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2005-07-20 (Queensbury ZBA Meeting 7/20/05) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JULY 20, 2005 INDEX Area Variance No. 46-2005 Jean M. Hoffman 1. Tax Map No. 227.17-1-9.11 Area Variance No. 51-2005 Michael A. Melucci 15. Tax Map No. 309.7-2-8 Area Variance No. 52-2005 Richard Hackett 22. Tax Map No. 301.8-2-37 Area Variance No. 53-2005 Jeffrey Lejuez 27. Tax Map No. 226.19-1-51 Area Variance No. 54-2005 Olaf John Gabrielsen 34. Tax Map No. 253.3-1-2 Area Variance No. 55-2005 Scott Schwartz 45. Tax Map No. 301.13-2-43 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 7/20/05) QUEENSBURY ZONING BOARD OF APPEALS FIRST REGULAR MEETING JULY 20, 2005 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY CHARLES MC NULTY ROY URRICO ALLAN BRYANT JOYCE HUNT LEWIS STONE LAND USE PLANNER-SUSAN BARDEN STENOGRAPHER-MARIA GAGLIARDI MR. ABBATE-For the public this evening, those of you who are here for the Newbury, I regret to inform you that at four o’clock this evening, there was a request by Newbury’s counsel that it be tabled, and so the Newbury variance will not be heard this evening, but rather will be heard I believe the first meeting in August. So those of you who are here for the public hearing for Newbury, I regret to inform you that Newbury will not be heard this evening. AREA VARIANCE NO. 46-2005 SEQRA TYPE II JEAN M. HOFFMAN AGENT(S): WILLIAM KENIRY, ESQ. OWNER(S): JEAN M. HOFFMAN ZONING: WR-1A LOCATION: 159 CLEVERDALE ROAD APPLICANT HAS CONSTRUCTED AN OVERSIZED BOATHOUSE WITH 1170 SQ. FT. SUNDECK AND SEEKS 3.5 FT. OF RELIEF FROM THE MAXIMUM HEIGHT REQUIREMENTS FOR SUCH STRUCTURES. CROSS REF. SITE PLAN 38-2005, AREA VARIANCE 90-2004, SITE PLAN 50-2001, SUBDIVISION 50-2003, AREA VARIANCE 91-2001, SITE PLAN 15- 2001, AREA VARIANCE 30-2001, SUBDIVISION 14-1999, AREA VARIANCE 60-1999 WARREN COUNTY PLANNING JUNE 8, 2005 LOT SIZE: 3.43 ACRES TAX MAP NO. 227.17-1-9.11 SECTION 179-5-050 BILL KENIRY, REPRESENTING APPLICANT, PRESENT; JEAN HOFFMAN, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 46-2005, Jean M. Hoffman, Meeting Date: July 20, 2005 Project Location: 159 Cleverdale Road Description of Proposed Project: The applicant has constructed an 1170 sq. ft. boathouse, with a 978 sq. ft. sundeck, at 17.5-feet high. Relief Required: 1 (Queensbury ZBA Meeting 7/20/05) The applicant requests 3.5 feet of relief from the 14-foot maximum height requirement, per §179-5-050(A10). Parcel History (construction/site plan/variance, etc.): SP 50-2001 Mod: 11/23/04, approved with conditions, for boathouse with 978 sq. ft. roof. AV 90-2004: 11/17/04, approved 1-foot of height relief for boathouse. BP 2002-142: 04/08/02, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. SP 50-2001: 11/27/01, 1,170 sq. ft. boathouse with 700 sq. ft. sundeck. AV 91-2001: 11/15/01, size relief for a 1,170 sq. ft. boathouse. BP 2001-664: 09/18/01, 174 sq. ft. deck. AV 30-2001: tabled 05/16/01, setback and continuation relief for a 624 sq. ft. second-story addition (application withdrawn on 07/12/01). Staff comments: AV 90-2004 application was for a 928 sq. ft. sundeck, 17.5-feet high. The Board granted approval for a 15-foot high structure, and required the applicant to remove the railings, essentially making the sundeck the roof of the boathouse. Subsequently, the corresponding site plan 50-2001 mod., was approved (11/23/04) with the stipulations that the land bridge be removed and that no railings be reinstalled on the top portion of the boathouse roof. With this application, the applicant is requesting the same amount of relief, 3.5-feet of height relief, with the offer to reduce the size of the sundeck to 700 sq. ft. A LGPC permit is required.” MR. ABBATE-Would the petitioner of Area Variance No. 46-2005 please come to the table, speak into the microphone, and for the record identify yourself, your place of residence, and/or your relationship with this appeal. MR. BRYANT-Mr. Chairman, I have a point of order. MR. ABBATE-Sue, did you have a question? MRS. BARDEN-Yes, please. I’ve got, Mr. Keniry brought in some pictures. I’ve got them on the lap top, but I can’t get them on the projector. MR. ABBATE-Okay. MR. BRYANT-Here’s the point of order. Back on November 17, 2004, this applicant came before us with the almost identical Area Variance request, where we granted one foot of height relief, with the stipulation that the railings be removed. The following week, they went before the Planning Board on 11/23/04, and the Planning Board did a site plan modification where they approved the site plan modification with the following three conditions. One, that the land bridge be removed. Two, that there be no railings be installed on the top portion of the boathouse, and, three, that revised plans be submitted to the Town no later than December 31. Now, my question, Mr. Chairman, st and this could even go to Staff, why are we even hearing this when the applicant hasn’t complied with the original stipulations of not only this Board, but the Planning Board? Why are we going through this again, when this is the same thing all over again. MRS. BARDEN-Well, it’s a new application. It’s a different request. 2 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-Yes, but they have not complied with the original. So what are you saying? Are you saying that the original variance is null and void at this point? That original site plan modification and their site plan review is null and void at this point? My issue is that the applicant has not complied with any of the conditions set forth by this Board or the Planning Board in previous arrangements. We had a deal, and they reneged on the deal, and now the question is, why are we even sitting at the table here? MR. ABBATE-Okay, Mr. Bryant, your comments are noted, and there is merit to your comments, but I think it’s unfair to put the Planner in a position where she has to decide law. So let me take it from here. Let’s start from the beginning. Counselor, in fact, are you aware of the conditions that were placed on this variance in the Year 2004? MR. KENIRY-Yes, Mr. Chairman. In fact, there have been very involved discussions both with, and I certainly respect Mr. Bryant’s comments, and I appreciate what he’s saying, very involved discussions with your Counsel. I realize that your Counsel is not present, and I don’t intend to try to take advantage of that fact by any means. MR. ABBATE-Counselor, let me assure you, you wouldn’t be allowed to. MR. KENIRY-No, and I know that, and I appreciate that. On the other hand, we have also had some fairly extensive discussions with your Staff that have included meetings here which I personally participated in, in connection with both of the approvals that Mr. Bryant has made mention of this evening. So, I just want to make clear, I mean, it’s not that we’ve defied or disrespected those approvals at all. There are some other procedural items that have been undertaken in order to preserve our rights with respect to those approvals. However, very frankly, the intent was to come here to try to amicably address the precise comments that were raised by this very Board the last meeting, and the very comments that members of the Planning Board made at the meeting that Mr. Bryant correctly refers to. MR. ABBATE-Okay. Well, for the record, so this can be cleared up, Counselor, have the railings been removed? MR. KENIRY-No. Presently the status quo remains exactly as is, as of the date of your last meeting. No modifications were done whatsoever, and that is something that is understood and known both to your Counsel and to your Staff. MR. BRYANT-With all due respect, you understand that our Staff and our Counsel does not have the right to grant a variance, that only this Board has the right to grant a variance. MR. KENIRY-I do. MR. BRYANT-And we granted a variance based on a stipulation that the railing be removed, and the Planning Board approved a site plan based on the fact that that railing be removed and the land bridge be removed, and I was there today, and it still exists, as you say, the status quo, and nothing has been done to make those corrections, and my point, to the Chairman and to Staff is, why should we hear an application that we’ve already heard, unless you have startling new evidence that’s going to change our minds, I don’t see the point of this exercise. MR. ABBATE-Okay, Mr. Bryant, I take your objections. There is merit to the objections, and this is my decision. We will hear the case this evening, based upon a rule of law, and I believe that every member of this Board, as well as the public, have heard your objections. Counselor, are you prepared to proceed? MR. KENIRY-Yes, Mr. Chairman. 3 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Would you please proceed. MR. KENIRY-Yes, sir. MR. ABBATE-Thank you. MR. KENIRY-I’m not sure if we have our technology cooperating. If not, I may have to resort to low-tech, because I brought photographs. MR. ABBATE-Photographs are fine, Counselor, not a problem. A couple of folks entered late. I wish to advise you that the Newbury application has been tabled until next month. So if you’re here for that, I apologize. They have requested that it be tabled. So we will not be hearing Newbury. MR. MC NULTY-Mr. Chairman, I don’t believe the applicant or her attorney has identified themselves for the record. MR. ABBATE-Thank you. MRS. BARDEN-Do you want to formally table Newbury? MR. ABBATE-Yes. I’m going to take care of that as soon as we take care of this. You’re right. Is it going to work Susan? MRS. BARDEN-We’ll see. MR. ABBATE-Let’s resume. Counselor, again, I asked you to, for the record, identify yourself and your relationship to this, please. MR. KENIRY-Sure. Mr. Chairman and members of the Board, my name is Bill Keniry. I’m an attorney in private practice. My residence address, as you’ve asked for, is 114 Kaideross Park Road, Saratoga Springs, NY. My office address is 18 Corporate Woods Boulevard, and that’s in Albany, NY. We have a private law firm engaged in the general practice of law, and Jean Hoffman is with me in person tonight. I realize that your secretary has indicated that there is some history. I tried to capsulize the history as basically this, because the issue is fairly narrow, I suggest. As approved, we had a 700 square foot sundeck and a 14 foot height. As built, 978 square foot sundeck, 17 and a half feet, that’s the offensive height. Unfortunately, and you all know the circumstances, because we did talk about that the last time that we were here, how that came to be. You also know, and I just wish to refresh your recollection, that we came in once that circumstance was discovered. It was not like we were here on an enforcement proceeding or something of that nature. We did seek the variance, as Mr. Bryant correctly states, for 278 square feet on the sundeck, and the three and a half foot differential with respect to the as built on the height. The variance that was granted by you all, and I’m paraphrasing, we could quote it, certainly, was November 17, 2004, which indicated that the upper sundeck railings were to be removed and the offensive characteristic of that, you’ll recall, was height, and I think that the decision of the Board, and I do quote, was within the realm of 15 feet, and that was the result without the sundeck. The application that we have before you tonight, and if technology cooperated, I’d be able to depict it better, but I can show it to you, is different, and I don’t know that it’s accurately depicted in the materials that you have. Now we’re here indicating to you that our sundeck is, in fact, compliant, and we’re reducing the square footage on the sundeck by 278 feet, so we will have a 700 square foot sundeck. We are still here to talk to you about the subject of the three and a half feet on the height, but we propose to remove some of the railing, and I submit to you that that is very different than our original application. Unfortunately our original application did not ask for that relief, and very frankly, directly to Mr. Bryant’s well placed point, this result was a result of some significant energies that have been expended, and efforts by the applicant, 4 (Queensbury ZBA Meeting 7/20/05) your Staff and some lawyers tried to work on it, too, but I’m not saying that the lawyers produced the result. I don’t know if we have any visual. So if we don’t. MR. BRYANT-While we’re looking for the visuals, just let me, I’m trying to understand, because, to my recollection, and maybe I’m wrong. Maybe the Chairman or Staff can correct me, as far as the sundeck is concerned, there’s nothing really in the Code that determines that it’s got to be a certain size. I mean, the only thing is relative to the size of the dock, so the fact that you’re giving us 200 feet, I don’t understand the bargaining chip. I mean, I just don’t understand the whole process here. MR. KENIRY-Well, we are giving you the 278 feet, but the impression and the understanding that we had was the real issue that was on your minds was the matter of the height. MR. BRYANT-And if you read our motion, it specifically addresses the issue of height. MR. KENIRY-Correct. MR. BRYANT-Okay, and that’s what the motion is all about. MR. KENIRY-Correct. May I stand before the members? MR. ABBATE-Sure, Counselor. MR. KENIRY-If I may, my depictions are not the greatest, and I don’t know what the best for you all is. Do you want me to just walk in front of you along the way? MR. ABBATE-Whatever you feel comfortable with. MRS. BARDEN-Would you all like to get in front of this lap top, maybe? I’ve got pictures. MR. KENIRY-That would be great, if you don’t mind standing in front of the lap top, because then you can see the visual, and it will make it easier so that everybody is actually on the same page at the same moment, and I don’t need to come with you. I’ll stay over here. Start with Number One. I wanted to give you an understanding, because, unfortunately, the last time that we were here, there was no depiction so that you would be aware of what we were actually dealing with. Slide One depicts the nature of the construction and actually the erection process. You may sort of laugh and say that that piece of machinery or equipment is obsolete and sort of ridiculous for this project, but it does have some bearing, in terms of the end result. Obviously, the structure is not built by conventional means, and it’s not built with conventional tools. It’s fairly labor intensive. It involves a significant amount of hand work, and respectfully I say that in connection with the elements that you’re to consider, that some consideration should be given to the benefit to the applicant as it cannot be achieved by some other feasible method. Next slide, please. Okay. So with respect to the second slide, and we don’t have to spend a lot of time, but you have to have an understanding, again, of what exactly we’re dealing with. This depicts the nature of the structural supports. This is essentially, these logs are the genesis of the structure that we end up with, and again, with respect to the criteria that you have the ability to consider, we’d ask that you consider that there’s no other feasible method with respect to just chopping these down, if you will. It is fairly unique. MR. BRYANT-Could I ask a question? Next slide, please. MR. KENIRY-Sure. 5 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-Why are we talking about the construction of the thing when it’s already built? Why don’t we just talk about what it’s going to look like when you do the modifications, based on a new variance? MR. KENIRY-I certainly can do that. MR. BRYANT-Because I, frankly, I don’t think that how it’s built is of any consequence. It’s built. My question is, why are we going through these slides of how the thing was built, when, Number One, these should have been provided to us in our package, to start off with, if you wanted us to review it, to be honest. Number Two, it’s already built. So this is of no consequence. Let’s see what’s going to happen with the new variance, what you’re going to do, what’s involved in the new variance. MR. KENIRY-Okay. I can certainly do it. Actually the slides were e-mailed to you all for distribution on June 15, at 4 o’clock, and I did actually personally speak with Craig th Brown and verify that he received each and every one. So I didn’t have all of your individual e-mail addresses, and I’m sorry for that, because I would have sent them to you personally. The reason why I brought these depictions is actually part of the end of the basic or sort of small points that I made, and that was particularly with respect to the modification that you’ll see depicted this evening, that we can’t obtain the benefit to the applicant in any other feasible manner. MR. BRYANT-See, but you already did this in our November meeting. In fact, Mr. Underwood here went to great lengths to explain the log construction and how much clearance you needed under the roof and so forth and so on, okay. So we have already gone through this discussion. Now the point is, where do we go from here? What’s it going to look like? What is the purpose of this exercise? What’s the difference? MR. KENIRY-Well, the purpose and the difference is frankly, this. I want to make sure that you have an accurate record and that it’s complete and that you do have all of the facts. I can move through these slides to cut to the chase, if you will, a little bit faster, but for development of your record, you should have these things, so that, as Mr. Underwood has explained, these depictions are in your mind as you’re making the decision. These are the cross braces on the roof. Again, the point here is simply there needs to be some understanding, as we all look at these things, of the physical constraints that we have. It’s not a situation where we can simply cut simple two by fours and things of that nature. Obviously, if we had that ability, for instance, on a traditional structure, if we could jack it up and cut a piece of the foundation out, we’d love to do that. MR. STONE-Let me just make a comment. I understand what you’re saying. We can’t lower the roof of the dock. That’s not what’s before us. We’re talking about the railing. We said the first time the railing is too high, take it down. That’s what we said. All this construction, as Mr. Bryant says, is immaterial. We’re not asking you to take out any two by fours. We’re trying to lower it as much as we can without an excessive amount of expense to the applicant, and that is taking off the railing and leaving it as a flat roof. MR. KENIRY-We did it, and let me cut to, if we can, slides six and seven, so that you have an understanding in your minds of exactly what the visual is. MR. BRYANT-While she’s doing that, and I have all the minutes from our meeting and the Planning Board meeting, and Mr. Underwood went to great lengths to describe why the building had to be as high as it is, based on the log construction and the clearance you need for the ceiling, and so forth and so on. He went to great lengths, and he was the only one out of the Board that even came close to agreeing to the 17 and a half feet. Okay. So, I mean, we have a relatively clear picture in our mind, and I’m just not understanding at all. You say this is a different application. You’re going to take down 6 (Queensbury ZBA Meeting 7/20/05) some of the railing. What are you going to do, you’re going to basically reduce the size of the overall deck? MR. KENIRY-That’s correct. MR. BRYANT-You’re still going to have a railing of three. MR. KENIRY-There will be some railing that remains. If you look, that’s the visual looking straight on. That’s the aesthetic, if you will, of the railing as it exists today, and I submit to you that that is the most offensive photo. That is the most intrusive that the railing would be, and that is dead on to someone standing directly across, I guess you have to stand in a row boat, and looking straight at the railing, and you can see that the structural supports are obviously more intrusive than the twig railing. Next slide, please. That’s the railing, and you can see the difference, in terms of, on the aesthetic, the offensiveness, if you will, of the railing and its effect. If you go to slide eleven, please, I can’t tell you how far out this is taken, but that gives you an idea of the perspective looking at the dock, again, to try to illustrate so that you have an understanding of how offensive that railing is. Now, what we propose to do, slide thirteen, please, in effect, and respectfully, your attention is directed toward the, what is all of our right. MR. BRYANT-You’re going to bring the railing in, basically. MR. KENIRY-It’s gone, and that’s the elimination of the square footage, as far as that surface area on the deck. Now, the effect of that will be fairly dramatic if you just recollect the visual on, number six, please, again, that’s, we submit, the most offensive that that railing is. If you look at slide fourteen, it gives you an idea, the point here is this, as far as the aesthetic and the visual, again, from that most offensive perspective, looking up at it, it essentially vanishes from the eye. It’s gone. I mean, you can hardly make it out in slide six, and it gives you an idea. MR. STONE-Basically what you’re saying is that the railing parallel to the water on the west side, facing the water, is going to be moved back? The same railing is just going to be moved back, leaving, having it recessed, so to speak. Is that what you’re saying? MR. KENIRY-It’s gone. MR. STONE-It’s gone. It’s still going to be there, but it’s going to be back ten feet, how many feet? MR. KENIRY-It’s in excess of eight feet. The sections are about eight feet, but it will be completely gone. There will be no railing structure of any kind or nature. MR. STONE-But there will be railing going back. MR. KENIRY-As you move further in. MR. STONE-So you’re moving, the railing which is sitting here, you’re moving it back. MR. KENIRY-Correct. MR. ABBATE-Does this conclude your presentation? MR. KENIRY-It does. I mean, this is perfectly fine, and what I wanted to do was give you some understanding, by depiction instead of some lawyers words that mean nothing to anybody. MR. STONE-We have that on the record. 7 (Queensbury ZBA Meeting 7/20/05) MR. KENIRY-I know you do. In all seriousness, and also in all sincerity, what we tried to do, in working with your Staff, and to put together this application, was we tried to consider the standard that you all think about in terms of the benefit to the applicant versus the detriment to the neighborhood and the community. Here, the effect of what we ended up with was a contractor error that resulted in a sundeck that we couldn’t use, and the sundeck was the whole point of the project, in the end, as I think you all well know. We don’t believe that you would find that there would be some hurt by that, and that’s a good depiction, there it is, that that’s number six. I just wanted you to think about these factors when you do your balance in your deliberation. When you think about the benefit to the applicant, the family will be able to utilize the sundeck. The effect of that is not adverse with respect to the health, safety and welfare of the people in that area, anyone who would be in an area where they could complain about it. There isn’t, and we submit that there isn’t an undesirable change in the character of that neighborhood, and there’s not any detriment to the nearby properties. In fact the only potential for detriment would be the water, I suppose, and we’ve tried to ameliorate, or reduce, that harmful visual of that twig railing. We tried to explore, in all sincerity, we tried to explore every feasible other alternative to come up with something so that we do end up with essentially the project that we originally started with, so that we have a sundeck in the end, and we felt, in working with your Staff, that this was the best balance. We suggest that the relief is really not that substantial, and we hope that you’ll find that there’s no adverse impact on the physical or the environmental conditions of that neighborhood, and I submit, in looking at slide six, that there is not a gross or an obnoxious or an offensive element to what we’re proposing, and in fact that is the photograph of what is there now, and I submit that the result will be better, in terms of the aesthetic. I don’t have anything else to add. MR. STONE-Would you comment on the land bridge that the Planning Board has asked you to take down? MR. KENIRY-Sure. Obviously, and these are conjoined applications, and so when we were here, we had the Planning Board at the successive meeting, of course, and the land bridge becomes moot if you don’t have a sundeck any longer. So our original site plan, that which we had originally obtained, and the whole purpose of the project, to be able to go up there, was gone, and so, frankly, there was no reason for the land bridge except for one, to go up to shovel snow, and what we really are trying to achieve here is to try to get back to what was our original project, and so we’re on in front of the Planning Board next week, and we filed the applications with the idea in mind of trying to address these things. MR. STONE-If we granted your request tonight, would there be a land bridge in the site plan? MR. KENIRY-The intention would be to go back to the site plan that we had, with the understanding that we only have 700 square feet on that top, but, yes, Mr. Stone. MR. STONE-It’s not our fault. MR. KENIRY-Right, but your point is well taken. Do we end up with our project back as we proposed? Yes, and that’s our intent here is to end up with what we originally applied for, before we had a contractor give us an extra 3.5 feet, very frankly. MR. STONE-Okay. MRS. HUNT-I have a question. The site plan that was modified 11/23/04, and it says approved with conditions, boathouse with 978 square foot roof. Now did that include a deck on that roof or not? 8 (Queensbury ZBA Meeting 7/20/05) MR. KENIRY-Yes. As the project was initially proposed, and as approved, it did contemplate the deck, as Mr. Stone correctly points out, our original site plan contemplated a land bridge. In fact, it bears mention that you know what we’re talking about when you talk about the land bridge. Can we look at slide nine? MRS. BARDEN-Yes. MR. KENIRY-It doesn’t have wire ropes and slings. That gives you an idea of what we had for our access, and that’s a good slide to actually look at in terms of the aesthetic effect of the twigs on the railing on the far westerly side. You can’t see them from the east shore. MR. STONE-That’s the west shore of Cleverdale. MR. KENIRY-No, that’s the easterly shore. MR. STONE-That’s the westerly shore. MR. KENIRY-The westerly shore, but you can’t see it, but, I mean, that gives you an idea, if you’re thinking about the adverse impact of the twig railing, that gives you an idea from the shoreline of what we’re really talking about, and that’s what our access to the sundeck consists of. As Mrs. Hoffman points out, the trees are cedar as well. MRS. HOFFMAN-The trees on the boathouse are cedar, but the big trees that you see right there are also cedar. So it all kind of goes together. MR. ABBATE-Thank you. Do any of the other Board members have any other questions or comments? MR. BRYANT-I have a question for Staff. MR. ABBATE-Please. MR. BRYANT-Supposing the Board denies this application. What happens with the original variance that’s already approved? You understand, this is a complicated web of actions here. We’ve got an approval by this Board. We’ve got an approval by the Planning Board, and now we have another variance application. I mean, what are we going to do, go for 20 applications and? MR. ABBATE-Well, actually, it becomes a little more complicated than that. They currently are before the Supreme Court. The applicant right now is before the Supreme Court. They have requested, I think it’s the Honorable Kroggmann to hold off pending results of this evening’s decision. Is that correct? MR. KENIRY-Mr. Chairman, that’s absolutely correct. Your Counsel sent a letter to Judge Kroggmann, asking that all of the proceedings be held in abeyance, and I had immediately agreed and said we’d be happy to be here. We just need to get our plans in order, and, frankly, we would have been here last month, but I was in Plattsburg and Lake Placid. I was stuck on another case. MR. ABBATE-And what is the pending action, relative to what? MR. KENIRY-Mr. Bryant, it goes to your original point. The purpose of that review at that level is the next layer, if you will, of review of decisions. So that’s why you have things sort of, I don’t know what your characterization would be, in a freeze frame. MR. BRYANT-Forgive me, I’m not of legal mind, okay. Maybe that’s a good thing. 9 (Queensbury ZBA Meeting 7/20/05) MR. KENIRY-That’s a good thing. MR. BRYANT-But what are you questioning? I mean, if you already got a variance, and we’re already set to go, I mean, what are you questioning? What are you, why are you? MR. KENIRY-I mean, there are a significant amount of papers that have been filed in connection with that, and some of those things don’t really deal with the merits, if you will, of our application this evening. MR. BRYANT-I’m not understanding at all. MR. KENIRY-Some of the things that are contained in that proceeding do not relate to our application. MR. BRYANT-What relates to this application? Are you questioning the original conditions of the Planning Board and the ZBA? MR. KENIRY-There’s no question, that’s part of the court’s ability to review it, and in fairness, that’s the reason why, frankly, we’ve had the meetings that we’ve had, and I’ve had discussions with your Counsel, and as I say, I’m not here to put words in your Counsel’s mouth. MR. BRYANT-So basically we’re going to get it one way or another. MR. KENIRY-I’m not going to say that to you. That’s not my. MR. ABBATE-Well, to go one step further, Mr. Bryant, I can assure you that everything being said this evening will be scrutinized by the Supreme Court. Does any member of the Board have any other questions or comments? MR. STONE-I think Mr. Bryant raises a very good question. Sans this re-application, if you will, or this modified application, what would you have hoped to get from the Honorable Judge Kroggmann? MR. KENIRY-It’s a fair question, Mr. Stone, because of course the court has the ability to do a variety of different things. Again, I’m not trying to give you legal advice, but from time to time I have the ability to sit in those chairs with different boards. The Judge reviews the entirety of the record. So the Judge has the ability to make De Novo Findings of Fact, if the Judge so desires. The Judge has the ability to remand proceedings back to your for yet another enjoyable night with people like me. Whatever the case may be, the court has an awful lot of power. The court has the ability, I’m sure hopefully you don’t see this very often, but they have the ability to just wipe out your decision in its entirety. So there is a broad spectrum of power, in terms of. MR. STONE-And what did your brief ask for? MR. KENIRY-Well, it asks for everything, in terms of the relief, but the reason is this also, and in fairness, you should know, you know, generally in this practice, I mean, you file those papers because as you probably know, there’s a relatively short period of time, and you can’t do anything. I can’t get back here within that period of time, and your rights are forever lost. So, actually what we did was we preserved those rights and I got on the phone with your Counsel and we had some discussions and meetings and we agreed to have everything held in abeyance, and I think your Chairman has information to that effect, as he indicates that there actually are, I think, two Judges that are assigned. MR. ABBATE-Yes, Judge Aulisi is the other one. MR. KENIRY-Judge Aulisi has the other one. 10 (Queensbury ZBA Meeting 7/20/05) MR. STONE-So you fired a shot gun and hoped that you’d get rifle shot of some sort. MR. KENIRY-I tend to use rifles myself. MR. STONE-Okay. MR. KENIRY-But that’s, in fairness, procedurally where this is at. So do we have sort of a maintained, controlled status quo as we sit here before you? Yes. Is that something that I think was bilaterally agreed from the Town’s perspective and our perspective? Yes, and are we here to try to address it on the merits? Yes. MR. URRICO-I have a question. Maybe I missed it, you may have explained it. What is the difference to you of three and a half feet as opposed to one foot of relief on the railing? MR. KENIRY-The practical effect is, if we are denied, in effect, the relief, we’re going to lose our railing, and when we lose the railing, we lose the sundeck, and it’s really as simple as that. We have tried a variety of machinations, frankly, to try to cut the deck to fool around with different adjustments in the height, and then we run into safety issues, Code issues, and insurance issues. Frankly, the most significant is not safety and insurance, it’s the Code issues. We violate the State Building Code as far as the height on a railing. We can’t have a shorter railing. We actually looked at cutting the heads, if you will, off, to try to do it that way, but we couldn’t do it. We would not satisfy the State Code. MR. URRICO-So the point of recessing them was to diminish the aesthetic problem you might have with it? MR. KENIRY-That’s correct. MR. URRICO-Thank you. MR. MC NULTY-Let me ask. One of the things that’s bothering me with this. On the one hand, the rules say that in general we’re supposed to look at each Area Variance by itself, not look at precedents. At the same time, there’s things out there in legal land that say the Zoning Board of Appeals is not supposed to change the zoning in an area. So we aren’t supposed to grant, for instance, the same relief we might grant you to everybody else that wants to build a sundeck, because then we’d be changing the zoning. Help me out. What is different in this particular application, other than the fact that a contractor screwed up and the owner didn’t keep track of the contractor? What’s different for this one, that wouldn’t be the same for anybody else that wants to build a sundeck on top of their boathouse and wants an extra three and a half feet? MR. KENIRY-Well, of course you start with the general proposition that no two pieces of property are ever identical. So there’s never any perfect precedent in any of these cases. So every time you end up with your applicants that try to smile and tell you how you did it in this case and you did it in that case, so now you’re handcuffed in my case and you’re stuck. MR. STONE-You’re talking like a Town Attorney now. MR. KENIRY-I know. I should put my other hat on, but that’s a loser. In all sincerity, that’s a loser. That is not really a good argument, because none of these pieces of property are ever identical. If you move beyond that, we’ve got a combination of facts and circumstances, to some extent, that you could write a law book about, in terms of the mess that, and I don’t mean that in a disparaging way, it’s a mess, and it’s not a pleasant circumstance, certainly, for the applicant. It’s not an easy circumstance to 11 (Queensbury ZBA Meeting 7/20/05) correct. You have some very significant physical characteristics that are different. Here, if you look, obviously you’ve got an elevation that’s in excess of some of the structure that’s at issue. The terrain of that property actually goes up as you go up Sunnyfields Lane, and then of course to Cleverdale, and then on the other side of Cleverdale, it’s a mountain. We call it a mountain. So you have a terrain issue there. Plus, in terms of the physical components of the structure, we did, we talked at the last meeting, one of your members, Mr. Underwood, made mention of the physical constraints, and I think to some extent with slide number one, you see how, to some extent, ridiculous the machinery is that’s required to utilize these things. One of the slides that we actually have shows that the structure is incorporated in trees that have not been cut down. Slide eight, I don’t think you’ll find that on another application. That tree that’s in the right of the depictions, adjacent to the railings, is actually alive, to the left, the big one, to the left of the two posts and the railing has not been disturbed. We worked within the physical constraints, if you will. So, I mean, the constraints that we have presented by our construction are, I dare say, incredibly unique. Maybe you could find it in some of the upper reaches of some of the Adirondack lakes, maybe, Saranac. MR. BRYANT-Actually, there’s a building right in Corinth that’s made out of trees like that. MR. KENIRY-Is that the MacArthur Park? MR. BRYANT-That’s the MacArthur Park building, and he brought the wood and everything from Nova Scotia to do that. MR. KENIRY-That’s a good project, a good thing going on there. MR. URRICO-I just want to continue on Chuck’s train of thought. Even though the property is unique, the neighborhood is not, in the sense that you have a limited number of waterfront properties, and one variance is granted that raises the height, in this case, the height, what could be another variance, that serves to change the character of the neighborhood, to a certain degree, so that the next person that comes along, and we have to ask the same question, how does it affect the character of the neighborhood, the neighborhood has changed, now. So that no longer is as strong an argument as it might have been the first time. So there is, even though we’d like to say there is no precedent setting, each case is argued individually, in effect, there is an effect that does raise its head at some point in the future. I’m not saying that I’m going to be swayed that way, but there is a case to be made. MR. KENIRY-And I think it’s a good point, because when you think about that, you’re thinking about one of the individual factors, but remember, when you think about those factors, the end result that you engage in is sort of that deliberation, if you will, or that balance, and on the one hand you’re thinking about, okay, what’s the benefit to the applicant. To some extent that goes to the heart of Mr. McNulty’s question, when you say, okay, how is this applicant, how is this woman effected by this circumstance, or these facts and circumstances, versus what will be that harm, and I submit when you do that balance, hopefully it balances our way. MR. STONE-But talk to me about the concern that we often have, about somebody comes in having built something which is nonconforming. Would you comment on that? Because this anybody could come in, put a dock up, and put it 18 feet and say, well, look, there it is. MR. KENIRY-I don’t think that there’s any question, if go back to one of those vacant chairs, it’s a chronic problem. The problem that you deal with typically is the defiant. Those that just build. I’m sure you have them. You have those that build without building permits, and it’s a question of how far along in the process they get. It’s how quick does Craig get to them? Maybe he doesn’t get there, and then they come in after 12 (Queensbury ZBA Meeting 7/20/05) the fact. I think you need to, Mr. Stone, think about those individual circumstances where you have some of the applicants that are before you like this, because they’ve been hauled in like scoundrels, and then you’ve got other ones that come before you and say, look, I’m making this application essentially de novo because I discovered it, but, in fairness, I mean, I don’t necessarily subscribe to the notion that builder error, in and of itself, is a slam dunk for the applicant who comes before you. In fact, you probably can find plenty to the contrary. MR. ABBATE-Let’s get refocused here. You are asking for relief, and we have to focus on this only. You’re seeking 3.5 feet of relief from the 14 foot maximum height requirement per Section 179-5-050A(10). Is that correct? MR. KENIRY-Mr. Abbate, that is correct, and it is depicted on slide thirteen, which provides the. MR. ABBATE-Well, my point is I want to stay within the boundaries of that. We’re getting way off the boundaries. MR. KENIRY-I’m sorry, yes. That is correct. MR. ABBATE-Do any of the Board members have any other questions or comments? If not, then I’m going to meet the obligation of the Public Officers Law, Section Three, for a fair and open process, and the public hearing is open for Area Variance No. 46-2005. This Board invites public comments on the appeal. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard please come up to the table, speak into the microphone and for the record identify yourself and your place of residence, your statement will be limited to five minutes, and, Ms. G., please monitor the time. Are there any public comments on this appeal? Does anyone wish to come forward to address Area Variance No. 46-2005? I see no hands being raised. PUBLIC HEARING OPENED LEIGH BEEMAN MS. BEEMAN-I wrote a letter. MR. ABBATE-Well, if you wish to come up here, ma’am, you’re more than welcome to. MS. BEEMAN-You have a copy of that letter. MR. ABBATE-Go ahead, Jim, please. MR. UNDERWOOD-I have several letters to read into the record. One was received on July 12. Again, this is the subject, the boathouse and dock of Jean Hoffman. “Dear Mr. th Brown:” This is addressed to Craig Brown. “I am writing this letter to offer my feelings on the referenced Boathouse and Dock. I can see the Boathouse clearly from my property which is two properties South of the Hoffman property. I have no problems whatsoever with the physical size and appearance of the Boathouse, in fact I feel the structure as built is an asset to Harris Bay. I understand that the application before the Board is asking for some relief from the building rules. I am in full support of maintaining the structure as built, and once again state that as a neighbor in close proximity to the Hoffman property I have no problem with this Boathouse. Sincerely, Lee J. Pike 17 Heron Hollow Cleverdale, NY 12820” Second letter, again, is addressed to the Zoning Board Chairman. “Dear Mr. Chairman: This letter is to offer our support to Jean Hoffman during her boathouse and dock hearing. Her boat house is, without question, one of the most beautiful boat houses ever built on Lake George. It blends beautifully into the natural Adirondack Lake George setting. It is nicely proportioned 13 (Queensbury ZBA Meeting 7/20/05) and certainly compliments the neighborhood and shoreline. Any building project that Ms. Hoffman has embarked on has complimented our neighborhood and the surrounding Cleverdale properties. This boathouse offers the neighborhood a very positive appeal. We hope that more home owners will emulate Ms. Hoffman and place as much sensitivity and consideration into the aesthetic qualities and the setting as she has done with the design an function of her boathouse. We would like to request that you take into consideration all the plus features of his boathouse and rule in favor of Ms. Hoffman’s zoning request. Thank you for your interest in this request. Sincerely, Fred and Linda McKinney” The next one, “To Whom It May Concern: This letter is regarding Area Variance No. 46-2005. I own the property on the south side of Jean M. Hoffman, and would like to say that I was never happy that she built an oversized boathouse to begin with. This boathouse is twice the size of the original boathouse. I knew, however, that she had the right to do so because of the amount of lake frontage. I lost my view of the corner of the bay when she did this but I didn’t complain because I wanted to be a good neighbor. However, if this boathouse is not within regulations I feel she has the obligation to fix it so it meets the proper size regulations. This may or may not help my view, but at least it won’t be as enormous as it stands now. I hope that my point of view will be expressed at the Wednesday, June 22 meeting by this letter. nd Thank you so much for your cooperation. Sincerely yours, Kathleen Dautner” MR. BRYANT-Did they identify what property they were? MR. UNDERWOOD-That’s next door, on the south. MR. BRYANT-Is that the green house next door? MS. HOFFMAN-It’s white and red. MR. UNDERWOOD-And I have another letter. “Dear Mr. McNulty: Mrs. Hoffman’s property on Cleverdale adjoins mine to the south. I have absolutely no objection to her dock being 3.5 feet above the maximum height requirement. The entire structure is a work of art, and I would not want to see any part of it removed – and certainly not the railings or her access to the sundeck by way of the land bridge. Sincerely, Leigh Beeman 7 Overlook Drive Queensbury, NY 12804” just to finish up the housekeeping, there was a Warren County Planning Board approval, and Staff did not identify any impact on County resources, and before we go to a vote, we have a Short Environmental Form to go through, and there is an explanation, addendum that goes with that that I have to read in. MR. ABBATE-Okay. Any other comments, any other individuals this evening like to speak, for or against, if you will? None, I see none. Then I’m going to keep the public hearing open, and I’m going to ask the ZBA members to offer their comments on Area Variance No. 46-2005. However, I’m going to respectfully remind the members that precedent mandates that we concern ourselves only with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated, and this is necessary, particularly since there is, in fact, going to be a judicial review. Mr. Bryant, please. MR. BRYANT-Thank you, Mr. Chairman. I’ve listened, Counselor, I’ve listened to your argument relative to the benefit to the applicant. You made the same argument in the November hearing, and I understand what you’re saying, but a number of the Board members have talked about the effect on the neighborhood. Now, based on your photographs, you claim that there’s no real effect on the neighborhood, but frankly, I stood out on that dock today. It’s the largest structure on the lake from any point of view. It’s the highest structure on the lake from any point of view. There isn’t a dock within eyesight that’s as high as that dock, at least visually from that point. I sympathize with Ms. Hoffman, because I understand that she hired a contractor that was paid time and material, and you took advantage of the situation and you decided 14 (Queensbury ZBA Meeting 7/20/05) for whatever reason to build a larger structure, a higher structure, more complicated, but ultimately the owner of the property is responsible, regardless of what the contractor does, regardless of what the finished product is. The owner of the property is responsible. In my view, you’ve gone to two separate hearings, one with this Board, where we granted you a variance, for 15 foot height relief, and before the Planning Board where they granted you a site plan review, based on certain conditions. Had you come here tonight with those conditions all met, seeking relief to possibly build a partial deck on the top, we might have looked at it differently, but here we are, seven or eight months later after the fact, and we still have the same conditions exist, and you’re coming back for a variance, a new variance, when you’ve already gotten one approved. So in plain conscience, I think that the detriment to the neighborhood, the precedence that it sets, with the height relief, is just too much for this Board to consider. So I’d be against the application. MR. ABBATE-Thank you, Mr. Bryant. Mr. Stone, please. MR. STONE-I think Mr. Bryant has done an admirable job of stating the situation. I certainly appreciate the reduction that the applicant has made. I think it certainly lessens the effect. I was out in front of that dock this evening, or earlier this afternoon in my boat, and it is a massive structure, and there’s no doubt that moving the front railing back, however many feet that you said, eight, ten feet, will make less of a visual impact, but nevertheless it is a massive structure, and anything on the top in excess of the 14 feet or the 15 feet that we actually granted to me is just too much, and I see nothing in the argument to make me change the way I believe I voted, certainly I hope I voted, I don’t have the minutes in front of me, but I see no reason to grant an additional, this additional relief. MR. ABBATE-Thank you, Mr. Stone. Mr. McNulty, please. MR. MC NULTY-Like a lot of decisions, this is a tough one, but I think I’m going to tend to side with the two people that just spoke. When this was before us before, we went through the construction on the boathouse, and that’s one reason that we agreed to grant whatever it was, 14 and a half or 15 feet, because we agreed that it would be a real hardship on the applicant to have to try to disassemble that entire boathouse to lower it, to make it compliant, but when we looked at that, and I still look at it the same way, you say, well, we certainly don’t have to grant 17 and a half feet, because there’s a way of getting that down by simply saying, well, too bad, but we can’t use the sundeck, take the rail off. It still leaves the boathouse constructed the way it is. It doesn’t require a teardown, and I think this is one thing that needs to be plain, that removing the rail on the sundeck does not require any massive deconstruction on the boathouse. It still leaves the boathouse there. Admittedly, it makes the sundeck unusable. Having said that, certainly there’s some argument that there’s some benefit to the applicant, and the applicant certainly has made an attempt to move the railing back to reduce the visual impact, but I’m still left with the kind of thing I alluded to before. Even looking at this as an individual application, I still have to think in the back of my mind if any of the neighbors up and down that section came in with the same kind of request, while I wouldn’t have to grant it because I granted this one, I feel I would have to apply the same kind of standards in judging their application, and if I were to do that, I feel that I would have to come to the same kind of conclusion, one direction or the other, whichever way I went on this, and again, if I went to approve this variance, I think using the same standards for other individuals, I would probably end up having to grant the same thing again, and then I would be changing zoning. I just don’t see any compelling reason to allow the railing on the sundeck. I do see a compelling reason not to require the roof of the boathouse to comply with 14 feet. Because it would be a major problem to drop that down even a half a foot or a foot with the way that it’s been constructed, but having said all of that, I’m in favor of reiterating the previous approval for the boathouse to remain with its existing roof, but I would be opposed to granting the extra height for the railing. 15 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Thank you, Mr. McNulty. Mr. Urrico? MR. URRICO-And, Mr. Urrico, would you be kind enough to also include the five statutory requirements, please, for the record. MR. URRICO-As my previous comrades have said, this is a difficult decision for us, especially since this has been before us a few times, and the reason it’s been before us was it’s after the fact. It’s coming before us after construction, and this was the problem I had with it the first time you came and the second time you came, and when we talk about benefit being achieved by any other means feasible to the applicant, you had those means. There was a feasible way to achieve that benefit, and that was prior to construction, making sure that this didn’t take place, but it did. So now we’re faced with a piece of construction that’s there, and trying to figure out how to make it work, but the benefit could have been achieved by some other means. Mr. McNulty spoke about the undesirable change in the neighborhood character, and I want to reiterate earlier, is that even though it does not set precedent, when an application such as this, with obviously such a structure as this, is granted, it would be about 25% relief on the railing, on the height requirement. It does change the character of the neighborhood. You can’t help it but it will, and as far as the request being substantial, well, I think 25% is substantial, and I think that’s why we fought for what we did the first time. I think it was a compromise, and I think it was the only compromise we could reach then. I think it’s the only compromise we can reach now. I don’t think it’ll have an adverse effect, physical or environmental, and I think the difficulty is self-created. It was created, whoever’s fault it was, it was created by the applicant. So I would be against this variance. MR. ABBATE-Thank you, Mr. Urrico. Mrs. Hunt, please. MRS. HUNT-Yes. The presentation you made was very interesting about the aesthetics and the visual impact, but it really didn’t address the main point, and that is that the, it’s three and a half feet too high. It’s the highest dock around. I think 25% is a substantial amount of relief, and considering that a next door neighbor objects, and it was self- created, and the fact that no massive teardown would be required to comply, I would not be in favor of this variance. MR. ABBATE-Thank you, Mrs. Hunt. Mr. Underwood, please. MR. UNDERWOOD-I haven’t changed my mind since the last time, and I will say this, on the record. I respect my fellow Board member’s decisions that they make. They use their best judgment and I use mine, also. I will say this, however, the rule book, as it stands, is there because it does suggest a normality that we try to achieve throughout the community, and height variances are something that we take seriously. I do believe, however, that we have to look at it in the context of the greater community good, and when people take the time to try to aesthetically enhance the community, I think that’s important to consider. Certainly if we had our present zoning in effect, at the time of the creation of all the great camps across the Adirondacks, probably none of them would exist in their present day form that so emulates the Adirondack area. I think also, you know, whether you went back to the time when we built churches in our communities, none of those, they’d probably all look like shopping malls under our present regulations. So I think that what we’re trying to do here is we’re trying to look at this in the context of some horrific structure that’s been built, and I think that when compared to all the things we should worry about in this community, this is not one of them. Clearly, you made a strong case for the point of the aesthetic viewpoint of what you’ve done here. I’m not concerned with the height. The Park Commission regulations, under those Park Commission regulations on Lake George, this would only require one foot of relief, because they’re two feet higher than the Queensbury Code, which is more strict, and I think in this instance here, when you go up on that lake and you look at what’s 16 (Queensbury ZBA Meeting 7/20/05) done up there, most of the lake is pretty generic. It doesn’t really try to overdo things. It doesn’t try to really achieve an Adirondack type atmosphere, when compared to some of the other great camps across the Adirondacks. Certainly many of those have been created and they’re much higher than this building also. I’m thinking of the Post Estate up on Upper St. Regis Lake. In this instance here, though, I’m only one voice. I’m only one vote, and I do think that you do have in your favor the fact that you do have, you can go to the court system, and no Board is infallible. This Board’s been overturned before, in unanimous decisions by this Board, and majority cases that we have decided, and that’s why we have a system of checks and balances in this Country. So you do have that recourse. So I will vote in favor of your project. I don’t think it’s any grand stretch of the imagination. I think that moving the railing back would have an effect on it, and I think given the great shoreline expanse of this property, it does fit. I probably, some day there will be a great camp erected behind it and it’ll be in the foreground. You won’t even notice that. You’ll look at something greater created behind it. So, I would be in favor of the application. MR. ABBATE-Thank you, Mr. Underwood. Thank you all for your observations, and now it’s time for my comments. There can be no doubt that this is a massive structure, 1,100 and some odd feet is massive, as far as I’m concerned, but I’m also concerned with the history of this particular variance and these requests. I’m concerned with the fact that the applicant, or her agent, exceeded the authorization of this structure up to 1100 and some odd square feet. I’m concerned with the fact that the height is 17.5 feet high, which is certainly above our Ordinances, and I will agree with the majority of the Board members that perhaps, under different circumstances, had the conditions been meet, we may have perceived, I may have perceived this a little bit differently. So I am going to vote against Area Variance 46-2005, and again, I thank the Board members for their observations. Mr. Secretary, do we have a Short Environmental Assessment Form, or something there? If we do, would you read it into the record, please. MR. MC NULTY-Mr. Chairman, why are we bothering? This is a Type II. MR. STONE-This is a Type II. MR. ABBATE-So we don’t really have to concern ourselves with it then. Okay. Thank you. I am now going to close the public hearing. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to move to the motion portion of this hearing, but before I ask for a motion, I’m going to respectfully remind the members again that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State Statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance. Is there a motion for Area Variance No. 46-2005? MOTION TO DENY AREA VARIANCE NO. 46-2005 JEAN M. HOFFMAN, Introduced by Lewis Stone who moved for its adoption, seconded by Allan Bryant: 159 Cleverdale Road. The applicant has constructed an oversized boathouse with 1170- foot sundeck and seeks 3.5 feet of relief from the maximum height requirements of such structures. In considering this application, the Board has been guided by the fact that, in November of 2004, the Board in its wisdom, with the collective thinking of the Board, unanimously approved a variance, 90-2004, to whit one foot of relief of the height of the structure, from the 14 required to 15, which the Board understood made it necessary for the applicant to remove the sundeck and the attendant railing, or the railing that in fact made it a sundeck, because without the railing the sundeck could not be built. The Board approved unanimously, as I said, this Area Variance at the 15 foot in height. Also the site plan 50-2001, 11/23/04 outlined three conditions, and since November 2004 and 17 (Queensbury ZBA Meeting 7/20/05) July of 2005, no action has been taken by the applicant to meet those conditions that were agreed upon by the applicant. This time around the applicant has made some modifications to that application, but in the minds of the Board, this is not sufficient. Obviously, in considering the criteria that one uses for an Area Variance, there is definitely a benefit to the applicant, but it has been mentioned by the Board, by at least four or five members, that there will be a detrimental effect, and we can define that in a variety of ways, to the neighboring community in the fact that this dock, it’s a massive dock to begin with, would be even more massive and might lead to more massive docks being built around the lake. Obviously, the benefit to the applicant is that there will be a very good looking structurally sound dock, an oversized dock that was allowed from previous variance request, and the dock will be allowed to stay, and in this case the sundeck will not be allowed to stay. It is the Board’s concern that there will be an undesirable change in the neighborhood character, or to the nearby properties because of the massive size and the oversize height, or the over height, if you will, of this sundeck. In the Board’s mind, the request is substantial. It’s a 25% request, three and a half feet on 14. That, by any standard of identity, if you will, is substantial and we’ve already said it will have some adverse effects on the appearance of the neighborhood, not necessarily the environmental effects, but the physical effects, and certainly, and this is not very easy to say sometimes, the difficulty is, in fact, self-created. Because of all of these factors, I move that we deny Area Variance No. 46-2005. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mrs. Hunt, Mr. Urrico, Mr. Stone, Mr. Bryant, Mr. McNulty, Mr. Abbate NOES: Mr. Underwood MR. ABBATE-The vote for Area Variance No. 46-2005, is one against, six in favor. Is there a challenge to the tally? If none, then Area Variance No. 46-2005 is denied. MR. KENIRY-Thank you for your consideration. MR. ABBATE-Thank you, Counselor. What I’d like to do now, I’d like to move to table Area Variance No. 22-2005, based on the request by the applicant. Is there a second? MR. MC NULTY-I’ll second it. MR. BRYANT-I think it’s 22-2004, Newbury. MR. ABBATE-Yes, 2004, old business. MR. STONE-Why don’t we just extend the motion that we made to table the last time, on June 15. th MR. URRICO-We tabled it for 60 days, didn’t we? MR. ABBATE-Was it for 60 days? MR. STONE-Yes, 60 days. So we can just adjourn it to next month. MR. ABBATE-All right. Let me re-phrase it. We will adjourn Area Variance No. 22-2004 until the first meeting, I believe, in August. Okay. Thank you. MR. BRYANT-Mr. Chairman, in light of this application that we just heard, and I don’t know, maybe Staff can enlighten me, on the legalities of this thing, but I think that when we have conditions on any variance that’s approved, that we ought to state that if the conditions of the variance are not met with a certain period of time, the variance is rescinded, that it becomes null and void, end of story, because here we’ve got a situation 18 (Queensbury ZBA Meeting 7/20/05) that’s gone on for seven months. It’s in court. They’ve played around at the Planning Board. They played around here. I mean, we’re going on and on with the same thing, and they haven’t met any of the conditions. They already have a variance. So my view there should be some kind of phrase that maybe Town Counsel develops that says that if the conditions are not met within a certain period of time, 30 days or 60 days or whatever it is, that that variance becomes null and void. MR. ABBATE-Good point, Mr. Bryant. However, I do have a statement that I make, and it reads like this. I remind the applicant that this approval is with conditions, final approval plans in compliance with this variance must be submitted to the Community Development Department before any further review by the Zoning Administrator or Building and Codes personnel, Subsequent issuance of further permits, including building permits, are dependent upon receipt, and for the record, does the appellant comprehend these conditions. So there is a new stipulation, and your point is well made. Do you have any other comments, Mr. Bryant? MR. BRYANT-No, thank you. MR. ABBATE-Good, then we can continue. AREA VARIANCE NO. 51-2005 SEQRA TYPE II MICHAEL A. MELUCCI OWNER(S): MICHAEL & CATHERINE MELUCCI ZONING: SFR-10 LOCATION: 161 SHERMAN AVENUE APPLICANT PROPOSES TO PLACE A 14’ X 28’ IN- GROUND POOL ON THE PROPERTY AND IS REQUESTING RELIEF FROM THE MINIMUM FRONT, SIDE AND REAR SETBACK REQUIREMENTS OF THE ZONING ORDINANCE. CROSS REF. BP 2005-408 POOL, BP 2001-231 SEPTIC ATL., BP 2005-416 RES. ADD. WARREN COUNTY PLANNING N/A LOT SIZE: 0.28 ACRES TAX MAP NO. 309.7-2-8 SECTION 179-4-030 MIKE MELUCCI, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 51-2005, Michael A. Melucci, Meeting Date: July 20, 2005 “Project Location: 161 Sherman Avenue Description of Proposed Project: The applicant proposes placement of a 392 sq. ft. inground pool w/cement walkway and 140 sq. ft. patio. The proposed is to be located in the rear yard, with a portion located in the front yard. Relief Required: The applicant requests relief per §179-5-020 C2, “pools may be erected only in the rear yard” and 15-feet of rear setback relief, from the 20-foot rear setback requirement. And, relief from §179-4-030 for 11-feet of front setback relief, from the 30-foot minimum front setback. Parcel History (construction/site plan/variance, etc.): BP 2005-416, issued 6/22/05, for a 108 sq. ft. residential addition, a 300 sq. ft. alteration, a 360 sq. ft. attached garage, and a 300 sq. ft. porch. Staff comments: This is a corner lot (Sherman Ave. and Ames Pl.). Because of this, the proposed pool is in the rear yard, with a portion located in the front yard. Relief is needed from front and rear setbacks and for partial location in the front yard. It is unclear whether additional relief is needed from the other rear of the property, where 20-feet is required. The location of the proposed 140 sq. ft. patio should be identified.” 19 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Would the petitioner of Area Variance No. 51-2005 come to the table, speak into the microphone, and for the record identify yourself, your place of residence, and/or your relationship with this appeal. MR. MELUCCI-Yes. My name is Mike Melucci of 161 Sherman Avenue. I’m the owner, along with my wife, Catherine. Since the application for the variance, we have approached the lady behind us and bought some property. Can I pass these out to you? MR. ABBATE-You certainly may. MR. MELUCCI-The front one is my survey. The second page is her survey, and the back one is what we’ve done with the back part of the property. MR. STONE-Thank you, sir. MRS. BARDEN-Mr. Melucci, would it be okay if I showed some pictures? MR. MELUCCI-Sure. As you can see on the front page, we had proposed an Elgin system, the shed, we’re trying to squeeze five pounds of food in a one pound box. MR. STONE-I noticed that. MR. MELUCCI-So fortunately Mrs. Duggan and the property, which is in the rear, and again, because of it’s a corner lot, I’m assuming that’s the rear also, because we have two fronts and two rears. She had given us, or sold us, a piece of property so we could accommodate some of our needs. As you can see on the second page, bordering our property, we’ve purchased 70 feet wide, but then it goes on an angle 55 feet, and then it’s 35 feet long and 31 feet across. So in other words, it’s just a 31 foot piece with a little bit of a triangle. Do you see that on the second page? MR. BRYANT-I have no clue what I’m looking at. MR. STONE-Yes, I’m trying to figure that, too. MR. BRYANT-The second page. MR. MELUCCI-That’s her survey. MR. BRYANT-That one story house, is that her house? MR. MELUCCI-Yes. MR. BRYANT-Okay. Now she’s selling you? MR. MELUCCI-That little piece. That’s that little triangle in the back. MR. BRYANT-That piece that says 4.63 acres? Is that it? MR. STONE-No, that’s the whole piece of property. MR. MELUCCI-No. That’s the whole piece of property, sir. Thirty-one feet across from the line. MR. BRYANT-Okay. So now, so you don’t need any rear setback. MR. MELUCCI-I don’t need a rear setback, and I don’t need a front setback. All I need is, well, I don’t know how you want to word it. 20 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-Well, how would you not need a front setback? Your pool’s going to be in the same location, right? MR. MELUCCI-No. I’m going to move the pool back towards the, so I don’t need the 11 feet in the front. MR. STONE-Okay. So you’re moving the pool here this way. MR. MELUCCI-Right. MR. BRYANT-So why are you here? You don’t need any relief. MR. MELUCCI-I do need relief, sir. That’s why I’m here. I need the side, which is the rear, in your people’s eyes. I live on 161 Sherman, on the corner. So the left side, which is the LaRock property, which shows on the front, or on my deed, on the original property, LaRock lives next door to me at Number One Ames Place. I need the relief there. That’s where I need the 15 feet relief. MR. ABBATE-The 15 feet of rear setback relief is what you’re referring to. MR. MELUCCI-Yes, right. Because we live on a corner. MR. STONE-All right. You’re moving the pool east, but it’s still going to be as close to that line as your original application. MR. MELUCCI-Right. MR. ABBATE-And what you’ve done is purchase the additional property here to alleviate. MR. MELUCCI-To alleviate all the other problems and putting our septic system. MR. ABBATE-Yes, but they were concerned, I’m sure, with additional relief, but you have resolved that by purchasing the additional property. Is that what you’re stating? MR. MELUCCI-Yes, basically. The only relief I’m asking for, sir, is the side rear relief next to our neighbor LaRock, who have all signed a statement saying that they have no problem with us. MR. BRYANT-The question to Staff is, that’s not how it was advertised. MRS. BARDEN-That’s right, but it’s less. I mean, he’s knocking out two of the three requests for relief. MR. STONE-Right. MR. BRYANT-Well, the third relief was actually in question. MR. MELUCCI-Right. So it doesn’t apply. MR. BRYANT-The Staff notes says that that relief is question. So how it was advertised is not even the relief he’s asking for now. MRS. BARDEN-He needed front setback. MR. BRYANT-From Ames Place. 21 (Queensbury ZBA Meeting 7/20/05) MRS. BARDEN-From Ames Place. He needed rear setback, and he also needed setback from having a portion of the pool in the front yard. MR. MELUCCI-I didn’t need the other rear setback, sir. MRS. BARDEN-He doesn’t need the other rear. So he only needs the one rear. MR. ABBATE-He needs 15 feet of rear setback relief from the 20 foot rear setback requirement. Period. MR. MELUCCI-Right. I never needed the other rear setback, because I was 34 feet from my. MR. BRYANT-I’m very confused. Because that 15 feet is along this property line that’s shown on this map, okay, it’s the 15 feet along the back of the pool, that’s what they’re talking about. Now my question is, if he bought 31 feet of property beyond that line, he doesn’t need that setback anymore. MRS. BARDEN-His rear is his left side. MR. STONE-It’s the other rear. MRS. BARDEN-The other rear. He has two fronts and two rears. MR. BRYANT-The way I understand it, he’s looking for setback here. This is the rear setback. MRS. BARDEN-That’s right, that’s what he needs. MR. BRYANT-But he bought 31 feet of property there. MRS. BARDEN-I was thinking he bought. MR. BRYANT-No. He bought 31 feet behind the pool, right? So now you no longer need 15 feet of setback. MR. MELUCCI-I didn’t ask for 15 from that rear. I have two rears, sir. MRS. BARDEN-I think he bought it back here. MR. BRYANT-No, according to this drawing, I think he bought it here. Where did you buy the 30 feet of property? MR. MELUCCI-This is the rear of my house right here. This is the Duggans. I said the Duggans. Here’s the property of the Duggans, right here. I still need, this is where I. MR. BRYANT-That’s the 15 feet. Okay. I understand. MR. MELUCCI-I bought the property behind me. MR. BRYANT-So you don’t need anything here. MR. MELUCCI-I never needed anything there. MR. BRYANT-So you don’t need this because you’re moving the pool over. MR. MELUCCI-Right. I need this 15 feet here. I don’t need the front. I never needed the rear. 22 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-Now is the pool going to be strictly in the rear now? MRS. BARDEN-Yes. MR. BRYANT-So he doesn’t need relief for the pool being in the front yard. MRS. BARDEN-That’s right. MR. BRYANT-Okay. So all he’s looking for is 15 feet of relief. MRS. BARDEN-That’s right. MR. MELUCCI-That’s it. MR. BRYANT-Okay. MR. ABBATE-Mr. Melucci, would you like to continue, please. MR. MELUCCI-No. Other than that, I’ve got two rears. That’s our biggest problem is we live on a corner. We had a small lot. MRS. BARDEN-Mr. Melucci, does that change that setback of five feet from that one rear or are you directly moving it back? MR. MELUCCI-I’m directly moving it back. MRS. BARDEN-Okay, so it’s still five feet from the property line. MR. MELUCCI-Because of a berm, I don’t want to cause any problems with our neighbor. They’ve been very nice, of all the neighbors in the neighborhood, to give us the, you know, they have no problem with it. MR. STONE-Okay. So you’re sliding it east. MR. MELUCCI-I’m just sliding it east, that’s right. MR. STONE-Along the north property line. MR. MELUCCI-Right, because if I could have gotten more property in the back, I would have put the pool in the back, but because I needed the septic thing, I bought 31 feet, and I needed 10 feet on each side, plus be 20 feet from her pool, which we abided by, and that gave us the 10 by 40 foot septic plus the pipe. MR. STONE-Okay. The thing on here, it says a proposed screen porch. That’s not on the table right now, right? MR. MELUCCI-No, that’s all been approved. That’s all been, the building permits have been issued. MR. STONE-For the porch? MR. MELUCCI-Yes. MR. STONE-Okay. MR. MELUCCI-When I had this property surveyed, sir, I hadn’t applied for my building permits. 23 (Queensbury ZBA Meeting 7/20/05) MR. STONE-I understand. MR. MELUCCI-So that’s why on this survey map that you have that says proposed, that’s all been approved by the building. MR. STONE-But that 12 feet, Susan, that 12 feet from the east rear property line, that’s okay? MR. MELUCCI-Yes, it has to be 10 feet. MR. STONE-Is it 10 feet in the back there? MR. MELUCCI-Yes, but what’s that got to do with this? MR. STONE-It says proposed. MR. MELUCCI-No, it has nothing to do with this. MR. STONE-Okay. MRS. BARDEN-You’re talking about this screened porch? He has a building permit for that. MR. STONE-Yes. It didn’t require a variance. MRS. BARDEN-No. MR. MELUCCI-No. It was a 10 foot. MR. STONE-Okay. MR. BRYANT-Can I ask a question, Mr. Melucci? MR. MELUCCI-Yes. MR. BRYANT-If you bought this property on the east part of your property, and you’ve got a proposed septic, and all this other stuff, why don’t you just square the pool off behind the proposed garage? MR. MELUCCI-I can’t. MR. BRYANT-Why not? MR. MELUCCI-Because I have a triangle, sir, and if you take a look, on the map it says the drain pipe goes along the back property and goes into the other property. I wrote it on there. It probably is not very legible because it just transpired in the last week. MR. BRYANT-I don’t see any drain pipe. Is that it right there? MR. MELUCCI-Here’s the septic. The pipe comes here, then they went this way. MR. BRYANT-I understand that, but, you see, this is proposed. MR. MELUCCI-I’ve got a pipe here. I’ve got to be 10 feet away from that. MR. BRYANT-This is your sewer drain. 24 (Queensbury ZBA Meeting 7/20/05) MR. MELUCCI-And then it goes over to here, in this new property, and it goes. MR. STONE-If you fold it, Al, you can make it look. MR. BRYANT-Okay. MR. ABBATE-Like this, Allan. MR. MELUCCI-Basically unusable property, other than for a swimming pool. MR. ABBATE-Thank you, Mr. Melucci. MR. MELUCCI-Thank you. MR. ABBATE-Any other questions or comments from the Board, Board members? No? Okay. Then what I’m going to do is open a public hearing and invite public comments on this appeal, Mr. Melucci’s appeal. In the interest of time, again, I ask that you be crisp, organized and limit your comments to only the facts and information given this evening, and would those wishing to be heard from the public on Mr. Melucci’s Area Variance No. 51-2005 please come forward to the table and identify yourself. MR. MELUCCI-You do have record of the neighbor’s signing? MR. ABBATE-We will read that in, the Secretary will read that into the record shortly. Do we have any folks in the public who would like to come forward and comment on Area Variance No. 51-2005? PUBLIC HEARING OPENED MR. ABBATE-Mr. Secretary, would you be kind enough to read any correspondence into the record, please. MR. UNDERWOOD-To whom it may concern, we the following neighbors of Michael and Catherine Melucci, 161 Sherman Ave., have no objections to the Area Variance the Melucci’s are applying for, and that lists as 11 feet of relief from the front setback and 15 feet of relief from the rear side setback to install the in-ground pool.” And it’s signed by the Duggans at 157 Sherman Ave. The LaRocks at 1 Ames Place, Jackie Mosher at 163 Sherman Ave., 3 Ames Place, and then there’s also John G. Reynolds at 4 Ames Place. MR. ABBATE-Thank you. We’ve reached the point now where I’m going to respectfully ask ZBA members to offer their comments on Area Variance No. 51-2005. Please, do we have any comments from any members of the Board? We have no comments from any members of the Board? All right. That’s fine. MR. BRYANT-Mr. Chairman, are you polling the Board now? MR. ABBATE-No, I’m just asking if you had any comments, Mr. Bryant, if you have any, please make those. MR. BRYANT-Okay. The only thing that was confusing to me, frankly, was the way this whole thing was put together, and, you know, had it been, but frankly I can see now that I’ve pasted all the pages together that there’s really no place else for your pool. So, in essence, I have no objection to the application. MR. ABBATE-Okay. No other comments. I’m going to close the public hearing. PUBLIC HEARING CLOSED 25 (Queensbury ZBA Meeting 7/20/05) MR. STONE-Wait a minute. We still haven’t heard how we’re voting. MR. ABBATE-All right. I asked if there were any comments from any members of the Board. Go ahead. MR. STONE-That’s a new way. Well, I’m following along Mr. Bryant. I had some reservations until you came in and spent some money to make this property more amenable to the pool that you wanted to put in. I was favorably impressed. The only comment I wrote down was the neighbor to the north, and she or he or they have signed the petition. I have no problem whatsoever. MR. ABBATE-Thank you very much. Let’s see, we have Mr. McNulty. Any comments. MR. MC NULTY-Okay. I’m going to be opposed, partly because I think somebody ought to be. This is one of those that, my guess is, there’s going to be enough Board members in favor, especially since you’ve made a real effort to gain another piece of property, instead of just coming in and asking for the total relief. So I think they’re going to go that way, but on the other hand, 15 feet out of 20 feet side rear setback relief is significant, and I think, well, two things. One, the choices that could have been made. You could have picked adding the garage or adding the pool in a compliant location. You selected to add the garage and then ask for a variance for the pool, and as I’ve said before, too, there are some lots in the Town of Queensbury that just plain were not meant for pools, and this possibly is one of them, although I think you’ve found a way of getting the pool in there. Certainly, it’s a good indication that the neighbor on the near side has expressed that they have no objection to this. At the same time, variances go with the land, not with the neighbors. So tomorrow that neighbor could sell and the person that bought from them could have a real problem with this pool. Although, once it’s in, they know what they’re buying. So, they’re not going to be get totally blindsided, but considering all that, it just strikes me that it’s not quite right for you to get seven in favor in this case. So I’m going to be the negative. MR. ABBATE-Thank you, Mr. McNulty. Mr. Bryant, please. MR. BRYANT-I’ve already gone. MR. ABBATE-And how was your vote, you said you were in favor of it? MR. BRYANT-I’m in favor of it. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-I have no problems with your application. I think it’s reasonable. We’ve granted corner lot pools many times previously, and I think you’re purchasing this extra property is to your benefit in doing this, to try and not have so many variances needed. So, I’d be in favor. MR. ABBATE-Thank you. Mr. Urrico, please. MR. URRICO-I would be in favor of the application. MR. ABBATE-Thank you, Mr. Urrico. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, when I first went there this afternoon, I thought it was a very crowded lot and I wondered how the neighbors felt, and you have answered both those questions. I think it’s a modest sized pool, and I would have no problem with it. MR. ABBATE-Thank you very much. I guess it’s up to me. Mr. Melucci, I have no problems with your application, and I put myself in your position, if I owned that 26 (Queensbury ZBA Meeting 7/20/05) property and you were astute enough to purchase additional property, which certainly shows good faith in the Town of Queensbury, and I think your application is reasonable, because I would probably attempt to do the same thing, so I am going to be in favor of it. I thank the Board members for their observations, and do you have anything, Mr. Secretary, other than the letters? MR. UNDERWOOD-I didn’t see anything from the County. MR. ABBATE-Okay. Great. Now I’m going to ask for a motion, but before I ask for a motion, again, I respectfully remind the members, they have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State Statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance. Is there a motion for Area Variance No. 51-2005? MOTION TO APPROVE AREA VARIANCE NO. 51-2005 MICHAEL A. MELUCCI, Introduced by Joyce Hunt who moved for its adoption, seconded by Lewis Stone: 161 Sherman Avenue. The applicant is proposing the placement of a 392 square foot in- ground pool, to be located in the rear yard, with a portion located in the front yard. The relief is 15 feet of rear setback relief from the 20-foot rear setback requirement, on the north rear. The benefit could not be achieved by any other feasible means because of septic systems and there will not be an undesirable change in the neighborhood character or to nearby properties. That is shown by the fact that the neighbors approve it. The request is substantial, but if this were not a corner lot, that much relief would not be needed. The proposal will not have adverse physical or environmental effects, and whether the alleged difficulty is self-created, it could be because he wants a pool, but that would be true in anything. So I’d make a motion that we approve Area Variance No. 51-2005. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Underwood, Mr. Stone, Mr. Urrico, Mr. Bryant, Mrs. Hunt, Mr. Abbate NOES: Mr. McNulty MR. ABBATE-The vote for Area Variance No. 51-2005 is six in favor, one against. Is there a challenge to the tally? If not, then Area Variance No. 51-2005 is approved. MR. BRYANT-Good luck. MR. MELUCCI-Thank you. MRS. BARDEN-Mr. Melucci, would you get revised plans to the Planning Office for me. The ones that you submitted tonight. MR. MELUCCI-I’ll just give you one. MRS. BARDEN-Great. Thank you. AREA VARIANCE NO. 52-2005 SEQRA TYPE II RICHARD HACKETT OWNER(S): RICHARD HACKETT ZONING UR-10 LOCATION 416 AVIATION ROAD APPLICANT PROPOSES DEMOLITION OF EXISTING GARAGE AND CONSTRUCTION OF A NEW 24 FT. BY 24 FT. GARAGE RELIEF REQUESTED FROM SIDE AND REAR SETBACK REQUIREMENTS. WARREN COUNTY PLANNING N/A LOT SIZE: 0.16 ACRES TAX MAP NO. 301.8-2-37 SECTION 179- 4-030 RICHARD & THERESA HACKETT, PRESENT 27 (Queensbury ZBA Meeting 7/20/05) STAFF INPUT Notes from Staff, Area Variance No. 52-2005, Richard Hackett, Meeting Date: July 20, 2005 “Project Location: 416 Aviation Road Description of Proposed Project: The applicant proposes to demolish an existing 480 sq. ft. garage, and replace with a new 596 sq. ft. garage in the same location. Relief Required: The applicant seeks rear and side setback relief from §179-4-030 for the UR-10 Zone, specifically: 6-feet of relief from the minimum rear setback to place the garage 4-feet from ? the rear property line, where 10-feet is required. 8.6-feet of relief from the minimum side setback to place the garage 1.4-feet ? from the side property line, where 10-feet is required. Parcel History (construction/site plan/variance, etc.): No parcel history. Staff comments: The relief sought is an existing condition due to the proposed placement of the new garage on the same footprint as the existing garage. The proposed garage is approximately 90 sq. ft. larger, but does not encroach any further into the setbacks. What is the proposed height of the new garage? And would an increase in height impact the neighbor to the West?” MR. ABBATE-Would the petitioner of Area Variance No. 52-2005, speak into the microphone and for the record identify yourself, your place of residence, and/or your relationship with this appeal. Please. MR. HACKETT-Rick and Terri Hackett, 416 Aviation Road, Queensbury, NY, and we’re the owners of the property. MR. ABBATE-Thank you, sir. Are you prepared to proceed with your appeal? MR. HACKETT-Yes. MR. ABBATE-Then do so, please. MR. HACKETT-Well, as stated, as Mr. Underwood read, we would like to replace the existing garage because it’s in a falling down condition with a new garage. We would like to expand it four feet to the east into our own property, which would affect any of the setbacks, just to gain a little bit more space. MR. ABBATE-Okay. Do you have anything else you’d like to contribute? Yes, ma’am. MRS. HACKETT-Theresa Hackett. The larger footprint is also because we intend to replace it with a kit that’s 24 feet square, and the cost of buying it as plans that are already drawn up instead of having to re-draw and re-plan the whole building on our own. 28 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Okay. Thank you, ma’am. Do you have anything else you want to add at this particular point? Then I’m going to go to the Board members and ask if they have any questions or comments. MR. BRYANT-I have a question. You said it’s 24 feet square? MR. HACKETT-The existing building is 20 feet wide and 24 feet deep. MR. BRYANT-I think your wife just mentioned that the kit is 24 feet square. MR. HACKETT-The kit would make it 24 by 24. MR. BRYANT-Okay. The elevation shows 23 and a half, I guess, when you take into consideration whatever. That’s an inside elevation, okay. MR. HACKETT-Right, and the existing four feet would go into our property. The additional four feet would go into our property. MR. BRYANT-Okay. Where do they get the other 20 feet? Isn’t it 24 square 576? You’re asking for 596 square feet. I don’t have my calculator. MR. STONE-You’re right, it is 576. MR. BRYANT-So where does the other 20 feet come from? MR. STONE-The calculation of Staff. MR. BRYANT-You’re going to gobble of some of your patio in this? MR. HACKETT-That is correct, sir. What we want to do is put down a Curtis Lumber kit, one of the kits that they advertise, and they advertise this being 24 feet by 24 feet. MR. URRICO-That’s 576. MR. ABBATE-Now you have a copy of this, the Area Variance? It says basically that the applicant proposes to demolish an existing 400 square foot garage and replace with a new 596 square foot garage section in the same location. Is that correct? Is that accurate? MR. HACKETT-That is correct. MR. BRYANT-How far is the front that faces the garage from the house? Because right now, you know, you can look down the driveway, you see a clear garage. Now the garage is going to be behind the house somewhat? MR. HACKETT-That’s correct, about 10 feet behind the corner of the house. MR. BRYANT-About 10 feet? Is it less than 10 feet? Because this is not to scale, I don’t think. MRS. HACKETT-Are you talking about, how far back or how far to the side of the house? MR. BRYANT-How far is the back of the house to the face of the garage? Because now the garage is going to be somewhat behind the house. MR. HACKETT-That’s correct. 29 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-So what’s the distance, about? MR. HACKETT-This distance here. About 10 feet, approximately. MR. ABBATE-Do you have a copy of this? Why don’t you come up and get this, because I think it may help you answer some of the questions. MR. URRICO-I think he’s talking about here. Here’s the, your garage. MR. BRYANT-It’s got to be at least 10 feet. MR. HACKETT-One inch equals eight feet. So that’s about 10 feet. MR. BRYANT-There’s got to be at least 10 feet. Does an accessory structure have to be at least 10 feet away? MRS. BARDEN-From the side property line? MR. ABBATE-From the house. MR. STONE-Well, if you look at the drawing, it’s going to be considerably back. It’s going to extend visually, but it’s going to be far enough away. MRS. BARDEN-Yes. MRS. HUNT-I have a question. That west side of the garage, is that going to stay in the same place, or is that moving? MR. HACKETT-That will stay in the same place. The west side being the right hand side in the picture. MRS. HUNT-Right, and now it’s 20 feet four inches, the garage? MRS. HACKETT-Yes. MR. HACKETT-The width of the garage. MRS. HUNT-So you’re only going to add four feet. MR. HACKETT-Correct, heading east. MRS. HUNT-Heading east. That’s right, just four feet, three and a half feet. MR. HACKETT-That’s correct. MRS. HUNT-Okay. MR. ABBATE-Any other questions from members of the Board? No questions from members of the Board? MR. STONE-The question, maybe it was answered and I didn’t hear it. The height. Staff asked about the height, and I can’t find it on the, it’s probably in here, one of these numbers. MR. ABBATE-Mr. Hackett, could you tell us the height, please. MR. HACKETT-Yes, on one of the elevations, the height, from Curtis Lumber, would be 17 feet, 10 and a half inches. 30 (Queensbury ZBA Meeting 7/20/05) MR. STONE-Okay. MRS. BARDEN-What’s the height of your existing garage? MRS. HACKETT-We never measured it. MR. HACKETT-I don’t know, I never measured it. MR. ABBATE-You indicated 17 feet, how many inches did you say, the height? Okay. The Secretary indicates 17 feet. Nothing to be concerned about. Any other questions from members of the Board? If not, then what I’m going to do is, to meet the obligation of the Public Officer’s Law, Section Three, for a fair an open process, the public hearing is now open, Area Variance 50-2005, and this Board invites public comments on the appeal. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard please come to the table, speak into the microphone, and for the record, identify yourself and your place of residence. Your statement will be limited to five minutes. Ms. G., please monitor the time. Are there any public comment on Area Variance 52-2005? Once, twice, three times. Okay. There are, apparently, none. I will now ask the ZBA members to offer their comments on Area Variance No. 52-2005. Again, I respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated, and this is necessary for an intelligent, judicial review. Ms. Hunt, would you be kind enough to go first. MRS. HUNT-All right. Thank you. Yes, I can see why you want a new garage. It’s tilting. I don’t think I have any problem with this. Really, the replacement garage would be four feet wider, and I certainly see the need for it. I don’t know that the benefit could be achieved by any other means. I don’t think there would be an undesirable change to the neighborhood character or to nearby properties. I think it will be an improvement. I don’t think the request is substantial at all. I don’t think it will have any adverse physical or environmental effects, and whether the alleged difficulty is self-created, only by the fact that the Hacketts want to put up a safer garage. So I would be in favor. MR. ABBATE-Thank you, Mrs. Hunt. Mr. Bryant, please. MR. BRYANT-Mr. Chairman, I’m not quite ready yet. MR. ABBATE-All right. Mr. Bryant, for the record, is not quite ready yet. So we’ll go to Mr. Urrico, please. MR. URRICO-I just want to make sure, are we talking about 596 or 576? MRS. HUNT-Five hundred and seventy-six. MR. STONE-Five seventy-six. MRS. BARDEN-Five seventy-six. MR. URRICO-Okay. MRS. BARDEN-I apologize. MR. URRICO-I have no problem with the application. MR. ABBATE-Mr. Urrico has no problem with the application. Mr. Underwood, please. 31 (Queensbury ZBA Meeting 7/20/05) MR. UNDERWOOD-I have no problem with it. MR. ABBATE-Neither does Mr. Underwood. Mr. Stone, please. MR. STONE-I think that this is a good project. I gather there were no comments from the neighbors to the west. MR. ABBATE-You’re absolutely correct, Mr. Stone. MR. STONE-Okay. Thank you. That was my only concern, and I have no problem with it. MR. HACKETT-The neighbor to the west wants it changed. Soon. MR. ABBATE-Mr. McNulty, please. MR. MC NULTY-Okay. I’ll agree with what’s been said. I think in this case there’s very little alternative, as far as location for a replacement garage. It’s clear that something needs to be done with the existing one, and I think it’s going to be an improvement to the neighborhood, so I’d be in favor. MR. ABBATE-Thank you, Mr. McNulty. Mr. Bryant, are you prepared yet? MR. BRYANT-No. MR. ABBATE-Mr. Bryant is not prepared yet. What I will do, I’ll go against precedence and I’ll make my comments. I’m going to place myself in the position of the applicant and I would, in all probability, do the identical thing that you’re doing. So I’m going to agree with my other Board members, other than Mr. Bryant, and support your application. Now, if we’ll all have a little patience, we’ll wait for Mr. Bryant to come and sit down at the table and then express his views. MR. BRYANT-Sorry, Mr. Chairman. MR. ABBATE-That’s quite all right. MR. BRYANT-I think the only thing that concerns me about this application, and I can’t find it in this wonderfully organized zoning book that we have, is relative to the placement of an accessory structure, relative to the principal structure, okay, which isn’t really an issue in your current situation, because your garage does not really sit behind your house, okay, but when you add the four feet, both visually and based on this drawing that you’ve made, you’re saying it’s about 10 feet, and I think that that’s what’s allowed. I just want to make sure we’re not going to enter into a conflict, you know, in that space differential. Do you follow what I’m saying? MR. HACKETT-What would the conflict be? MR. BRYANT-Well, your accessory structure can’t be any closer than 10 feet to your principal structure. So now if the garage, you’ve extended the size of the garage, so it goes actually behind the house, where it didn’t before, and all of a sudden this scales off at eight feet, then you need another variance, and that’s my only concern. MR. ABBATE-Well, let’s clear it up and talk to Staff. MRS. BARDEN-The Hacketts do have to apply for a building permit, and that would certainly be something that would be looked at by Dave Hatin and the Zoning Administrator looks at it as well. We can certainly make a note of that. 32 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Has he been issued a building permit? MR. HACKETT-No. MR. ABBATE-Then what we will do, unless I hear some objections from the Board, in the event we approve this, I’ll make a condition, that pending approval of a building permit. Any members object to that? MR. BRYANT-No, and if that’s the case, I would also be in favor of it. MR. HACKETT-Mr. Bryant, does it indeed need to be 10 feet, is that the correct distance? MR. BRYANT-That’s what I believe it to be, okay, but again, I can’t locate it in the book right away. MR. ABBATE-I think you’re right. MR. BRYANT-But when I get home, I’ll go into my searchable computer thing and I’ll find it right away, but from here, in a paper book, it’s very difficult to find, but that’s the only problem that I have with the application. MR. ABBATE-Okay. MR. HACKETT-I think it is 10 feet. I think it’s exactly 10 feet, in fact. MRS. HUNT-Adding up the different measurements, it looks like it’s just exactly 10 feet from the corner, but actually your property goes on angle, so it might be more than 10 feet at that point. MR. BRYANT-Well, I don’t know because it scales at eight feet per inch, and it looks like it’s only an inch. So it looks like it’s less than 10 feet. MR. ABBATE-All right. We’ll make it as a condition. At this point I’m going to close the public hearing. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to ask for a motion. Again, I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State Statutes spell out five statutory criteria that must be carefully when we grant an Area Variance. So I’m going to ask, is there a motion for Area Variance No. 52-2005? MOTION TO APPROVE AREA VARIANCE NO. 52-2005 RICHARD HACKETT, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: 416 Aviation Road. The project is proposed to demolish an existing 480 square foot garage and replace it with a new 590 square foot garage in the same location. The applicant is seeking rear and side setback relief and that relief amounts to six feet of relief from the minimum rear setback to place the garage four feet from the rear property line where 10 feet is required and 8.6 feet of relief from the minimum side setback to place the garage 1.4 feet from the side property line where 10 feet is required. Again, this lot is a UR-10 lot. These are pre-existing tiny lots from the old days before zoning existed, I believe, and the relief is an existing condition due to the proposed placement of the new garage. It will be constructed on the same footprint as the existing garage. The four-foot extension will be towards the home, and we’ve put a stipulation in that we trust that that will be 10 feet away from the house, as required by Code. 33 (Queensbury ZBA Meeting 7/20/05) There is no concern with the proposed height of this garage, as it will be less than the 21 feet. So I move for its approval. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. McNulty, Mrs. Hunt, Mr. Underwood, Mr. Urrico, Mr. Bryant, Mr. Stone, Mr. Abbate NOES: NONE MR. ABBATE-The vote for Area Variance No. 52-2005 is seven in favor, zero against. Is there a challenge to the tally? If not, Area Variance No. 52-2005 is approved. MR. HACKETT-Thank you. MRS. HACKETT-Thank you. MR. BRYANT-Good luck. MR. ABBATE-Good luck. AREA VARIANCE NO. 53-2005 SEQRA TYPE II JEFFREY LEJUEZ AGENT(S): DARIN J. MABB OWNER(S): JEFFREY LEJUEZ ZONING WR-1A LOCATION 6 CHERRY TREE LANE APPLICANT PROPOSES CONSTRUCTION OF A 400 SQ. FT. ADDITION TO EXISTING DWELLING. A DECK AND SCREENED IN PORCH ARE ALSO PROPOSED. RELIEF REQUESTED FROM THE MINIMUM FRONT AND SHORELINE SETBACK REQUIREMENTS. CROSS REF. SITE PLAN 20-2005, BP 89-674 SFD WARREN COUNTY PLANNING JULY 13, 2005 ADIRONDACK PARK AGENCY YES LOT SIZE: 0.38 ACRES TAX MAP NO. 226.19-1-51 SECTION 179-4-030, 179-4-070 JEFFREY LEJUEZ, PRESENT STAFF INPUT Notes from Staff, Area Variance No. 53-2005, Jeffrey Lejuez, Meeting Date: July 20, 2005 “Project Location: 6 Cherry Tree Lane Description of Proposed Project: The applicant proposes a 456 sq. ft. residential addition to the existing house. An additional 534 sq. ft. of deck and screened porch are also proposed. Relief Required: The applicant requests 12.4-feet of shoreline setback ?? relief (per § 179-4-070), 50-feet is required from the wetland, and 37.6- feet is proposed. 4.1-feet of front setback relief (per § 179-4-030), where 30-feet is ?? required and 25.9-feet is proposed. Parcel History (construction/site plan/variance, etc.): BP 89-674 approved 3/16/90, for single-family residence and on-site septic. Staff comments: This proposal is for an expansion in living space to an existing residence in a Waterfront Residential Zone. BP 89-674 approved a 3,500 gal. holding tank for the residence. Consider conditioning any variance approvals to the upgrade of the existing system to acceptable standards, including on-site wastewater treatment. 34 (Queensbury ZBA Meeting 7/20/05) MR. UNDERWOOD-“Warren County Planning Board Project Review and Referral Form July 13, 2005 Project Name: Lejuez, Jeffrey Owner(s): Jeffrey Lejuez ID Number: QBY-05-AV-53 County Project#: Jul05-22 Current Zoning: WR-1A Community: Queensbury Project Description: Applicant proposes construction of 400 sq. ft. addition to existing dwelling . A deck and screened porch are also proposed. Relief requested from the minimum front and shoreline setback requirements. Site Location: 6 Cherry Tree Lane Tax Map Number(s): 226.19-1-51 Staff Notes: Area Variance: The applicant proposes three additions to an existing dwelling. The addition to the house is to be 400 sq. ft. and the deck is to be 216 sq. ft. with a screened in porch. The deck is to be 25.9 ft. from the property line where 30 ft. is required. The new addition with the screened porch is to be 37.6 ft. from the edge of wetland where 50 ft. is required. The information submitted shows the location of the additions, elevations, and lot layout. The plans do not indicate stormwater or erosion control measures, or the internal layout of the addition in regards to the holding tank capacity. Staff does not identify an impact on county resources based on the information submitted. Staff recommends no county impact with the condition that appropriate stormwater and erosion control measures are implemented and that holding tank capacity be able to accommodate the proposed addition. Warren County Planning Board Recommendation: No County Impact with Stipulation the condition that appropriate stormwater and erosion control measures are implemented and that holding tank capacity be able to accommodate the proposed addition.” Signed by Bennet F. Driscoll, Warren County Planning Board 07/19/05. MR. ABBATE-I’m assuming the petitioner is at the table? MR. LEJUEZ-Yes, I am. MR. ABBATE-And if you are, would you be kind enough to speak into the microphone and for the record identify yourself, your place of residence and your relationship with this appeal. MR. LEJUEZ-I’m Jeff Lejuez, 6 Cherry Tree Lane, Assembly Point, and I’m the owner of the property. MR. ABBATE-Would you please proceed. MR. LEJUEZ-What I’m proposing to, what I’m asking for in the setback relief from the road is required because the house when it was originally constructed, unbeknownst to me, until I requested a permit for this extension, was actually placed improperly and slightly crooked on the property, so that the corner of the front living area is a foot or so into that 30 foot space. So going out to the left would mean that extension would actually come closer to the road. When we discovered this, we actually jogged back from the extension. I think you can see from the floor plan that we actually notched it back so there’s minimum impact on the variance as possible, but still allowing me to get into the house, and that’s the variance that I’m asking for from the road. As you can see, if you have this plan, the Town road goes 211 feet from the main road, which ends actually at the place where I’m adding the extension. The 25 feet from the road is actually further back from the only other house that’s on that dead end street. There was one other property, and that is 20 feet from the road. So I am still set back further from that existing home as well, and the entire extension is going back away from that home. There are no other homes across or behind the property. I don’t know, have you visited the property? As to the other variance, I’m not sure what the Code is there. In my discussions with the APA, in asking what the definition of shoreline is, my understanding is that it’s the mean high water mark. So I have these photos here of my property, just to show where that extension is going, and that’s about an eight year old photo. That’s been my lawn for the past 16 years, and the area that’s marked as wetlands actually goes through that property, and if you visited the property, there’s two trees that I planted back there, a couple of willow trees which the APA marked. I’m not sure what it’s delineating. It looks to me like that thatched area what they call 35 (Queensbury ZBA Meeting 7/20/05) wetlands. The water is actually more properly noted on my original plan here, the survey shows 33 feet past the property line, which is beyond the tree area from my back yard. So I’m not really sure what I’m required to do here. As far as the setback from the wetlands, my understanding was it was from the mean high water mark, and the mean high water mark for that swamp that’s back there has got to be 100 feet from my property. So I’m not really sure. MR. ABBATE-You’re indicating you’re not sure. Did you have a pre-application meeting? MR. LEJUEZ-No. MR. ABBATE-Because my next question was going to be, why didn’t you raise this issue at the pre-application meeting, if you’re not sure? MR. LEJUEZ-I didn’t have a pre-application meeting. MRS. BARDEN-Darin Mabb? MR. LEJUEZ-My contractor, yes. MRS. BARDEN-Your contractor, met with us on June 10, met with myself and the th Zoning Administrator. MR. ABBATE-Is your contractor here this evening? MR. LEJUEZ-No he isn’t. MR. ABBATE-Well, then I suggest you touch base with him. MR. LEJUEZ-Okay. Well, my question is, to the Board, what is the shoreline? Is it the wetlands or is it the mean high water mark? MR. MC NULTY-Let me explain a little bit on that. You apparently had APA or DEC mark the wetland. MR. LEJUEZ-Yes. MR. MC NULTY-And in this case, the shoreline is the edge of the wetland, and wetlands are determined not by where the water is at any point in time. It’s determined by the species of wetland plants that are present. Because by definition a wetland can be dry for part of the year. So you have to go with what they have marked on your property as being the edge of the wetland, and in this case, that would be your shoreline. MR. LEJUEZ-Okay. So the wetland is the shoreline. MR. MC NULTY-Right. The wetland edge is your shoreline edge, in this case. MR. LEJUEZ-That was my question. All right. Then I’m asking for a setback back 37 and a half feet from that. MR. ABBATE-You’re okay with that, you understand that? MR. LEJUEZ-Yes, no, that’s fine, but I would just like to make a comment that the markings on my property were placed on two trees that I planted some seven, eight years ago, and I just hope that I didn’t hurt myself by planting those trees which are weeping willows, which are indigenous to a wetlands area. So I’d just like to make that comment. 36 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Before we continue, I’d like to ask a question. What are your plans for upgrading the existing system to accept those standards, including what we call on site water, wastewater treatment, do you have plans for that? MR. LEJUEZ-Well, actually my contractor did suggest that I put in two catch basins, and I noted them on the plan here at the end of the property, and I told him, if this is approved, to definitely go ahead with that. MR. STONE-But you have a Board of Health variance for a holding tank. MR. LEJUEZ-Yes. That’s been in there for 16 years. MR. STONE-How often do you pump it? MR. LEJUEZ-Twice a summer. We’re up here just for the summer. MR. ABBATE-That’s a good question, Mr. Stone. In the record, is there a copy of the Board of Health approval for this system? MR. LEJUEZ-It was requested from me, and it should be in there. MR. ABBATE-You can’t have one without a Board of Health. Well, I’m concerned with Staff notes, and the comment that was made at the County, but I’ll let the other Board members continue on. Any other Board members have any questions or comments of the applicant? MR. BRYANT-I have a question, relative to the wetlands. MR. LEJUEZ-Yes. MR. BRYANT-The whole development issue is a balance between the environment and progress, and in this case, as I look at your drawings, if you deduct that screen porch and part of that deck, it still leaves you with what appears to be about a 24 foot square deck in the front of the property, and you don’t encroach at all on the wetlands, and my question is, rather than go for the whole shebang, why not cut back a little bit on encroachment of the wetlands, and just keep that beautiful deck that you plan in the front of the building. MR. LEJUEZ-Well, actually the deck in the front is a covered porch. It’s not an open deck. It’s the entranceway into the house. MR. BRYANT-Well, it’s 24 by 24, is what it looks like. MR. LEJUEZ-In the front of the house? MR. BRYANT-The front of the house, the one along Cherry Tree. MR. LEJUEZ-Yes. No, that’s about eight feet. MR. BRYANT-Well, that’s about nine feet, you’re right, and then another three feet when you go beyond the first, so it’s 24 by 12. MR. LEJUEZ-Yes, that jog is to get me up to the other deck outside of the kitchen. MR. BRYANT-So my question is why not eliminate the encroachment into the wetlands? MR. LEJUEZ-It would certainly impact our use of the screened porch. There would be 37 (Queensbury ZBA Meeting 7/20/05) no screened porch, and that would impact our enjoyment of sitting out in the evening air, with the mosquitoes, but your question is to the wetlands, as was marked. The photo shows that that property has been lawn for 16 years. MR. BRYANT-We can’t judge it by the photo. If they’re flagged by the APA as wetlands, they’re wetlands. MR. ABBATE-Let me follow up on that just for a second, just to clear it up in my mind. You, in fact, do require 12.4 feet of shoreline setback, okay, because 50 feet is required from the wetlands, and 37.6 feet is proposed. Is this accurate? MR. LEJUEZ-That is. MR. ABBATE-That’s accurate. Okay. Thank you. MR. STONE-But that, just for the record, too, that’s at the extreme point. MR. ABBATE-Thank you, Mr. Stone. Any other Board members? MR. STONE-I have a couple of questions. Do you have, on this holding tank, do you have what I refer to as bells and whistles to tell you it’s full? MR. LEJUEZ-There’s an alarm, yes. MR. STONE-And it shuts down the water? MR. LEJUEZ-Yes, it does. MR. STONE-Okay. The other question I had was the lot to the west. I mean, I know Shore Colony was totally laid out. Are there still some lots there between the back of your property, or the west end of your property, and Forest Lane? MR. LEJUEZ-Actually I bought that lot a couple of years ago. It’s a piece of wetland, and I just bought it for. MR. STONE-Okay. So did you tie it together for tax purposes? MR. LEJUEZ-No, I just wanted it for protection. MR. STONE-Okay. You probably wouldn’t pay as much taxes if you tied it together. It’s a very simple procedure. It doesn’t change the fact that the wetlands are on your property, but it certainly might, I don’t know how it’s considered. It’s probably considered residual land, but it is a developable lot. I mean, it is one of the lots of Shore Colony, I assume, was. MR. LEJUEZ-Well, from what I’m hearing from you today, I don’t think it’s developable. MR. STONE-Well, but I meant it was in the subdivision as constituted as. MR. LEJUEZ-Yes, it was. It was my understanding that that parcel was the wetlands. This was the first, my understanding, that my yard is part of the wetland. Even after receiving the photographs, my neighbor to the north of me, the entire house is in that area that is marked off on my property as wetland, and that’s why I was a little confused as to why that was an issue. My understanding was it was to the water. MR. STONE-Well, there is a stream, I think, that flows down from Sunset, through a number of properties, and eventually gets down to your property. 38 (Queensbury ZBA Meeting 7/20/05) MR. LEJUEZ-It’s on the other side of that road in front of my house, yes. MR. STONE-Yes, right. MR. LEJUEZ-And then goes back. It does not run through my property. MR. ABBATE-Any other questions or comments from the Board members? If not, then I’m going to open a public hearing. Again, to meet the Public Officer’s Law Number 3 for a fair and open process, the public hearing is open for Area Variance No. 53-2005, and this Board invites public comments on the appeal. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening. Would those wishing to be heard please come up to the table, speak into the microphone, and for the record identify yourself and your place of residence, and your statement will be limited to five minutes. Ms. G., please monitor the time. Are there any public comments on Area Variance No. 53-2005? PUBLIC HEARING OPENED MR. ABBATE-I’m now going to ask ZBA members to offer their comments on Area Variance No. 53-2005, and, again, I respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated, and this is necessary for a judicial review. MR. UNDERWOOD-We had one piece of correspondence. MR. ABBATE-Mr. Secretary, would you be kind enough to read that into the record, please. MR. UNDERWOOD-“Dear Mr. Abbate: I have reviewed the application for the variance request for the above referenced project. I am not able to attend the meeting due to a conflict, but would like to offer the following comments for the record. 1. There should be consideration of on-site wastewater treatment on this site, in accordance with New York State Department of Health Standards and recommendations of the Adirondack Park Agency. An on-site evaluation should be provided to support the expansion of the residence and the site’s ability to support development. I look forward to working with the Town of Queensbury Zoning Board of Appeals to protect Lake George and its basin. Thank you for your consideration of this comment. Sincerely, Christopher Navitsky, PE Lake George Waterkeeper” MR. ABBATE-Any other items of correspondence? MR. STONE-I have a question of Staff that I’m thinking about, in connection with that. Susan, does his project trigger the need for an upgraded septic system, or does the previous holding tank variance hold? MRS. BARDEN-I think it’s dependent on bedrooms, and it’s not clear whether that addition, proposed house addition, what type of living space that is. MR. LEJUEZ-There’s no increase in bedrooms. The living space is the kitchen addition and expansion of the master bedroom, if you will. There’s no additional bedrooms. MR. STONE-Okay, and that would be determined in a building permit anyway. So you’re saying that if there’s no additional bedroom space, then the previous holding tank variance would remain in effect. MRS. BARDEN-It’s not required that he upgrade. 39 (Queensbury ZBA Meeting 7/20/05) MR. STONE-Right. Okay. MR. ABBATE-That raises the issue, again, just for the record, will there be additional bedrooms? MR. LEJUEZ-No, no, there will not. MR. ABBATE-For the record, you indicate there will not be. Okay. MR. LEJUEZ-Yes. MR. ABBATE-Then may I continue, please. I’m going to ask ZBA members to offer their comments on Area Variance No. 53-2005, and may I please start with Mr. Underwood, please. MR. UNDERWOOD-Certainly when we’re talking about granting variances for setbacks to wetlands or waterfront properties, we have to be concerned with that, but I think in this instance here what’s being asked for isn’t really going to have any effect on the wetland, as proposed. I think that the holding tank that’s there probably was a suggestion because of the setbacks from that wetland, and that’s not going to change because of not adding anymore bedrooms to the property. I think in this instance we can grant the relief for this project as proposed, and I don’t really see that it will cause a detriment to the wetland or the neighborhood by granting it. MR. ABBATE-Thank you, Mr. Underwood. Mr. Urrico, please. MR. URRICO-Yes. I’m basically in agreement with Mr. Underwood. I think in this instance, I don’t see a real detriment to the setback, the encroachment to the setback. I think each case is different, but in this case, I do think this is, this would work. I do have some concerns about, obviously there could be some mitigation in the size of it, but I don’t see that necessarily being something that would rectify the problem. I really think, in this case, the wetland encroachment is minimal, and I would be in favor of the application. MR. ABBATE-Thank you. Mr. Urrico. Mr. Bryant has a comment. MR. BRYANT-Can I ask Staff to point out the APA wetlands on that property? Is that the green area? MRS. BARDEN-Yes. That’s the green area, are APA wetlands, yes, and that’s similar to I think what is shown on the delineation in your plot plan. MR. BRYANT-On the site map? MRS. BARDEN-Yes. MR. BRYANT-For some reason, though, that depiction is not quite the same as what’s on the site map, because that appears to be, that’s the existing house now? MR. LEJUEZ-Yes. MR. BRYANT-Something doesn’t look right there. That’s the existing house. They’re going to build a 16 foot addition, and then a 12 foot screen porch on to that, and it’s going to be right in the wetlands, according to that map. MRS. BARDEN-I would go by the delineation on the plot plan. 40 (Queensbury ZBA Meeting 7/20/05) MR. BRYANT-By this plot plan. Is it my turn to talk? MR. ABBATE-If you wish, and I’ll turn to Mr. Bryant, please. MR. BRYANT-You know, the front setback issue, the four plus feet, is not really an issue in my mind. I think it’s a reasonable request. I have to disagree with Mr. Urrico and Mr. Underwood, relative to the wetlands area. I think 12.4 feet of encroachment in the wetlands is 25%. That’s more than, it’s in the substantial range. So I think by a little bit of adjusting in the design here, as far as the screen porch, I understand you want a screen porch, but I also, if, where the word “proposed” is, on the dock area, on the deck area, if you put a small screen porch there and kind of angled that, you would mitigate some of the encroachment on the wetlands area. So I think that there are feasible alternatives to the plan, and I think that, until we address those alternatives, I’m not in favor of the application. MR. ABBATE-Thank you, Mr. Bryant. Ms. Hunt, please. MRS. HUNT-Thank you. Yes, I agree that the front setback of four feet is minimal, and I’ve been looking at the proposed screen porch, and if you look at the 37.6 inches of relief, that’s only at that far point, and it’ll be far less as you move down the screen porch. So I would have no problem with this application. I would support it. MR. ABBATE-Thank you, Mrs. Hunt. Mr. McNulty, please. MR. MC NULTY-I’m going to agree with Mr. Bryant. Likewise, the front setback doesn’t bother me too much, but this is new construction. Avoiding an intrusion into the 50 foot setback to the wetland doesn’t even involve the major structure that’s proposed. It just involves deck and screen porch. So I think there’s opportunity to make some modifications. I think this lot is like all lots. There are some restrictions on lots. Sometimes they’re physical. Sometimes they’re legal, and I think there needs to be a compelling reason to allow an intrusion into those restrictions, and in this case, the 50 foot buffer, if you will, or setback to a wetland is there for a reason. It’s been determined that human activity in those areas will affect the wetland, and I think there’s good reason for it to be there. I think there’s opportunity, in this case, for some alternative plans, and so as it’s currently presented, I’m going to be opposed. MR. ABBATE-Thank you, Mr. McNulty. Mr. Stone, please. MR. STONE-I respect the opinion of the last two speakers, and certainly normally I would be very concerned about too close to the wetlands, but we’re dealing, it seems to me, with a very small area. We’re asking for relief, Mr. LeJuez, is asking for relief, of 12.4 feet from the wetlands at the extreme corner, and I just scaled this thing off, and it rapidly gets up to 50 feet on most of the building, and this wetland is, being a neighbor of this wetland, this is not a terribly important wetland. It is more of a drainage ditch, going inside Assembly Point, heading north, and there really isn’t an awful lot of wetland activity, whatever wetland activity is. I think the, knowing this road, the front setback doesn’t bother me at all. I mean, this road, I go by it every day, and you almost don’t even see the road, and you have to look very hard to see the home down the road. It is, obviously, of concern to grant relief from the wetlands, but to me it’s so minimal that I would, on balance, I would go along with it. MR. ABBATE-Thank you, Mr. Stone. The applicant is requesting 12.4 feet of shoreline setback relief, and 4.1 feet of front setback relief. I’m going to address those items, but I listened to what Mr. Stone and Mr. Underwood and Mr. Urrico, and Mrs. Hunt had to say, and I think their position is a practical position. I think not only does it meet the spirit, but I think it meets the intent of the Ordinances as well, and as a result, I am going to support Area Variance No. 53-2005. Mr. Secretary, do we have any other 41 (Queensbury ZBA Meeting 7/20/05) correspondence, Short Environmental or anything like that on the record, do you have anything there? We do not. Okay. I’m going to now close the public hearing. PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to seek a motion, and again, before I ask for a motion, I respectfully remind the members that we have the task of balancing the benefit of the variance against the impact on the area, as well as the fact that State Statutes spell out five statutory criteria that must be carefully considered in deciding whether to grant an Area Variance. Is there a motion for Area Variance No. 53-2005? MOTION TO APPROVE AREA VARIANCE NO. 53-2005 JEFFREY LEJUEZ, Introduced by Joyce Hunt who moved for its adoption, seconded by Roy Urrico: 6 Cherry Tree Lane. The applicant proposes a 456 square foot residential addition to an existing house, and an additional 534 square foot of deck and screen porch are also proposed. The applicant requests 12.4 feet of shoreline setback relief per Section 179-4- 070. Fifty feet is required from the wetland and 37.6 feet is proposed. The applicant requires 4.1 feet of front setback relief per Section 179-4-030, where 30 feet is required and only 25.9 feet is proposed. Whether the benefit could be achieved by other feasible means, I think this is a rather modest request, and I don’t think it’s out of line. Would there be an undesirable change in the neighborhood character or to nearby properties, I don’t think so. I don’t think the request is substantial. In fact, the request for the wetlands, the 37.6 feet is at the extreme end, and most of the porch would need less relief than that. Whether the request would have adverse physical or environmental effects, I don’t think so, and whether it’s self-created, it is because the gentleman wants to improve his property. So I move that we approve Area Variance No. 53-2005, with the condition on this variance of the upgrade of the existing system to acceptable standards, including on site wastewater treatment if necessary. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Stone, Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Abbate NOES: Mr. Bryant, Mr. McNulty MR. ABBATE-The vote for Area Variance No. 53-2005 is five in favor, two against. Is there a challenge to the tally? If none, then Area Variance 53-2005 is approved. However, I bring to your attention that there is a condition, and I remind you, the applicant, that this approval is with conditions, and that final approval plans in compliance with this variance must be submitted to the Community Development Department before any further review by the Zoning Administrator or Building and Codes personnel, Subsequent issuance of further permits, including building permits, are dependent upon receipt, and for the record, do you understand, do you comprehend this condition? MR. LEJUEZ-Fully. MR. ABBATE-Fully. The answer is yes. So then, sir, Area Variance No. 53-2005 is approved. MR. LEJUEZ-Thank you. MR. ABBATE-You’re welcome. AREA VARIANCE NO. 54-2005 SEQRA TYPE II OLAF JOHN GABRIELSEN AGENT(S): MATTHEW FULLER, ESQ. FITZGERALD, MORRIS, BAKER & FIRTH PC ZONING YR. 1967 ZONING: R-3 CURRENT ZONING: RR-3A, CRITICAL 42 (Queensbury ZBA Meeting 7/20/05) ENV. AREA LOCATION: LOT 37, HUNTER LANE, RIDGE KNOLLS SECTION 2 APPLICANT PROPOSES CONSTRUCTION OF A SINGLE-FAMILY DWELLING. RELIEF REQUESTED FROM SETBACK REQUIREMENTS FOR WETLANDS. CROSS REF. SUB. NO. 2-68, SECT. 1 SUB. 2-73, SECT. 2 RIDGE KNOLLS SUBDIVISION WARREN COUNTY PLANNING N/A ADIRONDACK PARK AGENCY YES LOT SIZE 2.06 ACRES TAX MAP NO. 253.3-1-2 SECTION 179-4- 070 MATT FULLER & TOM HUTCHINS, REPRESENTING APPLICANT, PRESENT MR. BRYANT-Mr. Chairman, before we get started with this, I have a statement, relative to Area Variance No. 54-2005. Mr. Fuller is the attorney on record of an Association for which I am a trustee. In the case of Area Variance No. 55-2005, I am personally familiar with the applicant. That being said, I believe that in both applications, my determination would be based solely on the facts and would be fair and balanced. However, to avoid any perception of impropriety, I’m going to recuse myself from both applications. MR. ABBATE-Mr. Bryant, you are, indeed, an honorable man. Mr. Rigby, would you like to sit in? Are you prepared to discuss Area Variance No. 54-2005? If you are, would you please join us at the table. STAFF INPUT Notes from Staff, Area Variance No. 54-2005, Olaf John Gabrielsen, Meeting Date: July 20, 2005 “Project Location: Lot 37, Hunter Lane, Ridge Knolls Section 2 Description of Proposed Project: The applicant proposes a 2300 sq. ft. single-family residence to be located 40-feet from wetlands. Relief Required: The applicant requests 35-feet of shoreline setback relief to locate the residence 40-feet from the wetlands, where 75-feet is required in the RR Zone, per §179-4-070. Parcel History (construction/site plan/variance, etc.): J 2004-357, APA Approval 9/14/04; of wastewater treatment system for Lot 37, Ridge Knolls. P 81-235, APA Approval of subdivision, 11/23/81. SB 2-73, Approved 9/4/74; Section II of the Ridge Knolls Subdivision. SB 2-68, Approved Section I of the Ridge Knolls Subdivision. Staff comments: The APA approval (P 81-235) for 7-lots, included the condition, “Any single family dwelling constructed on Lots 37 and 39 shall require the use of on-site sewage disposal systems consisting of a raised fill system. Said systems shall be designed by a Professional Engineer and shall require prior approval of the Adirondack Park Agency.” Revised plans regarding the wastewater treatment system for Lot 37, submitted to the APA by Hutchins Engineering, dated 8/30/2004, were approved (see 9/14/04 letter from APA). The submitted variance application shows the required setbacks, 50-feet front and sides of 30-feet. The appropriate setbacks are those listed with the original approved subdivision plat (R3) from the 1967 Zoning Ordinance. These are 30-feet front, and 5- feet min., sum of 15-feet for the sides. It may be possible to move the house to the South and East to increase the distance from the wetlands.” 43 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Apparently we have representatives at the table. Would you be kind enough to speak into the microphone, and for the record identify yourself, your place of residence, and/or your relationship with this appeal, please. MR. FULLER-Thank you, Mr. Chairman. For the record, Matt Fuller, attorney with Fitzgerald, Morris, Baker & Firth, Glens Falls. MR. HUTCHINS-Tom Hutchins, Hutchins Engineering, Queensbury. MR. ABBATE-Are you prepared to proceed? MR. HUTCHINS-We are. MR. ABBATE-Do so. MR. FULLER-Thank you, Mr. Chairman. You did get a brief history. This was one of the lots that remained after an enforcement action with the APA in ’73, that were given building rights, subject, as the Staff notes indicated, to engineered septic systems. The applicant did go to the APA and get that approved. The wetlands were flagged in the initial pre-hearing conference with Staff. Craig had asked for verification from the APA that those, the wetlands shown on the map were flagged by the APA, and I did submit that after the application. I think that hopefully got forwarded to you. MR. ABBATE-Would you repeat that statement, please. What document were you referring to? MR. FULLER-Three weeks ago, I submitted a follow-up map with the verification from the APA, and with that, we’ll take questions. MR. ABBATE-Okay. Well, do, any of the Board members have any questions or comments concerning Area Variance 54-2005? MR. STONE-Well, I was only going to comment, if it wasn’t for my wife’s good eyes, yesterday when I looked at it, I never would have seen the pink sign hidden under the trees, trying to drive by, but it was there. It was helpful. MR. ABBATE-Okay. All right. Anybody else have any comments? MR. STONE-Staff made a comment about moving the house. Would you at least reply to that. MR. FULLER-Sure. The location of the house was really, the choice of that location was done to kind of meet the appearance of what’s there. This is a corner lot, and to not be as close to the road, and I walked it off. It was wet when I was out there a while ago. I had boots on, but maybe a few feet, I don’t know, eight or ten feet back further than some of the houses that are right in that area. So that was kind of the intent of doing that. If the Board thinks that that’s necessary, that’s something that probably could be thought about. MR. ABBATE-Well, I would just ask Counsel, in the event, and this is speculation, that there’s approval for your project, would you object to several conditions, one being that this system, in writing, be designed by a professional engineer, and, two, would you accept a condition that, if we did approve this, that it would be contingent upon prior approval of the APA? MR. FULLER-We have the approval of the APA, and the system was engineered by Tom and then approved by the APA. That’s the letter, and the plans. 44 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Yes, thank you. I wanted you to say it for the record, thank you. MR. FULLER-Yes. MR. ABBATE-Any other comments, please. MR. URRICO-I have a question. The letter I’m looking at from the APA is September 14, 2004? MR. FULLER-Yes. MR. URRICO-And it’s taken that long to get the application together to come here? MR. FULLER-Yes. MR. URRICO-That’s my only question. MR. HUTCHINS-The timeline on that was our initial focus was to develop a wastewater system that the APA would accept and approve, such that we could have a buildable lot. When that was accomplished, then Mr. Gabrielsen engaged in developing house plans, and there was a period of time taken in preparing the house plans, before we came back to the Town with the application. So that’s really where the timeframe was. MR. URRICO-And what they looked at was what you’re presenting tonight, the position of the? Because they mentioned something about the. MR. HUTCHINS-Position of the wastewater system, what they saw was actually revision two of the drawings that you have, and the difference there was the house was shown in more generic form than what’s here, and as you’ll note in revision three, I added the architect’s layout of the house to the site plan, the wastewater system as submitted to them, yes. MR. URRICO-Because they mention the revised plan maximizes the separation distance to the wetlands. MR. HUTCHINS-Yes. MR. URRICO-I just want to know if that’s changed from the point that this letter was. MR. HUTCHINS-No. When he’s referring to the revised plan, he’s referring to revision one. You’ll note revision one was moved absorption field per APA comments. Initially we had proposed a little different location. Believe it or not, the nicest soils and the greatest separation to groundwater table are about where the house is, and you’ll see the first set of test pits. We had a proposed system there, and then in discussions with them, we decided to move here. MR. URRICO-Okay. Any other comments, please. MR. STONE-What’s this, out of curiosity, this limited right of way, at the southern end of the property? MR. HUTCHINS-There is a limited right of way, there’s a right of way there within the original subdivision. MR. STONE-This goes back? MR. HUTCHINS-It goes back from the subdivision. 45 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-It’s classified as an ROW, correct, with no stipulations? MR. HUTCHINS-That’s right. MR. STONE-Yes, okay. MR. ABBATE-All right. No other comments or questions? Then I’m going to open a public hearing, for Area Variance No. 54-2005, and the Board invites public comments on this appeal. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening, and those wishing to be heard for Area Variance No. 54-2005, I ask they come forward to the table, and I remind you that your statement will be limited to five minutes. Ms. G. will monitor the time, please. PUBLIC HEARING OPENED RICHARD SAGE MR. SAGE-My name is Richard Sage. I own the three lots directly to the south of that. We have no objections to that property being developed. It’s always been planned that it be that way. I do think the people who build there need to recognize that it is a wetlands, not only in the APA’s definition, but occasionally otherwise, but it’s probably buildable. I hope they have a boat in their cellar, though. That’s all. We have no objections to it. It’s always been part of the plan for Ridge Knolls, and I would be remiss to object. MR. ABBATE-Thank you for your comments, sir. Do we have any other folks in the public who’d like to be heard on Area Variance No. 54-2005? It appears not. Gentlemen, would you please come to the table again. MR. STONE-I have a question. I just wondered if the engineer can explain this system, the septic system to me. You’ve got a receiving tank, and then you’re flowing over to a dosing tank. MR. HUTCHINS-A pump station, yes. It’s a pump station, and it’s dosing a shallow absorption field. MR. STONE-And the field is therefore up the hill? MR. HUTCHINS-It’s above existing grade in two feet of fill, yes. MR. STONE-Okay. MR. ABBATE-Mr. Secretary, do we have any correspondence in regards to Area Variance No. 54-2005? MR. UNDERWOOD-I have one letter. MR. ABBATE-Please read it into the record. MR. UNDERWOOD-“Dear Mr. Abbate: I have reviewed the application for the variance request for the above referenced project. I am not able to attend the meeting due to a conflict, but would like to offer the following comments for the record. 1. A 75 foot setback should remain along the wetlands to prevent impacts to the natural resources which would be consistent with the recommended buffers that have been developed through the studies by the United States Department of Agriculture Forest Service and Soil Conservation Service. It is documented that a diverse an intact forest buffer is an 46 (Queensbury ZBA Meeting 7/20/05) important requisite for maintaining the structure and function of the wetlands ecosystem in a natural or a quasi-natural state. Construction adjacent to wetlands and the removal of riparian buffers reduces water quality through the removal of sediment filter areas; impacting and compacting the soil structure important for nutrient removal through infiltration and biogeochemical processing as well as creating downstream impacts to water courses which the wetlands protect. It should be noted the Lake George Park Commission has realized the importance of stream corridor management and limited wetland protection and the lack of any within the Lake George basin. Therefore, they have initiated a comprehensive study to develop an effective stream corridor management program. In addition, the headwaters and small streams provide the greatest interaction and connection between the water and land. The Board should protect the natural resources of the Town and not allow construction in the wetland setbacks. 2. § 179-14-080A provides the criteria for the granting of an area variance. One of the criteria is whether the benefit sought by the applicant can be achieved by some other method feasible to the applicant. It appears the applicant can construct a single-family home that could meet the setback requirements and therefore, an area variance would not be required. I look forward to working with the Town of Queensbury Zoning Board of Appeals to protect Lake George and its basin. Thank you for your consideration of this comment. Sincerely, Christopher Navitsky, PE Lake George Waterkeeper” MR. ABBATE-Thank you, Mr. Secretary. Any other correspondence? MR. UNDERWOOD-Just a letter from the APA. MR. ABBATE-We have a letter from the APA. MR. UNDERWOOD-Just their approval. MR. ABBATE-That’s their approval. Okay. MR. URRICO-I have one other question of Staff. It says the APA approval for seven lots, included the condition among others. Do you know what some of the other conditions were? MR. FULLER-I think I gave you that. MR. URRICO-Was that in here? I’m sorry. MRS. BARDEN-Yes. They are. They’re in your, the submission from Mr. Fuller. MR. URRICO-I’m sorry. I must have missed those. MR. UNDERWOOD-The one that applies to this lot, you know, addresses the on-site wastewater treatment, and that was approved. MR. URRICO-Okay. That was my question. MR. FULLER-It limited construction to single family dwellings on the approved lots. MR. URRICO-Okay. MR. FULLER-And some of them, this not being one of them, but some of the lots needed intensity variances. I’m just looking at them right here. MR. URRICO-Okay. 47 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Okay. I’m going to ask ZBA members to offer their comments on Area Variance No. 54-2005, and again, I would respectfully remind the members that precedence mandates that we concern ourselves with the evidence which appears on the record to support our conclusions, and the evidence relied upon should be specifically stated, and this is necessary for a judicial review. MRS. BARDEN-Mr. Chairman, may I ask a question of Mr. Hutchins. MR. HUTCHINS-Sure. MRS. BARDEN-I tried to contact Sean LaLonde at the APA who approved this system, to find out if the APA puts this system on any kind of maintenance agreement, what happens after this system goes in the ground. Is anybody going to be monitoring it, making sure that it’s being maintained properly, but he didn’t call me back. MR. ABBATE-Yes. That’s a very valid comment, Staff, and I appreciate that, and I think it would probably be noteworthy for you to probably give us a little explanation. MR. HUTCHINS-This system is a conventional system as defined by New York State DOH criteria. It is as complicated as conventional systems get under their definition. If we needed anymore fill, it would be termed an alternative system. However, as far as ongoing maintenance requirements beyond meeting the standards of one day storage volume in the pump tank, and recommended periodic maintenance, there are no special maintenance requirements with this system. MR. ABBATE-Thank you, Mr. Engineer. Thank you, Staff. I’m going to ask, again, members to offer their comments on this application, and may I please start with Mr. Stone, please. MR. STONE-Thank you. This is obviously the second one we’ve looked at with wetlands tonight. The other one was, as I stated, a very small corner of a deck or a porch. This is a little more substantial. Obviously, the septic system, which is the crucial thing in terms of water getting, or wastewater effluent getting into the wetlands, this is far removed from that, or is removed from that. I guess I’m disturbed, a little bit, by something that Counsel said, that he went out to look at the property and it was wet. I just don’t know. It obviously is a buildable lot. Obviously we have an approved system, but we’re really getting close to the wetlands, much closer because of the amount of house, and the number of points where it’s very close, or closer to the wetland than is allowed. I mean, over the years that I’ve been on the Board, we have given minimal relief in a few wetland situations, but here the whole house is sort of sitting inside a wetlands cocoon, and I’ve got some reservations. I’m really going to have to listen to some of the Board members. I don’t really like to do that, but I think that there’s, I think we need a lot of thinking on this thing and what really is the impact of a house 30 feet closer to the wetlands than Town Code allows. So I will hold my final vote in abeyance, Mr. Chairman. MR. ABBATE-Thank you, Mr. Stone. Mr. McNulty, please. MR. MC NULTY-Okay. I think this is a, well, two comments. One, it’s a golden opportunity to do things right. Nothing’s happened on this lot yet. There’s been clear warning for anybody that was interested in buying it or developing it or whatever, right along, that it was going to be a difficult lot. APA accomplished that. They put some conditions on it and flagged it as a problem location. I’ll agree with everything that was said in the letter that the Secretary read. I think there are good and sufficient reasons to provide a separation from a wetland, keep human activity back as far as possible, and I’m also left with the conclusion, if we aren’t going to provide this kind of protection that the Code calls for on a totally undeveloped lot, nothing started on, there’s no real hardship there, there’s room for compliant construction, then why have the Code to 48 (Queensbury ZBA Meeting 7/20/05) begin with? I see no reason to grant any variance for intrusion into the wetland setback in this particular case. Yes, it’s going to be a little bit of a problem of siting the house so it looks right. Alternatives, find a different buyer and build a smaller house, but I just can’t bring myself to allow a variance in this case. It’s a brand new situation. If you can’t build it compliant, then don’t build on the lot. I’m going to be opposed. MR. ABBATE-Thank you, Mr. McNulty. Mr. Underwood, please. MR. UNDERWOOD-I think, as suggested by the two previous Board members, we should be concerned about what we do with the wetlands, and I think in the instance of this community, in recent history, we’ve allowed a lot of building on areas that were inappropriate. This site is known to be wet, in the old subdivision record, the APA clearly had concerns about that, but the only benefit to the applicant in this instance would be that they would get to develop one more lot within this subdivision. The APA has scrutinized this to a great degree, in approving this system as designed professionally. I think the big concern would be, as one of the neighbors suggested, it’s a very wet area. Is the cellar going to maintain itself? Is there going to be a lot of infill. I don’t know, I haven’t seen anything about whether fill’s going to be used on this lot to raise it up or anything like that, or are you just going to build on site as is, but again, I don’t know, in a community like ours, if we’re in a position where we have to start looking at all these marginal properties and whether they’re appropriate for building, and even though they’re pre-approved, this one goes back to old history, back to the 60’s even. So I’m going to wait to make my decision and listen to what everyone else has to say. MR. ABBATE-Thank you, Mr. Underwood. Mr. Urrico, please. MR. URRICO-Yes. I think there is a lot to be said about what can be done with this property, and we’re in a position to make sure it’s done right, as my previous Board members have suggested. In taking it down the criteria, it becomes very obvious that the application needs to be changed. I think the benefit that can be achieved by other means feasible to the applicant is apparently available, but so far has not been taken. Whether there’s an undesirable change in the character of the neighborhood, we don’t know that. Right now it doesn’t look like it’s going to be an undesirable change, since it’s been sort of planned for as a developable lot. so I don’t know if that has a factor in this, but the request is substantial, 35 feet of relief where 75 feet is required is there for a reason. Seventy-five feet’s there for a reason, and allowing it to encroach that dramatically I think not only serves to have a negative impact on that particular lot, but perhaps on other requests that may come in. Even though, again, we talk about not setting precedent, I think once you do allow it, then it does change the character of the neighborhood. As far as adverse physical or environmental effects, I guess we don’t really know whether it will or not. Considering the condition of the property, in terms of where it’s located near the wetlands, it could have a detrimental environmental effect, and I think the difficulty is self-created. So I’m not going to wait. I would be against it as it is, as presented. MR. ABBATE-Thank you, Mr. Urrico. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I agree with Mr. Urrico. Thirty-five feet of setback relief is a lot, when seventy-five feet is required, and as Staff had commented, it might be possible to move the house, to be more compliant, and so at this point, with this plan, I would be against it. MR. ABBATE-Thank you, Mrs. Hunt. Mr. Rigby, please. MR. RIGBY-I agree with Mr. Urrico also. I think what I would like to see is I’d like to see the amount of relief minimized. We’re asking for a lot of relief, 35 feet of relief. I think that’s too much. I think there’s some alternatives. The alternatives being possibly 49 (Queensbury ZBA Meeting 7/20/05) building a smaller house, moving the house, as we talked a little bit about also. So the way that it’s proposed right now, even though some significant things have been done, the APA approval and the septic system up to Code, I’d be opposed to it as well. MR. ABBATE-Okay. May I please go back to Mr. Stone. MR. STONE-Yes, you may, and I’m very pleased to have heard the comments by my fellow Board members. A lot of good thinking went into their comments. I was particularly swayed by Mr. McNulty, who said we have an opportunity to do it right. Why not. Let’s do it right. I would like to see some new thinking, some more thinking on the part of the applicant, in terms of how best to use this house. I think you’re asking for too much relief from the wetlands. Wetlands are very important, and I think we do have an opportunity, as Chuck said, to do it right, and therefore I will cast my vote to the no side. MR. ABBATE-Thank you. Mr. Underwood, please. MR. UNDERWOOD-I, too, will go along with the majority in casting a no vote here. Just to follow up as to why that is. If you go back to the original Findings of Fact by the Adirondack Park Agency, and this dates back to 1973 to 1979, the 16 plus acres of land owned by the project sponsor prior to the unauthorized subdivision, and this was the subdivision that was done prior to anyone having known about it, it was discovered by the APA at that time, and there were specific references to lot, the lot that we’re addressing here. It says the seasonally high groundwater table is located at or near the ground surface in the northwesterly corner of Lot Number 37, and this fine sandy loam and silty clay soils have a slow percolation rate, and it also goes on to say, on the next page, the project would not be consistent with the overall intensity guidelines for the land use area in which it is located, and it also resolves, in the next paragraph also that the project may have an undo adverse impact pursuant to Section 809.10E of the Adirondack Park Agency Act. This was approved back in the 70’s, and certainly the scrutiny has grown through the years, and even though this system has been approved by the APA, I think that we have to maintain a semblance of security for these wetland areas. So I will vote no. MR. ABBATE-Thank you, Mr. Underwood. The spirit and the intent of ordinances and laws raise some interesting comments, and reflect directly upon the positions of the majority of the Board members, in particular, I take a look at the spirit and the intent on Staff comments. It says that APA approval, P81-235, for seven lots, included the condition, among others, any single family dwelling constructed on Lot 37 and 39 shall require the use of an on-site sewage disposal system, consisting of raised fill system, and they go on and go on and go on, and one has to consider, what exactly are they talking about? We don’t have too many APA approvals stating these stringent requirements for here, as we have in this application this evening. I, too, will agree with the majority of the members. I think if we take into consideration the spirit and the intent of the law, I think the Staff comments about the APA comes charging at us, if you will. I also believe, and I believe one other member said this, that there may possibly be some feasible alternatives. Now, gentlemen, it’s obvious that if I were to call for a motion, it would be disapproved. So I’m going to give you an option to table this, or you can withdraw it. It’s up to you. MR. FULLER-Could I ask for just a comment from the Board? MR. ABBATE-You may ask, if you wish. MR. FULLER-Tom’s looking at the plans here. If we, see, drawing out 75 feet from that wetland that’s marked on there, the envelope’s not there. We are going to be back looking for a variance, if I draw 75 feet around that, we’re going to have to ask for a variance. So if the recommendation of the Board is there’s not going to be an Area 50 (Queensbury ZBA Meeting 7/20/05) Variance, that’s different than come back with a more reasonable plan. That was just one question. The other question is, if we move it southeast, looking where the north arrow is right next to the plan, come southeast closer to the road, 25 feet. MR. HUTCHINS-We can get 47 feet of setback on both of the two sides, and 55 feet on the rear. MR. ABBATE-So you are suggesting this as a feasible alternative? MR. HUTCHINS-I just saw the Staff comments tonight, and in looking at that, I was sitting back there, and I sketched out another location for this house, and I can’t, where I’m showing 40.4 feet, by shifting the house toward the road as suggested in the Staff notes, I can get 47 feet and 47 feet on either side of the house, and 55 feet, probably a little more than 55 feet, closer to 60 feet behind the house. I’m talking 28 feet of relief, in lieu of 35. MR. ABBATE-Twenty-eight feet of relief versus thirty-five. Am I correct? MR. HUTCHINS-Yes. You can see the wetland lines there. You don’t gain an awful lot by going closer to the road, but there is a little bit to be gained, and I can comfortably say I can get 47 feet on each side, and this is, of course, based on some sketching. MR. ABBATE-Okay. If you’re going to suggest that as a feasible alternative, I’ll submit that to the Board and see if their position will change. MRS. BARDEN-Mr. Chairman, did you see in the Staff notes that the front setback is actually 30 feet, not 50. I don’t know if that helps. MR. HUTCHINS-That brings it back to the 1967 setback. MRS. BARDEN-Yes. So actually your sides are, you have more to work with on the sides. Old zoning’s going to help you out. MR. HUTCHINS-Actually, no, because the wetland limit to the front kind of curves. MR. FULLER-That’s not right. MR. HUTCHINS-That’s not as flagged. MRS. BARDEN-No. MR. HUTCHINS-Okay. As flagged, the wetland comes out nearly to this culvert, and as I go forward, I approach it, I have to go, constrained there on both sides. MRS. BARDEN-Just wanted you to know. MR. STONE-Where does the flagging go to the northeast? It sorts of stops. MR. HUTCHINS-Those are the flags they’ve set. MR. STONE-So what’s up in the northeast corner, out of curiosity? MR. HUTCHINS-Up here? MR. STONE-Yes. I mean, there’s a flag, and then there’s nothing to the property line. MR. FULLER-I see what you’re saying. Is the thought to flip flop the house and the septic? 51 (Queensbury ZBA Meeting 7/20/05) MR. STONE-I mean, one of the things I’m going to say is that I can’t do it without looking at it, over a month to look at it. I mean, I, personally, would hate to make a decision when you give me 47 versus 35. I’d like to see where it is. MR. HUTCHINS-I understand that. MR. STONE-And I’d like to see minimal stuff on the plan, so I know exactly where it is. MR. ABBATE-Let me make this recommendation. You can accept it or reject it. Perhaps tabling this, with a revised feasible alternative, might be in your best interest, and that way there it would give Board members something tangible, if you will, to go over again, rather than to do this almost theoretical and philosophical this evening. MR. STONE-I would be more comfortable with that, Mr. Chairman. MR. FULLER-Can I have a couple of minute recess? MR. ABBATE-You want a couple of minute recess? You know what, that’s an excellent idea, and I’m going to request that this Board recess for about five minutes. We’ll come back to order now, if you will, and things have settled down. MR. URRICO-Is the public hearing still open? MR. ABBATE-No, I closed it earlier. MS. GAGLIARDI-You didn’t close it. MR. ABBATE-I’m sorry about that, guys. I didn’t close the public hearing yet. Why don’t we do this, then, since you’re coming back to us again, why don’t we listen to what you have to say, and then I’ll see if there are any comments from the public, and then I’ll close the public hearing. It will be fair to the public. MR. FULLER-We talked about it, and certainly considering moving the house is certainly on the table, to try to fit in, but I guess in fairness, and I think it is a reasonable request, is the sound, at least on this side of the table, that we’re getting, is there’s not going to be a variance granted on this lot. That’s the impression we got. If that is kind of the poll of the Board, not binding, but if that’s the poll of the Board, then we don’t table it. We just either get denied or withdraw it, because there’s no sense in coming back if no variance is going to be considered. MR. ABBATE-I don’t have a problem with what you’re saying. I could call for a motion, or you could just withdraw your application. MR. STONE-He wanted to poll us. MR. ABBATE-You wanted a poll? MR. FULLER-Just a conversation of whether something would be considered. MR. ABBATE-Okay. Any comments from the public based on the recent statements? If not, then I’m going to close the public hearing. PUBLIC HEARING CLOSED MR. ABBATE-And then I’m going to move for a motion. MR. FULLER-No motion. 52 (Queensbury ZBA Meeting 7/20/05) MR. URRICO-He wants to poll. MR. FULLER-Just a discussion of comments. Tom brought up he could get the 47, 47 on the sides, pulling things forward. MR. ABBATE-Forty-seven, forty-seven, and fifty-five, you said. Correct? MR. FULLER-Is that a reasonable request, or is it still far too unreasonable? MR. ABBATE-Okay. I’ll do it. Mr. McNulty, what is your position on the feasible alternative that was suggested by Counsel, that is 44 feet, 44 feet, and 55? MR. FULLER-Forty-seven. MR. RIGBY-Can I ask a question, first? There’s also other alternatives, too, in moving the house, maybe a slightly smaller house, to also give the opportunity to reduce the variance as well. MR. FULLER-That’s a good point, and I asked Tom, when he was sitting here, how big is the house, what are we dealing with here? MR. RIGBY-And does it have to be located where you’re proposing, as opposed to maybe. MR. ABBATE-Yes, and if you’ll recall a couple of members, including myself, indicated that perhaps there are feasible alternatives, and I think somebody mentioned a smaller property, something like that. MR. FULLER-The house, as designed, with everything, is 2300 square feet. So it’s certainly not the mansion 3,000 square feet of some other developments. I think it’s a reasonable size, but that’s what the square footage is. MR. ABBATE-Let me do the poll on the 44, 44, and 55. Mr. McNulty, would you change your position? Please. MR. FULLER-Forty-seven. It was 47. MR. ABBATE-Forty-seven, I’m sorry. Forty-seven, forty-seven, and fifty-five. Mr. McNulty, would you change your position on that? MR. MC NULTY-I’m probably still going to be negative. I would consider alternatives, but probably nothing more than maybe 10 feet into the wetland setback, or whatever. So I’m probably going to be your worst negative. MR. ABBATE-All right. Thank you, Mr. McNulty. Mr. Stone? MR. STONE-I’d consider something. I’m looking at the numbers, and we look at wetlands here, and most of our land it’s 100 feet. It’s 75 feet in RR-5. Looking at the numbers in the book, we range from 50 to 75, 100. Why we say 50 for the lake, which is the biggest wetlands around, is kind of strange. I appreciate it because I’m on the lake. I think I would like to, I would consider something, because I’d like to think about why we have this somewhat variation in wetland setback numbers, and I certainly need to do a little research into that, and I would do it if, I mean, you’re talking 47 is pretty close to 50, and in some places it used to be 50. I think we’ve increased it, but, anyway, that’s where I would be. MR. ABBATE-Thank you, Mr. Stone. Mr. Rigby? 53 (Queensbury ZBA Meeting 7/20/05) MR. RIGBY-Twenty-eight feet is a lot better than thirty-five, no question about that. I guess what I was asking before is can we squeeze out a little bit more by maybe shifting the house on the lot a little bit or moving things a little bit more. I’d be much more likely to say, yes, I would approve it 100%, if we could squeeze a little bit more out of it, and I’m not sure whether that’s a possibility or not. So whether I would fall on the positive or negative side, I’m really not sure. I really can’t give you an answer. I don’t know. MR. ABBATE-Okay. All right. Mrs. Hunt, please. MRS. HUNT-Yes. I would really have to see the plan before I could make a decision. I certainly would want it to be as compliant as possible, but maybe a smaller structure would be advisable. So I can’t really say either until I see something concrete. MR. ABBATE-Okay. Mr. Urrico, please. MR. URRICO-I’m kind of reluctant to offer a conclusive opinion on something that might be, is still conceptual, but I would say I would be looking for a substantial change, not a minimal change. MR. ABBATE-Okay. Mr. Underwood, please. MR. UNDERWOOD-I would agree with Roy. I think that we’re looking at a smaller dwelling on this property that’s more appropriate, given the setbacks. MR. ABBATE-Okay. Shall I go back to Mr. Urrico, or was that still up in the air? Was yours definitely yes, would you consider something? MR. URRICO-I gave my position, I think. MR. ABBATE-Okay. I would consider the feasible alternatives offered by Counsel, with a smaller type residence. However, having said that, before I would commit myself to anything, I would like to see this in writing. I would like to see new diagrams. That way there it’s not conceptual. It’s not theoretical. It’s not hypothetical, but I would guess, based upon this little count this evening, that there is, or may be, a possibility that if you were to. MR. FULLER-It’s not binding. It’s just, is it worth it. MR. ABBATE-If you were to table your thing and bring it back to us, based upon what you have just heard, and by the way, you can request copies of these minutes, there is a possibility, plus or minus, or yes or no, which will come about. MR. FULLER-You’re not being bound to anything. I won’t be challenging a vote. It was just more of a feeling, a reasonable idea. MR. STONE-You’ve got to make that determination. MR. ABBATE-Yes, you have to make that determination. We can’t. MR. FULLER-I know. MR. ABBATE-So, I could do a motion to table, if you wish. MR. FULLER-Frank Gabrielsen, the brother of the owner, the builder. MR. ABBATE-Okay. 54 (Queensbury ZBA Meeting 7/20/05) FRANK GABRIELSEN MR. GABRIELSEN-Okay. My name is Frank Gabrielsen. I’m Olaf John Gabrielsen’s brother. MR. ABBATE-Okay. MR. GABRIELSEN-Okay. We’ve basically gone back and forth on this property, up and down, now. Of course basically submitting plans and thinking everything was going okie dokey because the APA approved everything, and now at the submitting of the plans, the septic system being approved by the Town of Queensbury, or accepting that, but not accepting, or not granting the relief because we had to go for a variance, and so all the time and energy that we’ve put into the project, and I don’t mean to press anybody on the Board, I understand. We purposely decided what we thought was a comparable, a smaller sized house, because of the situation when we found out about it. We were unknown to it, okay. We did not know about the APA and all the other restrictions and so forth, but based on what we had heard, basically, straight from the APA and what they were looking for, we tried to go for a small type house, which we thought would be a three bedroom house, which wouldn’t impact the area as much. We’re not looking to build something tremendous on something and destroy something else that other people respect, so far as the shoreline, what you call the shoreline or the wetland, whatever, but given the fact that we’ve put some time, money, and energy into this, I’m willing to, you know, accept any kind of like suggestions, but as we’re talking here, you know, I know that you have some definite objections to certain things, but we’re trying to make use out of this property, and not hurt anybody. What we’re trying to do is, if we can make something accessible, I’m willing to go the extra yard, two yards, even five miles, to appease or to, you know, do the right thing, so to say, but I don’t want to row the boat up stream and find out that, you know, we’ve got a hole in the boat and we’re going to drown anyway. So, I know that you can’t give me anything like that, but can you give me a suggestion as to which direction to go, other than what you’ve just said? MR. ABBATE-No. MR. GABRIELSEN-Okay. MR. STONE-I don’t think so. MR. GABRIELSEN-Hey, listen, it was a good speech, I thought. MR. URRICO-I don’t think we shut the door on you. I think there’s an opening here. We left you some openings, but we didn’t say that you’re never going to get a variance. I don’t think anybody here said that. MR. GABRIELSEN-The variances that you’re looking at, so I understand it, because I’ve been a carpenter since I was a kid. The variance that you’re looking at, and you might not answer this either, but are you more able to give me a variance towards the road and the other setbacks than to the wetland setbacks? MRS. HUNT-Yes. MR. STONE-I can say that. MR. GABRIELSEN-Okay, and I’m sorry for the sign there. I didn’t know the sign was that. MR. STONE-No. I couldn’t find the place in the first place, because 9 is at one end. 55 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Let me say this. I think Mr. Urrico said it right. The door’s open. The burden of responsibility falls on your shoulders, not this Board. MR. GABRIELSEN-No, okay. MR. ABBATE-So I can go for a motion, or I can table it. It’s up to you. MR. GABRIELSEN-Okay. MR. ABBATE-All right. MOTION TO TABLE AREA VARIANCE NO. 54-2005 OLAF JOHN GABRIELSEN, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce Hunt: Lot 37 Hunter Lane, Ridge Knolls Section 2. Tabled for 60 days. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Stone, Mr. McNulty, Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. Abbate NOES: NONE MR. ABBATE-The vote for tabling Area Variance No. 54-2005 is seven in favor, zero against, and Area Variance No. 54-2005 is tabled for 60 days. MR. FULLER-Can I ask a question. If we can get these plans revised, can we get on for August? MR. ABBATE-That’s not up to us. You’d have to talk to Staff. We don’t make those decisions. MR. URRICO-When’s your deadline for that? MRS. BARDEN-The fifteenth. August Fifteenth. MR. STONE-It was. MR. GABRIELSEN-Can I ask a question? We come back, it’s approved, how long do I have, now, whatever you decide at that point, if you do approve anything at that point, how long do I have to take a building permit out? MR. ABBATE-That’s a good question. You’d have to take that up with Staff. MRS. BARDEN-Forever. Your variance is good forever. MR. GABRIELSEN-It’s good forever. Okay. MR. ABBATE-It’s not 30 or 60 days or anything like that. MR. GABRIELSEN-No, no, because I’m thinking of weather, coming into the wintertime, that’s all. Okay. Thank you. MR. ABBATE-You’ll be safe. You’re very welcome. AREA VARIANCE NO. 55-2005 SEQRA TYPE II SCOTT SCHWARTZ OWNER(S): SCOTT SCHWARTZ ZONING YR. 1982 ZONING: SR-20 CURRENT ZONING: SR-20 LOCATION: 31 ALGONQUIN DRIVE, LAND O’ PINES, SECTION 5 56 (Queensbury ZBA Meeting 7/20/05) (FORMERLY CALLED TYNESWOOD) APPLICANT PROPOSES CONSTRUCTION OF A 20 FT. BY 40 FT. IN-GROUND POOL. RELIEF REQUESTED FROM REAR SETBACK REQUIREMENTS. CROSS REF. BP 94-511 WARREN COUNTY PLANNING N/A LOT SIZE: 0.62 ACRES TAX MAP NO. 301.13-2-43 SECTION 179-5-020 C2 SCOTT SCHWARTZ, PRESENT MR. STONE-Mr. Chairman, as you start to consider Area Variance No. 55-2005, I must state for the record that, while I think I can be objective, Mr. Schwartz and I serve on a committee together and we have had many discussions, and I don’t want anybody to think that I have favored him or not favored him, because of the discussions we may have had, and it is an, I don’t want to call it antagonistic, but it is two sides of an interesting issue. So I will recuse myself. MR. ABBATE-Thank you, Mr. Stone. That is the honorable thing to do. I appreciate that. MRS. HUNT-For the record, I would also like to say I have met the Schwartz’s socially on several occasions, but I don’t think that will affect my making a fair and impartial decision. MR. ABBATE-Thank you, Mrs. Hunt. I appreciate that. STAFF INPUT Notes from Staff, Area Variance No. 55-2005, Scott Schwartz, Meeting Date: July 20, 2005 “Project Location: 31 Algonquin Drive, Land O’ Pines, Section 5 (Formerly called Tyneswood) Description of Proposed Project: The applicant proposes placement of an 800 sq. ft. in-ground pool in the rear yard of the residence. Relief Required: The applicant requests relief to allow the pool to be 10-feet from the rear property line, where 20-feet is required, per §179-5-020 C2. Parcel History (construction/site plan/variance, etc.): BP 94-511 issued 9/26/94, for a single-family residence. Staff comments: The plan shows a fenced in backyard, that the applicant indicates is 6-feet high. A feasible alternative might be to rotate the pool 90° to the right (East), which would meet both rear and (West) side setbacks.” MR. ABBATE-Okay. Would the petitioner, I believe he’s already at the table, please speak into the microphone and for the record identify yourself, your place of residence, and/or your relationship with this appeal, please. MR. SCHWARTZ-My name is Scott Schwartz. I live at 31 Algonquin Drive, Queensbury, and I’m the owner of the property. Before I get started, I did have one letter that I had signed from my neighbor that is closest to the rear. Could I hand it out to you? MR. ABBATE-Would you like to enter that into the record? MR. SCHWARTZ-Yes, I would. 57 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-By all means. Would you present it to the Secretary, and he will enter it into the record for you. Thank you, sir. Are you prepared to proceed, Mr. Schwartz? MR. SCHWARTZ-Yes, I am. MR. ABBATE-Would you do so, please, proceed. Tell us why you feel we should approve your appeal. MR. SCHWARTZ-Okay. The shape will be a triangle, where I would be looking for the variance. The reason that it would not go at a 90 degree angle from where it is, comfortably, is because over the area marked garage, the peak of the roof is going to push the snow and water runoff towards the back yard, and the pool, owner of Sprague’s Pool, said that he would not advise that because it would have other potential problems. The other thing is, this map that I’ve provided everybody, it shows the septic system. The lines going across the top would be the leach field. That is the proposed, and that’s the best drawing that I have. This is what we filed with the Town, and there’s always that chance that those are not in exactly the same spot as drawn on the map. So there is that potential that the lowest line could be closer or farther away, but if it’s closer, the pool turned in the other direction would be running into that line, and I don’t know of any feasible way to determine if that’s exactly accurate or if it’s, you know, approximately accurate. We did talk to the property owners that are directly at that 10 foot mark where the pool would be the closest, that is Blake and Linda White, and they did provide me with a letter, stating that they had no problems and said that they have a pool in their back yard. They have no problem with me putting a pool in my back yard. What else should I cover? MR. ABBATE-If you feel comfortable with that, Mr. Schwartz, we will continue. You certainly can ask questions later if you wish. MR. SCHWARTZ-Okay. MR. ABBATE-Do any of the Board members have any questions concerning Area Variance No. 55-2005? I don’t hear anything. Next, then, I’ll go to the public hearing, and to meet the obligation of the Public Officer’s Law, I will open the public hearing for Area Variance No. 55-2005, and the Board invites public comments on the appeal. In the interest of time, please be crisp, organized, and limit your comments to only the facts and information given this evening, and would those wishing to be heard please come up to the table, speak into the microphone, and for the record, identify yourself. Your statement will be limited to five minutes, and, Ms. G., please monitor the time. PUBLIC HEARING OPENED MR. ABBATE-I’m now going to move to ask ZBA members to offer their comments on Area Variance No. 55-2005, and since Mr. Urrico has a lot of energy this evening, would you please be our first speaker. MR. UNDERWOOD-We had the recently submitted letter to us. “To Whom It May Concern: Scott Schwartz told me of his plan to install an in-ground pool in his back yard and that he is hoping to place the pool 10 feet from our adjoining property line. I have no objection to his plan. Blake and Linda White” MR. ABBATE-Thank you, Mr. Secretary. Mr. Urrico, please. MR. URRICO-Given the summer we’ve had, it’s kind of hard to object to somebody putting a pool in, but I will say this, that there are some lots that don’t always present themselves to installing a pool, and part of the problem we have sometimes is in the smaller lots, pools do go into neighborhoods and that becomes the standard for the 58 (Queensbury ZBA Meeting 7/20/05) neighborhood. So there’s no change in the character of the neighborhood because everybody else has a pool right now. So that’s one objection I don’t have, and I don’t think I have an objection to anything about this application, other than we’re in a position where we more or less have to approve it because we’ve allowed it already in the neighborhood, and I think, for future consumption, we should think about that, but I have no objection to this application. MR. ABBATE-Thank you, Mr. Urrico. Mr. Underwood, please. MR. UNDERWOOD-I would have to agree with Roy. I think that given the fact that the nearest neighbors affected have no problems with it, I don’t either. We’ve given plenty of pool variances and we’ll continue to give them. MR. ABBATE-Okay. Thank you. Mr. McNulty, please. MR. MC NULTY-Well, normally I would have a problem with 50% relief. Admittedly it’s just a corner, but I think, given the layout of this lot, the way the pool’s going to set, the fact that the applicant’s already got a six foot fence in the back, I can’t see that it’s going to really have much of an effect on the neighborhood or impede the neighbors on the back side of the lot. So, in this case, I’d be inclined to approve. MR. ABBATE-Thank you, Mr. McNulty. Mrs. Hunt, please. MRS. HUNT-Thank you. Yes, I have to agree with my other Board members. I don’t think the benefit could be achieved by any other means feasible to the applicant, by maybe moving the pool, I don’t think that’s feasible. I don’t think there would be an undesirable change in the neighborhood character or to nearby properties. While the request is substantial, 50%, it’s really only 50% for part of the pool. So it’s really less than that. I don’t think the request will have adverse physical or environmental effects, and the only way you could say it was self-created, is because of the Schwartz’s desire to have a pool, which is understandable in this summer. So I would be in favor. MR. ABBATE-Thank you, Mrs. Hunt. I agree with my fellow Board members. I, too, would be in favor of your application, and, do we have anything. MR. RIGBY-You didn’t ask me for my opinion. MR. ABBATE-All right. Go ahead, Leo. I’m sorry. MR. RIGBY-I don’t have any objections to it either. I think the place where you’ve laid it out is the best and most practical spot for the pool, and with no objection from the neighbors, I’d be in favor of it, too. MR. ABBATE-Thank you, Mr. Rigby, and I do apologize. Mr. Secretary, do we have anything else? MR. UNDERWOOD-Do we need to do the Short Environmental Form? Do we need to go through that? MRS. BARDEN-It’s a SEQRA Type II. MR. ABBATE-It’s a Type II. MRS. BARDEN-So you don’t have to do it. MR. ABBATE-Okay. I’m going to, at this time, close the public hearing. 59 (Queensbury ZBA Meeting 7/20/05) PUBLIC HEARING CLOSED MR. ABBATE-And I’m going to ask for a motion, and the Board members know that I have respectfully reminded them earlier about the balancing of the five statutory criteria. So I’m going to ask for a motion for Area Variance No 55-2005. MOTION TO APPROVE AREA VARIANCE NO. 55-2005 SCOTT SCHWARTZ, Introduced by Roy Urrico who moved for its adoption, seconded by Charles McNulty: 31 Algonquin Drive, Land O’ Pines, Section 5. The applicant is proposing placement of an 800 square foot in-ground pool in the rear yard of his residence. In doing so, the applicant requests relief to allow the pool to be 10 feet from the rear property line where 20 feet is required per 179-5-020C2. The project applicant, in meeting the criteria for approval, whether the benefit can be achieved by other means feasible to the applicant, and we’ve determined that there are no other feasible means by which this applicant can achieve placing this pool. We don’t see any undesirable change in the neighborhood character or nearby properties. Fifty percent relief is normally considered substantial, but it should be noted that only one corner of the pool will be that close to the property line, and we do have a letter from the neighbors saying they would not object to that placement. The request will not have any adverse physical or environmental effects, and, yes, the alleged difficulty is self-created. I move we approve Area Variance No. 55- 2005. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Rigby, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. McNulty, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 55-2005 is six in favor, zero against. If there’s no challenge to the tally, then Area Variance No. 55-2005 is approved. MR. SCHWARTZ-I thank you and my children thank you. MR. ABBATE-We have a gentlemen waiting. We have correspondence from Mr. Salvador, who has requested an additional 60 day extension, on a tabling of Area Variance No. 3-2005, and the applicant continues to seek confirmation from the New York State Department of Transportation for an access permit to the site. At this time, unless someone objects, I will make a motion. MOTION TO TABLE AREA VARIANCE NO. 3-2005 JOHN SALVADOR, JR., Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: For 60 days. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Rigby, Mr. Underwood, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote for Area Variance No. 3-2005 is six in favor, zero against. Area Variance No. 3-2005 is tabled for another 60 days. 60 (Queensbury ZBA Meeting 7/20/05) MR. ABBATE-Mr. Salvador, please be aware of the fact that the digital clock that Ms. G. has is timed for five minutes. MR. SALVADOR-Yes, I just have one question. John Salvador. With regard to the Hoffman application, what happens if they win their case? They’re in Supreme Court. They have filed a petition in Supreme Court. MR. ABBATE-You mean if the Supreme Court votes against us in favor of those folks? MR. SALVADOR-Yes. MR. ABBATE-What happens? MR. SALVADOR-Yes. MR. ABBATE-Guess what? The Town then has to abide by the decision of the Supreme Court, and they get what they want. MR. SALVADOR-But then why do you entertain this variance this evening? MR. ABBATE-Because there are procedures, there are legal procedures that we have to go through. That’s a good question. If we don’t entertain these kinds of things, and believe me, sometimes it’s irritating for me , but we have to be very cautious, because everything we say is on the record, and particularly in a case that’s currently pending before the Supreme Court, the Court will take every period, every comma, every quotation, every word we say into consideration, and if we’re not careful, one word may very well overturn our decision. MR. SALVADOR-But everything that took place here tonight is not before the Court, in that case. MR. ABBATE-The Hoffman case? MR. SALVADOR-Yes. What you said here tonight is not a part of that case. MR. ABBATE-I’m not sure I follow you. MR. SALVADOR-They’d have to amend their complaint to make it a part of the case. They can only do that with permission of the Court. MR. ABBATE-Hoffman? MR. SALVADOR-Yes. MR. ABBATE-I think I disagree with you. MR. SALVADOR-What took place here tonight is not a part of the Article 78 currently pending before Supreme Court. MR. ABBATE-You’re wrong, and let me explain to you why, because the action that’s pending is contingent upon the decision of the ZBA this evening. So it is, in fact, a part of it. MR. SALVADOR-No, what has happened is, the Court, I think, if I interpret it correctly, the Court has said to the Town and to the applicant, why don’t you get this thing settled yourself. MR. ABBATE-That’s right. That’s correct. 61 (Queensbury ZBA Meeting 7/20/05) MR. SALVADOR-And the Judge pushed it back here. MR. ABBATE-Correct. MR. SALVADOR-You can push it right back to them. MR. ABBATE-That’s true. No, no, you’re absolutely correct. I don’t think you saw anybody on this Board this evening shy. MR. SALVADOR-No, but I’m just saying, this. MR. ABBATE-Mr. Salvador, it’s getting late. MR. SALVADOR-Okay. MR. UNDERWOOD-I have one more point. Chuck gave us this picture tonight of the changes on this site over here, the one that we approved for, and I don’t know if it’s in our jurisdiction to pull our Area Variance or to issue a Stop Work Order, but I think it would be very appropriate to do so at this time, and I don’t think that if it causes controversy I’ll have any qualms about causing that controversy. I think that, you know, given the fact that we were very lenient with the size of this structure and the over height that was demanded by it, the concerns of the neighbors in that nearby subdivision across the road from where this is, they certainly have gone way, way, way far past what they were permitted to do, and I don’t have a problem with putting a Stop Work Order on them until they plant 80 foot trees there, as far as I’m concerned. MR. ABBATE-The point made by the Secretary is accurate, and he’s referring to Area Variance 7-2004, and when one reads the record of the hearing, it was quite evident and quite obvious that there were conditions, and one of the conditions was the fact that we wanted a barrier there, and if I recall correctly, the appellant said, yes, yes, we will also keep the trees up there. These were conditions, Staff, these conditions have been ignored, and based upon the physical evidence, photographic evidence submitted to us this evening, there should be some legal action taken by the Town to address this issue. MRS. BARDEN-They’re obviously in violation. MR. ABBATE-Not obviously. They are, in fact, in violation because conditions are enforceable. MR. UNDERWOOD-And I think that given that most recent meeting when we decided the future of that storage center that was going to be located just adjacent to this project, we would not be in keeping with the letter of what we allowed in this instance, if we allowed this to go on and continue, and I don’t care if it holds up somebody for two years, that’s just too darn bad, you know. MRS. BARDEN-I think the procedure is, I don’t know if you’re looking this up, Roy, but they would be in violation. There would be an enforcement action, and then the Zoning Administrator. MR. ABBATE-Yes, the Zoning Administrator has the authority to do what’s listed. I don’t know, whatever the case, because I read it this evening. Anybody else wish to comment on that? MR. RIGBY-Has any action been taken yet on this at all? MRS. BARDEN-I don’t believe so, but I’d have to ask Bruce Frank, because he’s the one that does the periodic site visits on these sites during construction. So he would have 62 (Queensbury ZBA Meeting 7/20/05) some kind of documentation or some feeling, if there was any problems with the way it was constructed. MR. ABBATE-Okay. Let me put this for the record, then. I’ll say it myself. It is my belief, as Chairman, that, in fact, there has been a violation of conditions, and it is my opinion that there should be legal action to correct this immediately. MRS. BARDEN-Well, I will tell Bruce Frank and Craig Brown that you want an enforcement action to be taken on. MR. ABBATE-Thank you, ma’am, and would you let all the members of the Board, make them aware of what’s going on, please? MRS. BARDEN-Yes. MR. ABBATE-Okay. MR. MC NULTY-I think that’s the appropriate way to take it. There was some question as to whether we could act, and I think legally, technically, we can act in the place of the Code Enforcement Officer, but that wouldn’t be the wise thing to do. MR. ABBATE-No, I think we just stated our concerns. MR. MC NULTY-And even a Stop Work Order may not be called for, because this variance allowed additional height for one of the two domes, but I think what needs to be done right away is to notify the applicant that he’s obviously violated the variance with what they did, and it strikes me that that probably negates his variance for that higher dome and he needs to know that now because it’s going to change his business plans, and, you know, his response is probably going to come back and cry hardship and ask us for a variance in spite of the thing, but that’s his option, but I think he should be told that he no longer has a variance for the 80 foot dome. MR. ABBATE-Well spoken, well taken. So it’s all a matter of record now, and we’re just requesting Staff to bring this to the attention of the appropriate authorities. MRS. BARDEN-I don’t know if you can. MR. URRICO-There is something here, but it applies to the Planning Board. It has to do with a use authorized by special permit can be revoked. MR. ABBATE-Yes, but that’s not us. MRS. BARDEN-Yes. I don’t think you can revoke a variance. MR. UNDERWOOD-Well, we can vote our disdain, and that we would think it appropriate for immediate action to be taken. MRS. BARDEN-You can absolutely do that. MR. ABBATE-Why don’t we do that, then. Let me seek a motion to address this issue. Do I have a motion? MRS. BARDEN-I would say specifically to take enforcement action on, that they’re in violation. MOTION REGARDING AREA VARIANCE NO. 7-2004 DOUG & TERESA MILLER, THAT WE RECOGNIZE THE GROSS VIOLATION AND NOT STAYING TO THE WORD OF WHAT WE SAID IN OUR GRANTING THE VARIANCE FOR THE 63 (Queensbury ZBA Meeting 7/20/05) OVER HEIGHT DOME ON THIS SITE ON SHERMAN AVENUE, AND THE REMOVAL OF THOSE TREES AND THAT BUFFER OF TREES THAT WERE SUPPOSED TO HAVE BEEN LEFT THERE, I DON’T KNOW IF THAT WAS SOMETHING THAT WAS UNDER THE PURVIEW OF THE PLANNING BOARD, BUT IF INDEED THOSE TREES WERE SUPPOSED TO REMAIN THERE, I THINK IT’S APPROPRIATE FOR US TO VOTE AS A BOARD THAT WE WOULD EXPECT AN IMMEDIATE ACTION TO BE TAKEN BY THE TOWN IN REGARDS TO THIS, UP TO AND INCLUDING A STOP WORK ORDER, UNTIL THE PROBLEM IS RECTIFIED. ALSO, WE ALSO STIPULATE THAT THE DEVELOPER WILL MAINTAIN THE BUFFER OF TREES AS SHOWN IN THE PLAN ON ALL FOUR SIDES, Introduced by James Underwood who moved for its adoption, seconded by Joyce Hunt: Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Rigby, Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Urrico, Mr. Abbate NOES: NONE ABSENT: Mr. Bryant MR. ABBATE-The vote is six in favor of the motion. MR. MC NULTY-I think they’re looking for us to approve some minutes, too. MR. ABBATE-Thank you very much. I have it here. We have minutes to be approved, and/or corrected. CORRECTION OF MINUTES April 20, 2005: NONE MOTION TO APPROVE THE MINUTES OF APRIL 20, 2005, Introduced by Charles Abbate who moved for its adoption, seconded by Leo Rigby: Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Rigby, Mrs. Hunt, Mr. Urrico, Mr. Underwood, Mr. Abbate NOES: NONE ABSTAINED: Mr. McNulty May 18, 2005: NONE MOTION TO APPROVE THE MINUTES OF MAY 18, 2005, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Urrico, Mrs. Hunt, Mr. McNulty, Mr. Underwood, Mr. Abbate NOES: NONE ABSTAINED: Mr. Rigby May 23, 2005: Page 30, second section, starts “Mr. McNulty”, bottom of the line, own from the inside of the inside wall, should read own from the inside of the outside wall 64 (Queensbury ZBA Meeting 7/20/05) MOTION TO APPROVE WITH CORRECTION THE MINUTES OF MAY 23, 2005, Introduced by Charles Abbate who moved for its adoption, seconded by Roy Urrico: Correction: Page 30, second section, starts “Mr. McNulty, from the bottom of the line, the minutes said own from the inside of the inside wall, it should read own from the inside of the outside wall. That was referring to townhouses. Duly adopted this 20 day of July, 2005, by the following vote: th AYES: Mr. Urrico, Mr. Underwood, Mr. McNulty, Mrs. Hunt, Mr. Abbate NOES: NONE ABSTAINED: Mr. Rigby MR. ABBATE-That concludes our meeting this evening. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 65