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02-29-2012 (Queensbury ZBA Meeting 02/29/2012) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 29, 2012 INDEX Area Variance No. 56-2011 Dean & Pamela Romer 1. Tax Map No. 297.10-1-49 Area Variance No. 7-2012 Harold & Patricia Taylor 11. Tax Map No. 289.7-1-39 Area Variance No. 11-2012 Jeffrey Kilburn 14. Tax Map No. 295.15-1-30 Use Variance No. 4-2012 Cellco Partnership d/b/a Verizon Wireless 17. Tax Map No. 295.6-1-1 THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 02/29/2012) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING FEBRUARY 29, 2012 7:00 P.M. MEMBERS PRESENT STEVEN JACKOSKI, CHAIRMAN ROY URRICO, SECRETARY JAMES UNDERWOOD RICHARD GARRAND JOYCE HUNT BRIAN CLEMENTS MEMBERS ABSENT RONALD KUHL LAND USE PLANNER-KEITH OBORNE STENOGRAPHER-SUE HEMINGWAY MR. JACKOSKI-Good evening. Welcome. This evening February 29, 2012. I'd like to call to order the Queensbury Zoning Board of Appeals meeting scheduled for this evening. For those of you who haven't been here before, on the back table there is a brief sheet that explains our process here. We will go through these agenda items in order. Call them to the table here for the applicants to join us. We will have public hearings where there is one scheduled and published, and so this evening I'd like to begin with the approval of meeting minutes for December 21, 2011. Do I have a motion? APPROVAL OF MINUTES December 21, 2011 MOTION TO APPROVE THE QUEENSBURY ZONING BOARD OF APPEALS MEETING MINUTES OF DECEMBER 21, 2011, Introduced by Roy Urrico who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 29th day of February, 2012, by the following vote: AYES: Mr. Garrand, Mr. Clements, Mr. Underwood, Mrs. Hunt, Mr. Urrico, Mr. Jackoski NOES: NONE MR. JACKOSKI-Okay. We'll begin with the agenda item under Old Business. OLD BUSINESS: AREA VARIANCE NO. 56-2011 SEQRA TYPE II DEAN & PAMELA ROMER AGENT(S) S. BITTER, ESQ./J. LAPPER, ESQ. BPSR OWNER(S) DEAN & PAMELA ROMER ZONING MDR LOCATION 641 RIDGE ROAD APPLICANT PROPOSES CONSTRUCTION OF A 950 SQ. FT. ACCESSORY BUILDING. PROPOSAL CONSTITUTES A SECOND GARAGE ON A PARCEL WHERE ONLY ONE IS PERMISSIBLE. CROSS REF BP 2002-428 SFD; AV 61- 2010 WARREN COUNTY PLANNING SEPTEMBER 14, 2011 LOT SIZE 3.52 ACRES TAX MAP NO. 297.10-1-49 SECTION 179-5-020 D JON LAPPER, REPRESENTING APPLICANT, PRESENT MR. JACKOSKI-This matter was tabled in November. STAFFINPUT Notes from Staff, Area Variance No. 56-2011, Dean & Pamela Romer, Meeting Date: February 29, 2012 "Project Location: 641 Ridge Road Description of Proposed Project: Applicant proposes construction of a 950 sq. ft. accessory building. Relief Required: Proposal constitutes a second garage on parcel where only one is permissible. 1 (Queensbury ZBA Meeting 02/29/2012) 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 as a result of the current 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. Feasible alternatives would be to expand the existing garage to the maximum allowable and erect compliant accessory structures to house equipment not requiring a garage door. 3. Whether the requested area variance is substantial. The request for an additional garage or 100% relief from the requirement of only one garage permitted per dwelling as per §179-5- 020D may be considered severe relative to the ordinance. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Minor impacts on the physical or environmental conditions in 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, BP 2002-428 SFD Approved 2002 AV 61-2010 2,400 sq. ft. second garage Withdrawn by applicant Staff comments: The applicant has stated in the narrative that the proposal is for personal belongings and that the allowed 750 square feet for accessory structures would be inadequate, necessitating the need for this variance. SEAR Status: Type II-no further action required" MR. JACKOSKI-Welcome back. MR. LAPPER-Good evening everybody. For the record, Jon Lapper with Dean and Pam Romer. Very briefly, when we were here in November we were seeking approval for an 1800 square foot garage structure. Obviously there was a vociferous response from the neighbors. We think it was disproportional to the application, but nevertheless, in the interest of compromise, which is always the best way to approach a variance with this Board, the Romers are now proposing a 950 square foot freestanding structure, and as the Staff Notes indicate, they can build a 750 square foot structure with a building permit from the Town without any approval, and they have an additional 200 square feet that they could add to their garage onto the house. So the relief they're asking for is therefore minimal because there is another way, another alternative to get the same square feet, but that alternative, to have 200 square feet added to the garage, is just not practical, architecturally, in terms of what it would do to their house, and our argument here, in terms of the impact on the neighborhood, is that with a three and a half acre lot, whether it's a 750 square foot structure or a 950 square foot structure, would be basically imperceptible to the neighbors because this is such a big piece of property and everybody's so far away. They don't know the neighbors. The Romers keep to themselves. They're very quiet. I know that you've driven to the property. It's meticulous the way they keep it very neat, and this is just a way to store their things in another neat fashion. So we just look at this as a 950 square foot building rather than 750 square foot building, just, they need the extra space and rather than add to the house, which is a whole big deal with a building permit and architectural plans to add to a house and to do this project, to put it in one building, we just don't see that there's going to be any impact with that extra 200 square feet, you know, basically 10 by 20, to make this larger than the 750 square feet, and we hope that the Board will recognize it as a modest proposal and a big change from where we were a couple of months ago. 2 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-Okay. Thank you. Are there any questions at this time from Board members? Seeing none, at this time I'd like to open the public hearing. Is there anyone here in the audience this evening who would like to address this Board concerning this project? Sir, if you could. If, when you address the Board, if you could just identify yourself and your address, please. DICK GRAY MR. GRAY-Hi. My name is Dick Gray. I live at 42 Wincoma Lane in Queensbury. I've been a resident of the Town of Queensbury for approximately 40 years. This is the third hearing that I've attended. At the last hearing I passed out photos of the impact that it will have just on my property. By Mr. Romer's own admission, he has mentioned to the Board that he would like to keep conservatively something like 100 motorcycles in this two bay garage, which he has now reduced to a garage of I believe 25 by 38. 1 have a piece of property that I can easily put up and use a second garage, too. It would impact my neighbors severely. I have boats. I have snowmobiles. I have three cars. I have everything Mr. Romer has, except I don't have 100 motorcycles. There isn't one neighbor that this structure will not impact as far as the value of our property. Also we're into situations where we have environmental concerns. The Board has heard all of these. This is the third time around. Again, being a resident of the Town for as many years as I've been, this is why we have ordinances, and again, the Ordinance calls for an accessory structure of 750 square feet, accessory, not a garage, two story, you know, two bay garage. This is still huge by anybody's imagination, but you should have in your file photos that I took last year on November 16t", which was the hearing, and I took them that day to show that as much as they'd like to say that you can see it, it can be seen from every neighbor on Wincoma Lane, and again, I'm against it. This is our third time around, so the file should be this thick, and thank you for your time. MR. JACKOSKI-Thank you, sir, I appreciate it. Is there anyone else this evening who'd like to address the Board on this application? Yes, sir, please. Welcome back. CHRISTOPHER & MAUREEN LYNCH MR. LYNCH-It's good to be here. I hope I don't bore you because my problems haven't changed a whole heck of a lot. My name is Christopher Lynch. This is Maureen Lynch, my wife. I live north and adjacent to the Romer property on land that I acquired in the 1970's. I've been a resident of Queensbury for well over 50 years, time off for the Army. Good evening. Thanks for this opportunity to defend my property. Biggest question tonight might be why are we here. I contend this project is so grossly out of conformance with applicable zoning laws that it should have been dismissed long ago with prejudice, without putting neighbors through yet another hearing. We've been told many conflicting things by the petitioner, and have to take some testimony with a grain of salt. This is a building to house a lifelong collection of petroleum fueled implements. Next we are told this garage would just house a tractor and two cars. Another time we were told it would store all or part of a 200 motorcycle collection. We were told no gas would be stored on site, which is odd for a collection of motors. Then we were told no maintenance would be on site. It would all be done at the repair shop, but upcoming retirement and sale of that shop I believe are what precipitated this request in the first place. We were all told we wouldn't be able to see the proposed building, yet from my house and others, well, that's a small one and I'm not good with my electronic, that's much better. That's out of my bedroom window, and that's almost exactly the siting of the new building. So anybody who says you can't see it, that's just not the truth, sorry. Last we were told the structure would have no impact on the neighborhood, yet resident after resident has testified as to how the new building will damage the ecology, views, and land values all around the Romer property. As much as we abhor this current project, the Board brought up at the last hearing our greatest fear, precedent. If the Board can ignore a dozen zoning laws and yardsticks to indulge a dalliance, an individual's hobby desires, what is next? Maybe we should ignore all zoning laws. Perhaps all of Rolling Ridge should be permitted to building 2,000 square foot garages which is what this would total up, for whatever uses. If you set the precedent tonight, anything is possible because that's the way precedent works. Another fear is if not now then under future owners this project could easily become a defacto light industrial parcel, either for engine repairs or other uses, denigrating an area reserved for single family homes on land in a historical district directly adjacent to publicly owned wetlands. If this project is allowed, what's next for us, another variance? Maybe a variance for a second story or for power and water or full speed ahead for 800 more square feet of additional outbuildings Mr. Romer has already mentioned. Maybe there are other plans to get back to the 2400 square feet that were originally sought. We must remember the stated intent here is to consolidate all the collection into one location, but let's stick to plain facts. This request is in direct contravention of both the letter and intent of our zoning laws. 267B Paragraph Three very clearly sets out five guidelines for the Board to consider, and we submit this application is fatally flawed in all five. First, I and others have testified that a major and undesirable change will in fact be made to the character of our 3 (Queensbury ZBA Meeting 02/29/2012) neighborhood and to our individual properties. Next, this Board has already remarked on many other avenues for relief available to the applicants, including storage at the present shop, rental of nearby storage units, selling of part of the collection or just plain moving to a location which is zoned for this type of industrial activity. I also submit that by any yardstick this requested variance is substantial under the legal definition. Not only does it exceed the square footage allowed for garage use by almost 100%, but it has us and neighbors staring at a big, ugly 20 foot tall nonconforming second garage with a footprint as large as our entire home. 267 asks if this variance will have an adverse effect on the physical and environmental conditions in the neighborhood. I guarantee it will because the existing house already has. We've heard testimony where hundreds of loads of fill already trucked in have denigrated one neighbor's well water and caused flooding from all ground water runoff. Another neighbor, after decades of dry cellars, had to call the fire department to pump out the flooded basement, experienced after literally thousands of tons of fill were dumped on the adjoining lot from either toxins or ground compression, I do fear further damage to my well, which is in sands and not too deep, is at the same proximity to the proposed building site as Joan Reid's compromised well is to the existing house. Water tables and the runoff damage have already been altered and drinking water has been contaminated. If the proposed outbuilding is added in back of the existing house, additional fill will have to be brought in to level the site, which is also on a slope. This means an exacerbation of the water drainage problems, this time leaching out onto our land and Town owned open space and the wetlands within it. If this damage occurs, who's going to pay the cost to dig a new well away from the damaged soil base? No one has offered to dig a new well or affect repairs to the existing contaminated well. Far from it. I suggest Queensbury should address the ruinous effects of such massive uses of fill before similar projects wreak havoc on other unsuspecting residents. Moreover, we already listen to all day small engine noise, cutting, vacuuming or whatever treatments of the gigantic lawn, which together with the increased road noise from the clear cutting has already decreased by family's quality of life and has driven away much of the uncommon wildlife we used to have on our land. Building a 950 square foot garage right next to our property will only further denigrate our quality of life and property values. I'd ask you to carefully consider my and my neighbor's testimony's tonight and in the previous two hearings, that the visual pollution of a project of this magnitude would in fact further harm both property values and our qualities of life. Last, I give you a final fact which everybody here at least agrees with, ergo that this alleged difficult is 100% self-created, as a certainty. This modified proposal still falls far short in all five criteria, which 267 asks you to evaluate, and it cannot be allowed to proceed. The last hearing our objections were summarily dismissed by the applicant's learned counsel as misplaced or due to misunderstanding. Mr. Romer dismissed all concerns about wildlife, destroyed wells or visual pollution as figments of his neighbor's imagination. This is disingenuous. Just because we don't support the variance request doesn't mean we don't understand it or can't count wildlife or don't recognize a flooded basement or contaminated well. Finally, while I note this new project is downsized, again, I point out to the Board that half an illegal project is still illegal, and that all original objections to it stand unaddressed. The greatest risk I see is no matter what Mr. Romer's stated intentions are tonight for using the building, most bets are off if the variance is granted and all bets are off as soon as this property changes hands and there is no way to guarantee compliance with a strictly residential use. By the time any violations are detected and acted on, the damage will already have been done. In summary, I hate being at odds with a neighbor, but I believe this project is utterly out of place and would further harm my family's quality of life and the character and value of my home and property. I ask the Board to reject this request with finality on this, the third time around, and I do hope the Romers find an alternative here which will respect their neighbors and is good for them and their shop, hobby and equipment. Thank you. MR. JACKOSKI-Thank you, sir. Is there anyone else this evening who'd like to address the Board on this application? Hello, and welcome. JOAN REID MS. REID-Hello. Thank you. MR. JACKOSKI-And if you could just be reminded that we do have about a three to five minute time limit. MS. REID-Mine's shorter than Chris'. My name is Joan Reid. I live at 627 Ridge Road, just down the hill from the Romers. I'm on the southwest border of the Romers. Now I've lived in my present home for 36 and a half years. Six years before that I moved from the home I'm in now, from across the field, and I was there 19 years. So I've lived in the field for most of my life. When I was in sixth grade my teacher, Mrs. Loper, took us on a field trip to the neighborhood and showed us stone walls, a headstone in the field, in the Friends cemetery down the road and told us stories about a man named Reverend George Brown. When I decided to build my own home, I chose to build my home in a rural residential areas with one of the beautiful stone walls along the edge of my land. My father owned 180 acres of land and started the neighborhood 4 (Queensbury ZBA Meeting 02/29/2012) which is now called Rolling Ridge. I tell you this short history for many reasons. I have concerns about Mr. Romer or the Romers building an additional large building on the land above my home. It will impact my neighborhood in three major ways. First of all, it's clear that the neighbors don't want the building that will house his business or hobby, whatever he's going to call it, which includes all the motorcycles or whatever they are, the ATV vehicles, lawnmowers, whatever it is. The building can be seen through the area that Mr. Romer clear cut. When I look out of my kitchen, I can see a lot more of the land than was shown on these pictures, and I don't know, Chris, if I sent you the right picture from my yard, but right there, that's his backyard from my yard. I can see everything in his backyard. From my kitchen I see his house also, but that's not a big deal. That's where he lives. I just don't want to see another big building which is a large garage there, especially if it houses machines that might have an impact on the wetlands and the area around our home. So when I look out my kitchen window, I see his house which it was built up with truckloads of dirt, a lot of dirt that changed the natural drainage. I know the last time Mr. Romer suggested that I have the Town dig out the trench in front of my house, but I do call regularly and the Town can only dig it out so many times, but it still does drain, now, differently across my yard, into my gardens, into my garage, and another thing, Number Two, the historic stone wall that runs between our lands has been affected. When I was young my brothers and I used to play along because they were sturdy stone walls. They've been straight and strong for many years. The buildup of tons of dirt has caused an effect which is called a mushroom type of effect, which pushes the land down, with all the different truckloads of dirt, and pushes against the stone wall. The stone wall which is historic is now moving and it's causing it to change its shape. The cornerstone of one of the walls has been compromised and appears to be falling away from the wall. The Town Historian, is the Town Historian here? She was going to maybe come and talk. Marilyn VanDyke has tremendous concern about what is happening to the stone wall. She said she considers this wall to be a very historic wall and should be preserved. Having more building above it and changing the land, and I don't know if you can see the hill, but it used to be a gradual hill down toward Rolling Ridge. It is now built up really high. I don't know if you can see it from these pictures. I'm sorry. I don't have, you might have the pictures from the last time we were here. Okay. I'll go over here for a second just to show you again, like last time. Okay. Thank you. All right. The Romers have built up. Their lawn is gorgeous. They have leaf blowers. They have all kinds of wonderful equipment. They keep their lawn really, it's beautiful. I don't know how they're going to have all of those pieces of equipment going into the building in back of their house without doing something to their lawn. Are they building a road? Are they going to let, you know, all these pieces of equipment change the beautiful landscape? You can't tell right here because this is an older photo, but they've built up quite a bit. This stone wall that's right here, comes up and the gradual, natural gradual gradation is not there anymore. It comes up higher than the stone wall so the dirt keeps coming down and drains and builds up in back of the stone so it's starting to push the stone wall and it's pushing it out this way. My house is here. The water now comes around through here. He's got a nice ditch which he keeps really clean. All the trees have been, you know, most of the brush has been taken down. So now it drains down into here and across my yard, and because it slopes back this way it comes into the garage, down across here. I get a little pond here. I'm not sure what's going to happen back there if he builds another building. It could affect, this whole area that's a wetland area needs to be preserved. So I don't know what's going to happen with another building. When I was growing up, the designated wetland area was around the airport, was Quaker Road to the airport and sometime I believe in the 80's when Earle town if some of you remember the Laakso's and David Eastwood and some of those old names from the area, they decided they were going to take designated wetland from my father's land, because they wanted to build an industrial park or do something over in between the airport and Quaker Road. So they re-designed Queensbury, but the fact is, Queensbury still needs their designated wetland area. So, it's already been stated that the water comes into my garage. It has changed my well water. I now need a filter, since houses were built above me on the hill, and I understand that there's another neighbor that has had problems with water in their basement and they never did before the building the Romers have built. To build another building on this lot would require more and more dirt. It would again change the natural flow of water, draining residue from buildings, bringing in machines, whatever else the business or hobby would bring, besides the noise. Truckloads and truckloads brought in to build up, every morning I would hear dumps, dumps from the trucks dumping. Then the house was built, great, but to do it again, to have all that weight on the land, to be pushing the, the land changes when you have all that heaviness that's not natural, affects the water, affects the land, the wetland. I'm concerned about petroleum spills or chemical spills or how it will leach into the aquifer over time, and we drink the water that comes out of our well now and we wish to do so in the future. So another concern I have has already been stated about what if someone else buys the house in a few years and they don't know about all this that's happened. They could just change, add plumbing, add electricity, which I'm not quite sure how he's going to have a big building with no lights. So I really want to encourage you to not give the Romers a variance because it will impact the neighbors, the historic walls and the wetlands. Thank you. MR. JACKOSKI-Thank you. Is there anyone else here this evening? Yes, sir, please. 5 (Queensbury ZBA Meeting 02/29/2012) DAVID COLLINS MR. COLLINS-My name is Dave Collins. I live at 50 Wincoma Lane, directly to the north of Dick Gray and between Dick Gray and Tom Hughes, who testified last week. I just want to raise an issue of balance or imbalance of a self-created issue against the desires and vociferous protests of every neighbor who can see the property and anticipate what's going to happen if this variance is granted. It appears that we're totally overlooking the rights of the neighbors to keep the tenor of the neighborhood we're in, okay, and I guess Joan's last statement was one that really struck home. What happens when the property is sold, okay. There's a beachhead there, and how do we know that there isn't another variance granted and all of a sudden there's flashing signs out there for an auto repair? I'm against this, and if Mr. Romer comes back and decides to make it a 375 square foot next time, I'll be back again and oppose it again. Thank you. MR. JACKOSKI-Thank you, sir. MEG HUGHES MS. HUGHES-Good evening. My name is Meg Hughes. I live at 56 Wincoma Lane, right next door to Dave Collins. As stated, we've all been here three times now. We all feel that we followed the laws. The Town variance is there for a reason. Number Five, whether an alleged difficulty was self-created. It was. He knew what the variance was when he built his home. I also have a large parcel of land. I know I cannot go and build an extra garage. I just feel that we have all stated our reasons against this and we hope the Town listens to us. Thank you. MR. JACKOSKI-Thank you. Is there anyone else this evening who'd like to address the Board on this matter? Seeing no one else, I am going to leave the public hearing open for a bit. If I could have the applicant back with their agents, and, Mr. Lapper, maybe if you could just summarily address some of the concerns that the neighbors have addressed. MR. LAPPER-Sure. I guess I'd just like to start out, my main point is that we're talking about the difference between 750 and 950 and the picture that the Lynches had up put the building that they superimposed was right at the tree line, and you could see, Keith, could you put up the grass picture that you've shown. I think this is pretty indicative. One of the neighbors mentioned how nicely they keep the property, which was my point. Could you go back to the grass one for my use. There it is. I just think that's indicative of what's going on here. If they can put 750 up with a building permit and attach 200 square feet to the existing garage, that's why my point is that that's not a significant difference at all for the neighbors. The same square footage. It would just be two structures instead of in one, but it really is centered on the property and the complaints that we heard, you can see how this is graded. It's pretty gentle. I mean, this is someone who took a lot of care to plant the lawn and to grade the property and certainly to maintain it. So, again, if we're talking about a 750 square foot structure that they can start tomorrow without approval and just add the 200 square feet that they can do anyway, that won't affect the neighbors. In terms of the ancillary issues that were raised, drainage, this is higher than the other one and that's why there's a wetland because water flows downhill. The ditch needs to be cleaned, that was pointed out that Mr. Romer cleans his ditch and maybe the neighbor needs to do that as well, but there's nothing that's proposed that would have an impact on anybody's groundwater. This is a slab, not a foundation. There is no electricity. There's not 100 motorcycles. This is a 750 versus a 900 square foot building. It's not that much storage. He's certainly not going to be able to put his whole collection in it, but it's still important for them to have the storage. So if we just get back to the 200 square foot difference, whether it's attached or detached, that's what we're talking about here. Is there anything else that was raised that you'd like us to address, Mr. Chairman? MR. JACKOSKI-Do you know who owns the stone walls that were addressed? AUDIENCE MEMBER-They're on the property line I believe. DEAN ROMER MR. ROMER-Partially on the property line. MR. JACKOSKI-Is there a maintenance agreement with those? MR. ROMER-No. AUDIENCE MEMBER-You didn't need one before. 6 (Queensbury ZBA Meeting 02/29/2012) MR. UNDERWOOD-It shows them as being inside the property line. MR. ROMER-Yes. The line runs through it and part of it is on our property. MR. UNDERWOOD-Out towards the road it's on your property and further back it's on the other side. MR. ROMER-Yes, and the one stone that Joan is talking about on the corner, that came loose when the State ditched the road, and I had people come in and fix it, put it back up as I best I could, and prop it back into place without getting the State back in there to move rock. MR. JACKOSKI-If the 750 square foot building was built, is it going to be electrified? MR. ROMER-No. MR. LAPPER-Nor would the 950. MR. ROMER-Nor would the 950. MR. JACKOSKI-But the 750 could in the future. MR. ROMER-Any building could in the future, but it won't. MR. LAPPER-Because it's cold storage. MR. ROMER-It's strictly cold storage. MR. JACKOSKI-And maybe we could address the building of a road. MR. ROMER-None. It's just like grass, you drive over the yard when you're mowing. You drive over the yard when you plow. There will be no road put in, no driveway, no stone to it, nothing. Strictly grass. This is for strictly cold storage for off use vehicle. MR. JACKOSKI-Yes. If the 750 square foot building was going to be built, and it had a garage door, they would still need a variance for a second garage, correct? MR. OBORNE-That is correct. MR. LAPPER-So if it was denied, it would be built without a garage, because that would be the choice, without requesting relief. MR. JACKOSKI-So you would reduce the size of the door. MR. LAPPER-Yes, which is not preferable, but permissible. MR. JACKOSKI-Okay. At this time I'd like to poll the Board, if you wouldn't mind. MR. URRICO-I'd actually like to ask a question. If 200 feet is insignificant, then why do you need it? MR. ROMER-We were allotted two more hundred square feet to the existing garage that's on the house under the new Code. MR. URRICO-You could expand the garage. MR. ROMER-Yes, on the house, 200, but it would change the whole structure of the house and the design of the house. So we were just looking to add that 200 on to the 750 that we are allotted. MR. LAPPER-He's asking what's the use. Why is it so important to you to have that 200 square feet? MR. ROMER-1 want to be able to put my tractor in this building and my plow truck in this building, along with my lawn and garden. MR. URRICO-So it's going to be used as a second garage, then? MR. ROMER-It's going to be used for storage of those, yes. The motorcycles aren't coming. Those are in storage. That's where they're going to end up having to stay. I'm not bringing my 7 (Queensbury ZBA Meeting 02/29/2012) collection, and I have started to sell off some of my collection. I've been selling them off in the past year. MR. JACKOSKI-May I follow up with one of Roy's questions? The vehicles that are being used in that, stored in that facility, whether it's 950 square feet or 750 square feet, are they intended for commercial purposes at all? MR. ROMER-No. Even my everyday truck that I use and is my business vehicle has no markings on it whatsoever showing my business. I don't advertise where I live to the public. I don't do any repairs at my house. I don't want my customers bothering me at my home. That's my relief. That's my retirement. That's where I want to be. MR. JACKOSKI-Okay. So if I could I'd like to poll the Board, and I'd like to start with Mr. Underwood. MR. UNDERWOOD-Okay. I think it's important for us to reflect, this is the third time this has appeared before us, and I think initially we've shrunk this down 2/3rds of what, just about 2/3rds of what the initial request was for the project, and as Mr. Lapper has said, he's asking for about 200 square feet more than what's allowed by law for an outbuilding on anybody's property in Town. At the same time, this is a rural area. It's a three and a half acre lot. There's not too many people that have three and a half acres in Town. On average I think it's probably much smaller than that. There are plenty of places in Town that have extra storage buildings on their property on much smaller lots in closer proximity to their neighbors, and if you look at the plot, you'll see that this building where it's proposed to be is going to be 111 feet from this property line, 136 on the other side and 175 feet on the other side, and from the frontage of Mrs. Reid out on the main road there it's going to be significantly further than that 175 feet, like probably in excess of 270 feet. This building, and I think we have to remember a lot of people have needs on a large lot. As you can see in the picture up on the screen there, everything is clear. I imagine he has lawn machinery as described by the neighbors. It's a well-kept lot. We don't really have any control over what's been done on the lot as far as bringing the fill. That was a Site Plan Review problem, and I don't know, when they did Site Plan Review, if there were any concerns put in at that time, and if it passed muster. So the runoff problems that exist, you know, may well have been exacerbated by what's been built as far as the home on there, but that has nothing to do with what's being proposed in the backyard there, and I think that if you put adequate eaves trenches and things like that in, you can accommodate any runoff water that's going to occur from dripping off the roof and deal with that adequately, it's not going to affect the neighbors to the rear there, too, and as described by the applicant, they are not proposing to use this for storage of his motorcycle collection. Certainly if he wanted to bring some motorcycles over to tinker with them in his backyard for his own use, we can't control that. That's an allowable thing. I mean, if you want to collect anything you can collect it, you know, within the realms of reality. I'm not really opposed to the request. I think that it's shrunk down significantly from what it initially was, and the 200 square feet is more than is allowed by Code, but on a lot this size I don't think it's going to be that significant, and I think that we should allow this. MR. JACKOSKI-Thank you, Mr. Underwood. Joyce? MRS. HUNT-1 have to agree with Mr. Underwood. The Romers certainly have cut down their request considerably, and the only thing, the 200 feet plus the garage doors, but I would be in favor. MR. JACKOSKI-Thank you. Roy? MR. URRICO-Yes. I'm going to have to disagree with my fellow Board members. I think if you start with a large request and you cut it back and you still end up with something more than you should, I don't know if that's scaling it back or getting more than you should. My feeling is that there's five criteria, and I think I can't see one of them in which I see a positive aspect to it. I think the change to the neighborhood might be drastic if we allow this type of building to continue. I think when they re-wrote the Town Code, they had the opportunity to change it to say, based on the size of your property, how many garages you can have or how many accessory buildings you can have. They didn't do that. It says one per, and that's what I think we should stick by. I think 200 feet is 200 feet. I still think that's way too much. You're asking for 100% relief. You're basically going to be using that accessory building as a second garage, no matter what you call it, and I think that'll be, and the difficulty is self-created. So I'd be negative on this. MR. JACKOSKI-Thank you. Rick? 8 (Queensbury ZBA Meeting 02/29/2012) MR. GARRAND-I've got a little bit of a problem with the view shed, how it's affected by the placement of this garage. It will be visible to the neighbors where it's placement is. It's almost centered in the middle of the lot. I think if we were going to do something like this, we'd have to do it in such a manner that it would lessen the impact on the view shed of the neighbors. With respect to the balancing test, whether this will produce an undesirable change in the neighborhood, according to the neighbors, yes. Can the benefits be sought by other means feasible to the applicant? According to the applicant, architecturally, no, it's not feasible. Whether the request is substantial? 100% relief is substantial. Will it had adverse environmental impact? I don't see how it could. Any minor impact could be mitigated, and is it self-created? Yes. It's applicant originated. It is self-created. In the balancing test, it's three out of the five against the garage right now. MR. JACKOSKI-Okay. Brian? MR. CLEMENTS-Thank you. I have to agree with Mr. Underwood. I think this is a reasonable use of his property. He has downsized it from 2400 square feet to 950. I think that Rick has a good point about neighbors being able to see it, but I think the neighbors could put up buffers on their property, I mean, if they didn't want to see it. So I'd be in favor. MR. JACKOSKI-Guess who it comes up to. Okay, and I'm not usually the tie breaker, but I don't have a problem with the building being a garage. I think we, in the Town, have on larger parcels, allowed second garages to be built and therefore there's already been a precedence for that. So I think I'm okay with that, and I do appreciate what Mr. Underwood mentioned regarding the actual measurements off of the lot lines. I'm a little concerned about the clear cutting that took place, the clearing, whatever we want to call it. So now I'm down to just the 200 square feet that becomes the issue. I think I agree with Mr. Underwood that that 200 feet, in the overall scheme of things, isn't going to be that noticeable in that building, if the building's going to be built anyway, at 750 square feet, and the 200 feet are allowed as part of an extension to the garage anyway, I'd actually rather see the extra square footage behind the house and off the road. So I'd be in favor of the project. At this time, I think we're going to close the public hearing. PUBLIC HEARING CLOSED MR. JACKOSKI-And this is a Type II SEQRA. So, Jim, could you give us a motion? MR. UNDERWOOD-Sure. MOTION TO APPROVE AREA VARIANCE NO. 56-2011 DEAN & PAMELA ROMER, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 641 Ridge Road. The applicant is proposing construction of a 950 square foot accessory building and the proposal constitutes a second garage on the parcel where only one is permissible. Having considered the request, the Board is making a determination that no undesirable changes will be created in the neighborhood. Although there will be a new building present in the backyard there, this is a three and a half acre lot with significant setbacks from the side property lines. Impacts to the neighbors visually may be anticipated, but it's certainly not like the building is going to be an industrial building. It's going to fit in with and match the house that already exists on the site there. Whether the benefit could be sought by a different method, I think the Board did make some suggestions to move this out of the center of the yard, but by centering it in the yard it is the furthest from the neighbors that it can be. Again, this building is going to be used primarily just for storage of equipment used on site there for maintenance of the lawn and the yard and property. Whether the request is substantial. It is a second request for a garage on the site, and although that would be considered substantial at 100%, it's a rural area with a three and a half acre lot, and that we have certainly permitted quite a few other lots on even smaller second buildings on other lots for storage purposes, and whether the alleged difficulty was self-created. The difficulty can be considered self-created. We'll note that the project originally came in at 2400 square foot accessory building request and it was going to be for storage of his motorcycle collection, and I think he's taken into account the fact that the neighbors did not want to see all of those motor vehicles stored on site. Certainly lots of other people in Town store their lawn equipment and that hasn't created any difficulties for other people in closer proximity. So I would move for its approval. We would like to see a 50 foot long buffer of trees placed and we're asking that those trees be 12 foot in height and staggered, you know, not just in a single row but you can alternate them, leave enough space between them, they'll fill in on their own, a minimum of 10 trees and a minimum of 12 feet. Duly adopted this 29th day of February, 2012, by the following vote: MR. JACKOSKI-Does anyone have any discussion concerning the motion? 9 (Queensbury ZBA Meeting 02/29/2012) MRS. HUNT-Could we add requirements for landscaping around the property maybe? MR. JACKOSKI-That's what I was just going to address, too. Would you offer any type of landscaping for us, especially on the Wincoma side of the property? MR. ROMER-We can do planting, sure. MR. LAPPER-Some evergreens? MR. JACKOSKI-Well, I think we'd like to see more of a screening effect. So, and, Jonathan, you're well aware of what the Planning Board would require, but, you know, the building is 38 feet long, and if I look at the siting of the project and I look at especially those two homes that are on this side of Wincoma, I think that is Wincoma. MR. OBORNE-1 would caution the Board to be specific. MR. JACKOSKI-We are. We're getting there. We're asking the applicant for a recommendation. MR. UNDERWOOD-You don't want them around the garage. You want them along the property lines, like around the outside, and I think you could accomplish that with evergreens. It's a very sunny area. Those are trees that are going to grow very rapidly within five years. They're probably going to significantly screen, because you have a mature forest around with oak trees and deciduous trees, you don't really have any present. That'll give you more privacy on your site, too, as well as helping the neighbors. MR. LAPPER-What if we propose something like blue spruce which would match the color of the house and they're neat and clean trees, unlike pine. MR. UNDERWOOD-Sure, but any of the pine species would be appropriate. I would recommend that you put a variety rather than just one, because then if you get into a bug problem you're not going to lose all your trees in one shot. MR. LAPPER-How many? MR. UNDERWOOD-Leave it up to you. I mean, you can go get seedlings. MR. LAPPER-No, he won't get seedlings. MR. JACKOSKI-I would prefer to see at least a 12 foot tree if we could. So I'd like to see a 12 foot tree. I'd like to say. MR. LAPPER-A minimum of five? MR. JACKOSKI-Yes, I was hoping for more, like eight or ten. MR. ROMER-Along that line there where the wall is. MR. LAPPER-Yes, but towards the middle of the property, the backyard, along the wall. MR. ROMER-Yes, along the wall towards Rolling Ridge. MR. JACKOSKI-The intent here is to minimize the visual impact with the neighbors. MR. LAPPER-So 12 feet high, you want to say 10, 10 trees, 12 feet high, minimum of 10 trees. MR. JACKOSKI-And should we establish general location, Staff? MR. OBORNE-It would help with Code Compliance. My concern is finding a 12 foot tall tree. MR. LAPPER-Well, evergreens you can. MR. JACKOSKI-Evergreens you can. MR. OBORNE-Twelve foot tall? MR. UNDERWOOD-That's a big tree. 10 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-I've gotten, well, Meads has delivered 18 foot trees. They can do it. If we're going to construct, I mean, I think it's appropriate to not put seedlings in. I think if we're going to, seedlings are not appropriate. MR. LAPPER-That's agreeable. What if we said, I'd like them staggered rather than just in a line. So maybe within 30 feet of the wall staggered. MR. JACKOSKI-That would be great, and try to accomplish a 50 foot screen so to speak with those trees. Thank you for adding that to the, I don't know, do we have enough wording for Maria? MR. OBORNE-If you can amend. MR. UNDERWOOD-We would like to see a 50 foot long buffer of trees placed and we're asking that those trees be 12 foot in height and staggered, you know, not just in a single row but you can alternate them, leave enough space between them, they'll fill in on their own, a minimum of 10 trees and a minimum of 12 feet. AYES: Mr. Clements, Mr. Underwood, Mrs. Hunt, Mr. Jackoski NOES: Mr. Urrico, Mr. Garrand MR. JACKOSKI-Thank you. MR. LAPPER-Thank you. MR. JACKOSKI-And thank you to all the neighbors who did participate in this hearing. We actually do appreciate it. NEW BUSINESS: AREA VARIANCE NO. 7-2012 SEQRA TYPE II HAROLD & PATRICIA TAYLOR AGENT(S) ETHAN P. HALL, RUCINSKI HALL ARCHITECTURE OWNER(S) HAROLD & PATRICIA ZONING WR LOCATION 27 REARDON ROAD EXTENSION APPLICANT PROPOSES DEMOLITION OF EXISTING 500 SQ. FT. ENCLOSED GARAGE AND CONSTRUCTION OF A 900 SQ. FT. NEW CARPORT. RELIEF REQUESTED FROM FRONT AND SIDE SETBACK REQUIREMENTS AS WELL AS FROM PERMEABILITY REQUIREMENTS. CROSS REF BP 2004-193, SEPTIC ALT.; BP 2003-617 ALTERATIONS; BP 2003-616 DECK LOT SIZE 0.24 ACRE(S) TAX MAP NO. 289.7-1-39 SECTION 179-3-040 HAROLD TAYLOR, PRESENT STAFFINPUT Notes from Staff, Area Variance No. 7-2012, Harold & Patricia Taylor, Meeting Date: February 29, 2012 "Project Location: 27 Reardon Road Extension Description of Proposed Project: Applicant proposes demolition of existing 500 sq. ft. enclosed garage and construction of a 900 sq. ft. new carport. Relief Required: Parcel will require area variances as follows: 1. Front Setback - Request for 15.4 feet of front setback relief from the 30 foot requirement. 2. Side Setback - Request for 3.5 feet of north side setback relief from the 12 foot requirement. 3. Side Setback - Request for 2 feet of south side setback relief from the 12 foot requirement. 4. Permeability - Request for an additional 116 square feet of impermeable surfacing reducing on-site permeability from 61.7% down to 60.6%; Permeability requirement is 75% in the WR zone. All area variances are per §179-3-040 off the Town of Queensbury zoning code. Criteria for considering an Area Variance according to Chapter 267 of Town Law: 11 (Queensbury ZBA Meeting 02/29/2012) 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 would be to scale down the project in order for the side setback relief request and potentially the permeability relief request to be eliminated. 2. Whether the requested area variance is substantial. The request for 15.4 feet or 52% relief from the 30 foot front setback requirement may be considered moderate to severe relative to the ordinance. Further, the request for 3.5 feet or 29% relief and 2.0 feet or 17% relief for both the north and side setback requests from the 12 foot side setback requirement may be considered minor to moderate relative to the ordinance. Additionally, request for an additional 116 square feet of impermeable surfacing reducing on-site permeability from 61.7% down to 60.6% 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. As the parcel has existing permeability issues, any decrease to the permeability may have an adverse impact on the environmental conditions in the neighborhood. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, BP 2004-193 Septic alteration BP 2003-617 Alterations BP 2003-616 Deck SEAR Status: Type II-no further action required" MR. JACKOSKI-Welcome. MR. TAYLOR-Good evening. MR. JACKOSKI-Do you have anything, at this time, you'd like to add to the project, and if you could, could you state your name for the record? MR. TAYLOR-Harold Taylor, owner of the property at 27 Reardon Road. The condition we have now I think is a good reason to make the change. We currently have a 500 square foot garage, cement block garage. The garage is in sad shape. The walls are buckling on it and cracking, and attached to that is, included in the 500 square feet, is a wooden shed. The shed is pretty much rotted out and it should be replaced. The shed itself actually sits right on the line. If you look at your Drawing C-1, I think that described it very nicely, but the shed actually goes over onto my neighbor's property by about five, seven inches I think it is. What we're proposing is to tear down those two structures and to build a two car carport on center on the lot, so that we minimize the setback as much as possible. Though it's a larger building, it's a 900 square foot building, it is a carport, and it is open. There would be a workshop or storage area in the back of it. I've been to all of my neighbors. The neighbor on the north side is my daughter, and I saw them, he's here tonight. The neighbor on the south side, I've showed her the plans and I also showed the plans to my neighbor on the east side, and there's no objection from any of the neighbors. So I think, all in all, it would be an improvement to the property. That's pretty much it. MR. JACKOSKI-Okay. Thank you, and this proposal does correct the current problem with the lot line and the building that is over the line. MR. TAYLOR-That's correct. MR. JACKOSKI-Okay, and if you don't mind I'm going to ask Board members if they have any questions. 12 (Queensbury ZBA Meeting 02/29/2012) MR. UNDERWOOD-Keith, the concerns about the leachfield, the new building is still going to encroach on that leachfield? MR. OBORNE-1 actually brought that up to Dave Hatin. He did not have any issues with it. MR. UNDERWOOD-And I think my concern with that, you know, it's over 200 feet back from the lake in where it is. So it's significantly removed. MR. TAYLOR-I would mention that the lot is, the perc tests have always been very good on it. It's most sandy soil. So at any time you get any water on top it drains off. MR. JACKOSKI-Thank you. Any other questions at this time from Board members? Seeing or hearing none, I am going to open the public hearing. PUBLIC HEARING OPENED MR. JACKOSKI-Is there anyone here in the audience this evening who'd like to address the Board on this application? Sir, if you could, please join the table. DENNIS DE FAYETTE MR. DE FAYETTE-My name's Dennis DeFayette, and I'm the neighbor next door to Bud, and he has shown us the plans and we certainly have no objections. In particular we'd love to have our seven inches back. It's been a long time. Seriously, we have no objections at all. It will improve the property. The structure that's there is starting to get into some disrepair and what not, and it becomes much more usable for them as well, the current, the new structure that they're proposing. MR. JACKOSKI-Thank you. MR. DE FAYETTE-Thank you. MR. JACKOSKI-Is there anyone else here this evening who'd like to address the Board on this application? Seeing no one else, I will leave the public hearing open. I'd like to poll the Board. Roy? MR. URRICO-1 have no problems with the project. MR. JACKOSKI-Joyce? MRS. HUNT-1 have no problem. MR. JACKOSKI-Jim? MR. UNDERWOOD-No. MR. JACKOSKI-Rick? MR. GARRAND-I'd like to see some more permeability on this property. I think you could remove some of the hard surfacing. MR. JACKOSKI-Brian? MR. CLEMENTS-1 think it's a good project. I'd be in favor. MR. JACKOSKI-Sir, if you maybe could address the concerns by Rick Garrand concerning the permeability. Do you feel there's an opportunity to reduce the permeability issues at this time? MR. TAYLOR-What we had planned to do is put a concrete pad underneath the carport. Right now there's blacktop that covers pretty much the whole area, and also there's blacktop (lost words) and concrete on the floor of the cement block structure. So I think all in all the permeability will probably be improved. I do plan on putting a walk in, and we'll make that a porous material of some type (lost words) paving blocks, but we are aware that there's concern about the permeability over that septic area, and we plan to use something that would be appropriate there. MR. GARRAND-My concerns are there isn't a lot of permeability on the property. You're supposed to have 75% in that zone, and also the runoff from the garage, is that going to run 13 (Queensbury ZBA Meeting 02/29/2012) right into the septic system into the leach area? I mean, I don't have any idea where that's going to go. MR. TAYLOR-It's (lost words) so there will be runoff from the garage on the rear of the garage (lost words). That could be remedied with a gutter. MR. JACKOSKI-I'd actually prefer no gutter so that it infiltrates in more of a surface that concentrated flow. MR. TAYLOR-All right. MR. JACKOSKI-I think we're okay. I think the Board. So I'm going to close the public hearing. There was no written comment, correct, Roy? MR. URRICO-No written comment. MR. JACKOSKI-Thank you, sir. PUBLIC HEARING CLOSED MR. JACKOSKI-Could I get a motion from someone? Brian? Thank you. MR. CLEMENTS-Sure. MOTION TO APPROVE AREA VARIANCE NO. 7-2012 HAROLD & PATRICIA TAYLOR, Introduced by Brian Clements who moved for its adoption, seconded by Joyce Hunt: 27 Reardon Road Extension. The applicant proposes demolition of existing 500 foot enclosed garage and construction of a 900 square foot new carport. The relief required is the parcel will require Area Variances as follows: 1. Front Setback - Request for 15.4 feet of front setback relief. 2. Side Setback relief of 3.5 feet of north side setback relief. 3. Side Setback relief for 2 feet of south side setback relief. 4. Permeability for an additional 116 square feet of impermeable surfacing reducing on-site permeability from 61.7% down to 60.6%. In making the determination, the Board shall considered: 1. Whether an undesirable change will be produced in the character of the neighborhood. 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. Scaling it down would be a method, but this looks like a good project. 3. Whether the requested area variance is substantial. The request for 15.4 feet or 52% relief from the 30 foot front setback requirement may be considered moderate. The request for 3.5 feet or 29% and 2.0 feet or 17% for both the north and side setback requests from the 12 foot side setback requirement may be considered minor, and additionally, request for an additional 116 square feet of impermeable surfacing reducing on-site permeability from 61.7% down to 60.6% may be considered moderate. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood. As the parcel has existing permeability issues, any decrease may have some impact but probably not adversely. Whether the alleged difficulty was self-created. The difficulty may be considered self-created, and I move to approve Area Variance No. 7-2012. Duly adopted this 29th day of February, 2012, by the following vote: AYES: Mr. Urrico, Mr. Underwood, Mr. Clements, Mrs. Hunt, Mr. Jackoski NOES: Mr. Garrand MR. JACKOSKI-Good luck. Thank you. AREA VARIANCE NO. 11-2012 SEQRA TYPE II JEFFREY KILBURN OWNER(S) JEFFREY AND CANDACE KILBURN ZONING MDR LOCATION 34 MARSHVIEW LANE APPLICANT PROPOSES CONSTRUCTION OF A SECOND GARAGE ON PARCEL. RELIEF REQUESTED FROM NUMBER OF ALLOWABLE GARAGES ON A PARCEL. CROSS REF BP 2011463 SHED (GARAGE); BP 2009-481 SFD; FWW 5-2005; SP 64-2005 LOT SIZE 12.91 ACRE(S) TAX MAP NO. 295.15-1-30 SECTION 179-5-020D JEFFREY KILBURN, PRESENT STAFFINPUT Notes from Staff, Area Variance No. 11-2012, Jeffrey Kilburn, Meeting Date: February 29, 2012 "Project Location: 34 Marshview Lane Description of Proposed Project: Applicant seeks 14 (Queensbury ZBA Meeting 02/29/2012) approval for the construction of a 320 sq. ft. second garage on a 13 acre parcel in the Westland Subdivision. Relief Required: Parcel will require area variances as follows: • Relief requested from number of allowable garages on a parcel as per§179-5-020D. 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 would be to leave as a shed. 3. Whether the requested area variance is substantial. The request for a second garage were the requirement states "Only one garage permitted per dwelling" as per §179-5-020D may be considered severe relative to the code. 4. Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Little adverse impacts on the physical or environmental condition in the neighborhood may be expected. 5. Whether the alleged difficulty was self created. The difficulty may be considered self created. Parcel History (construction/site plan/variance, BP 2011-463 Shed (garage) BP 2009-481 Single Family dwelling FWW 2-2005 SFD Approved 12/20/05 SP 64-2005 SFD Approved 1/23/07 Staff comments: The existing structure has access to the 160 sq. ft. loft for storage. SEQR Status: Type II-no further review required" MR. JACKOSKI-And just for the record, upon the prior advice of legal counsel and in the interest of full disclosure, I want to mention that the applicant has been a previous customer of mine and I of the applicant and I intend, in the future, to be a customer of the applicant, but I see no reason to recuse myself for any conflict of interest. Welcome, if you could address the Board, please. MR. KILBURN-1 have a 13 acre parcel upon which we built our house about a year and a half ago or two years ago, and my father died about October of 2009, and he had a six foot wide, what I thought was a six foot wide lawnmower. It's about 70 years old, and I love mowing my lawn, and we got a shed permit with a six foot wide door, but the width of this is just over six feet. So before we finished, because we don't have a Certificate of Occupancy yet, I decided it would be wise for us to not break the walls down every time I get the mower in and out, because I'm striking it and just see if we could get an eight foot door wide door so this goes in easily, in and out easily. The building is built, but we don't have our Certificate of Occupancy yet because we have not finished that last opening. So we're here tonight just to request that the opening be approved for an eight foot door instead of a six foot door. MR. JACKOSKI-And that door change makes this a garage, not an accessory structure, that's a shed. MR. KILBURN-Right. 15 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-Okay. Are there any questions, here, of the Board members? MR. UNDERWOOD-No. Just as a suggestion, I think we should note that, you know, this is almost a 13 acre parcel, and most of us are familiar with it because of the previous, you know, variances that were granted for the review process when you put the house in there. So we're quite familiar with the property. I would just say, as a request, it's a pretty minor request. It's 320 square feet, for a second garage, which is quite small. I guess you could park a (lost words) in there if you wanted to put a small vehicle in there, but it might be kind of hard for anything else. MR. JACKOSKI-And we do have a public hearing scheduled this evening. So there is no other comment from Board members at this time? Is there anyone here this evening who'd like to address the Board on this application? PUBLIC HEARING OPENED MR. JACKOSKI-Seeing no one here in the audience, I'll close the public hearing. PUBLIC HEARING CLOSED MR. JACKOSKI-Is there a need to poll the Board? MR. URRICO-1 have public comment. MR. JACKOSKI-You have public comment? Go ahead, Roy. I'll leave the public hearing open. PUBLIC HEARING RE-OPENED MR. URRICO-Okay. "The zoning rules and regulations are put into place for a reason. I understand exceptions and change are often allowed under certain circumstances. The new construction of the Kilburn's home required a variance because of disturbance to a wetland area. What was the impact on the wetlands after the house was built? Soon after the house was built, they asked for and received a dock permit. Is the dock on Town property? I understand that a couple months ago they asked the Town to maintain a beaver dam that was constructed over the last year, to the detriment of many homeowners in the neighborhood. Why would the Town pay to maintain a beaver dam that shouldn't be there in the first place? Now they would like another variance to construct a garage on the property that used to be wetlands. Have they done a study that would show the Town that there will be no impact on the wetlands? It seems like they are manipulating the wetlands with total disregard for the Town. The Town should have proof that this infringement will not affect the protected wetland area. Bill Canale 28 Fox Hollow Lane Queensbury, NY 12804" "To Whom It May Concern: 1, Joel Bobick, and my wife, Elizabeth Donahue, owners of 22 Owen Avenue, oppose the request under this variance to build a second garage at 34 Marshview Lane. The owners already have a shed and a garage. It is our concern that the owners are planning or running a commercial enterprise from that address. Sincerely, Joel Bobick" That's it. MR. JACKOSKI-Okay. So, before we poll the Board, if you could, sir, address the commercial aspect of the building. MR. KILBURN-Yes. The confusion about the number of buildings is understandable because the application could be read to mean we're looking to build a second structure. The structure's already there, and so one of the two letters referred to us building the equivalent of a third structure on the property, and that's not the case, and the issue with the wetlands, we already have the structure there. It's already built. So the issue of wetlands was dealt with as part of the building permit process. We do not have a dock in place. When we received our Planning Board approval, it included a dock, but no dock is in place yet, and there was no zoning variance needed to build the house. It was a planning commission issue. MR. JACKOSKI-And do you intend to use the building for commercial purposes? MR. KILBURN-No. MR. JACKOSKI-Thank you. Okay. I'd like to poll the Board before we close the public hearing. Roy? MR. URRICO-Because I've already made my stance clear on this on an earlier application, I'm going to say no on this because of the second garage on one principal residence. MR. JACKOSKI-Okay. Joyce? 16 (Queensbury ZBA Meeting 02/29/2012) MRS. HUNT-I'm in favor. I think it's a very small second garage, and actually the building is there. It just needs a larger doorway. I have no problem. MR. JACKOSKI-Jim? MR. UNDERWOOD-1 don't have any problem with the request as it's been presented to us. It's quite understandable why you need the extra storage space. I think that the concerns of the neighbors, for those of you that aren't away of it, there's the beaver wars going on down there, and as someone who utilizes that area down there, I've been on the Queensbury Land Conservancy Board, I'd prefer the wetland to be a wetland, and there are a bunch of people in that neighborhood who have declared war on beavers, for whatever reason, and I think it's a shame that it's not a wetland any longer. So hopefully the beavers will win in the end. MR. JACKOSKI-Thank you. Rick? MR. GARRAND-Beavers are going to do what beavers are going to do. In the past, this Board has allowed second garages on large parcels, larger than normal for Queensbury. Normally it's parcels that are above 10 acres, sometimes even 40 acres have been allowed second garages. Usually the small parcels this Board has shied away from allowing second garages on them. Given that this parcel is 13 acres, usually second garages are associated with a lot of equipment necessary to maintain the property. I can relate to that, and with that, I'd support this request for a variance. MR. JACKOSKI-Thank you. Brian? MR. CLEMENTS-1, too, think I would go along with this. I think it's a very modest request. So I'd be in favor. MR. JACKOSKI-Okay. Do I have a motion? I'll close the public hearing. PUBLIC HEARING CLOSED MOTION TO APPROVE AREA VARIANCE NO. 11-2012 JEFFREY KILBURN, Introduced by Joyce Hunt who moved for its adoption, seconded by Brian Clements: 34 Marshview Lane. The applicant seeks approval for construction of a 320 square foot second garage on a 13 acre parcel in the Westland subdivision. Relief required, the relief requested for the number of allowable garages on the parcel as per Section 179-5-020D. There will be minor impacts to the neighborhood and actually the garage is already constructed. There really are no feasible alternatives to the applicant, as the equipment he wants to put in does not fit through the doorway. The request for a second garage may be considered severe, but this is a large piece of property and would not be visible from any of the roads. There will be little adverse impacts on the physical or environmental conditions in the neighborhood, and it may be considered self-created only in the fact that the Kilburns wish to enlarge the doorway to the building that they already have. So I move we approve Area Variance No. 11-2012. Duly adopted this 29th day of February, 2012, by the following vote: AYES: Mr. Underwood, Mr. Garrand, Mrs. Hunt, Mr. Clements, Mr. Jackoski NOES: Mr. Urrico MR. JACKOSKI-Thank you. Congratulations. MR. KILBURN-Thank you very much for your time. USE VARIANCE NO. 4-2012 SEAR TYPE UNLISTED CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS AGENT(S) MICHAEL E. CUSACK, ESQ. OWNER(S) TOWN OF QUEENSBURY ZONING RR-SA-RURAL RESIDENTIAL LOCATION 1127 WEST MOUNTAIN ROAD APPLICANT PROPOSES A NEW 120 FT. MONO POLE TELECOMMUNICATIONS TOWER. RELIEF REQUESTED FROM THE USE REQUIREMENTS OF THE RR-5A ZONE. CROSS REFERENCE SP 7-12, TB RES. 85-11 WARREN CO. PLANNING REFERRAL JANUARY 2012 LOT SIZE 4.82 ACRES TAX MAP NO. 295.6-1-1 SECTION §179-5-130 MICHAEL CUSACK, REPRESENTING APPLICANT, PRESENT STAFFINPUT 17 (Queensbury ZBA Meeting 02/29/2012) Notes from Staff, Use Variance No. 4-2012, Cellco Partnership d/b/a Verizon Wireless, Meeting Date: February 29, 2012 "Project Location: 1127 West Mountain Road Description of Proposed Project: Applicant proposes a new 120' monopole Telecommunications Tower with supporting 12 by 30 (360 sq. ft.) equipment shelter on lands owned by the Town of Queensbury across from Lehland Estates off of West Mountain Road. Relief Required: Nature of Variance: 1. The applicant requests relief from allowable uses in the Moderate Density Residential district as per§179-5-130C. Code Reference Per§179-5-130C for Telecommunication Towers: Designated areas. Placement of telecommunications towers is restricted to certain areas within the Town of Queensbury. These areas are as follows: in any Light Industrial (LI) and Heavy Industrial(HI) Zoning District or co-located on any property where a telecommunications tower or other tall structure(structures o ver 50 feet in height)exists. Criteria for considering a Use Variance according to Chapter 267 of Town Law: The four (4) criteria usually associated with a use variance are different in this case. Verizon Wireless is consider a public utility under New York decisional law (Cellular Telephone Company v. Rosenberg, 82N.Y.2d 364(799,3) and a provider of ",personal wireless services" under the Telecommunications Act of 1996. As a result of these decisions, the following are to be shown by the public utility in order to gain a use variance: 1.) That the proposed improvement is a public necessity in that it is required to render safe and adequate service; That the safe and adequate service may be considered a common practice by this public utility, the public necessity aspect may be open to interpretation. 2.) That there are compelling reasons, economic and otherwise, for permitting the variance. This public utility appears to have shown compelling reasons, both economic and service specific, that this variance may be permitted. 3.) Where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced. The applicant appears to have chosen this site with minimal intrusion or burden on the community in mind. Parcel History (construction/site plan/variance, SP 7-12 Cell tower Pending TB Res. 85-11 Staff comments: The applicant is before the Zoning Board in order to gain a use variance. Currently, the zoning code only allows Telecommunication Towers in the Commercial Light Industrial (CLI) and Heavy Industrial (HI) zones. In order for the applicant to proceed to Site Plan Review, the Zoning Board of Appeals will need to pass the Use Variance before them. Standards for placement. New or modified antennas or telecommunication towers shall be placed according to the following priority: 1. Collocation on an existing tower 2. Placement of antennas or other telecommunication equipment in or on an existing tall structure located in the Commercial Light Industrial and Heavy Industrial zones 3. Placement of antennas or other telecommunication equipment in or on an existing tall structure not located in the Commercial Light Industrial and Heavy Industrial zones 4. Placement of a new tower on a lot where another communications tower already exists 5. Placement of a new tower on a lot within the Commercial Light Industrial and Heavy Industrial zones. Note: Where a shared use of existing towers and structures is not proposed, the applicant must provide documentation of the inability to utilize an existing tower or structure. This must be documented to the satisfaction of the Zoning Board of Appeals. 18 (Queensbury ZBA Meeting 02/29/2012) SEQR Status: Type: Unlisted Application protocol: 1. Planning Board to seek Lead Agency Status-Complete 1/17/12, see handout. 2. ZBA to acknowledge P.B. request for L.A. status or conduct independent SEAR review- Complete 1/18/12 3. Planning Board to issue a recommendation and conduct SEAR Review - Pending 2/28/12 4. ZBA to review Use Variance- Pending 2/29/12 or TBD 5. Planning Board to conduct Site Plan Review- March or TBD" MR. JACKOSKI-Welcome. MR. CUSACK-Thank you, Mr. Chairman. I'm Michael Cusack. I'm here representing Verizon Wireless tonight on this application. With me is Rick Andrus, the Radio Frequency Engineer from Verizon Wireless who prepared the radio engineering report that's behind the Six Tab of the application package. Behind Rick is Steve Matthews who's our professional engineer with Techtonic Engineering. Steve answered a lot of the Site Plan related questions last night to the Planning Board so we brought him along, and next to Steve is Jean Marie Frawley who's the real estate representative for Verizon Wireless who helped Rick find the site that we have before the Board tonight, and we're here following up on the project that we originally proposed in 2008 at the fire department property. So it's been over three years since we've been before this Board and just by way of review, the Planning Board, on that project, in March of 2009, denied our project without prejudice and asked us to go off and work with Town officials on some of the alternative sites that were identified by this Board, and other members of the community, and so that's what we've been doing over the past several years. We've taken advantage of that time to come up with the site that's before you tonight, and the purpose of the project, just to review, is to provide an adequate and safe level of emergency and non-emergency third generation and now fourth generation communication services to the northwestern part of the Town of Queensbury, generally, going west of the Northway and kind of north and west along Aviation Road and Dixon Road, and that's the general targeted area that we're trying to serve here. There are aspects of the project that are coverage. There are aspects of the project that are network capacity. We've tried to simplify the objective so that it makes sense, you know, in laymen's terms, and one Board member at the Planning Board suggested that what it sounds like we're really trying to do is enhance the existing service but also bring new coverage to areas that are lacking service or lacking adequate service. So this is very much an upgrade of our network, and addressing the points, we've provided a report at Tab Six of our application package that demonstrates, in accordance with the legal standards, why this project is a public necessity. There are a number of data points and statistics that we've outlined on Pages Two and Three of this report, and just to give you a recap of where we stand, because our network when it had problems in 2008, they're severely exacerbated now, and we're doing a significant upgrade to the network in the Queensbury and Glens Falls area, as our coverage plots demonstrate, but to give you some numbers to work with, the company, Verizon Wireless, is adding nationally about 1.3 million new connections every quarter. So that's our growth rate nationally. On a more local level, subscriber usage within our system is roughly doubling, year over year. So the same sites, even if they're serving the same or an increasing pool of users, those users. Those users, you're using the system twice as much year over year. So we're experiencing tremendous growth in the usage of the system, not just in the number of devices being added. Data from the Centers for Disease Control and Prevention demonstrates that approximately 30% of all adults and children live in households now that have replaced Iandline service with only wireless service, and that this 3.1% increase that I've documented here in the report for 2010 is the largest six month increase observed for this segment of the population. To put it in simple terms, this is cutting the cord. People are getting rid of the Iandline phones, going to the wireless phones. It's happening not just here but all around the State and all around the country, and it's documented from a statistical standpoint. From a public safety standpoint, the advances in wireless technology now transcend the traditional distinction between a voice call and a data call. This is well beyond social networking, text messaging and Facebook and what not. According to the FCC statistics that have been gathered nationally, approximately 2/3rds or almost 70% of all 911 calls today are being made from mobile devices, and for that reason the FCC has started two initiatives to require wireless carriers to upgrade their networks and the devices the sell on the networks to now be able to handle or accommodate emergency transmissions, not just by voice, but by video, by text messaging and by any other means. So we're going through our network. We're trying to meet this objective. It's a two year objective. It didn't exist in 2008 when I was here, but it's very much, we knew this is where things were headed. We know that the distinction between voice and data is blurring. Everything's data now. Even what you would think of as a voice call is really 1's and 0's that are encrypted and transmitted over the network and assembled on the other line. So at the end of the day it's a real initiative. We're trying to upgrade the network so that it works adequately 19 (Queensbury ZBA Meeting 02/29/2012) throughout the community. In terms of background on that, I included a statement from Chairman Genachowski from the FCC that's at the back of that report, and the report isn't, the intent of that isn't to be overly dramatic. They point to the incidents at Virginia Tech University when there were the shootings and people couldn't get calls through. They couldn't send a text message out for help. Several people wound up getting shot that had to make a 911 call by voice, and they gave away their position and they wound up becoming seriously injured or killed in that incident and it had a deep effect on the FCC. So I put their statement in there so you can see that this is very real. It's a national initiative, and that's where we're headed. To be able to pull all of this off, of course, we need more bandwidth. It's all about broadband, getting the broadband out there on the wireless network so that the devices will continue to work in the reliable fashion that Verizon Wireless is known for nationally. So that's the background on the public safety aspect of it. I did want to comment on one statement that was in the letter from the Caffry law firm that's in this application, and they're saying that the public necessity has not been established and in support of that statement they point to Verizon Wireless coverage locator maps that are printed on line, and the map is attached to the Caffry letter, and I want to, this is not an uncommon objection that we see, as Verizon Wireless, throughout the State, and if you were to go on line today, you could go on to our Verizon Wireless national website, and as a consumer you could look up and see on the map what type of service you have in Queensbury. The map has different types of shading for 4g LTE coverage, which is our highest form of network now, which is being rolled out gradually in Queensbury, and then the standard 3g coverage. It used to have indicators for analog only service, and these are very, very important from a consumer standpoint. If you were to walk into our store today, they might try to sell you a third generation phone, a fourth generation phone. You might say, well, do I really need it and is it going to work in my community, and what you do is you go to these maps and it tells you what type of network is deployed in your local community. The footnotes to it are very important. They're also very clear. The second set of asterisks says that access to the 4g network within the extended coverage area. Certain conditions may cause your service to connect to 3g service in this area, and then you skip a line, and below that, this is very important, it says these coverage locator maps depict predicted and approximate wireless coverage. The coverage areas shown do not guarantee service availability and may include locations with limited or no coverage. Even within a coverage area there are many factors, including customers equipment, terrain, proximity to or inside buildings, foliage and weather that may impact service. So what they're saying here is that really, if you're the consumer, is you can buy a 4g phone in the Town of Queensbury. It's going to work in certain areas, but don't rely on this map that it's going to work everywhere. We still have to do our job as the company to continue to work on the network, upgrade it and provide the service uniformly through the community, but it is a valuable consumer tool to help consumers select between the various devices. It was a lot more important when we had analog phones only in certain areas. In terms of the, I'm trying to hit the highlights here, and I'm happy to go through everything, but in terms of the visual aspects of the site, we think that the primary impact of this facility and these types of facilities generally whenever we come into a community is people want to know what's it going to look like, how big is it, how tall is it, and in this particular case, we have found a spot that's at the foothills of the Luzerne Mountains. The terrain behind the mountains, combined with the vegetation that's throughout the community, provides substantial screening of the facility, and there is an issue here that's been raised by Mr. Ball that, you know, because of some tree fall that's occurred on his property and some logging that took place to get rid of that, that some of the screening has been removed from his perspective, and I'll ask you to look at that in the following context. The weather event occurred in August of 2011. Our visual analysis, which is done, which is behind Tab Eight, excuse me, was completed in October of 2011, after the trees were knocked down. It still shows good screening. It shows good tree cover. In addition, our engineers were out at the site in November of 2011 before the logging operation began, and behind Tab One where our Full Environmental Assessment Form is, you'll see a report from Techtonic where there's pictures in all sorts of directions going around. We don't dispute Mr. Ball's right to remove trees on his property. That's not what we're saying here, but we think that some of the visibility that's being alleged here is attributable to Mother Nature and we think some of it is manmade, and in fact when we were asked to go out and re-do the survey of the property, it's clear that some of the removal activities inadvertently, perhaps, came right over onto the Town's property. So there is a little bit more of an opening up there, and I bring this up only to give you the background that we've asked for a landscaping waiver from the Planning Board because by in large the majority of the trees are still there. This will still be a fairly well screened facility, but as an alternative we've also put before the Planning Board for the Site Plan Review that we would come in and do reasonable landscaping. We don't want to be responsible for reforestation of trees that were removed from the Town's property by a third party, but we will do some reasonable landscaping if that's what they require as part of the Site Plan Review process. So we're giving them an either/or, and that's where that stands. I wanted to try to outline that and highlight that for you, but by in large you have very, very good screening throughout the community. The visibility, as shown on our view shed map, is very, very limited. We are out at the outer edge of development within the Town, and if you wanted me to say what do we really like about this site, why do we think this site is better than other alternatives, we keep coming 20 (Queensbury ZBA Meeting 02/29/2012) back to two points, the first point being that this site allows us to consolidate to public utility uses on a single piece of property. You have the Town of Queensbury water tank on the property right now, which is a public utility use, and next to that is, or behind it actually up the hill a little bit would be the Verizon Wireless public utility facility. So the two uses are being centralized in a single location. Secondarily, this site is less centrally located in the community than any of the other alternatives that we looked at. So whereas, take, for example, the original firehouse site that we had. It was surrounded almost on all sides by homes. It was in a flat area. So when you're in a flat area, you have more of a back lighting, in terms of the visibility. You're not up against trees. You're not up against a tall mountain in the background, and you just have people around you in more directions than you do if you're out on the outer edge of, you know, the developable property in Queensbury. So, again, it's less centrally located. We think it's the best job that we can do. It is a compromise on our behalf, and I want to be careful to use the word compromise, because I don't think that a compromise is the same thing as saying that our site has disadvantages. We were very much asked to compromise. We hope that the spirit of our compromise is clear in the work that we've done over the years to make this site work and get it through the Water Department's review and the Town Board's approval on the lease before putting it back in front of you for a variance, and that brings me to one of my last points is that, no matter what we do, no matter what where we put this facility or replace or build a new tower or join with some other tower and do it, it's going to need a variance. This entire portion of Town is restrictively zoned. It does not qualify for the districts that are eligible for us to go in and build new facilities. So a variance in that context is very much unavoidable, and we've tried to come up with the best balance that we possibly can on that before putting this site in front of you. With respect to the alternative sites, they are all listed in our application. We think that they're adequately addressed. If you have any questions on a particular alternative, we're happy to walk through each and every one of them, but in the interest of time, I'd like to try to move on and let you get the comments in that are important. The only thing I would say on the alternatives is that as we go back to the Northway side of this area, take, for example, the Abbey Lane flagpole tower that's at the Ramada Inn, which doesn't have structural space on it for our equipment, but if it did and we were to use that, as our coverage plot shows, it covers a certain amount of area in the major transportation corridor around the Mall, around the Hotel near the high school. It leaves out the entire residential area to the north and the west. Rick's done an estimate based upon the areas that are left out, which includes almost all of Aviation Road. It does include all of West Mountain Road, includes a good portion of Dixon Road and the road that runs parallel to the forest and hiking trails, Peggy Ann, I believe, 700 homes. So we're not talking residents or people. There's more than one person, probably, in each household, but if you count tax map lots in that area, just do a manual count, you've got somewhere between 600 and 700 homes, and that, to us, summarizes the reason why we're on the other side, on the mountain, trying to cover the community, as opposed to going down, you know, along the highway and just picking up the travelers going up and down the Northway. This is very much part of our effort to provide service to the community as a whole and not just the traveling public. We're trying to run that balance. We're trying to get a little of both, but as I mentioned, this is going to pick up a substantial part of your residential area in Queensbury. I hope that that's enough background to start with, and if you have any questions, again, we're happy to answer them on the package itself. MR. JACKOSKI-Thank you, sir. At this time, are there any Board members who'd like to ask the applicant any questions? Rick? MR. GARRAND-Is there any proposal to remove any towers once this tower could possibly be installed? MR. CUSACK-1 can't think of anything. The water tower is staying, that's on the property, the Town's water tower, and we're just building behind it. MR. GARRAND-Yes, but is there any plans to remove any existing towers that you have around Town? MR. CUSACK-No. The only towers that we have around Town are, give me a second here, is the one in Luzerne that was approved by the Town. MR. GARRAND-The Luzerne Road site off of West Mountain, I noticed when they did construction on that. MR. CUSACK-That's correct, it's not on the air yet, but that's the only tower that we own. MR. GARRAND-Yes. That area was torn up pretty bad when they did the construction over there. I went up there and it was all, it was torn up for quite a while until they laid down some crushed stone. It was quite a mess. 21 (Queensbury ZBA Meeting 02/29/2012) MR. CUSACK-Okay. MR. GARRAND-What I'd like to see is balloons hung for a period in time so we can get a pretty good idea of how the view shed's going to be affected by a tower like this. I didn't notice any balloons up in that area. I live in the Dixon area. I have Verizon 3g. My daughter has it. We don't have any issues with anything in that area. You're saying that there's future need for this, future bandwidth demand? Is it a bandwidth demand or is it a, you know, a user capacity demand? MR. CUSACK-Yes. MR. GARRAND-Yes to both? MR. CUSACK-Yes to all three. It's a coverage problem. You may have coverage where you are, and there are people even who objected to the last project who said, yes, I acknowledge I don't have coverage in my house. I mean, there's coverage missing throughout that area. If you have coverage, you're lucky. There is a bandwidth lack there and there's a capacity lack there. So, yes on all three. MR. GARRAND-Are there any proposals to hang any balloons up so we can get an idea how this is going to affect the view shed? MR. CUSACK-The required balloon analysis was done on October 3, 2011, and the report summarizing the result of that is at Tab Seven. We don't have any plans to repeat that analysis. MR. GARRAND-No plans to re-vegetate, to protect this gentleman's, his view shed? He admits here, you know, some of it was taken down by Irene. He's concerned about what it's going to do to his property value and his view. MR. CUSACK-I'm sympathetic to those concerns, but conversely, I have to be very careful how I say this, Verizon Wireless, we can't be responsible, if somebody goes in and logs the property, even if they're cleaning up trees, and they go beyond that and they take down a lot of trees, that's something they can correct by planting some additional trees on their own property. In addition to that, we have agreed, as a discussion point with the Planning Board, to talk about reasonable landscaping, not reforestation, but reasonable landscaping. The applicant is also willing to support Mr. Ball's request that the Town not remove any more trees along that. In other words, we're not going to say to the Town keep the area around our tower clean and clear. They can keep the trees there. They can plant more trees there on the Town's property, not outside of our lease area. We're willing to agree to that and support any of those measures, but at the end of the day, there was a significant logging operation that came as far as 60 feet into the Town's property. Clear cut, not where our tower's going but along the area, and it's shown on Zoning One, Drawing Z-1 in the file, and that is something that happens, and how the parties address that, we'll do our part, but we do not want to be responsible for reforestation. MR. GARRAND-No, I think the person who cut it should be responsible for reforestation, hopefully. Was co-locating on the water tower explored? MR. CUSACK-Yes, it is. It's covered in our report, and the coverage plot or propagation analysis that goes along with that is in your package. It covers a very, very small area along West Mountain Road. It does not get down onto Aviation, and it drops off where Aviation crosses West Mountain Road. It doesn't go any further south. MR. GARRAND-Are you currently on the water tower in Coles Woods? Is that you on the water tower? MR. CUSACK-That would be Sprint, I believe. MR. GARRAND-Okay. MR. UNDERWOOD-1 would just make the comment that part of that is because of the topography over there. You have low spots, and by being up on the side of the mountain, you're going to gain maximum coverage as opposed to where the previous location was over at the firehouse, where it's just flat because it's a look down thing. It's a sight line to the tower if you're going to get your signal. It's not going to go over the top of the hill and down in the hollow on the back side. MR. CUSACK-Correct. 22 (Queensbury ZBA Meeting 02/29/2012) MR. URRICO-How many other locations in Queensbury/Glens Falls area do you anticipate to satisfy the thirst? MR. CUSACK-If I was to, I can answer that by showing you one of our plots, the second one that's in the book behind Tab Six, and it shows the existing network that we're operating now, with the four sites in purple, and we are developing, I can't say we're constructing, but we're developing a total of four new sites in the community, the broader community. One is on Dix Avenue on the Village of Hudson Falls water tank, just over the other side of the river, and if you look, the central problem we're trying to deal with is that our primary site in Downtown Glens Falls, which is on the CNA building, is just way overused. It's covering too broad of an area. So we're trying to break that up into smaller segments, and you can see the segments going around, and so the Dix Avenue site that I just mentioned would be the first site. That's an existing water tank. Moving to the north is what we call Glens Falls North. That was permitted by the Planning Board and Zoning Board last year. That's the replacement of the AM radio tower on Everts Avenue. It's not on the air yet but it's getting very, very close. The construction is nearing completion on that. Our antennas are up but they aren't working. Then moving to the west is the site we're talking about tonight, Aviation and Dixon, and then moving to the south and the west is the Luzerne Road site that was mentioned before. So you have us very much taking the old network that was primarily three cell sites in Queensbury, and breaking it up into smaller bites that the system can handle, in terms of usage and capacity. It's necessary, but it will bring Queensbury to the level of any metropolitan area that we serve in the United States. You're going to have very good service when we're done. MR. URRICO-In comparison to most towers, what does this one rank in terms of size? MR. CUSACK-In terms of size, it's relatively low. The one at Exit 18 that used to be our site before the tower companies came and bought all of our old sites, this is before Verizon, it was when we were Nynex, that one's 180 feet tall. The one across the Northway from that that's owned by Cellular One/Singular/AT&T, that's about 250 feet. It's painted red and white and it has lights on it, and then the one at the outlets is about we think 180. We know that our antennas are at 140 on that, at the Queensbury outlets. The proposed site is 120, at the water tank property. It's designed to hold, with space to hold two additional users. That's a requirement of the Code is that we put in space for additional users, and our lease in Paragraph 36, which is behind the second tab of this application, obligates us to also have structural capacity for free municipal or County use, one location. So that's kind of the design we're at now. Our towers are much smaller than they used to be. I think the one at the fire department that we started with originally was also 120 feet, but they were adding a 22 foot mast antenna on top of that. So we were talking 142 feet at that location. So it fits in on the lower end of things. We're looking at trees in the area as high as 80 feet, on average. Our Techtonic surveyors went out and did a tree survey of the area. So we want to be 20 feet above that ourselves and we want to leave space for other users. MR. URRICO-So how many towers in this area do you currently own, and which ones do you co-locate? MR. CUSACK-We're co-located on everything except the Luzerne Road one and this one, and just to give you a count, you asked me for a count, it looks like there's, counting this, there would be seven in the area. MR. URRICO-And that's just Verizon. So as we're anticipating other services having the same type of issues with coverage that this process is going to be repeated by them as well. MR. CUSACK-1 have no way of knowing that. I think you can anticipate some activity, perhaps, from AT&T. I don't think Sprint and Nextel, Sprint and Nextel are now a combined company. I don't think they've built a new site in the area in seven years. So they're not active. T-Mobile, I don't want to speak for them. They're not active. They've built on different locations throughout the community. A lot of, you know, some of the other carriers are serving a portion of Aviation Road from that flagpole at the Ramada Inn, and, you know, even if that worked for us, as I mentioned, there's not enough structural space on there. We're running the equivalent of three separate networks, if you look at our FCC licenses in the package. So we need antenna bays for three different sets of frequencies and there's just not enough room inside that flagpole for us to deploy. It doesn't work anyway for what we're trying to do. We're trying to get out into your community, and I think a lot of the objectives of the other players are different. They might be just trying to get the traffic along the Northway, pick up the travel revenue. We don't know. We can't speak for what their plans are, but our business model is very much to get out to the community to provide service to the locality. MR. UNDERWOOD-So do you anticipate this is going to meet your capacity for a while before you need to go for another one? 23 (Queensbury ZBA Meeting 02/29/2012) MR. CUSACK-Yes, and to give you a rule of thumb on our confidence of that, when we started wireless networks in Upstate New York was around `86 or `87. This entire area was served from one site on top of Prospect Mountain. That was our main site back in the analog cellular days, and, I mean, you can look back to our discussion from 2008 on why that model doesn't work anymore. It's just an overwhelming capacity and system demand. Moving ahead approximately 10 years to 1995 or thereabouts, we put in the site at Exit 18, which is the 180 foot tower in the industrial commercial zone area that's still there today, and then you move ahead another five or six or seven years. We added the CNA building in Downtown Glens Falls. That's our most recent addition, but also the outlet. So you can see that every five to ten years these networks go through a design, you know, reiteration. The fact of the matter is we were trying cover these more remote residential areas, using sites that were way further away than they were designed for, and we were getting away with it because the system usage wasn't so high, and because the devices that used to be on the system were very high power compared to today's devices. Communications is a two way street. You have an uplink and a downlink, and we're not talking the old days of three watt phones with booster kits screwed in to the floor of your car with an exterior antenna to get up to those antennas. That's the harder part. The downlink is always easy, easier, I should say, and now you're down, instead of a three watt phone, you're down to a .1 watt of a transmitter. So it's just not feasible to serve this part of the Town of Queensbury from the CNA building three and a half miles away. MR. GARRAND-Is it going to be in the 750 megahertz area on this tower? STEVE MATTHEWS MR. MATTHEWS-Yes. MR. GARRAND-So you're going to have LTE up there? MR. MATTHEWS-Yes, sir. MR. GARRAND-All right. MR. JACKOSKI-At this time are there any other questions from Board members? I would like to open the public hearing. Is there anyone here in the audience this evening who would like to address the public hearing portion? PUBLIC HEARING OPEN MR. JACKOSKI-Do we want to make reference to the Caffry & Flower letter as public comment? Are we going to read the whole letter in? MR. URRICO-1 was hoping you'd say no. MR. JACKOSKI-Yes. MR. UNDERWOOD-1 think if the Board members have all read it, you can just note that we've read it. MR. JACKOSKI-So, before the public actually speaks, are there any other written comments besides that letter? MR. URRICO-That's the only letter I see. MR. JACKOSKI-So do you want to make a notation that the Board has agreed that they've all read it? MR. URRICO-There is a public comment letter from Caffry & Flower Attorneys at Law, and I just want to make reference to it. It's a seven page letter that states their position and their final paragraph says the application should be denied due to the potential for undue adverse visual impacts, we request that the Planning Board recommend denial of the application, and that the Zoning Board pay particularly close attention to the impacts upon the natural, scenic, aesthetic and open space resources of the Town. After reviewing these impacts, the Zoning Board should conclude that the application for a Use Variance must be denied because the project does not satisfy the requirements for a Use Variance under these circumstances. MR. JACKOSKI-Thank you, Roy, and, again, for the record, there was no other written public comment, correct? 24 (Queensbury ZBA Meeting 02/29/2012) MR. URRICO-Right. MR. JACKOSKI-Welcome. If you could state your name, please. CLAUDIA BRAYMER MS. BRAYMER-Good evening. My name is Claudia Braymer and I'm from the law firm of Caffry & Flower, and we represent Mr. Ball, the adjoining landowner who opposes this project, and he has some comments first, and I'm going to let him address to you and then I'll speak again. RONALD BALL MR. BALL-Thank you. My name is Ronald Ball. I own a property south of the water tower, approximately eight acres. I've owned it for about eight years or something like that, and August 28th we had a hurricane go through there and it destroyed about 80% of the trees on the property. Now, when I say destroyed, these trees are entangled, they're twined up, they're buckled up. Everybody thought I made money having that lot cleared. I lost money on it, and I'm still not done, but I have no more money. I'm retired. I'm on a fixed income. We have a billion dollar industry behind me. A billion dollar industry, and all they're thinking about is getting richer. Okay. Now, when I went to the Town to get a building lot, I proposed building a house and I want it kept secluded in the woods, and I actually went out of my way to show trees that I was going to leave, which meant I was going to leave better than 90% of the trees on the property. They were tall white pine, 80 feet high, but when this hurricane hit, I lost 80% of my trees, 80%. The Water Department has lost about 15%, and they're still hanging on to my property. In order for this logger to go in there and log off the property to get started, he had to take certain trees off the water property to free up the trees that were on my property. They're invading onto my property, hanging on to my property, and it was a very dangerous situation. One guy got hurt up there. We had problems with equipment all the time because there's no easy way. When you get a tree that's 80 feet tall and you spring that thing, that thing kicks back and there was, I had three or four people give me estimates and some of them didn't even want to do the work. It was too dangerous. That's how bad it was. That whole area, Lehland Estates, they got hit. Okay. So this gentleman keeps saying that I went 60 feet onto his property, he's more than exaggerating the truth. It's a downright lie, because nowhere did I come 60 feet within that property, and plus he keeps saying that there's not going to be a visual impact on there, with 80% of my trees gone, 15% gone from the water tower where they want to put the new road in up to where they want to clear another half-acre to put a tower up, they're going to be eliminating better than 65% of the trees there. Okay. So now picture 65% of the trees. That's going to open up the water tower tremendously, okay, and now my only plans that I've got and the only thing I can possibly do to make any money out of this property up there is to build a house higher up on the hill so I can have a view of Vermont, because now it's destroyed, which I never wanted to do. I wanted to keep it at the lower part of the hill, but now my intentions are to move the house up there. That means this 120 foot tower is going to be somewhere about 60 feet from the back of my home, 120 feet high, which if you, once the tower is constructed, if you drive down Mountain View Lane, headed north, to the West Mountain Road, that tower's going to stick right up in the center of the road and you're going to see it all the way down through. Okay, and that's not the real reason I'm here. That's a start. Last night I approached the Planning Board, and I brought up some questions, and I never heard the answers from the questions I asked. So I'm going to say them one more time and hopefully I can get some results from this, and hopefully someone will look into the situation that I think is developing up there. In 1963, the water tower was built, almost 50 years ago. It holds approximately 500,000 gallons of water. When they originally built it, they had a straight road run right straight up to the front of the tower. That road washed out two or three times that I know of, and so what they did is they turned the road, brought it over to the left, put an elbow in it, and then brought it up to the tower, because they know there was too much erosion in front of the tower. They never corrected the problem. That erosion is still in front of that tower. Okay. I don't know if it's going to get worse, and I'm going to tell you one other thing that they did. About five or six years ago, or maybe longer, to the north of the water tower, they issued a permit to a gentleman named Walker, and he excavated that other side of the water tower, and he stripped that side of the bank off. Now the way the water tower stands right now today, it's on a peninsula. Because of what's happened over the years, it's on a peninsula. It didn't start out that way, but once you issued the permit to Walker's, the Walker house, they excavated that bank to put a long driveway in to get up to their house. I'm saying someone has got to, an engineer has got to go up and study this, like an engineer that checks bridges, dams, Hadlock dam. Inspector inspected the Hadlock dam and it still collapsed, but Friday there was a water tower in Wilmington, Massachusetts that collapsed, and they believe now it was because of corrosion. I think if you allow them to build that tower up behind, the cell tower up behind the water tower and they clear a half acre of property or more, because they're really not saying how many trees they're going to take down, and then on top of the trees that's got to come down because they're already tipped over, or they're falling over, I think you're going to create erosion 25 (Queensbury ZBA Meeting 02/29/2012) that's going to come off the top of the hill, behind the water tank, which is a sharp bank there right now, and it's been corroding that sharp bank, but that water will come off the top of that hill, hit that sharp bank, and it's going to soften the soil behind the water tank. So say the water comes off here, this is the water tank. It hits behind the tank. The tank is on a peninsula. It's going to soften up that material. I think we could be in a very dangerous, dangerous situation and something like what's happening in Wilmington, Massachusetts could happen there if there isn't some correction made here or some other things done to it. This is my most important issue, more than anything else. I don't care if the pole's 120 feet wide. What bothers me the most is I don't think it should go there. I really don't, and I think it's going to create other problems down the road. That's all I have to say. I'm sorry. Thank you. MR. JACKOSKI-Okay. Thank you, and just so you know, Ms. Braymer, we did all read the letter that your firm did send in. MS. BRAYMER-Thank you. Okay. I'll try to keep my comments brief. I'll just touch on a couple of things that we put in the letter. First, this is not a situation where a Use Variance is not unavoidable. There are areas in the Town specifically zoned for telecommunications towers, and they involve not only the commercial light industry, but also any area where a tower is already located or they could build a new tower on a lot where another tower or a tall structure exists, and it's our position that they have not done a complete inventory of all the towers or tall structures in this search area, and that they should be required to do that before they can move forward. They have looked at some of the alternatives, and they have dismissed some of those as not being technologically correct for them, and we appreciate that, that they have expertise in that area, but we feel that there should be a complete inventory as required by Town Code in the telecommunications section. Also just for the record, it could be denied outright as this is not necessary to be placed outside of this, outside of the proper zones for a telecommunications tower. Also, we do feel that it's not necessary to provide safe and adequate service. However, we're not the experts. Tonight there were several questions from the Board members about the number of towers in Town and how many there would be in the future, how many from other service providers. We're asking that the applicant provide the Board with its future projected needs, it's short term and long term build out plans or business models as were referenced tonight. The Board should have the information for proper planning purposes. Also the Town could request a review by a qualified engineer in order to evaluate the need for a new tower. That's available in the Town Code, that authority. Additionally, there's no compelling reasons for this site that has been selected. The applicant admits that there are disadvantages to this site because it is out, well outside of their search area and that it will result in decreased network performance, compared to a site that's centrally located. The applicant also says that the site is advantageous because it is not centralized, and it's not close to neighboring residences. However, a central location could have been camouflaged on an existing tower or a tall structure, or if it's on a lot where a tall tower or structure already exists. Additionally, it's our position that the applicant should be required to demonstrate that they've made good faith efforts to contact the landowners of lots with tall towers or structures, as is required by Town Code, and finally the visual impacts present more than a minimal intrusion on the community here. This is zoned a Rural Residential area, and it's intended to preserve the natural open space and rural character of the Town. This tower would be vastly out of character with this area of the Town, and as has already been discussed, there would be an inadequate natural buffer. Between the hurricane damage, the trees that were cleared from the property that were fallen down, there were no standing trees removed from the property, on Mr. Ball's property, and the last remaining buffer would be removed because the road, the proposed road is going along the boundary line between Mr. Ball's property and the Town's property, and as the applicant has already mentioned the Town should provide some assurance that it's not going to clear any more mature trees on that property. I just want to address the landscaping plan quickly. There has been an updated proposal to include a landscaping plan, although they are still requesting a variance from the landscaping requirement, we do not feel that a variance should be granted in this situation, and we do not feel that the minimal plantings in the landscaping proposal of a single species of vegetation would be sufficient to remedy this situation. Although we're not asking for a complete reforestation, we are looking for mitigation of the trees that they will be removing as a result of the tower's footage, the base of the tower, and also the access road, and perhaps providing an additional mitigation line to provide a visual buffer, not only from Mr. Ball's property, but from Lehland Estates, and as was mentioned Mountain View Lane. Their visual assessment shows that you'll be able to see that from Mountain View Lane. Getting to their visual assessment, they should be required to provide the balloon assessment as was already mentioned for the neighboring properties and Mountain View Lane, because although they provided some simulations of the farther away location views, there aren't any simulations of the neighboring properties after the tower is constructed. There are some photographs, if you look in their Appendix Five, Photograph 18 shows the view of the tower, but that's just showing the location now. That does not show what the impacts of the tower will be. Clearly that's trees and clearly that's not what it's going to be what it looks like once the tower is there. I just want to show quickly, too. Well, it's in there about the picture that you can see from Mountain View 26 (Queensbury ZBA Meeting 02/29/2012) Lane of the tower, and that's a proper simulation of the tower, what it will look like after construction. In summary, we're asking for the applicant to provide short term and long term build out plans, that they provide a full inventory of structures, tall and towers, within the search area, demonstrate that they made good faith efforts to secure consent or denial from landowners that have a tower or a tall structure, that they be required to provide a more robust landscaping plan, also that they be required to reduce the height of the tower, since 120 feet is not justified by average tree height of 80 feet, and that they be required to supplement their Visual Impact Assessment. Thank you. MR. JACKOSKI-Thank you. Mr. Ball, anything else? MR. BALL-I said it all. MR. JACKOSKI-Okay. Thank you. MR. BALL-Does anyone have any questions for me? MR. GARRAND-So you didn't clear cut? MR. BALL-No. MR. GARRAND-I did the best I could. I'm not done yet. Huge stumps. Huge stumps. I don't know how I'm going to get rid of them. I haven't got a clue. MR. JACKOSKI-I don't think there's anyone on this Board who can possibly understand what you're going through with that property. I mean, we know it's devastated. We see it. We see that the storm did that. It's very obvious that you didn't fell those trees and create that mess, that Mother Nature did that. We understand that. MR. BALL-Thank you. MR. JACKOSKI-Thank you. Is there anyone else this evening who'd like to address the Board on this application? Seeing no one else at this time, I am going to keep the public hearing open. If the applicants could come back to the table and maybe briefly address some of the concerns raised during public comment section, and then I would like to poll the Board. MR. CUSACK-The setbacks for this facility are clearly met and the minimum setback requirements that the Town has in place are met by a very wide margin, and to give you some parameters, the proposed tower base is 172 feet from the water tank itself. So you have a 120 foot tower that's 172 feet from the water tank. It's a sufficient distance from the tank. It's not a danger in any way to the water tank itself. The tower base is 419 feet from West Mountain Road and 160 feet from Mr. Ball's property line, according to our survey, not 60 feet, but 160 feet, 264 feet from the west property line owned by Walker, and 136 feet from the northern property line, which is also Walker. The Walker property kind of wraps around the back. I point this out because Town officials were very careful to require that we sited this facility in a location on their property that was greater than the height of the tower from any property line and the water tank itself. So we're a little bit sufficient, more than sufficient distance away from anyone's property, and this confusion on where the property line is or may be located is exactly the reason why there's tracks 60 feet, and clearing 60 feet into the Town's property, as indicated on our zoning drawing. This is something that we were asked to pick up and we did. So we showed it on the plans, and as I said last night, we do this without, you know, attributing fault or trying to get emotional or point fingers or whatever. We will agree to reasonable landscaping. It is one of the things that the Planning Board is considering. I was just trying, before, to point out the distinction that we don't want to be responsible for reforestation, whether it's caused by Mother Nature or manmade activities of vegetation removal. The second thing that the landscape, or, excuse me, that the Planning Board is considering in connection with the Site Plan Review is that they're looking very closely at our drainage plan. That's been commented on twice by the Town's Engineer. We think that he's reached a general agreement with Steve Matthews that the drainage here is extremely, extremely minimal and that we're designing things in accordance with all modern requirements. Having said that, the Planning Board's made it clear that they may require us, as an example, to reinforce the drainage swales, even though it's not required, but they're keeping that open as a Site Plan Review issue. The third thing that the Planning Board has made it clear that they're keeping open is the possibility, if it can work out engineering wise, of re-locating our driveway more towards the center of the property to avoid being along the property line where a lot of these remaining trees are located. So instead of us going along the property line where the clearing's been done and taking down even more trees, can we go up more towards the center, leaving some additional vegetation in place to have more of a buffer. It's an issue that's very much on the table for Site Plan Review purposes. It's something that they're considering and it's something that we're open to as long as we can do it reasonably 27 (Queensbury ZBA Meeting 02/29/2012) and the Town Water Department approves. The one thing that Town Water Department has indicated already that they won't approve is us going with our driveway off the base of the water tank. There's a six to twelve foot berm there. If you went up to the site, you'd see it. They've flattened the area where their turnaround is and it's very high. So they don't want us coming up there and altering that. We would be more, looking up the hill more to the left of that, but to the right of the current driveway location, in theory looking at something that's more of a straight driveway up as opposed to the one that went around to the left and came back. We liked that because the grade was easier to manage, but if there's a legitimate planning reason to make it a more straight driveway to leave those remaining trees alone and leave more of a buffer. It's something that we've already indicated that we're willing to look at. So I think that, I point these things out because they're legitimate Site Plan Review issues and they're something that we've agreed to work with the Board on those three items, drainage, landscaping, driveway location. The use of the word, you know, disadvantages, again, when we say that we've compromised our network design, we're not saying it's a disadvantage. We are compromising here to use a location that's more acceptable, based upon input from Town officials. What separates this situation from almost every situation I've seen in the last 20 years is the old rule that part of accountability is not just pointing out problems, but proposing solutions. In 2008 and 2009, this Board and the Planning Board said we understand your service. We don't like the selection you've made at the fire department, and here's ideas for alternatives, so would you go out and look at those alternatives, and most Towns do not do that. I'd say you're in the one percent of the one percent for actually taking the initiative to say we don't like your spot, but here's something that might work. We've considered that in good faith. It's a compromise for us, but that doesn't mean, when we compromise from an RF coverage standpoint, that doesn't mean that the land use point, which is separate and distinct, can't be made, and the separate and distinct land use point is that this is not centrally located in the community. There's not a network of residential streets and thoroughfares surrounding it on all four sides. This is as far out as we can go in the community without being off in the mountains where we don't want to be for the reasons that we've discussed before. So, yes, we've compromised our RF design, but from a land use standpoint, this is not a centrally located site. We think that, from a land use standpoint, this is the minimal impact that we can have on the community, location wise. Is there any question about the balloon test that we performed in October? Would you like us to walk through what we did? I think the pictures show very clearly what the trees were like after the storm, but before the removal operations were commenced, and, yes, Mr. Ball did have a loss of trees on his property. There was some wind event that occurred there. We do acknowledge that, but we did that test after that event occurred. We still think there's good screening and that the characteristics as we've reported are accurately reported. My last question is there any questions on the allowability of the zones or the alternative sites, or has the Board had a chance to review our analysis of the alternative sites? I'm very willing to talk about that. We talked about it at length in 2008. We're talking pretty much about the same things with some new variables mixed in here in 2012. Nothing has changed in the zoning for the Town. The allowable zones are still down by Exit 18 where we already have our site at Exit 18. So we can't build another site in an allowable zone where we already have a site to start with. It's not going to help us up here in the northwestern part of Queensbury. MR. URRICO-Why couldn't you build it on the tower there? MR. CUSACK-On which tower? MR. URRICO-You said on that site where you already have a tower, why couldn't you build a second tower? MR. CUSACK-Distance, and that's shown in our coverage plots that are in the package, but the site at Exit 18 covers a certain geography that's local to that part of Queensbury and Glens Falls, but to give you the mileage differences, the Exit 18 site is four and a half miles southeast of this proposed location, and this proposed location is trying to pick up an area approximately a mile or two. MR. URRICO-Isn't it also the positioning of the equipment in addition to height that determines the coverage? MR. CUSACK-The direction of the antennas determines the coverage, but it's, even if it's pointed straight at this area, which I'm not sure it is, it's pretty close to pointed right now straight at this area, it's just not going to go far enough, because you might be able to make that antenna hit the downlink, you know, you might be able to put enough power through that antenna to go down to the ground, but the user at .1 of a watt on a handset is not going to be able to make the uplink, and if you don't have both ends of the call, it shows no service. It's a two way communication. So the distance is the governing factor there, in addition to all of the capacity items that we've mentioned earlier. 28 (Queensbury ZBA Meeting 02/29/2012) MR. MATTHEWS-And to answer your question, if you build two sites right next to each other, you haven't accomplished anything because you're just duplicating coverage over the same thing. MR. URRICO-Another company could build a tower next to yours. MR. MATTHEWS-Right. As a perfect example, at Exit 18, the other carriers are right across the highway, another tower. MR. JACKOSKI-Are there any other questions from Board members at this time? MR. GARRAND-Yes. Have you explored a Frankenpine? MR. CUSACK-Not at this location. We were asked to design this tower, as I mentioned earlier, for two additional users, but also County and municipal use, and when you start putting County and municipal antennas in there, it doesn't really work with the Frankenpine, if you can imagine. MR. GARRAND-It might be aesthetically better than, you know, if you were looking at the view scape from say the Queensbury school and you're looking at the mountain, a Frankenpine might look a lot better than a cell tower in that location, especially with the blow down that they had over there. MR. CUSACK-Right. According to Techtonic's analysis, the view from the high school, to use that as an example, is not a significant view. We weren't able to pick up the facility from there. It doesn't mean that if you're looking with binoculars or something that you won't be able to eventually find it, but it's not readily apparent because the backdrop of the mountains is so much larger. You're talking, to give you some of the terrain numbers, the foothills where we're located are 470 to 526 feet above mean sea level. The site itself is at 633 feet above mean sea level. So we're on that knoll where the water tank is located, at the base of the much larger Luzerne Mountains which range from 1400 feet of mean sea level to over 1800 feet above mean sea level. So you have a 600 foot ledge that has behind it 1400 foot mountains going up to 1800 feet. So that's why, you know, you may be able to eventually identify where the site is, but over time, as the galvanized steel fades and everything becomes, you know, the faded color of gray that we mentioned in our visual assessment, it's going to be very hard to see that location at all. MR. GARRAND-Thank you. MR. CLEMENTS-I just have one short question, I think. You said you worked with Town officials. Did you work with the Town Engineers with respect to the placement of the tower behind the water tower? MR. CUSACK-I'll answer it this way. We worked with the water commissioner who was consulting with, you know, his engineering staff and the Town and the Town's designated engineer from Chazen Engineering has reviewed the placement and the location and the drainage for the site, and provided two comment letters on it. So engineering staff on different levels. MR. CLEMENTS-Were any actually there on site? MR. CUSACK-Yes. I can have Jean Marie give you a further explanation of that. There was more than one site visit because we originally wanted to put this in the clear, flat area that's right next to the Town's water tank, and that was rejected by the water commissioner and his people and Mr. Hafner, the Town's attorney, communicated with me that site visits would be required, and he also had us up for two meetings at the Water Department to go over the design. I was at one, if not two, both of those meetings. MR. CLEMENTS-Thank you. MR. JACKOSKI-Any other questions? We did leave the public hearing open, and we do have to deal with SEQRA. MR. UNDERWOOD-I think we just have to accept the SEQRA determination from the Planning Board. MR. OBORNE-Yes, you can do that. The Planning Board was Lead Agency in this. MR. UNDERWOOD-Right. 29 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-So should we close the public hearing first, and then make that acceptance of the Planning Board? MR. OBORNE-If you feel the need, yes. MR. GARRAND-Do you feel comfortable accepting the Planning Board recommendation on this without consulting an engineer with regard to the erosion and all that? MR. JACKOSKI-I do, but let's poll the Board at this point. We'll start, Jim, why don't you start. MR. UNDERWOOD-1 think that we have to go back and look at the historical perspective as to how we arrived at this location and I think that, you know, most have been involved on the Board with many other cell towers that have gone up around Town, and I think that there's several points to make here. The initial location was going to be over at the firehouse, and I think everybody was, in general, opposed to that. I think that there's probably been some suggestions, and I've heard rumors to the effect that personal private owners wanted to subscribe and have the tower built on their property, and as we all know it's Light Industrial or Heavy Industrial, the sites that were primarily, the location sites that were available in Town, but in order to obtain coverage, because the wattage has continued to drop on the phones, that we recognize why you need to have the service and I think that your maps adequately explain why that situation is such that this has been proposed as the site here. If we hadn't had Hurricane Irene I think that it probably would have worked out. I think that you guys wouldn't have had any concerns either at that point, because I think that you would have been the heavy forest cover on the slopes, and adjacent to this site would have adequately protected your view shed. Unfortunately Irene occurred in the interim, but I think that your explanation as to when you did your studies showed that they occurred after Irene occurred also. So I think that the balloon studies are adequate to support the Planning Board's contention that there's not any real concerns. I mean, it's an unfortunate incident that has affected everybody in the Town. I would say that I would agree with you on the point that the hillside on the back, the Land Conservancy owns property up above that site, further up the hill there, and because you have the West Mountain ridge there, certainly when you erect a tower it's not as apparent as if you just stuck it up on the top of the hill and it was sticking way up above the top of the hill. When you have a backdrop behind it, I think it somewhat mitigates what you propose here, and the tower, even though it's going to be significantly higher than the trees that remain on site, is going to have a green background interspersed in with it, and I also understand where the neighbor who's been affected by Irene is going to be greatly affected with his view and his part of the view shed there, too, but we have put up higher things. We'd done stuff down at The Great Escape that sticks out like a sore thumb with some of the high rides, the latest one that's right close to Route 9 as you head north there, but at the same time I think that the service is necessary in that part of Town. We directed the applicants to this site previously from the last site that had been proposed, and I think that they've acted in good faith to do this. I think that when Site Plan Review occurs, the concerns over erosion will be dealt with, and if that means riprapping the ditches coming down alongside of the road, that's going to have to happen, and as Rick pointed out, I think that did run into a problem over on Luzerne Road with the site over there, but at this point in time I think that we would, it would not be in our interest to be opposed to this project as proposed here. Nothing is ever going to be perfect again after Irene, but unfortunately for you, you know, if Irene occurred and this tower was already up, we'd be looking at the same situation, and the only thing to do would be to have a strict interpretation as to Light Industrial or Heavy Industrial sites only in Town, and I don't think that we would be accomplishing anything by digging in our heels on that, because I think that you've pointed out why you need the service, and I think that with this tower going in, it'll give you complete service all over Town, and you do have co-location available for other subscribers that want to join and use your tower here, too. So I would be, I would give the affirmative vote on this one. MR. JACKOSKI-Thank you. Brian, we'll do you next so you're not last this time. MR. CLEMENTS-Thank you. I think you said that every five years, was that about the time you would put up a new tower, do something like that? MR. CUSACK-It seems over time the network's evolved every five or ten years, but let me ask Rick to comment on that. It seems like every five, ten years we're doing something. RICK ANDRUS MR. ANDRUS-Yes. As a general course of business from Verizon, we're always projecting three years out. So these capacity issues, you know, you're well in advance of them, because generally it takes two to three years to develop a new site. So at this time the sites that we have in process, that you see in those maps between the blue coverage and the yellow coverage, yellow being the new plus this site is pretty much it that would be projected through five years. 30 (Queensbury ZBA Meeting 02/29/2012) Not to say that within, you know, say three or four years that we wouldn't start developing another one, but that wouldn't be before this Board for. MR. CLEMENTS-Seeing that's the case, then, you know, (lost words) saying every 18 months the technology's changing, and seeing that you've done your due diligence, I think I would agree with Mr. Underwood and say that I'd be in favor also. MR. JACKOSKI-Thank you. Rick? MR. GARRAND-1 think this is a good location for the tower. Any other spot it could be, I think this is probably the best spot for it, but with that said, I've got too many other issues with it right now and I don't think it qualifies under Rosenberg, so I wouldn't be in favor of it right now. MR. JACKOSKI-Okay. Joyce? MRS. HUNT-Yes. I have to agree with my fellow Board members. I would be in favor. MR. JACKOSKI-Roy? MR. URRICO-Jim and I have probably been through more of these than anybody else on the Board, and we've gone down this road already and we can't stop going down this road. It's something that's being repeated in communities around the country, but it seemed almost counterproductive because we do this on a patchwork basis, checkerboard fashion, you know, we pick a spot, this is the spot you pick, and the AT&T comes across and says well I'll take the one across the street here. So instead of having a comprehensive plan that covers cell towers in a community, we have cell towers scattered about, and we're always faced with, you know, using Rosenberg as a reason for putting it there, but really have no plan in place to try to coax the coverage so that it's used for maximum use. I mean, there's a potential here, at some point, for another company to come along and go to the Town of Queensbury and say we'd like that spot, too, and there's provisions in the Code which say we can put another tower up over there, and if they can make reason for not co-locating another service on their tower, it looks like it's already filled, then another company could come along and put another tower there, and this could happen, and it's not their fault. You've made a good presentation here, and by rights you probably should get the application, but I also want to make a point that the landscaping plan, there is something in our Code which is very specific about including deciduous evergreen trees, especially on residential property that's near a public site known to include important views or vistas where the site abuts residential or public property including streets, at least one row of native evergreen shrubs or trees. I'm not going to get into that because that's Planning Board stuff, but I hope you pay close attention to that, because I think that's something we're trying to at least create here, if we can save something. We need the service but we need our vistas, too. This is part of what this community's about. I would be in favor of it, but I really would implore the Town to explore the possibility of getting all these companies together and coming up with a plan that's going to cover us down the road, because this is not going to stop here. The coverage is going to require more and more towers. I'm done. MR. JACKOSKI-Okay. I have full confidence that the Planning Board is going to address the landscaping and the erosion plans, and the siting of the potential drive to more centered in the lot to minimize the visual impacts from the adjoining neighbor. So I'd be in favor of the project. Before do a motion, I think we need to have a motion regarding accepting the Planning Board's, Jim, would you do that for SEQRA? MOTION THAT WE ACCEPT THE SEQRA DETERMINATION OF THE PLANNING BOARD AND BASICALLY THEY DID NOT FIND ANY IMPACTS THAT COULD NOT BE MITIGATED ON SITE WITH THE PROPER SITE PLAN REVIEW, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 29th day of February, 2012, by the following vote: AYES: Mr. Urrico, Mr. Clements, Mrs. Hunt, Mr. Underwood, Mr. Jackoski NOES: Mr. Garrand MR. JACKOSKI-Now that SEQRA's out of the way, can I have a motion regarding the Use Variance? MOTION TO APPROVE USE VARIANCE NO. 4-2012 CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 31 (Queensbury ZBA Meeting 02/29/2012) 1127 West Mountain Road. The applicant is proposing a new 120 foot monopole telecommunications tower with supporting 12 by 30, 360 sq. ft., equipment shelter on lands owned by the Town of Queensbury across from Lehland Estates off of West Mountain Road. The applicant requests relief from the allowable uses in the Moderate Density Residential district as per §179-5-130C. Under designated areas in the Code Reference for Telecommunication Towers the placement of telecommunications towers is restricted in Town to certain areas and these areas are as follows: in any Light Industrial and Heavy Industrial Zoning District or co- located on any property where a telecommunications tower or other tall structure over 50 feet in height exists. The Board recognizes that this is a neighborhood area. It's also basically a rural area where this site is proposed. We recognize the public necessity of this antenna as explained in the significant prepared report by the telecommunications company Verizon Wireless. There are compelling reasons for putting this tower here. In previous proposals, Verizon proposed this down on the flats down at the firehouse, and that was not something that either the Planning Board or the Zoning Board or the neighbors could live with and so we directed them to the co-location area up with the Town water tower on the side of West Mountain. The applicant appears to have chosen this site with minimal intrusion and burden on the community in mind, and at this point in time I would move that we approve its location near the water tower on West Mountain Road. As far as any kind of concerns for the Planning Board when Site Plan Review occurs, we would expect that the Planning Board would consider the location of the access road in the center of the property as has been discussed this evening. Also that proper stormwater erosion, if hardening of those ditches along the side of the road needs to be done with riprap, that that occur, and that even though it is a requirement that we are concerned, as a Board, with the fact that the proper vegetation be maintained on site, and if it means the addition of trees on site, then we would expect some vegetation to be propagated up there to minimize the effect of this tower, since it is a Rural Residential area up there. Duly adopted this 29th day of February, 2012, by the following vote: MR. JACKOSKI-And just for the record and clarification, the mention regarding the erosion, the siting of the drive and the landscaping weren't necessarily conditions to this approval. They were just notations to the Planning Board that we. MR. UNDERWOOD-Our concerns. MR. JACKOSKI-Our concerns and considerations only. Okay. Having that clarification, is there any further discussion? Do I have a second? MRS. HUNT-Second. MR. JACKOSKI-Thank you, Joyce. AYES: Mr. Urrico, Mr. Clements, Mr. Underwood, Mrs. Hunt, Mr. Jackoski NOES: Mr. Garrand MR. JACKOSKI-Congratulations. Thank you. You guys mentioned a propagation analysis? MR. CUSACK-Yes, those are behind Tab Six. They're the colored. MR. JACKOSKI-Yes, no, I understand. Are you going to do one north of 149 at Bay Road to Lake George, where we have no coverage? In the hole. MR. ANDRUS-We're actually working on that. MR. JACKOSKI-Where it will it be? MR. ANDRUS-Top of the World Golf Course. MR. JACKOSKI-Hurry. We have a couple of more things. We don't have any other agenda items on this evening's agenda. However, Mr. Salvador has asked to have a few moments with the Board. Mr. Salvador, welcome. JOHN SALVADOR MR. SALVADOR-Thank you. MR. JACKOSKI-You're welcome. 32 (Queensbury ZBA Meeting 02/29/2012) MR. SALVADOR-As you know I raised the issue of the proper use of alternates, both the Planning Board and the Zoning Board, and the Town Board had a public hearing Monday evening where they adopted a local law to correct the deficiency that existed in the Town Code. I appeared at that hearing, and I'd like to share with you some of the comments I made. MR. URRICO-Do I have to stay if I saw it? MR. SALVADOR-Excuse me? MR. URRICO-1 saw it on tv today. MR. SALVADOR-Okay. In the matter of the Town's, the issue is the authority that the Town has to amend a general State law, okay, to supersede or to amend a general State law is what they're doing, and there are very, very specific requirements if they're going to do that, and I refer to the Attorney General has opined that towns may, in fact, use their authority under the municipal home rule law to amend or supersede the town law to expand the circumstances under which an alternate may be appointed to serve on a board, provided they properly follow the applicable procedures of the municipal home rule law for amending or superseding town law. The Attorney General footnoted this opinion with a 1989 New York State Court of Appeals decision captioned Comhi v. Town of Yorktown. The Court of Appeals ruled in a very, very lengthy decision the Town's authority to amend or supersede Town law can be exercised only upon substantial adherence to procedures set forth in the municipal home rule law requiring municipality invoking its supersession authority to state its intention with definitiveness and explicitness. Further, under Section Two of Section Twenty-Two a law which affects the State at large is not subject to change by local law, and Town law is a general law that affects the State at large. The Town is not at liberty to supersede it. That's the opinion of the Attorney General. Excuse me, that's the opinion of the Court of Appeals. So what is prohibited by State law is the use of alternate members for reasons other than conflict of interest. Now the Town, in adopting its local law, stated its justification. In Section Five of the local law they said this local law is adopted pursuant to municipal home rule law and is specifically intended to supersede the provisions of Town Law Section 267-11 and 271-15 that restricts substitution of alternate members of Zoning Board of Appeals and Planning Boards to instances of conflict of interest. Now they didn't mention what section of municipal home rule law gives them the authority to do this. It's very vague. It's not specific as required. In any case, the Planning Board, last week, was faced with this situation of use of alternates before the Town Board adopted this local law Monday night, and I can tell you there was a vacant seat here because of an absence and there were two alternates sitting in the room, and they did not sit because they knew it was wrong. So, between the time that the Town has, what they say, overlooked the fact that they should have put this in the Code, and Monday night, we had many instances where alternates sat for reasons other than conflict of interest, and I point particularly to Mr. Garrand sitting on the Joshua Rock issue. Excuse me, you were not sitting. You were in the room, but you had not declared a conflict of interest and an alternate did sit and vote. That was a four to three vote, if you remember, and it was my appeal. That's why I'm very concerned about this. In any case, what we have to do is find out, oh, let me continue as to what the Court of Appeals said with regard to, the power of local government to enact legislation governing land use is circumscribed by the legislature. As the Court of Appeals has stated, quote, towns and other municipal authorities have no inherent power to enact or enforce zoning or land use regulations. They exercise such authority solely by the legislative grant, and in the absence of legislative delegation of power, their actions are ultra virus and void. So we will see what the State has to say about the Town's local law. One other thing I'd like to mention. The applicant and all the people involved in that Mellowstone project have been feverishly at work to try to get their affairs in order, and I've got to tell you, they're doing one hell of a job. In any case, this Board, you will recall, this map was before this Board on the first application for the boathouse. Remember the boathouse? This map. MR. JACKOSKI-Mr. Salvador, I'm not sure that, it may not be appropriate for us to talk about that project without the applicant here. MR. SALVADOR-Why? MR. JACKOSKI-Well, in fairness to the applicant. MR. SALVADOR-It's all approved and it's being built. MR. JACKOSKI-Well, let me ask fellow Board members, are you comfortable speaking about a specific project without the applicant here, given the contentiousness of the project? MR. UNDERWOOD-We can listen. We don't have to comment. 33 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-Okay. MR. SALVADOR-This map was a part of their application, if you recall, and I challenged the validity of this map, both before this Board and the Planning Board, that it, in my words, it was a fraud, okay. It could not have been done by the surveyor on the date that is on this map. It's impossible. He wasn't in business doing that sort of thing, and I know personally because he did work for me. So, instead of addressing that issue, the Zoning Administrator allowed the applicant to put in a new application, if you remember, they came in with a new application, and I challenged the need for that, and you ruled on that. At the time you ruled on that, though, you asked the applicant for a new plan. You asked him for a new plan, and this is the plan they put forth. This is the plan they put forth, and that's on the record. Now, they tried to file this plan at the County. They tried to file this plan at the County with a deed, they tried, and this was rejected. This plan was rejected. It was not filed, and so they went back to the Boards and they prepared another plan that was accepted by the County and is now on file, and I show you this. Those red stickers represent errors, conflicts and inappropriate surveying. The worst of all, the worst of all is this is a revision of this. They've changed the title. You can't, you can revise a plan, but the title has to stay the same. Otherwise there's nothing tying them together. This one is a map of a survey made for the Seelye estate, and we don't know who Seelye, okay, and this one is a survey made for Andrew D. West. Well, anybody can make a survey for somebody else. It says nothing, but you can't, you just can't change the title block and call this a revision of this. Plus all the other boots on it. I think it's appalling. It's appalling what's being accepted. Now I will take this up with Mr. Brown, Craig Brown. I'll take it up with him, but anyway, just to let you know. MR. JACKOSKI-Okay. Is there any other business that the Board? We do have to talk about the joint meeting with the Planning Board concerning. MR. URRICO-Talk about our next meeting, and there's some issues there. MR. JACKOSKI-Okay. So which would you like to address first? You pick. MR. UNDERWOOD-The next meeting. MR. JACKOSKI-Let's talk about the next meeting first. MR. URRICO-1 know I'm going to be traveling that day. I won't be back in time for the meeting. We're assuming the third week in March, right? MR. OBORNE-Well, I think the question is, do you want to be a party to this meeting? Do you want a joint meeting? Again, the application is not complete. There is no application in. MR. UNDERWOOD-1 think that we have to be careful because we've already had one joint meeting, and I'm just speaking for myself, but I think procedurally, as a Board, we have a protocol that when things are presented to the Zoning Board, that the application is complete, and I think that we've already given them the opportunity to present to us, which we basically gave them a little bit of feedback as to what our concerns were with their project, and so to me it's sort of like a tennis game. We bounce the ball back in their court. So the most recent letter that we received from them was that they were upset with us because we didn't have the same take on the project that the Planning Board did, in essence, and so my question would be, is this just going to be like a debate club thing, you know, where we come in and we debate the merits of the Planning Board's decision making process and our decision making process and is it proper for us to do that? Because we have not seen a complete revised, with all the engineering and everything, and I understand where they're coming from. They don't want to go out and put out all that engineering and money to do that just to have us shoot it down, but I think that the indications of the Board members and the concerns were such that there were some significant concerns that we felt needed to be dealt with. So, having given them enough information to understand our position, going forward without prejudicing ourselves, you know, in the ultimate decision when it comes in for our final review, you know, I'm uncomfortable as a, you know, Roy and I have been on the Board for many, many years. I don't recall us doing this, other than if we were doing like a Generic EIS or something like for The Great Escape's Master Plan. We all got to make public commentary on that if we were in the immediate neighborhood, but I think that we have to be careful, as a Board, not to underestimate, you know, in other words, we give everybody the same opportunities to appear before us and they're complete in their, and our review is completed based upon the complete materials being presented to us, but we just can't simply say well, what do you think of this is time, and if we say no, then they say, well, what do you think of this next time. I mean, we've given them an opportunity to revise what they showed us, and I think that's where it is. 34 (Queensbury ZBA Meeting 02/29/2012) MR. OBORNE-Well, I think an example was tonight with Romer. That went back and forth, and you finally settled on something you were comfortable with. I thought, reading the minutes, I was not at that meeting, that you imparted to the Board your concerns about the project. The only thing I'm asking is are you amenable to a joint meeting one more time? MR. UNDERWOOD-Is it proper though? MR. GARRAND-1 don't feel comfortable. MR. UNDERWOOD-1 don't feel comfortable. MR. OBORNE-That's the information I'm trying to gather. MR. JACKOSKI-I know we do. I don't disagree that we generally want completed applications, but because this applicant has been working so closely with the Town, be it the Town itself or the Planning Board, it's a bit of a more unique situation that they are trying to, you know, listen very carefully to the, quote unquote Master Plan for that corner that's coming down from our Planning Board. So it's a little bit more unique than just a single applicant coming in and saying this is what I want. This applicant is actually coming and saying how can we work in conjunction with this Town and so something spectacular for that corner. MR. UNDERWOOD-But are we going to offer that opportunity to every other applicant in Town? MR. JACKOSKI-But this is a large impact. MR. UNDERWOOD-But who makes that determination as to the large impact? I mean, who's next? MR. GARRAND-To me it sets a dangerous precedent. We have the Town's Master Plan. We have the Code. We've given them direction. I don't feel comfortable sitting down with the Planning Board and trying to hash something out because it's something that they and the applicant like. MR. JACKOSKI-But isn't it an opportunity to come to consensus? This is a great opportunity, here we are, we've got an applicant who actually wants to listen to us all. MR. UNDERWOOD-If you look at the history of the corridor, though, you've not granted any other applicant who's appeared before this Board, and we won't name names on Bay Road, but those guys could have come in, they might have had the same idea in mind, but they had the rule book in front of them. They had to come in with a proposal that was reasonable and met the terms of the Town's book, you know. MR. OBORNE-It puts many entities of the Town in a difficult position. I don't disagree with you on that. The planning is to come to a consensus, but you are the Zoning Board of Appeals. MR. GARRAND-Consensus is one thing, but a system of checks and balances between different Boards is something else. MR. OBORNE-All I'm trying to ascertain is if this Board is amenable to a joint meeting, and, you know, I'm not getting a warm and fuzzy. MR. URRICO-As long as we're allowed to keep our perspective, I mean, we are charged with a different task than the Planning Board is. We're a pragmatic group. We have a specific set of rules set forth before us, and some basic instructions on how to proceed in allowing violations of that variance, or violation of a rule. Right? I mean, so as long as we're allowed to hold our ground on certain items and, you know, I'm realistic. I realize the Planning Board comes at it from a different direction. They're looking at the overall project, and what it'll look like and how traffic will flow, but if we're being put in a room together to, you know, make us see the ways of the project, you know, and trying to intimidate us, then I would be opposed to that. We're in an open meeting where everybody's getting the ability to speak out on it and offer their viewpoint, I have no problem with it. MR. JACKOSKI-Okay. Joyce, what are your thoughts? MRS. HUNT-1 would be willing to go and listen, but I was a little bit upset the last time because there were people from the public who were there and they wanted to speak and they were really very frustrated, and some of them got up and spoke anyhow, rather than just being informational. So that was kind of confusing. 35 (Queensbury ZBA Meeting 02/29/2012) MR. JACKOSKI-All right. Brian? MR. CLEMENTS-I look at this as a Town Board problem that they have put on our shoulders. This applicant came in with a plan that needed no variances, that went to the Planning Board, and at that point that's when the Planning Board asked them to do certain things, and that's when they needed all the variances. If they wanted to change the zoning, then they ought to be bringing it to the Town Board to do. MR. OBORNE-Well, that is not going to happen. MR. CLEMENTS-I understand that, but that's, I mean, you know, the plan is there. MR. JACKOSKI-But the concern would be for me that if the plan that is currently on the table or a slight tweaking of it or whatever you want to call it, actually is deemed to be the appropriate plan, then all we're frustrated with is the fact that we can't get a procedure in place to change the zoning in order to do what the plan calls for. MR. UNDERWOOD-It's not our domain to ignore the rules and regulations as promulgated by the Town on paper, you know, I mean, we can't do that. MR. URRICO-Are we dealing with an actual, you know, actual application at this point or are we still on a fishing expedition where they're saying, what if we did this would you be amenable to that? MR. JACKOSKI-I think it's some exploratory. MR. OBORNE-Certainly is exploratory, yes. MR. JACKOSKI-I mean, there's no doubt there's a plan there. I mean, you've got drawings. You've got maps, you've got, there's a lot of detail there. MR. OBORNE-The ultimate, and I just want to make this perfectly clear. The ultimate responsibility for the plan is on the applicant. MR. URRICO-Right. MR. OBORNE-Period. MR. JACKOSKI-We know that. MR. OBORNE-Okay, and I think you're put into a difficult situation. I think the Planning Board's put into a difficult situation. MR. JACKOSKI-It's just, it's such an incredible investment that is going to be made in the Town of Queensbury. MR. OBORNE-Absolutely. MR. JACKOSKI-And it is going to make a difference in this four corners, and I'll go with the will of the Board. Brian, did you think we should or shouldn't meet. I'd forgotten what you thought. MR. CLEMENTS-No, I don't think we should meet with them. MR. JACKOSKI-And, Rick, you don't think we should meet, either. MR. GARRAND-No. MR. JACKOSKI-So we have a majority who says we shouldn't meet. So we will not meet jointly. We will need a formal and final application. MR. OBORNE-Okay, and then what will happen is the applicant will go before the Planning Board for guidance at this point on how they want to move forward, and again, I want to reiterate that it is on the applicant. MR. JACKOSKI-Okay. MR. OBORNE-It should not be put on the Board, not on this Board's shoulders. MR. JACKOSKI-There you go, and then the next thing is there's one meeting next month? 36 (Queensbury ZBA Meeting 02/29/2012) MR. OBORNE-There is one meeting next month because we, as discussed, we didn't cancel this meeting so we moved forward with it, so there's only one meeting on, five items. MR. UNDERWOOD-You might want to see who's going to be here, who's not going to be here. MR. JACKOSKI-That's going to be the next thing. MRS. HUNT-What's the date? MR. CLEMENTS-What's the date? MR. OBORNE-The first meeting. It would be the first meeting, which is the 21St MR. URRICO-I cannot be here. MR. UNDERWOOD-I'm not going to be here. MR. CLEMENTS-I'm sorry, what's the date again? MR. JACKOSKI-The 21St MR. CLEMENTS-I'll be here for that. MR. UNDERWOOD-So you may want to check with Ron Kuhl, because I don't know if Ron's going to be gone, too. MS. HEMINGWAY-Ron will not be here. MR. UNDERWOOD-Yes. MR. GARRAND-So there's three gone. MR. UNDERWOOD-So you're going to need a supermajority. MR. OBORNE-What about the 28tH. MR. URRICO-The 28th would be fine for me. MR. OBORNE-The 28th, Jim? MR. UNDERWOOD-I may be back by the 28th, but it's like good luck. I'm going to be in Canada. MR. OBORNE-So I think, I would think the 28th would have to be the meeting because you don't have a quorum. MR. CLEMENTS-I'll be here for both, it doesn't matter. MR. JACKOSKI-You're here for the 28th? MR. GARRAND-Yes, I can be here. MR. JACKOSKI-So the majority of the current Board members, sitting Board members, who won't have a conflict, I hope, will be here on the 28th. I think it'll be important to get out the agenda so that we can make sure that people, if there is a conflict, we can call in Mr. Koskinas. MR. URRICO-Can we or can't we? MR. JACKOSKI-We can if there's conflict of interest. At this time, we cannot for absences, other absences, from what I understand. MR. UNDERWOOD-I will get back to you and let you know. I've got to check my calendar and see if I'm going to be back for that. MR. OBORNE-But we're going to move it from the 21St to the 28tH MR. JACKOSKI-Okay. 37 (Queensbury ZBA Meeting 02/29/2012) MR. URRICO-From now on if a Board member cannot make a meeting, they're going to be absent, they should say they have a conflict of interest with something so we can sit an alternate. MR. JACKOSKI-Well, no. We need to be truthful and honest, but anyway. So could we have a motion to adjourn, please. MRS. HUNT-Motion to adjourn. MR. CLEMENTS-So moved. MR. JACKOSKI-Thank you, Joyce, and seconded, I think, by Brian. All those in favor? MR. GARRAND-Aye. MR. UNDERWOOD-Aye. MRS. HUNT-Aye. MR. CLEMENTS-Aye. MR. URRICO-Aye. MR. JACKOSKI-All those opposed? Good night. Thank you. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Steven Jackoski, Chairman 38