letter will serve as a written determination, as requested, relative to your inquiry on the potential for a clustered single family dwelling subdivision on this property. The property in question lies within a Single Family Residential (SFR-20) zoning district. Upon review of the Town Zoning Ordinance, per Table 1, Allowed Uses, of §179-4-020, Single Family Dwelling is an allowable use within the SFR-20 district. Further, per Table 4, Dimensional/Bulk Requirements Clustering is listed as NA (not allowed). Both are important issues and they are distinctly separate; one talks to use and the other talks to density or area. Given this information, it is my determination that your proposed Single Family Dwelling clustered subdivision shall be considered as an allowable use, however, the cluster configuration will require an Area Variance, not a Use Variance, as the density or the lot size is the issue at hand rather than the permissibility of the use. Additionally, the pending subdivision application may need to be abandoned prior to the issuance of any approvals for a cluster subdivision approval, should the project progress that far, and that’s the end of the letter. My point is this. Clustering was something that was proposed on this site a long time ago, and 45 (Queensbury ZBA Meeting 11/17/2010) that’s essentially what we ended up here tonight with, in the present shape and form of the project. MR. LAPPER-Clustering is for a subdivision, clustering (lost words) separate lots. MR. UNDERWOOD-Yes, clustering is clustering. All right. I don’t care what you call it. We can go to court on it as you wish. We can drag this out until Kingdom Come, but it’s clustering what you did on the project here. It doesn’t, in any way, shape, or form have anything to do with the rest of that neighborhood down there, the single family residences. You’ve imposed your vision on the community with no input, and the whole purpose of Site Plan Review, we went through the Site Plan Review process on every project we’ve ever done, as far as multiple projects in Town, and you may bring up your point. You can give it your sway as far as Town Counsel. Craig, you can take your sway on it as far as what you think, too. That’s perfectly fine, but I’m unwilling to not make it a requirement that this project undergo complete Site Plan Review. Number One, you’ve clustered. Number Two, there’s recognized high water table on this site. You can look at the perc rate so you can determine, any layman could figure that out for themselves, and what you’ve done here is a complete double set up, just like what you did down at Surrey Fields. You did the exact same thing at Surrey Fields. You went out, even though you guys did a whole bunch of test pits all over the site, but you’re going to run into the same difficulties. You’re going to have problems with septic. You’re going to exacerbate the problems in the neighborhood, because you concentrated there. The only way out of it, I think, is for the Planning Board to look at the full issues of it, and that is when they do the septic review, you may have to put dispersal fields that go all over that whole lot over there, just to get the stuff away, but if you do it as you’ve proposed on site there, and I think it was another oversight on your part, in this instance here, it’s a building permit issue, but it’s very pertinent to the future of everybody in that neighborhood. We’ve created situations in other developments in Town that have resulted in bad effects, and we shouldn’t be doing it on this one here, and I would be in disagreement of the, I think that this was overlooked, that the clearing was the only thing that was going to be the one that triggered it, and the clearing, the over clearing of the lot that you didn’t notice, was craftily done, and I’ll say that on the record. AUDIENCE MEMBER-So will a Stop Work Order be issued? MR. UNDERWOOD-We’re not there yet. We haven’t done anything yet. MR. KOSKINAS-Counsel, can I ask you another question? I’d like you to look, please, at 179- 14-040D, and it says the Zoning Board of Appeals, at its discretion, may request a Planning Board to make a recommendation, and I want to know if, under that purview. MS. RADNER-What Section are we looking at? MR. KOSKINAS-179-14-040 Sub Paren D. It’s headed Time of Appeal. MS. RADNER-Right. MR. KOSKINAS-Because I think, Jim, this is a way to put this whole thing in front of the Planning Board. MR. UNDERWOOD-All right. My recommendation to the Board’s going to be that we send this to the Planning Board. I want a complete review of the project, and I want the Planning Board to come back to us with any issues they want to bring up in regards to this site, and you guys can do what you want to. That’s your problem, but we’re not going to decide this this evening. We’re going to send this to the Planning Board for their comments, in regards to the totality of the project, and your purview of the project was your take. If you wanted to make an omission, that was your prerogative. Whether it was done on purpose or not done on purpose has no bearing whatsoever because if it had been done properly, it would have triggered Site Plan Review and it would have been a complete Site Plan Review, and I’ll make the determination that full Site Plan Review is necessary for any multiple building project in this community, and if you want to make your own determination on that back on our Board, you may. MS. RADNER-Can I make two comments here, real quick? MR. UNDERWOOD-You most certainly may. MS. RADNER-Number One, to answer your question, yes, you can seek a recommendation from the Planning Board under the Section that you cited. Mr. Underwood, I would caution you that you’re the Chairman of the Board. You need to get a vote for an action by the Board, as the Chairman of the Board, you can’t take action on your own. You can certainly make a motion, but what you need to do it to take an action. 46 (Queensbury ZBA Meeting 11/17/2010) MR. UNDERWOOD-I’m making it very clear to the Board members the direction I think we should go, and if you want me to make the motion, I will. If not, if you have something else you would suggest, it’s up to you. MR. URRICO-I’ll make a motion. MOTION THAT THE ZONING BOARD OF APPEALS SEEK RECOMMENDATION FROM THE PLANNING BOARD REGARDING NOTICE OF APPEAL NO. 4-2010 MARY MONTHIE IN REGARDS TO THE ASPECTS OF THIS APPEAL AND TO THE SITE, Introduced by Roy Urrico who moved for its adoption, seconded by John Koskinas: th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mrs. Hunt, Mrs. Jenkin, Mr. Koskinas, Mr. Urrico, Mr. Underwood NOES: Mr. Clements ABSENT: Mr. Garrand MS. RADNER-Mr. Chairman, do you want me to stay for any reason? MR. UNDERWOOD-No, you can go. MS. RADNER-Thank you. MR. UNDERWOOD-The public hearing is left open. AREA VARIANCE NO. 58-2010 SEQRA TYPE: II MATTHEW SOKOL AGENT(S): MATTHEW F. FULLER, ESQ. OWNER(S): DONALD & LUCYNA SOKOL ZONING: NC LOCATION: AVIATION ROAD AND DIXON ROAD APPLICANT PROPOSES CONSTRUCTION OF A 1,025 SQ. FT. RESTAURANT LOCATED WITHIN THE EXISTING SOKOL’S PLAZA. RELIEF REQUESTED FROM MINIMUM PARKING AND PERMEABILITY REQUIREMENTS. CROSS REF.: SUP 64-2010 WARREN COUNTY PLANNING: NOVEMBER 10, 2010 LOT SIZE: 1.30 ACRES AND 0.87 ACRES TAX MAP NO. 301.8-1-17 & 18 SECTION: 179-4-090; 179-3-040 MATT FULLER, REPRESENTING APPLICANT, PRESENT; MATT SOKOL, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 58-2010, Matthew Sokol, Meeting Date: November 17, 2010 “Project Location: Aviation Road and Dixon Road Description of Proposed: Applicant proposes construction of a 1,025 sq. ft. restaurant located within the existing Sokol's Plaza. Relief Required: Parcel will require area variances as follows: 1.Permeability-Request for a reduction from an existing permeability of 22.4% to 20.6% or an additional 1,782 square feet of impermeable surface as per §179-3-040. Note: This variance is specifically for the proposed future parking spaces located to the northeast. 2.Minimum Parking-Request for parking space amount minimum requirements as per §179-4-090. The site requires 126 spaces, existing is 97 plus 11 future spaces if needed. Total request is for 18 spaces under minimum requirements. Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor impacts to the neighborhood may be anticipated. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Feasible alternatives appear limited due to lot limitations and existing conditions. 47 (Queensbury ZBA Meeting 11/17/2010) 3. Whether the requested area variance is substantial. The request for 1,782 square feet or a 1.8% reduction from the required 30% permeability as per §179-3-040 may be considered minor relative to the ordinance (it should be noted that the existing permeability on site is 22.4% and the applicant is proposing potential future parking that may reduce the permeability down to 20.6%). The request for an 18 space or 14% reduction from the 126 minimum spaces requirement as per §179-4-090 may be considered minor relative to the ordinance. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, etc.): Site Plan 64-2010 Pending BP 2010-460 Pending Staff comments: The proposal calls for a 44 seat restaurant/bar with outside seating. Under Parking Requirements Table the applicant states that 2 employees will be associated with the proposed restaurant. This appears to be an under count and may affect parking calculations; please clarify. Parcel consolidation should be considered. Planning Board recommendation dated 11/16/2010 in handout form. SEQR Status: Type II-no further review needed th MR. URRICO-The Planning Board met on November 16 and they made a recommendation to the Zoning Board of Appeals for this variance 58-2010, and they said that based on their limited review they did not identify any significant adverse impacts that cannot be mitigated with the current project proposal, and it was approved unanimously. MR. UNDERWOOD-Okay. Mr. Sokol, Matt, good to see you again. MR. FULLER-Good to see you. We’re here to talk about something a little bit lighter, some burgers, and helping the Sokol family with that plaza there. As most of you know, the Sokols have owned that plaza since the mid 70’s, and, you know, since that time, Queensbury’s grown in leaps and bounds and as we talked about last night, the majority of the Town’s housing stock is on is west of I-87, yet the majority of our services are east of I-87, and with the zoning that we’ve got, the Neighborhood Commercial there, allows for this type of use. We think it’s complimentary to the plaza itself. Last night we talked about hours of operation for the market, the bank, the hair salon, the liquor store, the pizza shop. We think that the parking that’s on site now is complimentary. We did provide an informal study, but I think it takes a good snapshot, when they asked me what we should do. I said we should take a look at it for about a week, different times of the day, take snapshots of what the parking lot looks like, and see what we’re using right now, and I think it’s pretty clear, at least to anybody that goes up there, it’s underutilized as far as the parking goes, the parking’s usually open. People come in. That’s not because it’s not busy. It’s because people come and go. The uses that are in there aren’t long term uses in the area. So we came in to, met with Staff on the proposed restaurant, the food service, and identified the parking. The numbers are dead on. We’ve calculated them. We talked a little bit about the employee question that came up last night. One of them is here. So we’re dealing with crossover from Sokol’s Market to the restaurant, but two is, I think, the comfort number that they have, but also what we’ve done is we’ve built in to that, to the variance request, the highest required use of parking in that zone, of what would be allowed in that plaza. So if you look at the chart that’s on the map, we took into account the retail use on the other side. That’s more than the employee number of parking that we would need. So the high number, I think, of the uses that we would have in the plaza is 126 spaces. As Staff noted, in working with Staff, we did show a spot where we can come up with 11 more spaces. It’s feasible, but I can tell you there’s no intent to build spaces unless they need them. We don’t want to build more parking, increase permeability, if we don’t have to. The question came up 48 (Queensbury ZBA Meeting 11/17/2010) last night about the septic and where it’s located. We did follow up on that again today, and I’ve got the map, in case you wanted to see it, but we’ll address it tomorrow night, too, where the septic is located. We’re going to be fine with that, too, and on the criteria, again, I think it’s pretty self-explanatory. Certainly, you know, you can argue about impacts and things like that, but I think adding a great deal of additional parking would have more of an impact than the proposal that we’re looking for. So, in short, you know, balancing everything, the impact on the neighborhood versus the benefit to the applicant, I think this is one in the few that clearly tips in the Sokol family’s favor, and that’s where we are tonight. MR. UNDERWOOD-Any questions from you guys tonight? MR. GARRAND-What kind of burger place is it going to be? MR. FULLER-Good ones. I have a sample menu. I don’t know if it was in the Site Plan or if I put it in the Variance, too. That type of fair, you know, a family can come in get dinner, hour, hour and a half, and be out. It’s not intended to be a long term drinking establishment, and we were talking about it earlier, rotating things in and out, so the menu stays a little fresh. You have your staples that you’re going to have on there all the time, appetizers and things. MR. GARRAND-That parking lot is empty most of the time. You can always get a good parking spot there. MR. FULLER-Yes. MRS. HUNT-I have a question. The comment from the Staff, parcel consolidation should be considered. What do they mean by that? MR. FULLER-It’s presently, if I can, it’s two parcels presently, and it shows up better on the yellow line on the tax map there, but there’s two parcels here. Certainly nowadays if somebody tried to come in and put a structure like this that straddles the property line, they’d need 100% area variances from side setbacks, and it is something that could be considered. The issue, I think, is there’s mortgage on the property. So the second we get into messing with deeds, we’re going to deal with banks. As everybody knows, you mess with a bank’s security, it’s going to be involved. So it’s an easy comment to put out there, I think, and the practical effect is it’s a little bit harder to put in place, if we don’t have to. If there was an overwhelming reason of why it should be, if we were, again, trying to extend these buildings out, which would require 100% variances, then I’d say, okay, maybe we’re in that realm, but obviously I think here we’d prefer to not have to go back to banks and. MR. OBORNE-And, Joyce, that’s a great question. It really is, but Staff, myself, personally, I’d totally corroborate what Matt’s saying. They’re not expanding. They don’t need any area variances as a result of this. So I throw it out there just to put my due diligence. MRS. HUNT-Okay. Thank you. MR. GARRAND-Is there going to be any increase in semi traffic on Dixon Road in the back for deliveries to the restaurant, is it going to increase semi traffic? MR. SOKOL-To the restaurant? Most of our deliveries actually come, some of the bigger trucks obviously, the semis that we get for our weekly shipments from our warehouse, they come in the back, but Frito Lay, the bread guys, they all come right through the front door, and with the restaurant, we have one food service company, if you will, in mind, and they don’t come with any semis or anything. They’re back drop gates. MR. CLEMENTS-So the proposal calls for 44 seats restaurant and a bar with outside seating. Do the 44 seats include the outside seating? MR. FULLER-It does. MR. CLEMENTS-So if you think about that, if you’ve got two people per car, you’re going to have 22 cars if it’s full. MR. FULLER-Right. MR. UNDERWOOD-And you’re probably getting a lot of walk in traffic, too, because of the nature of the neighborhood down there, too, and it’s not going to be like what we think at the maximum. 49 (Queensbury ZBA Meeting 11/17/2010) MRS. JENKIN-So you would like to avoid putting in the 11 future spaces and keeping it as is right now, and keeping the green area as is? MR. FULLER-Yes. Staff’s comments was kind of come in now. You’re here for the process. We already knew we needed the variances, in working with Keith. He said, we looked at the map, we do have a space where we can put parking that doesn’t impact the septics or anything, or stormwater, things like that. So we can put them in. So the idea would be when we go, when we’re back tomorrow for the Special Use site plan review, is get the approval for that, if needed, and then as business goes on, there’s still vacant space in the plaza. We’ve accounted for that on the parking, but if business dictates that we need those extra 11 spaces, then we’ll build them, and so deal with it now, basically as a feasibility mitigation, because there is a feasible alternative. It’s to add parking that triggers the impermeability area, but, you know, it’s a tradeoff. So the goal is to not have to do it, but to get the approval to do it if it’s needed in the future. MRS. HUNT-Now that area is vegetation there. So that would be lost when you put in the parking. MR. FULLER-It is grass, yes. MR. SOKOL-Brian, if I could add just to your comment, on the map that we have here, I have 58, I’m sorry, this is the old one, 58 spaces are accounted for my grocery store. Now if you’ve ever been to my grocery store, it’s an in and out process. I don’t have the half an hour shoppers. Quite honestly I think 58 is a little excessive, but. MR. CLEMENTS-Well, I think it’s a good plan. MR. SOKOL-Okay. MR. CLEMENTS-Not to put the parking spaces in now, and I think some other Board members agree that it’s a good plan. MR. SOKOL-Yes. Good. MR. UNDERWOOD-And I think the other thing is, you know, like the evening hours when you’re going to be doing most of the business, people are just stopping by to grab the quart of milk they need for breakfast. It’s not like people are there for hours shopping like Price Chopper or something like that. MR. SOKOL-Well, not to mention the bank closes at six o’clock. Saturday’s they’re open until one. Sundays they’re closed. My hair salon, not my hair salon, the hair salon in the plaza, they’re shut down on the weekends. So. MR. UNDERWOOD-There’s not a lot of overlap. MR. SOKOL-Yes. MR. FULLER-It’s very complimentary, timing wise. MR. URRICO-Any idea what the vacant space will be filled with? MR. FULLER-It’s on the market. Have you got an idea? MR. URRICO-Maybe. MR. FULLER-Some professional parking or something, you know, it’s retail, I think they would entertain whatever the zoning allows. Good tenant being the key. MR. UNDERWOOD-So as it now stands, you don’t have parking in the back at all? MR. FULLER-Along Dixon. MR. UNDERWOOD-Now how much of that gets used on a regular basis. I would say little if any, right? MR. SOKOL-If you’ve seen the photos, there’s probably three cars in the early hours, and then as the evening comes, Amore has two drivers, and they’re in and out of there, but they don’t even utilize the parking spaces. They kind of, they’re in the dark position, you know. 50 (Queensbury ZBA Meeting 11/17/2010) MRS. JENKIN-But you won’t have a back entrance to this restaurant, will you? MR. SOKOL-No. MRS. JENKIN-So people, if they parked in the back, they’d have to walk around, and anyone else. MR. FULLER-And staff entrance. To the patio there, there’s a door. MRS. JENKIN-There’s a staff. MR. FULLER-But I tend to agree, I think the focus, we kind of talked about it last night, would be to encourage the employees for the plaza in general to park along Dixon and not (lost words). MRS. JENKIN-Well, my position has always, always been that we need to maintain as much green space as we possibly can, and paving unnecessary areas is not an advantage to the community at all. So, that’s my position. MR. FULLER-Yes, and again, I would make that clear, it’s purely an alternative. It is a feasible mitigation measure that you take into account and Staff threw it out there, but the family’s intent certainly is to not add parking if they don’t have to. It’s a cost and like you said, it eats the green space that’s there, and the improvements they’ve done over the last decade out front with, you know, cutting the pavement along the road and the planters that they put inside, you know, it kind of eats towards that, too. So, yes, I agree with you. MR. URRICO-Didn’t there used to be a daycare center over there? MR. FULLER-There was. MR. URRICO-Is it still there? MR. FULLER-No. MR. UNDERWOOD-He had Aubuchon there for a while, too, right? I mean, that was a short stay. That wasn’t much. MRS. JENKIN-So you’re talking about existing permeability and an additional, that’s if you put in the extra parking. So, if we don’t require the extra parking, then the permeability request is null and void? Do we determine that or does Planning Board have to? MR. UNDERWOOD-I mean, we can put a caveat on there as to whether we think it’s necessary. Our recommendation is that it’s not necessary, that, you know, it can be included, you know, if ever needed at some point in the future, that, you know, if need be, but I don’t see any reason for us to tell them that, yes, you’ve got to do it. MR. OBORNE-Yes. Last night at the recommendation the Planning Board is fully aware of what the intentions are. The variance will follow the land, and if the applicant deems it necessary to add 11 more spaces, they’ll come in and add 11 more spaces. They’ve already, the whole idea is to front end it. MR. FULLER-And I should also note, too, it is a Special Use Permit in that zone. To despite my request to the contrary for a permanent Special Use Permit, I know the Planning Board has never granted one of those. It doesn’t sound like I was going to get anywhere with that last night. So I would envision that, you know, hopefully a longer duration permit, and if it got out there that the parking was needed, and they didn’t do it, it could come up in that process. So there’s an outward cap on, I guess the concern being if they didn’t put the parking in and they needed it, the Planning Board’s going to have a future shot at addressing that, but I don’t envision that. I really don’t. MRS. JENKIN-So you’re asking us to approve, to make a motion to approve this variance, with the 11 future spaces if they’re needed. So you don’t want that deleted? MR. FULLER-No. I mean, it’s certainly up to the Board, but that’s the requested variance. MR. CLEMENTS-There are things that you could put in there that are permeable, and still have parking there. MR. SOKOL-Crushed stone. 51 (Queensbury ZBA Meeting 11/17/2010) MR. OBORNE-Well, permeable pavement. MR. CLEMENTS-Yes, or permeable pavement. MR. OBORNE-Absolutely. MR. FULLER-Yes. MR. OBORNE-I’d love to see the Town get some of that installed. MR. KOSKINAS-What happens when it freezes? MR. OBORNE-It still percs, believe it or not. MR. FULLER-I think, I’ve looked into that, too, that’s a technology that’s advancing. It’s still a northeast issue. MR. UNDERWOOD-It’s still pretty pricy, too. MR. FULLER-It’s a price issue, and I think a big issue, northeast is sand. If you sand a parking lot over 10 years you’ve got to fill them, and you’ve either got to maintain that and have it vacced out, or not do that, which is a significant sub base that allows the sand, basically, to flow through. So then you’re into 10 to 12 inches of sub base and how to French drain that and get that stuff out. So it is an option. I think my experience, at least regionally, has been it’s still a work in progress up here, for that issue. It’s doable, but it’s still. MR. OBORNE-It has made great strides. MR. FULLER-Yes. It started with the little rubbery stuff and now it’s popcorned into, the technology will get there eventually. MR. UNDERWOOD-Okay. I’m going to open the public hearing. Anybody from the public wishing to speak on the matter? PUBLIC HEARING OPENED MR. UNDERWOOD-Any correspondence? MR. URRICO-No correspondence. MR. UNDERWOOD-Anything else you want to add? I think everybody is pretty clear as to what you’re trying to achieve here, and, you know, the Planning Board has already basically said they think they can work out the issues, as far as they’re concerned, and it’s really more their purview than ours. I think everybody recognizes the benefit of having your place over on the west side and the addition of this, to me, seems like it would be a reasonable course to take, and there’s not that many places where you can go to eat except all the way down to the West Side Grille and that’s way down the other end of Town, and if you’re going to provide stuff that everybody wants, it’ll probably be a go. You’ll make a go of it. So that’s good. MR. SOKOL-We’re actually, I was going to add one more thing, with the menu, we’re going to incorporate a lot of the local flavor, so maybe Oscars meats, you know, the Villa bread. MR. UNDERWOOD-All right. I’m going to poll the Board, then. Brian, what do you think? MR. CLEMENTS-Yes. Thank you. I think it’s a good plan, and I’m glad that you’re not putting in the parking until maybe if you need it in the future. So I’d be in favor. MR. UNDERWOOD-Rick? MR. GARRAND-I’d be in favor. MR. UNDERWOOD-Okay. Joan? MRS. JENKIN-Yes. I would like to see permeable pavement, if you do put the, so you wouldn’t need the existing, you wouldn’t need to increase the impermeability of the area. I’d like to see that, but you have to grant the whole request, correct? MR. UNDERWOOD-Yes. 52 (Queensbury ZBA Meeting 11/17/2010) MRS. JENKIN-You can’t just grant part of it. So I guess I would be in favor. MR. UNDERWOOD-Joyce? MRS. HUNT-Yes. I think it’s a good project. I’m in favor. I’ve never seen that parking lot filled. There’s plenty of places. MR. UNDERWOOD-Roy? MR. URRICO-I’m in favor of it. The only question I have is what triggers the determination for the 11 future spaces? MR. UNDERWOOD-I would think it would be something you would come in on your own and say, look, we’ve got so many cars, I don’t know what to do, or you know. I mean, I remember the old days before you re-did the place, you know, when people always used to crash and knock your posts out out in front and stuff like that and, boy, what an improvement. It’s nice to see you make a good go of a business and keep it running. It’s tough to do in this day and age. MR. FULLER-A lot of competition. MR. UNDERWOOD-Yes. Does somebody want to take this one? MR. GARRAND-I’ll do it. MR. UNDERWOOD-Okay. I’ll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 58-2010 MATTHEW SOKOL, Introduced by Richard Garrand who moved for its adoption, seconded by Joan Jenkin: Aviation Road and Dixon Road. The applicant proposes the construction of a 1,025 square foot restaurant located within the existing Sokol’s Plaza. The relief requested, parcel will require area variances as follows: Permeability request for the reduction from an existing permeability of 22.4% to 20.6% or an additional 1,782 square feet of impermeable surface as per 179-3-040. Minimum parking request for parking space amount. Minimum requirements as per Section 179-4-090. This site requires 126 spaces. Exists is 97 plus 11 future spaces as needed. Total request is for 18 spaces under the minimum requirements. On the balancing test, whether benefits can be achieved by other means feasible to the applicant. Probably not. There isn’t a whole lot of benefit here. We’re only upping the impermeable by less than two percent. Will this change produce an undesirable change in the neighborhood or character of nearby properties? No, it will not. It’s a pretty much retail plaza. He’s putting in a restaurant. I don’t see how it can change the character of the neighborhood. Is this request substantial? I do not believe it is substantial in any way, shape, or form. I think it’s a minimal request. It’s only for 18 spaces under the minimum requirements. Whether this request will have adverse physical or environmental impacts on the neighborhood. I can’t foresee it having any adverse environmental impacts on the neighborhood. It’s less than two percent permeability we’re losing. Is this difficulty self-created? This request may be deemed as self-created since it is the applicant who is going forward with this project. So I move we approve Area Variance No. 58- 2010. th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mr. Clements, Mr. Urrico, Mrs. Hunt, Mr. Koskinas, Mrs. Jenkin, Mr. Garrand, Mr. Underwood NOES: NONE MR. UNDERWOOD-All right. MR. FULLER-Thank you very much. MR. SOKOL-Thank you. AREA VARIANCE NO. 59-2010 SEQRA TYPE: II 9099 CORPORATION d/b/a MONTY’S DISCOUNT WINE & LIQUOR AGENT(S): MELISSA D. LESCAULT, ESQ. OWNER(S): HIP YAU LING; BERNADETTE FUNG SIN; FUNG MEI ELLIS; SAM HAP WAH LING; YUET HON LING; SO YING LING; PAUL LING ZONING: CI LOCATION: 909 STATE ROUTE 9 APPLICANT PROPOSES CHANGE OF USE FROM RESTAURANT TO A RETAIL USE: 53 (Queensbury ZBA Meeting 11/17/2010) LIQUOR STORE. RELIEF REQUESTED FROM NUMBER OF MINIMUM REQUIRED PARKING SPACES AND MINIMUM DRIVE AISLE WIDTHS. CROSS REF.: SPR 70-2010 WARREN COUNTY PLANNING: NOVEMBER 10, 2010 LOT SIZE: 1.42 ACRES TAX MAP NO. 296.17-1-38 SECTION: 179-4-090 MELISSA LESCAULT, REPRESENTING APPLICANT, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 59-2010, 9099 Corporation d/b/a Monty’s Discount Wine & Liquor, Meeting Date: November 17, 2010 “Project Location: 909 State Route 9 Description of Proposed Project: Applicant proposes change of use from restaurant to a retail use for a 7,000 square foot building adjacent to Wal-Mart on Route 9. Relief Required: Relief requested from number of minimum allowable parking spaces and minimum drive aisle width as per §179-4-090. . Criteria for considering an Area Variance according to Chapter 267 of Town Law: In making a determination, the board shall consider: 1. Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of this area variance. Minor impacts to the neighborhood may be anticipated. 2. Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. Concerning relief from the minimum parking requirements and drive aisle relief, one feasible alternative would be to construct additional compliant parking on the western portion of the property. 3. Whether the requested area variance is substantial. The request for a reduction of 11 spaces or 32% relief for a total of 24 spaces from the required 35 spaces based on §179-4- 090 may be considered moderate relative to the ordinance. The request for 4.5 feet or 19% relief from the required 24 foot drive aisle may be considered minor to moderate relative to the ordinance. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical and environmental conditions of the neighborhood may be anticipated. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created Parcel History (construction/site plan/variance, etc.): Site Plan 70-2010 Pending Staff comments: Planning Board recommendation dated 11/16/2010 in handout form. SEQR Status: Type II-no further review needed” th MR. URRICO-The Planning Board, on November 16, made a recommendation to the Zoning Board of Appeals for this variance 59-2010, and based on its limited review, has not identified any significant adverse impacts that cannot be mitigated with the current project proposal, and that was a unanimous decision. MR. UNDERWOOD-Go ahead. MS. LESCAULT-Good evening. Melissa Lescault from McPhillips, Fitzgerald & Cullum. Also present tonight is Lucas Dobie from Hutchins Engineering, as well as Monty Liu, who has the interest in this property that we all know as the Flower Drum Song restaurant. The property is currently zoned a Commercial Intensive zone. As you know, it’s located along Route 9, adjacent to Wal-Mart, and on the corner of Weeks Road. It is the applicant’s proposal to change the use 54 (Queensbury ZBA Meeting 11/17/2010) of that property from a restaurant to a retail use, more particularly a discount wine and liquor store. In order to do that, we had to come through Site Plan Review process, which we’ll do tomorrow night, but also that we would bring the parking up to the current Code pursuant to the Ordinance in Queensbury. When we reviewed the project, we recognized that we would need two variances, as we just discussed, the first one being the number of parking spaces. We’re short by 11 spaces. Currently it can hold up to 24 spaces. It’s a 7,000 square foot building, which demands 35 parking spaces. The second variance that’s necessary is what I call the clearance width, and that is the distance between the edge of the parking space to the curb that’s located on the parking lot, and that ranges. There’s three spots that we’re shy. The most restrictive one is the one that’s 19.5 feet. So we’re short four and a half feet, because the requirement is 24 feet. This neighborhood, as you know, is highly commercial. We have a Wal- Mart there, the various restaurants, the motel. Certainly changing this use to a retail use will not have any effect on the neighborhood. In fact, it’s actually pretty consistent with the neighborhood. Any alternatives, we certainly feel as though it’s not necessary to increase the parking space and lose the green space that sits to the rear of the building. Certainly that would be an alternative in the future if we thought that there was a need for additional parking, but at this point we don’t feel as though that there’ll be a demand for more than 24 parking spaces. What I would like to do is actually, I’m going to show you one of the other reasons why we don’t feel we have an alternative to change the clearance width, the second variance that we’re requesting. So, on our map here I have highlighted, so what we have here highlighted in orange are the 24 spaces. There’s 15 here on the south portion of the property. There’s one parallel space here. There are three new spaces that are just in front of the entrance, and then here obviously is Route 9. We have three spaces here, and then there are two handicap spaces up here. This would be the unloading zone, and this is the ramp that the handicap accessibility will be to the building up here on this ramp. We can’t relocate these handicap spaces to this area because the slope, it goes up slope. So it’s really imperative that we keep the handicap spaces here, plus it’s a flatter area. You can only have, you have to have less than two percent slope with respect to your landing, or your unloading area for accessibility, for handicap accessibility. So we’re shy on the clearance, this is the 19 and a half distance between this space and the curb. However, I just want to point out to your attention, you’re not reversing to other cars. You’re reversing to a curb. So we feel as though it’s not that imperative, necessary to have the 24 feet as the separation distance, because of that safety concern that it would be if you were backing up to another car. One thing that was not in the written submission that I wanted to point out to you is that we actually went and looked at some of the other liquor stores that are in Town, and the one that comes to mind is Mohan’s, and they actually have a building that’s approximately 20,000 square feet, which would demand parking, based on your Code, of about 100 parking spaces, and I calculated approximately, obviously without some of the parking is not lined, about 50 on a good number of parking spaces there. So they’re at a 50% of what is actually necessary. Their building is almost three times the size as what we’re proposing, and they only have 50% of the necessary parking. So we feel as though when you compare the use there to ours, that 24 would certainly be sufficient parking spaces, with respect to our project. The last thing I just wanted to point out is with respect to the environmental conditions. Obviously our project, we are losing one of the ingress and egress onto Route 9, and we will be opening up an interconnect from our parking to Wal-Mart, which Wal-Mart was conditioned to allow us to do when they went through their Site Plan a few years back. So we certainly feel as though that the project is an improvement to the environment. Obviously it’s going to, I think, improve the traffic, and it’s going to bring the parking up to Code, and that’s pretty much it. Do you have any questions for us? MR. URRICO-When you calculated the Mohan’s parking lot, did you count the Price Chopper? MS. LESCAULT-No, I did not. MR. URRICO-I was just wondering. Is there going to be a footpath to the Wal-Mart parking lot? Besides the egress and ingress by the cars, there’s a possibility that people can actually walk over and maybe not have to move their vehicle if there’s a place for them to walk. MS. LESCAULT-At this point, we haven’t proposed a footpath. When I went on there today, there’s already one that exists. There is a no trespass sign on there, though, but that’s certainly something that, you know, we’ll probably discuss with the Planning Board tomorrow if it’s something they feel is necessary. MR. URRICO-Thank you. MR. UNDERWOOD-Anybody else? I do recall, when we did the Wal-Mart, that we put that connector thing in there. I remember when that was part of the conditions for the future, and I would imagine the vast majority of people will probably stop and go out that way to get back out because, you know, you do have the light on Weeks Road. 55 (Queensbury ZBA Meeting 11/17/2010) MR. KOSKINAS-That’s why I’m laughing. I went in there, looking at your lot with a big truck, and I just went through the path and out at the light. MS. LESCAULT-I assume that’s, we’re hoping that we get the traffic flow. I mean, obviously it’ll increase business. MR. UNDERWOOD-Because Wal-Mart, I think most of their trucks come in and go around the back and then they back into the loading, unloading bay. So most of the traffic comes out Weeks Road, coming that way. MS. LESCAULT-Is coming down Weeks Road, yes. MRS. JENKIN-I think that having the entrance into the Wal-Mart parking lot is a real plus for this project because you’re stopping traffic from always having to go out onto Route 9 and back and forth and come in and out and then go into Wal-Mart and back. It’s a much better plan. My concern was that the 24 feet is all that’s required for the turnaround, and the three new spaces are next to the building, and backing out there’s enough room for say a big truck? MS. LESCAULT-Yes, I definitely feel as though it’s sufficient. I mean, I drove there today to confirm that, and there is. In fact, in your Zoning Ordinance, and, Keith, you can correct me if ‘m wrong, but there actually is a section in your Code that allows for 10% of, there’s like a 10% portion if it’s over so many parking spots, that you can actually decrease it to 18 feet for a clearance distance. So obviously at some point someone must have recognized that you don’t, maybe 24 is a little, I don’t want to say overkill because I certainly think it’s necessary, but in this situation you’re not backing up into a car, you know, you wouldn’t be reversing into additional parked cars. MRS. JENKIN-You’re talking about the handicapped spaces. MS. LESCAULT-Yes. You’re reversing to a curb. So there’s more of a, there’s less of a safety concern. MR. OBORNE-The specific citing that Melissa’s talking about depends on the attitude of the parking space. With these parking spaces, it’s required to have 24 feet. So, if you have them on a diagonal, that’s a difference. You don’t have to have that 24 feet. MR. UNDERWOOD-Because you’re already half turned when you back out. MR. KOSKINAS-Does the 24 feet contemplate opposed parking, though, that if two cars would be backing out at the same time? MR. OBORNE-Yes, it does. It also to do with two way traffic. If it was one way traffic, you wouldn’t need 24 feet. You’d actually need 20 feet for emergency vehicles, but you could actually break it down to 12 feet for one way traffic. MR. UNDERWOOD-Isn’t the Wal-Mart parking lot sizing smaller, too, so they fit in more? MR. OBORNE-It appears to be. MR. UNDERWOOD-It’s definitely narrower. Yes. MRS. JENKIN-It seems like a good project. MR. UNDERWOOD-Okay. If there’s no more questions, I’m going to open up the public hearing. Anybody from the public wishing to speak on the matter? PUBLIC HEARING OPENED MR. UNDERWOOD-Any correspondence, Roy? MR. URRICO-No correspondence. MR. UNDERWOOD-Okay. It seems pretty cut and dry, what you’re proposing here, and I think everybody understands, and, you know, in retrospect, we really overdid parking for many years in Town, lots of horror stories, and the less the better, and I think because you had that extra land in the back, if it ever got to the point where you were too successful, who would ever imagine that, that you could add on just in commonsense fashion, make a bigger building. I mean, you’ve got room to build and who knows what the future’s going to hold, but this seems 56 (Queensbury ZBA Meeting 11/17/2010) like a great idea. I mean, all those people going back up north are going to stop and grab some, if you’ve got good prices. What do you guys think? John, do you want to go? MR. KOSKINAS-I’m fine. MR. UNDERWOOD-Anybody have a problem with it? MRS. JENKIN-I think it’s good for the area. MR. UNDERWOOD-Okay. Then I guess I’ll close the public hearing. PUBLIC HEARING CLOSED MR. UNDERWOOD-And does somebody want to take this one? MR. KOSKINAS-Sure. MOTION TO APPROVE AREA VARIANCE NO. 59-2010 9099 CORPORATION d/b/a MONTY’S DISCOUNT WINE & LIQUOR, Introduced by John Koskinas who moved for its adoption, seconded by Brian Clements: 909 State Route 9. Granting relief from the number of minimum allowable parking spaces and minimum drive aisle width, as per Section 179-4-090. Criteria for considering an Area Variance according to Chapter 267 of Town Law as follows: One, minor impacts to the neighborhood may be anticipated. Two, alternative, concerning the relief from the minimum parking requirement and drive aisle relief, an alternative would be to construction additional compliance parking on the western portion of the property, but it’s not deemed necessary for the proposed use. Three, the request for a total of 24 spaces from the required 35 spaces, based on 179-4- 090 is considered moderate relative to the Ordinance. The request for 4.5 feet or 19% relief from the required 24 foot drive aisle may be considered minor relative to the Ordinance. Four, minor impacts on the physical and environmental conditions of the neighborhood may be anticipated, and, Five, the difficulty is considered self-created. I move for passage. th Duly adopted this 17 day of November, 2010, by the following vote: AYES: Mr. Urrico, Mrs. Hunt, Mr. Garrand, Mr. Koskinas, Mrs. Jenkin, Mr. Clements, Mr. Underwood NOES: NONE MR. UNDERWOOD-You’re all set. Good luck with it. MS. LESCAULT-Thank you very much. MR. UNDERWOOD-Did you want these drawings? MS. LESCAULT-Sure. MR. UNDERWOOD-We’re all done for the night, I guess. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, James Underwood, Chairman 57