2006-02-15
(Queensbury ZBA Meeting 02/15/06)
QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
FEBRUARY 15, 2006
INDEX
Area Variance No. 9-2006 David Monsour & Peter King 1.
Tax Map No. 295.14-1-36
Area Variance No. 71-2005 Chris Germain & Diane Beatrice 2.
Tax Map No. 279.17-2-7
Area Variance No. 81-2005 Steve & Debbie Seaboyer 3.
Tax Map No. 227.13-2-36
Area Variance No. 10-2006 Scott & Amy Sue Long 20.
Tax Map No. 308.7-1-13
Area Variance No. 6-2006 Richard and Alice Whitmore 24.
Tax Map No. 309.5-1-43
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.
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QUEENSBURY ZONING BOARD OF APPEALS
FIRST REGULAR MEETING
FEBRUARY 15, 2006
7:00 P.M.
MEMBERS PRESENT
CHARLES ABBATE, CHAIRMAN
JAMES UNDERWOOD, SECRETARY
ROY URRICO
JOYCE HUNT
ALLAN BRYANT
CHARLES MC NULTY
LEO RIGBY, ALTERNATE
MEMBERS ABSENT
LEWIS STONE
LAND USE PLANNER-SUSAN BARDEN
STENOGRAPHER-SUE HEMINGWAY
MR. ABBATE-Before we start this evening, Mr. Secretary, I do have a couple of
administrative things. I did, in fact, informally introduce our new alternate, but I would like
to, for the record, recognize Mr. Rick Garrand who is our new alternate to the Zoning Board
of Appeals. Rick, welcome aboard.
MR. GARRAND-Thank you.
AREA VARIANCE NO. 9-2006 SEQRA TYPE II DAVID MONSOUR & PETER KING
AGENT(S): JONATHAN LAPPER, ESQ., S. BITTER, ESQ., MATT STEVES OWNER(S):
DAVID MONSOUR & PETER KING ZONING: SFR-1A LOCATION NORTH SIDE OF
AVIATION ROAD APPLICANTS ARE PROPOSING TO SUBDIVIDE EXISTING 0.95 ACRES
INTO 2 LOTS OF 0.46 ACRES AND 0.49 ACRES. RELIEF REQUESTED FROM THE
MINIMUM LOT SIZE REQUIREMENTS FOR BOTH LOTS. CROSS REF. SUBDIVISION NO.
WARREN COUNTY PLANNING N/A LOT SIZE 0.92 ACRES TAX MAP NO. 295.14-1-36
SECTION 179-4-030
MR. ABBATE-You may regret it. Mr. Secretary, the administrative details that I have this
evening, I’d like to take care of first before we go into the hearings. Number One, we have
received a correspondence, I believe it was dated 6 February, from Counsel, for our Area
Variance No. 9-2006, Monsour/King. Would you read that into the record for me, please.
MR. UNDERWOOD-“Dear Chairman Abbate and Chairman Vollaro: As you are aware, our
firm represents Peter King and David Monsour with regard to the .95 acre lot that they own
on Aviation Road and Eldridge Road. Please be advised that our clients have decided to
withdraw the applications that they have pending with your respective Boards. If you would
kindly have your staff prepare the return of all necessary documentation that they have
relative to these applications, I will gladly have someone from my office pick it up. Sincerely,
Bartlett, Pontiff, Stewart & Rhodes, P.C. Stefanie DiLallo Bitter”
MR. ABBATE-Okay. Thank you, Mr. Secretary. In view of the fact that Counsel has
requested a withdrawal, there’s no further action on our part. Please note that the
application has been withdrawn, and, Mr. Secretary, we received also additional
correspondence in the form of a fax, I do believe, which is dated, I think 7 February from
Counsel for Area Variance No. 2-2006. Would you please read that into the record.
MR. UNDERWOOD-This is re: Schermerhorn properties. It was Area Variance No. 2-2006.
It was Area Variance No. 2-2006. It was a Site Plan application for the Gurney Lane and
West Mountain Road. “Dear Chairman Abbate and Chairman Vollaro: As you are aware, our
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firm represents Schermerhorn Properties with regard to the above mentioned applications.
Please be advised that this letter is being provided to confirm Richard Schermerhorn’s
withdrawal of the above mentioned applications. If you need anything further in order to
complete this withdrawal request, please do not hesitate to contact me. Stefanie Bitter”
MR. ABBATE-Thank you. In view of the fact that Counsel for that particular Area Variance
is requesting withdrawal, there’s no further action on our part. Staff, please note that, and
finally, Mr. Secretary, we also received correspondence dealing with Area Variance, I believe
it’s 71-2005. Would you read that into the record, please.
AREA VARIANCE NO. 71-2005 SEQRA TYPE II CHRIS GERMAINE & DIANE BEATRICE
OWNER(S): CHRIS GERMAIN & DIANE BEATRICE ZONING WR-1A LOCATION 128
LAKE SUNNYSIDE NORTH APPLICANT PROPOSES CONSTRUCTION OF A 240 SQ. FT.
DECK ADDITION. RELIEF REQUESTED FROM SHORELINE AND SIDE YARD SETBACK
REQUIREMENTS. CROSS REF. BP 2002-476 DECK, BP 89-050 ADDITION WARREN CO.
PLANNING N/A LOT SIZE 0.26 ACRES TAX MAP NO. 279.17-2-7 SECTION 179-4-030;
179-4-070
MR. UNDERWOOD-“We are scheduled to appear at the February 15 meeting of the Zoning
Board to again discuss the 128 Sunnyside deck expansion. Unfortunately, we will not be
prepared and kindly request to be put on the March meeting. Thank you so very much for
your continued support and service. I am very appreciative. Chris Germain”
MR. ABBATE-Okay. Thank you. In view of the fact that there’s a request for a tabling of
Area Variance No. 71-2005, what I’m going to do is open the public hearing for Area Variance
No. 71-2005. Do we have any folks in the audience who would like to comment on that, Chris
Germain and Diane Beatrice, 514 Glen Street, Glens Falls, New York. Anyone in the public
wish to comment on that? I see none.
PUBLIC HEARING OPEN
MOTION TO TABLE AREA VARIANCE NO. 71-2005 CHRIS GERMAIN AND DIANE
BEATRICE, Introduced by Charles Abbate who moved for its adoption, seconded by Joyce
Hunt:
128 Lake Sunnyside North. Tabled to the March 22, 2006 hearing date.
Duly adopted this 15 day of February, 2006, by the following vote:
th
AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. McNulty, Mr. Rigby, Mrs. Hunt,
Mr. Abbate
NOES: NONE
ABSENT: Mr. Stone
MR. ABBATE-The vote is seven yes, zero no, to table Area Variance No. 71-2005, to 22
March 2006 hearing date. Staff, would you please take note of that, and finally, Mr.
Secretary, one other administrative detail I’d like to take care of this evening. I am pleased,
ecstatic, quite frankly, to announce that, working in the spirit of cooperation with the Town
Board and the Executive Director of Community Development, as well as the Zoning
Administrator, there is unanimous support for the following motion that I am about to
introduce.
MOTION TO AMEND THE AREA, USE, AND SIGN VARIANCE APPLICATIONS FOR THE
TOWN OF QUEENSBURY ZONING BOARD OF APPEALS AS FOLLOWS, Introduced by
Charles Abbate who moved for its adoption, seconded by Allan Bryant:
1. Effective 16 March 2006 each Area, Use, or Sign Variance application will include a survey
map. A survey map shall be defined as referenced in the Code of the Town of Queensbury;
Section 179-2-010; Definitions – SURVEY MAP as “a drawing made to scaled based upon
survey measurements showing land boundaries, natural and man-made objects, made by or
under the direction of a New York State licensed land surveyor”.
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2. Staff is directed to make change in the applications for an Area, Use and Sign Variance
and to make public this revision as appropriate.
3. PROVISIONS FOR A WAIVER: The applicant, by way of the Zoning Administrator,
may claim unique circumstances and request the Chairman of the Zoning Board of Appeals to
waive this requirement. In the event a waiver is requested, the Zoning Administrator will
arrange a conference with the Chairman of the Zoning Board of Appeals. The conference will
include a review of all pertinent data upon which the appellant has based the argument for a
waiver. Following a review of that information, the Chairman of the Zoning Board of
Appeals will render a decision, and inform the Zoning Administrator.
Duly adopted this 15 day of February, 2006, by the following vote:
th
AYES: Mr. Underwood, Mr. Urrico, Mrs. Hunt, Mr. Rigby, Mr. McNulty, Mr. Bryant,
Mr. Abbate
NOES: NONE
ABSENT: Mr. Stone
MR. ABBATE-The vote is seven yes, zero no. The vote to approve the motion is seven yes.
The motion as approved will become effective 16 March 2006. Thank you, Board members,
for your confidence. Now, Mr. Secretary, onto business.
OLD BUSINESS:
AREA VARIANCE NO. 81-2005 SEQRA TYPE II STEVE & DEBBIE SEABOYER
AGENT(S): DEAN HOWLAND, JR. OWNER(S): STEVE & DEBBIE SEABOYER ZONING
WR-1A LOCATION 83 ROCKHURST ROAD APPLICANT PROPOSES PATIAL
DEMOLITION AND REBUILD OF THE EXISTING 2,299 SQ. FT. SINGLE-FAMILY
DWELLING, TOTALLING APPROX. 2,297 SQ. FT. RELIEF REQUESTED FROM FRONT,
SIDE, AND SHORELINE SETBACK REQUIREMENTS AS WELL AS FLOOR AREA RATIO
REQUIREMENTS FOR THE EXPANSION OF A NONCONFORMING STRUCTURE. CROSS
REF. BOH 1,2005 SEPTIC VARIANCE; SPR 61-2005 WARREN CO. PLANNING
NOVEMBER 9, 2005 ADIRONDACK PARK AGENCY YES LOT SIZE 0.20 ACRES TAX
MAP NO. 227.13-2-36 SECTION 179-4-030; 179-4-070
MICHAEL O’CONNOR & DEAN HOWLAND, REPRESENTING APPLICANT,
PRESENT
MR. UNDERWOOD-We previously heard this before and we sent it back for some more
information and there have been some slight changes since that time. We had asked for a
clarification, and a letter was sent to Mr. O’Connor by Craig Brown, who is the Zoning
Administrator, and I’ll read that into the record. “Dear Mr. O’Connor: I’m writing to you in
response to your December 27, 2005 letter regarding the above referenced parcel and as a
follow up to our January 6, 2006 meeting that we attended along with Susan Barden, Mr.
Seaboyer and his contractor Mr. Howland. As I understand Mr. Seaboyer’s proposal, as it
was presented to me at our recent meeting, the plan is to remove the existing upper living
area beginning at the southerly end of the house up to the southerly wall of the existing
garage. Also the proposal calls for the removal of the existing garage roof to allow for a new,
reconfigured roof to align with the new roof over the new upper level, which will be
constructed on top of the existing foundation walls after such foundation walls have been
enlarged/heightened. I understand your position to be that the project should be considered
and reviewed as a remodeling project and not as a new construction, therefore your position is
that the Floor Area Ratio calculations should not apply to the “remodeled” areas. As
discussed at the end of our meeting, our historical position for these situations is that once a
structure has been removed or partially removed, voluntarily, and the removal is not
considered to be beyond the control of man, new construction must meet the current zoning
requirements. Therefore, the proposal, as submitted, is subject to the Floor Area Ratio
requirements and all floor area above the maximum allowable 22% will require relief from the
Zoning Board of Appeals. This information is consistent with the original information
provided to Mr. Howland in the fall of last year when we began having discussions on this
project. If you have any questions, please do not hesitate to contact this office. Sincerely,
Craig Brown, Zoning Administrator” We have a letter from Mr. Howland which was
received on January 17, 2006, to Mr. Brown. “Attached is a new Area Variance application
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for Steve and Debbie Seaboyer. Please note the existing and proposed entry porches on the
east side of the house have been removed. Proposed retaining wall has been removed. Lower
level has been reduced by a net 1.8SF. Please see Plan C as well as lower level layout. We are
also proposing to raise upper level floors and walls by jacking floor, walls and roof. A two
foot knee wall will be required to be built on top of existing foundation wall. We will remove
roof system and replace with new trusses to obtain appearance as shown on plans. I believe
this application meets the Zoning Board of Appeals member’s statement of “being more
compliant”. 1. Lot non-permeable area has been reduced by 11%. 2. Proposed house area
(sq. ft.) is 52SF smaller than existing area. 3. Storm water will be added, even though rules
and regulations do not require it. Site plan has been changed to represent its removal. As
stated in past, a storm water plan prepared by a licensed engineer will be submitted for site
plan review when approval of area variance is granted. Please call if you have any questions.
Sincerely, Dean Howland, Jr. President”
STAFF INPUT
Notes from Staff, Area Variance No. 81-2005, Steve & Debbie Seaboyer, Meeting Date:
February 15, 2006 “Project Location: 83 Rockhurst Road Description of Proposed Project:
The applicant proposes a 2,756 sq. ft. single-family residence with attached garage.
Relief Required:
The applicant requests the following relief:
Front setback relief of 6.7-feet, where 30-feet is the minimum.
Shoreline setback relief of 16.1-feet, where 50-feet is the minimum.
Side setback relief of 12.4-feet for the S. side, where 20-feet is the minimum.
Side setback relief of .7-feet for the N. side, where 20-feet is the minimum.
Floor Area Ratio relief of 9%, where 22% is the maximum.
All area and dimensional relief, per §179-4-030 for the WR zone.
Parcel History (construction/site plan/variance, etc.):
SP 61-2005: Pending, development within 50-feet of the shoreline.
BOH 1-2005: Approved 1/24/05, septic variance.
Staff comments:
As you recall, this board heard and tabled this application on November 16, 2005 and
December 21, 2005 (see tabling resolutions). At the latter meeting, the applicant’s agent
suggested the tabling to, “Ask the Zoning Administrator to make a determination as to
whether this is new construction or a remodeling.” New information with this submittal is a
letter from Mr. O’Conner to Craig Brown, dated December 27, 2005 requesting such a
determination. Craig Brown, in response, indicated in his January 10, 2006 letter that, “Once
a structure has been removed or partially removed, new construction must meet the current
zoning requirements.”
This proposal will result in a 2,756 sq. ft. single-family residence, which is 52 sq. ft. less than
the existing 2,808 sq. ft. structure. This was done by eliminating 2 sq. ft. of lower-level living
space and a 50 sq. ft. covered front porch. This reduces the FAR from the existing 32% to
31%, requiring 9% of relief. The existing and proposed setbacks will be the same.
The applicant is proposing to remove some hard surfaced area, “blacktop and concrete to be
removed”, resulting in 11% of additional permeable area on site. A new septic system and a
stormwater management plan are also proposed.”
MR. ABBATE-Thank you, Mr. Secretary. I see that the petitioner and his Counsel are at the
table. Would you be kind enough, please, to identify yourself and your place of residence.
MR. O'CONNOR-Thank you, Mr. Chairman. I’m Michael O’Connor from the law firm of
Little & O’Connor, and I’m here representing Steve and Debbie Seaboyer. With me is Dean
Howland who is the builder for the project. Mr. Seaboyer is not here this evening. He has,
since our last meeting, been diagnosed to have a medical heart problem and is scheduled for
surgery and was told not to participate in a meeting such as this. He is very concerned about
it, the number of e-mails I have. I don’t know if he’s going to be any less concerned by not
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being here, and I’m not asking for sympathy on that basis, but I’m just trying to make the
point that he is still very concerned about the application, and hopes that we will be
successful in the presentation that we make to you tonight.
MR. ABBATE-Your point is well taken, Counselor, and it’s a matter of record, thank you.
MR. O'CONNOR-Okay. We did write to Craig Brown, after your last meeting, and we did
receive his response, which I still disagree with, but thinking that I know the feeling the
feeling of the Board, I did not think it was really worth while trying to appeal it, which would
be the way that we would first have to go is to appeal that decision to this Board. I think his
letter stands for itself. He is incorrect when he says that we are going to remove, the proposal
calls up to the southerly wall of the existing garage. It’s actually the northerly wall, the
proposal that he was then considering. What we decided to do, as an alternative to appealing
that determination, was, in fact, change the project and change what we’re presenting, and
that’s why Mr. Howland, when he wrote on January 17, said that he was submitting to the
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Board a new Area Variance application. Some place along the line, in the very beginning of
all this, somebody had suggested, and I think it was a Board member who’s not present, why
don’t you just jack the house up, and you won’t have all the problems that you have, and
that’s basically what we have done. Presently, right now, you have a 2756 square foot house
on this lot. When you’re done, you’re going to have a 2756 square foot house on this lot. If
you don’t approve this application, you’re still going to have a 2756 square foot house on this
lot. The variances that the Staff has set forth are the variances that we’re requesting. We
don’t disagree with how they’ve itemized them. Basically, rather than tear down part of the
house, which is what we said we were going to do before, what we are going to do is jack up
the house and add two feet to the foundation of what typically would be the foundation, and
in this house is the first level. We will then change the roof structure so it’ll be a pitched roof,
but we’ve changed the plan so that we’re not increasing the square footage, either externally
or internally within the house. It’s similar to the house that was constructed across the street
from this project, if you’ve been up there. I think they raised their outside walls three feet
and put a new roof on the house, and that they did, I’m not sure, we can’t find any
application to any Board, but obviously the Town has been up there on a number of occasions
while this has been going on, and no complaint has been made about it. Basically, I would
ask you to apply the tests that are applied and I don’t know, if you have questions as to
exactly how we’re going to raise the house.
MR. BRYANT-I have a couple of questions in that regard.
MR. O'CONNOR-Dean is prepared to answer those. Okay.
MR. BRYANT-In your old drawings, your architecturals A-1, you show a 27 and 9 elevation,
and on your sketch that you provided with your new application, the elevation is the same.
So when you raise the house, I don’t understand what you mean.
MR. HOWLAND-Well, originally, we still have to elevate let’s go the street side floor. We’re
going to pick that up two feet. We were originally going to raise, remove the upper level and
then add two feet to the foundation wall and basically start over again. Well, say that we
can’t do that, but Mr. Stone is the one that, in the first meeting, said that why don’t you jack
the house up. So I came up with this idea.
MR. BRYANT-So you’re jacking the house up how? I don’t understand.
MR. HOWLAND-You put steel beams and girders on it, basically, jack up the.
MR. BRYANT-No, no, I mean what’s happening to the lower level now?
MR. HOWLAND-It stays. It stays.
MR. BRYANT-I still don’t understand. I’m sorry. It’s the terminology.
MR. HOWLAND-Well, we’re going to jack the floor system up and put a two foot knee wall
on top of the foundation wall. I mean, it’s staying.
MR. BRYANT-I don’t know what you hope to gain by jacking the house up.
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MR. HOWLAND-Well, the whole problem is the main level of the house is four feet below
the street level. There’s always a water problem, and you have a new septic system, one that
was approved by, I assume, the Town Board, and in that Town Board they wanted to put in
a retaining wall. Well, as a builder I said, well, I have a retaining wall. How do I stop the
foundation from leaking, and still have the same water problem. So I said, well, if we elevate
the first floor and we can make that the street side basically level, pitched toward the roof,
level, whatever level, pitched towards our stormwater, however it would be, that’s what we
would do, but elevating the first floor, it gets me up so that, right now, you walk in, you go
down four steps, and you go back up four steps and down four steps. We’re just trying to
eliminate that.
MR. O'CONNOR-We’re not going to lift the garage, right?
MR. HOWLAND-No, the garage stays exactly where it is.
MR. O'CONNOR-Okay. Maybe to answer your question, the garage is what set the height of
27 9, and that’s not going to change. We’ve said all along that we weren’t going to change
that construction, except to add a new roof on to a pitched roof. That garage roof is already
five feet above, it’s above the main house. So we can lift all the rest of the house, everything
to the, and I get confused on direction. Everything to the north of the garage, the two feet,
not change the height of the walls on the street side level and still keep that level, and we will
still be, the roof will be made to match, and it’ll be the 27.9 feet that comes off of the garage.
So basically the garage will stay where it is, and the other part of the house will be lifted up
two feet.
MR. ABBATE-Excuse me, Counselor. I asked the public to turn off their cell phones and
pagers. I’m sorry. Would members of this Board turn their cell phones and pagers off as well.
MR. BRYANT-I apologize. My real question is, how does raising the house effect the
variance application? In what regard?
MR. O'CONNOR-When we talked to Craig, we got into all kinds of issues as to percentages
and everything else about what you’re saving, what you’re not saving. We’re now saving
100% of what’s there, and that’s, it strengthens our case, to be honest with you, significantly.
MR. BRYANT-So basically now what you’re saying, we’re going back to the old remodeling,
reconstruction thing?
MR. O'CONNOR-Yes.
MR. BRYANT-Because you raised the house and you keep the basement, and now it’s above
the ground. I’m trying to understand the logic. That’s it?
MR. O'CONNOR-Yes.
MR. BRYANT-Okay.
MR. O'CONNOR-And that allows us to make the basement waterproof where they had the
seepage or leakage problems, but it has no impact upon the community. It has no impact
upon the neighborhood, and what I would go through is the five tests that you have for an
Area Variance, and that’s what we’re talking about is an Area Variance.
MR. URRICO-Well, I guess I’m following up on what Mr. Bryant said. I’m confused, then.
The sequence of events, now, has changed, from what I understand. The letter that Craig
Brown wrote referred to the earlier application and not what you’re saying right now.
MR. O'CONNOR-Correct. Yes.
MR. HOWLAND-It refers to the meeting that we had with Craig Brown.
MR. O'CONNOR-Which was on the earlier application.
MR. URRICO-So the Staff notes, they’re not correct, as to?
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MR. BRYANT-They don’t reflect that. The Staff notes really don’t reflect that. It’s, the
Staff notes are still viewing it as a complete tear down and rebuilding, which you’re saying is
incorrect now because of the elevation process. So maybe Mrs. Barden.
MR. URRICO-So we’re back to where we were last month, basically, is determining whether
this is new construction or a remodeling.
MR. ABBATE-Let me, all right, let me help clear the issue, then, please. I’d like to address
the question to Staff. What is the position of Staff, please?
MRS. BARDEN-I think that Craig Brown’s letter was identified in the Staff notes.
MR. BRYANT-Yes, but Mr. O’Connor is quite correct when he says that that identifies the
former condition. The new application raises the house, and therefore none of it’s being
demolished and therefore that doesn’t apply, and that’s what he’s just saying. Now my
question is, Staff notes don’t reflect that, okay.
MR. UNDERWOOD-I think that the letter that I read into the record does follow up on that
question, though.
MRS. BARDEN-It clearly states that it’s re-development. They’re adding two feet and
bringing the house up. So the relief is still identified correctly in the Staff notes.
MR. UNDERWOOD-I think that Mr. O’Connor is considering that he still disagrees with
Craig’s determination.
MRS. BARDEN-I think that that’s correct.
MR. UNDERWOOD-In the most recent letter, but if you want, I’ll read that section of the
letter as it pertains.
MR. BRYANT-Yes, read that section.
MR. ABBATE-Would you do that, Mr. Secretary, please.
MR. UNDERWOOD-“Also the proposal calls for the removal of the existing garage roof to
allow for a new reconfigured roof to align with the new roof over the new upper level, which
will be constructed on top of the existing foundation walls, after such foundation walls had
been enlarged, heightened”. All right. So he is confirming that they are going to raise the
height of the walls by the two feet, as Mr. O’Connor has said. “I understand your position to
be that the project should be considered and reviewed as a remodeling project and not as new
construction. Therefore your position is that the Floor Area Ratio calculations should not
apply to the remodeled areas. As discussed at the end of our meeting, our historical position
for these situations is that once a structure has been removed or partially removed,
voluntarily, and the removal is not considered to be beyond the control of man, new
construction must meet the current zoning requirements. Therefore the proposal as
submitted is subject to the Floor Area Ratio requirements, and all Floor Area above the
maximum allowable 22% will require relief from the Zoning Board of Appeals.”
MR. O'CONNOR-If you look at the middle of that letter, though, he talks about new
construction above the addition to the foundation wall.
MR. UNDERWOOD-I think he’s referring to the roof over the garage, because even you
acknowledged that you’re going to reconfigure the roofline. So I think he’s considering that
as being removal.
MR. O'CONNOR-Okay. Historically, we’ve never considered putting a new roof as being
something that required an Area Variance, even if we’ve changed the pitch on the roof, but I
don’t know if that’s necessary. I’m telling you that I believe that this is a new application
before you. You can choose to rely upon this, saying the variances are necessary, and the
issue is, are the variances reasonable, given that we are requesting an Area Variance. I think
we’re asking you to make the substantive determination as to the variances that are
requested. I’m not trying to confuse the issue by disassociating my position right now with
his letter. I don’t know if that’s really material because that was for the other application.
You may use it as guidance, if you want, for this application, if you think it’s still pertinent.
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I don’t think it is, because we aren’t, he says, with the new roof over the new upper level,
which will be constructed, also the proposal calls for the removal of the existing garage roof to
allow a new reconfigured roof to align with the new roof over the new upper level. Well, there
is no new upper level. We’re just going to lift the old upper level. We had an application not
too long ago, and I forget, it was, I think, on, wasn’t it on Cleverdale, where the fellow had no
basement, and we just lifted the house, and because we lifted the house, we came in and asked
for variances, Area Variances, because the house, as lifted, wouldn’t be in compliance with the
zoning. We put a basement in. We put a garage in. I think we put a one garage below the
basement, and I’ve said this publicly. The vertical lift of a building falls within the definition
of expansion of a building, which requires a variance. So, the ultimate gain of height of the
two feet that goes into the foundation does require a variance. I’m not arguing that it
doesn’t, but I’m asking you to apply the five tests that you typically apply for a variance,
and have in mind, when you apply those tests, and I think sometimes you always talk about
this, well, what happens if we don’t pass this or we don’t grant this variance. I’m specifically
saying to you that if you don’t grant the variance, you have the same size house on this lot.
We’re not going to change the setbacks. You’re going to have that house there. Maybe
they’ll go through some other gyration and try and figure out how they can remodel without
lifting it, but so far we haven’t been able to figure that out and be able to satisfy not having a
wet basement, and the basement is actually living space, not having wet living area, and also
the interior problem with this house is it’s built so that when you come in off the street, you
have a good drop in the house right now, and that’s part of what we’re trying to eliminate, to
make it more livable. What’s the difference in elevation when you come through the front
door? There’s a four foot that you’ve got to go down, and the other part that makes the
house unlivable is that part of the lower level living area is not now connected to the other
living area. You’ve got to go back up into the house on a U-shape type of thing and come
back down the other side of the house, another set of stairs, to get to the other side of the
house. I mean, there are a lot of practical considerations that says that this is a reasonable
request. It’s a reasonable remodeling. I would like to have you, and I’d specifically request,
that you make part of this record, the minutes from the last meeting, and all the comments
from the public, particularly the letters from the adjoining neighbors who all joined with the
applicant and asked the Board to pass the variances as they were then requested. I had a
colored map, and I think the map turned out to be correct, and I had this fellow in a different
color because I wasn’t sure he was going to actually write a letter, and if you take a look at
the letters that were written, they were letters that were written, they weren’t form letters.
They were people who live in the neighborhood and say basically what impact they think it’s
going to have upon the character or the environment of the neighborhood, and they were all
satisfied. In addition to that, you had this fellow here. I don’t know if I need to show that
again or not.
MR. ABBATE-That was introduced into evidence prior, if I’m not mistaken.
MR. O'CONNOR-It was.
MR. ABBATE-Right, and I can assure you that your request is certainly going to be
honored, because that is the proper procedure. All of the notes of the public comments and all
the documentations, all of the evidence that was submitted prior, up to and including today, I
can assure you, Counselor, will be included in the record. Do any of the other Board members
have questions?
MR. O'CONNOR-Let me finish, if I can.
MR. ABBATE-I’m sorry. Please.
MR. O'CONNOR-Okay. As I understand it, you’re supposed to look at whether or not there’s
an undesirable change that will be produced in the character of the neighborhood or a
detriment to nearby properties that will be created by the granting of the Area Variance.
Again I go back to the fact, you have this house there. If you grant the variance, the house is
going to be improved. Appearance wise we think it’s going to be improved. Environmentally
it’s going to be improved, as far as being better insulated, more friendly. It also, we have
incorporated into our application a stormwater management plan that is not in place for the
property right now. We have incorporated into the plan a new septic system that is better
than what is there now. In fact I think we’ve applied for that. I’ll tell you honestly we’ve
applied for that septic system, and we’ll install it, whether you grant this variance or not.
We’ve already made that determination. So I don’t know of any undesirable change that
would be produced in the character of the neighborhood, and I think the testimony of those
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(Queensbury ZBA Meeting 02/15/06)
who live immediately in the neighborhood, in fact, we had the people to the south, to the
north, and the three houses that live immediately across the street from the property, all say
that they had no objection to this proposal, and I think that’s a pretty good indication.
We’re not introducing something new. You’ve got this house now, there. You’ve got this size
house there now. You’ve got these setbacks there now. We also are improving the
permeability of the lot. I think we’ve reduced the non-permeable surface by 11 percent, and
that’s shown on the map that was attached to the application by Van Dusen and Steves.
Whether the benefit sought by the applicant can be achieved by some method feasible for the
applicant to pursue other than an Area Variance. We don’t know of one right now. We’ve
got a basement that is very moist. We want to make this a year round home for these people,
or they want to make it a year round home for themselves. They don’t have access from the
south end of the house to the north end of the house without going back upstairs, one set of
stairs, going across the house, and back down a second set of stairs. Is the requested Area
Variance substantial? You might argue that it is substantial because of the number of
variances that we are requesting, but I look at each of those variances, and each of those
variances are not going to be increased in any manner from what exists there now. You
presently have a front setback of 23.3. That’s what we’re going to have when we’re done.
You presently have a shoreline setback of 33.9, and that’s what’s going to be there when we
get done. You have a south side setback of 7.6, and that’s not going to change. The north
setback is 19.3, which requires a fraction of a foot setback. That’s the same. The Floor Area
Ratio that we’ve talked about so much before, before and after this project, is still the same.
They have eliminated some of the space. They have eliminated a covered porch to make sure
that it is still the same. It’s still 31%. That’s what you presently have. You have a 2756
square foot house, and I’ll say, of the 2756, 480 of it’s the garage. This is not, and I’ve heard
the term used lately, a McMansion. This is 2276 square feet of living space, as we typically
call living space. So I don’t think what we requested, if we were talking about building a
brand new house on this lot, I would probably be hard pressed to argue that it’s not
substantial, but because you’re not changing the circumstances from what’s there now to
what you’re going to have after the fact, I don’t think it is substantial. Will it have an
adverse impact on the physical or environmental conditions of the neighborhood? It has no
impact that we’re aware of that’s negative. We’ve got a new septic system. We’ve got
stormwater management. We’ve got less non-permeable area. I really don’t follow that
through. Is it self-created? Yes. The people want to improve their home. They want to
make a home that’s livable, and that’s really our presentation. I was handed two letters
tonight, which I would comment on. As I understand it, these are recent letters from the
Lake George Association and factually I’m not sure, that said, the letter the new home will
exceed the 28 feet. It doesn’t. I don’t know where they came to that conclusion, and it will
tower above the neighborhood. The house immediately to the south are already considerably
taller than the existing house and will be taller than the finished house. This is not something
that’s going to stick out along that road, or that neighborhood. She speaks about a two foot
by two foot window in its bathroom, and asks whether or not the soil that covers the
foundation area in that location will be removed, and in referencing how much ground work
will be done because of this new construction. That is already exposed. There will be no
groundwork because of that window, and in fact if you approve this, there would be very
little site work, except for the septic, and the septic’s going to be done anyway. If you tell
these folks that they’ve got to start all over again, besides the fact that they’re going to waste
about $50, $60,000 in what they can salvage for construction there, they’re going to have to
tear the whole site down, excavate for a new residence, and have substantial disturbance of
the site. There is significant, if you all went up there and looked, there is significant
landscaping, and that’ll all be maintained, particularly on the lakeside, that won’t be
disturbed by what’s happening. There will be some landscaping on the roadside that will be
disturbed because that’s where the septic system’s going. So the point of her letter, I’m not
sure. I think it makes a point for the applicant and not in opposition to it, and I’m not sure,
in the last sentence, what she really means. She says, the house is certainly not excessive, not
excessive, and the designed living space seems to be a nice improvement, and then she makes
a statement, the attempt to eliminate 70 feet here or there is not the solution to this variance
request. The lot is finite and the house is too big for the lot. Well, if the house is certainly not
excessive, and that’s my opinion also, I don’t know how it’s too big for the lot, and I’m not
trying to play with words. I think the letter speaks for itself.
MR. BRYANT-I think she’s referring to, in a perfect world, the living space, 2700 feet, is not
excessive. However, in this particular case, the lot is finite, and therefore, I think that’s how
it’s to be determined.
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MR. O'CONNOR-Okay. The letter of the Lake George Water Keeper I think refers mostly to
the Floor Area Ratio. If you deny this application, you have a house with the same Floor
Area Ratio. You are not improving the Floor Area Ratio in any sense. So I’m not sure
where that goes or where that doesn’t go. I don’t have any awful lot.
MR. HOWLAND-I just have just one correction that Mr. Underwood said, it’s just stating
something that Craig Brown said. I did meet with Staff prior to the first application,
basically three times, and I met with them so that I could come in with an application that
would be more acceptable to this Board. (lost words) major changes and stuff, and the first
one that I turned in was the one that we arranged over three meetings to getting to an
acceptable application. I just wanted to just correct that because I was not told that it
wasn’t acceptable or anything. There was one thing. I did meet with Staff that has not been
to these meetings. I understand afterwards that the people that take care, like Sue got this
particular application, and it just goes in a random order, not with the person I met with, and
I’ll make sure that next time I do it that I’ll just make sure that it would be followed through,
because that person understood what we were doing originally. That’s all. I was just
clarifying that point.
MR. O'CONNOR-Let me also amplify the letters I spoke of. This property is 83 Rockhurst
Road, and you have letters of support from Firm and Joan Weaver at 94 Rockhurst Road.
You have a letter from the person who lives directly across the street at 84 Rockhurst Road,
Steven A. Kurshion. You have a letter from Tony DiBella at 88 Rockhurst Road. You have
a letter from Deborah Stewart at 74 Rockhurst Road, and you have a letter from Roger and
Lynn Howard at 95 Rockhurst Road, and you have John Sheehan and Mary Sheehan, 80
Rockhurst Road, and you have one from Mark and Heather McCloud at 91 Rockhurst Road,
and this, I think you’re all familiar with Rockhurst. I mean, it’s a very small peninsula, and
these people either live right next to the house or go by the house, and they’re the ones that
are saying that they do not believe that there’s anything detrimental about the application,
because they understand that if the application’s not approved, you’re going to have the same
house there, except it’s not going to have the same style roof, at least at this point, I’m not
sure whether the roof might be changed anyways. That doesn’t appear to require a variance
of any nature.
MR. ABBATE-Does that conclude your argument temporarily?
MR. O'CONNOR-Yes. If you have any questions, we’d be glad to try and answer them.
MR. ABBATE-Thank you. Do any of the other Board members have any questions for 81-
2005? Hearing no other questions, I’m going to open up the public hearing for Area Variance
No. 81-2005, and I’m going to ask that those wishing to be heard from the public to please
approach the table and speak into the microphone, and for the record identify yourself and
your place of residence. Do we have anyone in the public who would like to address Area
Variance No. 81-2005? Yes, madam, would you mind coming to the table, please.
MAGGIE STEWART
MS. STEWART-I’m Maggie Stewart, from Assembly Point, and I have been here before, and
first of all I’d like to say that I’ve lived in my house for 35 years, seven of us in the family,
and it sits on almost an acre of land, and it has a dirt floor covered with black plastic instead
of a cellar. So we’ve lived with something like that. It doesn’t look like anything has
changed about this application. To me it’s still too big, too close to the lake, and too much for
such a small piece of property, and I would like you to stick with the Floor Area Ratio. I
think that’s very important, if possible. Thank you.
MR. ABBATE-Thank you, ma’am.
JOAN ROBERTSON
MS. ROBERTSON-I’m Joan Robertson. I live in Cleverdale. I’ve lived there almost 50
years. I’ve watched Rockhurst develop. I wish to register my opposition to the granting of
front relief, side setbacks, shoreline setback. I am aware that this structure is grandfathered,
as it stands, but I do not feel it is in the best interest of the Town of Queensbury and even
more the continuing efforts to protect the water quality of Lake George to grant further
intrusion on this minimal piece of property. It is, in effect, increasing the nonconformance
that already exists. Now I speak about increasing the nonconformance. When you go up,
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you’re getting more space, and that’s where you’re increasing the nonconformance. I know
you know that, but maybe somebody else doesn’t, but then I am concerned about the roof
and it’s a much higher roof and what’s going to be up there. Historically, Rockhurst was
developed in the 60’s and 70’s with what were called day use cabanas that aimed at giving
local residents an opportunity to use the lake without causing too much overdevelopment.
Over the years, owners decided to stay weekends, and then maybe for the summer. Now the
movement is toward year round housing. I’ve watched this with dismay. As I say I live
directly across the bay. I know how minimal these lots are and I worry about our lake water
quality. It is one thing to have a lavatory and a kitchen sink for summer use. It is quite a
different story to add bedrooms, bathrooms, and in this proposal there are three full
bathrooms shown. Will there be a dishwasher, laundry facilities, maybe even a Jacuzzi. This
is all water usage. We are talking about minimal acreage that is expected to support a full
septic system and where? It’s right by the road, and what happens in the case of the
inevitable failure, as has been experienced already? If you’ve been up there, you’ll see it’s the
house just to the north, the whole area that probably is their septic that has just been dug up,
I don’t know what the problem was, but at any rate, I think it’s serious that there just isn’t
enough room. These are very small lakeside lots. A very small lot requires a very small
dwelling. If the citizens who are moving to the area wish to have an expansive, Adirondack
mansion, then they really should buy an oversized lot on which to build it. Each of these
requests that are being filed are currently critical, and how you decide each request is also
critical. This is only the beginning of the deluge that is apparent. All of the Rockhurst
neighbors seem to approve. Will this particular permit decision be the precedent that will
open the floodgates, so to speak, and allow many more upgrades and expansions? Are we
about to enter a phasing out of a delightful summer community in exchange for wall to wall
structures that will accommodate many more people and accelerate the deterioration of a
unique treasure which is Lake George. Please approach this decision carefully with an eye to
the future and the probability that expansion pressures will continue to increase. Now also
I’m concerned about the, my main concern is the septic. I must say that. With the non-
permeability, will all the blacktop be permanently removed and stay removed? Nobody has
to answer that. Elevation. Now, when you measure elevation of a house, do you measure
from the top of the hill or the bottom of the hill? I thought it was from the bottom of the hill.
So this would make the house taller than 28 feet, if you measure from the bottom of the hill?
I couldn’t find that.
MR. ABBATE-Is that a question, ma’am?
MS. ROBERTSON-Yes.
MR. ABBATE-Okay. Fine. We’ll be happy to answer it.
MR. BRYANT-The bottom of the hill to the top of the house is 27 foot 9 and one eighth of an
inch. So they’re under the 28 foot criteria from the bottom of the hill.
MS. ROBERTSON-Okay, because I was trying to find that, and I must admit, I’m not an
engineer, but I did look. I tried. Okay, and I think that probably covers my dismay, but it’s
the septic. I drink that water. Thank you very much.
MR. ABBATE-Well, thank you, ladies. Do we have anyone in the public who’d like to
address Area Variance No. 81-2005?
KATHY BOZONY
MS. BOZONY-Kathy Bozony. I’m with the Lake George Association, and I just wanted to
comment on a couple of the things that Mr. O’Connor said regarding my letter. The only
reason I questioned bedroom number one and the windows in the back are because I looked at
the elevations here and where the windows are is dirt. So that’s why I asked that, how much
soil would be removed in order to place a window in that back portion of that room. The
other question about this 28 foot height is it is 27’ 9”, but that’s to the top of this ridge, not to
the top of this ridge.
MR. BRYANT-Okay. That other ridge, though, would be measured from the grade
underneath that portion, and not from the lower part, are you following what I’m saying?
MS. BOZONY-Okay. I see what you’re saying. I thought it was measured across from the
lowest finished grade to the highest point.
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(Queensbury ZBA Meeting 02/15/06)
MR. MC NULTY-The vertical plane at any one point.
MR. BRYANT-It’s vertical plane. That’s right. You took the words right out of my mouth.
MS. ROBERTSON-Okay. Well, thank you for sharing that with me, and I agree with Joan
regarding the other neighbors in Rockhurst. The house across the street just had a
foundation poured yesterday, a three story home. Did not come before the Zoning Board, but
was given a building permit. So it’s along the same lines as this application, as far as new
construction, and complete renovation. So I’m looking at potentially other residents in these
smaller homes on Rockhurst, as this is a precedence that this will open the ability. I was a
little ambiguous at the end of my letter because it is a nice design. It’s very minimal
compared to what I normally see, and it’s not an excessive home. So I’m not really sure
what the solution is. It’s an unfortunate thing that there’s only .2 acres here to work with,
and that’s the dilemma, and it’s a difficult decision, I feel, for you all to make as well, because
it is too small of a lot for this home, even though this home is not an excessive home. I am
very pleased that new septic will be put in. I’m not sure where there’s going to go. I know
the variance was approved for the distance, but I don’t know if the actual septic system was
fully approved. So, I’m not sure about that.
MR. ABBATE-Madam, with your permission, I respectfully request to make just a small
modification. I’m very jealous of our term. We’re not a Zoning Board. We’re a Zoning
Board of Appeals.
MS. ROBERTSON-Of Appeals.
MR. ABBATE-There’s a difference. Thank you very much for your testimony. Do we have
anyone else in the public? Yes, sir. Would you please come to the table, speak into the
microphone, and identify yourself and your place of residence.
JOHN SALVADOR
MR. SALVADOR-Yes. My name is John Salvador, and I’m a resident in North Queensbury.
If I understand correctly, as a point of departure, your last meeting, it was left that it was to
be determined whether or not, the applicant was going to seek Craig Brown’s determination
as to whether or not this was, fell into a category of new construction, as defined in our
Zoning Code, where of course it is not defined, and Craig Brown rendered the determination
on January 10. Do I understand that this new application, then, is the result of that
th
determination? And Mr. O’Connor has 60 days within which to appeal that determination.
Now, I think it’s incumbent upon him to let this Board know whether or not he intends to file
a Notice of Appeal because what will that do to any determination you make? It seems to me
he should stipulate whether or not that they intend to appeal his determination, because it
sets the pattern for the rest of the review. With regard to Craig Brown’s letter, and Mr.
O’Connor said it in his letter, he said, It is our position that this is not new construction, but
it is a remodeling project, and I think the problem is exacerbated in that there’s no statistical
type standard or criteria in the Ordinance. That’s exactly right. There are no standards in
our Zoning Ordinance for determining what is or is not remodeling, reconstruction, new
construction, or anything else. The reason it’s not in the Zoning Code is because they are not
zoning terms. They are building terms, and the Building Code of the State of New York
defines these. You will not find remodeling in here. New construction is not in here. These
are the terms they use. Alteration is defined, reconstruction is defined, rehabilitation is
defined, renovation is defined, repair is defined, and they defined technical infeasible. May I
read technical infeasible to you? An alteration of a building or a facility that has little
likelihood of being accomplished because the existing structural conditions require the
removal or alteration of a load bearing member that is an essential part of the structural
frame or because other existing physical or site constraints prohibit modification or addition
of elements, spaces or features that are in full and strict compliance with the minimum
requirements for new construction. So, this is not Craig Brown’s call as to whether or not this
is new construction. It’s the Building Inspector’s call. We have a Chapter 88 that talks about
Powers and Duties of the Director of Code Enforcement. “Except as otherwise provided by
law, ordinance, rule or regulation, the Director of Building and Code Enforcement shall
administer and enforce all provisions of laws, codes, ordinances, rules, regulations and orders
applicable to the location, design, materials, construction, alteration, repair, equipment,
maintenance, use, occupancy, removal and demolition of buildings, structures and
appurtenances thereof”. It is not Mr. Brown’s call in this regard.
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(Queensbury ZBA Meeting 02/15/06)
MR. ABBATE-Mr. Salvador, I’m sorry to say that your time is up.
MR. SALVADOR-May I continue. I do have some important points I’d like to make.
MR. ABBATE-No. You may not. Do we have anyone else in the audience who would like to
comment?
MR. SALVADOR-May I, if there’s no one else? I don’t want to take someone else’s time.
MR. ABBATE-If there is no one else, I will check with the Board and if we decide to allow it,
you will not be allowed to have more than two minutes. Is there anyone in the audience
who’d like to address Area Variance No. 81-2005?
MS. BOZONY-May I have just one more question?
MR. ABBATE-In order to do that, madam, you will have to come up to the table, identify
yourself, all over again, your place of residence, and then you may make your statement.
MS. BOZONY-Kathy Bozony, the Lake George Association. I appreciate you sharing with
me about the roof height. I was just confused, and maybe Mr. Howland could explain in one
elevation, you do have two separate roof heights, but in this elevation, it looks to me like the
roof is one continuous line. I don’t understand which one it is. If it is one continuous line,
then you would be going from the lower level to the top of the level. Here you’ve got two
separate roof ridges, understandably because of the elevation change in the two houses, but
on this, you’ve got.
MR. HOWLAND-You’re only 24 feet. Over here you don’t have as high a ridge here.
MS. BOZONY-So that’s not a continuous roof all the way across?
MR. HOWLAND-Well, it is to here, but you still are less than 28 feet, but you would go from
this point here, from this ridge line (lost words), but you’re still under it.
MS. BOZONY-Okay. Thank you.
MR. ABBATE-Thank you very much. Mr. Salvador, I think you’ll find that this Board is
fair and unbiased in the fact that we allowed an individual in the public to come before us a
second time. You will be allowed five minutes and no more.
MR. SALVADOR-Thank you. As the record of previous hearings is a part of the record, you
will read there that many of us have suggested that this project go before the Planning Board
before the variance issues are addressed. The Planning Board is the place where we have to
make sure that the site conditions are addressed, and it’s in our Code as to what they have to
address. The Planning Board will check the location, arrangement, size, design and general
site compatibility of buildings, lighting and signs. Among other things, they will check the
adequacy of stormwater drainage facilities, including conformance with the drainage
standards of Chapter A-183 Subdivision of Land of the Code of the Town of Queensbury.
They will check the adequacy of the water supply and sewage disposal facilities. That’s
something that should be done before we get to any of these nit picking details of variance
application. With regard to the project itself. This is a nonconforming lot. It is a
substandard lot in a one acre zone. If you were to approve the creation of this lot today,
you’d need an 80% variance, 80%. The nonconforming structure, it is already a
nonconforming structure. The current Floor Area Ratio is 32%. We talk about the
permeability. They’re going to remove some hard surface. What are they going to replace it
with? Is it going to be driveway? That’s not considered permeable, and I don’t think anyone
has taken into account the fact that the surface of the leach area is supposed to be a non-
permeable area. In fact, the Code requires that there be a slope on the infiltration structure
so that water does not infiltrate. It runs off. So that should be checked, and that’s something
for the Planning Board to do. The fact that there are no municipal utilities. We have a
Public Health Code, I think, that requires that a lot that does not have municipal sewers or
water be at least a half acre in size. At least a half acre. There’s no wastewater management
here. There’s a holding tank which is non-compliant in and of itself, and they talk about this
holding tank being there from the beginning of time. This Town was supposed to have
registered all on-site wastewater systems in 1998. That was a program they undertook under
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(Queensbury ZBA Meeting 02/15/06)
Mr. Hatin’s direction, and I don’t know how many of you were here at that time, but those
systems were supposed to be registered, and they’re supposed to be on record with the Town.
So there’s no excuse for nobody knowing when, how, when, where, this was installed. The
roads. We talk about setbacks. You have this issue you talked about before, the motion you
introduced about having a plan.
MR. ABBATE-Map survey.
MR. SALVADOR-Map survey. You’re going to have the same old problem. Where do you
measure from? So, this is also in a Lake George Park Commission Critical Environmental
Area. The Planning Board takes care of this. It says here on the agenda, it says that this is
an Adirondack Park Agency jurisdiction, yes. What does that mean? What does that mean
that the applicant has to do?
MR. ABBATE-Okay. Mr. Salvador, your five minutes are up. Thank you very much for the
information. It will be in the record. Do we have anyone else in the public who’d like to
address Area Variance No. 81-2005? May I see a hand please? Apparently, there is not.
Counselor, would you like to address public comments?
MR. O'CONNOR-Thank you.
MR. UNDERWOOD-Do you want me to read those letters in?
MR. ABBATE-Before you address public comments, Counselor, would you be patient with
me for a second while we read into the record a couple of letters, please.
MR. O'CONNOR-Yes.
MR. UNDERWOOD-“Dear Mr. Abbate and Members of the Board: The removal of an
existing, nonconforming single family dwelling on a .2 acres, 31 ft from Lake George will be
replaced with new construction, therefore it is subject to all appropriate zoning regulations.
This densely populated peninsula began as day use cabanas and grew into a residential
community, with homes that have been expanded from their original use. The applicant’s
existing non-conforming home is presently 50% larger than the Town of Queensbury’s floor
area ratio (FAR) calculation allows for this site and the proposed building much larger than
its surrounding homes. The height of this new home will exceed 28 ft. and tower above the
neighborhood, but there is no height variance being requested. BEDROOM #1 has a 2 ft. x 2
ft. window in its bathroom, although the existing South Elevation does not appear to
accommodate that window based on the fact that soil covers the foundation wall in that
location. Will there be groundwork done to the site to remove this soil, and if yes, how much
additional site disturbance is anticipated for construction and final elevations of this new
home? The application was previously tabled with anticipation that the applicant would be
more compliant in its next presentation. Since then, the only negligible alterations made to
the building project were to remove one of the asphalt driveways and a porch (positively
decreasing the amount of impermeable surfaces on the property). Unfortunately, the
following still applies: the project is self-created, the 32% FAR requires a very substantial
variance, homes 31 feet from Lake George do have an adverse environmental effect The house is
certainly not excessive and the designed living space seems to be a nice improvement. The
attempt to eliminate 70 sq. ft. here or there is not the solution to this variance request, the lot
is finite and the house is too big for the lot. Sincerely, Kathleen S. Lindberg Bozony Land
Use Management Coordinator for the LGA” And the second letter from the Water Keeper,
“Dear Mr. Abbate: I have reviewed the revised application and plans for the above
referenced variance application. I would like to offer the following comments for the record:
1. I would like to support the Town of Queensbury Zoning Department and the
determination that the Floor Area Ratio (FAR) applies to the proposed reconstruction. Such
controls as the FAR are necessary measures for proper planning and minimize the impacts of
development. It sets a standard to determine the maximum habitable space which parcels
can sustain while considering the open space necessary for wastewater and stormwater
treatment and to reduce encroachment on the neighborhood. The Board must determine the
benefits and impacts of proposed projects while maintaining a vision of the cumulative
impacts on the neighborhood and our natural resources. In this particular application, a
request for relief from the FAR to 31% seems excessive on a lot which has already received
relief from wastewater treatment requirements and has not determined if proper stormwater
management can be provided. I encourage the Board to strongly consider if the variance
requested is the minimum necessary or if the relief requested can be reduced to create a
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redevelopment more compliant with the Town of Queensbury Codes. I look forward to
working with the Town of Queensbury Zoning Board of Appeals in defending the natural
resources of Lake George and its basin. Thank you for your consideration of these comments.
Christopher Navitsky, PE Lake George Water Keeper”
MR. ABBATE-Thank you, Mr. Secretary. Counselor, would you like to address the public
comments?
MR. O’CONNOR-Yes. Speaking to the comments of Mrs. Stewart and Mrs. Robertson, I
think they’ve both indicated that their main concern was water quality on the lake. We went
through extensive review with the Town Board, with a licensed engineer who signed and
designed, and signed the septic system. I believe that the Town, as part of their review,
Susan you can bear me out, I think they referred that to C.T. Male for an independent study.
The variance that was obtained was for, if I remember correctly, it was better than a year
ago, setback from the road, and setback from the house, and that’s why the retaining wall
was required between the septic system and the house. This septic system is beyond what is
normally put in. It is the first one, I think, that the Town has that will have an aerobic
system along with the typical septic system that they have. That was worked out with the
Water Keeper. They were very pleased with the system. They thought it was a great
improvement over any other possible or potential. I think that that, and there is room on the
lot for it. As I understand it, the top of it is grassed. It’s not non-permeable. I’m not sure
what Mr. Salvador is referring to, but that total design was designed by a licensed engineer,
stamped, by an engineer, approved by the Town engineer, after a lot of scrutiny by the Town
Board. So I have faith that that system will work on this site. So I don’t think it will have
any impact on water quality on Lake George. Also, with regard to stormwater, we have been
told by the engineer that he can very easily handle the stormwater that’s on this site, and
we’re talking about doing the entire site. We didn’t try to distinguish from the areas of
construction to the areas of non-construction. I disagree with Mr. Salvador. I guess a long
quite a bit of what he says. There is another Section in your Zoning Code that says that if
there’s a question of interpretation, it’s up to the Zoning Administrator to make a
determination, and that’s the guise or the procedure under which we sent the letter to him
and he responded with his determination. Also, it’s the practice here that you cannot go to
the Planning Board with a project if you are in need of variances. I don’t know of anybody
that has done that. The Planning Board has basically said that they won’t consider an
application until there’s a determination as to all variances.
MR. ABBATE-Well, excuse me, Counselor. Yes, and no. There are events in which we hear a
case and then decide that it should be referred to the Planning Board for site plan review, and
we send that to the Planning Board basically, in some instances, before we make a decision.
MR. O'CONNOR-Okay. I’m not familiar with those cases, but I would stipulate, on the
record, that if you want to make that as a condition of approval to have another look at the
stormwater management plan, the applicant is willing to do that. You can make that a
condition of your approval. As to whether, I think I clearly said, I listen when I’m sitting
here. I don’t just talk and I felt there was a strong feeling that with the project as we had it
proposed last time around, which is what Craig Brown looked at at the time that he made the
determination that it was new construction and we would need to get variances from the FAR
and everything else. There was no sense in appealing. I have no intention of appealing that
determination. That’s based upon those set of facts that were presented to him at that time.
Those set of facts have gone away at this point. So if that’s something that makes somebody
uncomfortable, or comfortable that there’s a possibility of an appeal, there is no appeal from
that determination with regard to this application. The APA is simply we’re within the APA.
I think you’re aware of that, and I don’t mean to lecture you like maybe, I don’t mean to
lecture you. Any variance that you grant within the area of the APA automatically is sent by
Town Staff to the APA. APA then has 30 days to overrule you, without a hearing, without
much of any fanfare. So every time we do a variance application that lies within the Park, we
know it’s going to go to the APA. They look at the record and they make their determination
based on that. I don’t know if Susan’s aware, but I’m not aware, truthfully, that they have
overruled the Board when you take a hard look at an application. As to the question of
whether or not, how permanent is the removal of the non-permeable area, I would presume
that that would be a condition of this application. If we make an application to you and state
that we’re going to remove the non-permeable area. We can’t, next month, come back, or not
next month, but we can’t put the permeable area back in, non-permeable area back in. I’m
getting it screwed up, but if we say that we have X percentage of permeable area and Y
percentage of non-permeable, that’s the application that you make your approval on. If we
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change those circumstances afterwards, we’ve violated your approval, and probably voided
your approval. If you need something further from us, we have no plans of re-paving that
parking area that we’ve taken out, that I think they’ve also taken out a concrete pad on one
side of it. They’re out. They’re going to be out. That’s part of what we’re saying is the
environmental benefit of what we’re trying to do. We’re not required to do those things, but
we’re trying to make this as compliant as we can make it. I think to hit the nail on the head,
you’ve still got this building there, and the building needs to be improved, and how do you
improve it? What’s the most reasonable way of improving it? The Town certainly doesn’t
think it’s summertime cabana. The Town assesses it for $620,000. I understand what Joan
Robertson and Maggie Stewart are talking about, but these people are entitled to some
reasonable use of that property, if they don’t negatively impact the environment or the
character of the neighborhood, and that’s all that they’re asking at this time. Somebody had
a question, again, about those windows. I’d ask Dean to answer that.
MR. HOWLAND-I believe she was talking about the windows in the south side, and the
ground slopes down, and the windows are only this high. It’s just above the grade, that’s all.
MR. O'CONNOR-Are they there now?
MR. HOWLAND-No.
MR. O'CONNOR-Okay. Will you need to excavate to put them in?
MR. HOWLAND-No.
MR. ABBATE-All right. Does that conclude your argument, Counselor?
MR. O'CONNOR-Unless somebody on the Board has other questions?
MRS. BARDEN-Can I add something, please? Just a clarification. You do have the
resolution number 1-2005 from the Board of Health, and the actual relief was from, this is
dated January 24.
th
MR. O'CONNOR-What year, Susan?
MRS. BARDEN-2005. An absorption field 90 feet from Lake George instead of the required
100 foot setback, an absorption field 2.35 feet from their property line instead of the required
10 foot setback and a multi flow unit four feet from the structure instead of the required 10
foot setback. I think you have that, and I guess I do have a question on that as well.
Because this is, this design was done by Nace Engineering. They do have a permit, a building
permit, for the system, dated January 11, 2007, but I guess I have a question maybe for Mr.
Howland. I know that there was some discussion about removing the retaining wall, which
was part of that design, and whether or not that requires a new design. That’s the case, is
that correct?
MR. HOWLAND-We could put the retaining wall, even though we might fill behind it.
Whatever’s required, that would be put in.
MRS. BARDEN-And also the infiltration trench is located and the relief is granted for relief
from the property line. However, if you’re removing that asphalt drive, whether or not that
relief is needed, if that can be moved closer. If you see on the north property line, the
infiltration trench, and you don’t have this, so I’m sorry, and any of you can see this, is
located between the asphalt drive and the north property line, and I just want to see if that
could be removed and that could be compliant, actually, from that one area of relief.
MR. O'CONNOR-All right. You began your question by saying, are we going to modify what
we’ve submitted to the Town Board and was approved to the Town Board.
MRS. BARDEN-I’m wondering if you have to modify the whole design.
MR. O'CONNOR-Okay. Our intention was not to. We will build the retaining wall that’s
shown. I understand what you’re saying, that maybe we could extend the field further north
and not have it, it was side by side, some of it I think, is that what you’re saying?
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MRS. BARDEN-Right, it’s between the asphalt drive, and you’re removing that asphalt
drive.
MR. O'CONNOR-Okay. Because we’ve now, we would be happy to look at that. If we can
make the septic system more compliant than what it was before, if you want to make that the
condition, we would go back to the Town Board and say we want to modify the septic system
to make it more compliant.
MRS. BARDEN-I guess, rather than that, I would like to see if, and maybe this is just asking
Dave Hatin whether or not this design needs to be updated because it’s not, my
understanding it’s not going to be built as your building permit.
MR. O'CONNOR-No. My understanding is going to be built as the building permit that was.
MRS. BARDEN-The retaining wall is going to remain?
MR. O'CONNOR-Yes, that was issued this past month.
MR. ABBATE-Okay. Do any members of the Board have any further questions? If not,
what I’m going to do is ask each member of the Board for their comments on Area Variance
No. 81-2005, and again I’m going to 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. This is necessary
for an intelligent Judicial review. Additionally, any position you may take must be based on
the regulatory review criteria of our laws and not simply on subjective preferences of not
liking a particular project, and in particular Public Officers Law Section 3 reads, Due process
guarantees that government ensure a fair and open process and Board members make
decisions on reliable evidence contained in the record of the Board’s deliberations. Having
said that, may I please turn to Mr. Rigby.
MR. RIGBY-Thank you, Mr. Chairman. I guess what we’re presented with is a condition in
Rockhurst that has evolved over the years, and Rockhurst is different than Cleverdale and
it’s different than Assembly Point. So, I mean, there’s not much that we can do about the
conditions at Rockhurst and the way that it’s evolved over the years. I think Mr. O’Connor
brought up some good points about the assessed value of the property there. A $600,000
assessment certainly says something about the value of the property. It certainly isn’t a
cabana. People in the area want to live in those homes along all of Rockhurst. The neighbors
have no problem at all with the proposal the way it is. I see a lot of potential improvements
here. I see an older home that’s going to be updated. We’re going to have an improved
stormwater management system. We’re going to have a new, improved septic system. We’re
actually going to have a reduction in the non-permeable surface. We’re actually going to
have less Floor Area Ratio, and overall I think that the project does improve what’s there
now. So, seeing all those things, and looking at the balancing test, and going through all the
items on the balancing test, I see positive answers to each of those items on the balancing test.
So I’m inclined to approve the proposal as it’s talked about.
MR. ABBATE-Thank you, Mr. Rigby. May I please turn to Mrs. Hunt.
MRS. HUNT-Thank you. Well, if this application came before us for a new variance for a
new building, with 22% relief for front side setback, 33% for the shoreline setback, 60% relief
for the side setback, 31% FAR, I would not be for it, but we have a building here that was
put in that really, the existing building is too big for the property, but there’s not much we
can do about that, and so I guess I would reluctantly be in favor of the variances.
MR. ABBATE-Thank you, Mrs. Hunt. May I please ask Mr. McNulty to respond.
MR. MC NULTY-Okay. I certainly can agree with a lot of the public comments that were
made about, this is an area of one acre zoning, we ought to have one acre lots, and, yes, the
house is too big for the lot. The house has been there, however, for a long period of time.
From the environmental side, I think we ought to be doing something more than we are
about what we’ve got in the way of situation along a lot of the shoreline on Lake George.
However, I’ve also got to believe that the people that rezoned that area to one acre new that
there were small little postage stamp size lots there when they did that. I’m not sure what
their intention was, other than making a declaration that, it ought to be one acre, and yes,
environmentally, it ought to be one acre, but we’re in a balancing test here. One of the
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considerations is the benefit to the applicant, and should we try to enforce one acre zoning in
a lot of these areas, there would be one heck of a large negative benefit to the applicants.
We’re talking about a lot of money. If we were saying that this lot should be one acre zoning,
we’re basically taking away that person’s investment entirely. If we did that to everybody,
we’d be taking away a good share of the tax base of the Town. So it’s got some real
significant considerations that I think ought to be addressed, and again, back to we’re
working on our zoning now. We ought to hear some of these comments at some of the
meetings that are dealing with the zoning. Having said all that, I think what’s basically
being proposed now is essentially what is there. They’re going to raise the top floor of this
building roughly two feet, and build in a wall under it to keep it where they raised it to, and
that’s it. All the requirements here are basically what currently exists. I wish they didn’t
currently exist, but they do, and I think the detriment to the applicant to deny this would be
far greater than anything that we could counter any other way at this point. So, until we get
where we’ve got some better guidelines and we can be mean to everybody along these areas, I
feel that we’ve got to go along, this is basically a modest proposal. They’re not doubling the
size of the house or anything. So I’m going to be in favor.
MR. ABBATE-Thank you, Mr. McNulty. Mr. Urrico, please.
MR. URRICO-Well, I guess I’m going to be in the minority at this point. I see, the variance
that we’re asked to examine is not to be compared to what’s there now, but currently, should
be compared to what the existing Zoning Code requires. That’s why the variances are being
asked for. I think when you change your residence, it unleashes the variance test and gives us
the opportunity to ask the house to be more compliant than it was previously. I think by
allowing a house to remain unchanged when the Code requires 22% means in effect we are
ignoring the zoning and therefore changing the zoning, since that becomes the new standard,
and I think by maintaining nonconformance, it is, in effect, changing the zoning by ignoring
it. As far as the test, I think it does have an impact, and in my opinion, a negative impact on
the neighborhood and a community at large by doing that, by doing just that, by ignoring the
Code. I also think it is substantial, and I think the benefit can be achieved by other means
feasible to the applicant. If that means not making any changes, maintaining the status quo,
then so be it, but once the variances open up the test, I think we have an obligation to look at
it as if it’s being presented to us for the first time. So I would be against it.
MR. ABBATE-Okay. Thank you, Mr. Urrico. May I please turn to Mr. Bryant.
MR. BRYANT-Thank you, Mr. Chairman. I’ve got a real dilemma here. Mr. O’Connor
makes a cogent argument that they’re not exceeding the footprint. It’s basically the building
that’s there. It’s the same size. It’s not going to impact the neighborhood because of the
other projects in recent years that have been approved, adjacent to it, or even larger than this
building, and I understand that, but I want to touch on a thing that Mr. Urrico said, and
something that Mrs. Hunt said, and I saw you shaking your head no, and I know what you’re
shaking your head no about, but Mrs. Barden and Mr. Underwood, in their interpretation of
Mr. Brown’s determination, he addressed this present application in those paragraphs that
Mr. Underwood quoted. We have to really look at this as if the lot were vacant and it’s a .2
acre lot, and you have the opportunity, now, to build a, it’s a postage stamp lot, so in all
probability it’s not going to be totally compliant, but you have the opportunity to build new
construction that is closer to what fits in that lot, and I think the Lake George Association
young lady said it best when she said that maybe this is a beautiful house and it’s a great
improvement, however, it doesn’t fit in this lot, and I have a tendency to agree, but I also
understand what Mr. McNulty said relative to all these other lots that are, you know, they
have gigantic buildings on them and maybe building a smaller house might be detrimental to
the neighborhood because it wouldn’t be in character. So I don’t know exactly I’m going to
vote. There’s so many factors here tugging on.
MR. O'CONNOR-Mr. Chairman, can I just explain.
MR. ABBATE-No, Counselor, let me explain something to you as well as to the public.
When I ask Board members to offer their comments, their comments are addressed to me, not
to the public, not to you, but addressed to me. So, based upon that, Mr. Bryant.
MR. BRYANT-I don’t know how I’m going to vote.
MR. ABBATE-I have that. I’ve already noted that. Next I’d like to turn to Mr. Underwood,
please.
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MR. UNDERWOOD-I think it’s important for us to reconsider this in the light of, you know,
the information that was presented to us this evening. I mean, obviously it’s a semantic call
on the part of anyone as to whether or not this is a rebuild or a re-do or whatever it happens
to be, but I think ultimately we’ve addressed this before in previous meetings. On the point
out there, we have essentially what’s a cluster development, and I think that, you know,
lately in the community we’ve gone to cluster developing because of less of an impact on a
specific area within the community. Right across the road we have Surrey Fields over here,
where we have houses in very close proximity to each other, each of them designed with State
of the Art septic systems and a complete failure on the part of the Town. We’ve previously
built down the road here on Bay Road. Obviously there’s a need for a sewer which is
probably going to eventually come up the road here and affect all those properties to the
benefit of the community, but when we’re talking about Rockhurst, I think what we really
should concern ourselves with is, it’s not important what the values are that we attribute to
property. Money doesn’t really make any difference to me, all right, and it really shouldn’t
make any difference, have any bearing on our decisions here this evening. We’re talking
about the most highly regarded critical environmental area in the community, probably in
this part of the State, and I think that we’ve seen the folly of, you know, going from cabanas
to the present construction that exists up on the point there, and I previously have addressed
this problem, and I think that, you know, we’re basically just turning our backs on our
responsibilities, which we have done repeatedly through the years in this community, and we
somehow just don’t have the ability to do the right thing, and as Mr. Bryant suggested, we
can build compliant construction out there, based upon these postage stamp sized lots out
there. We don’t have to accept the fact that, well, here’s a house that’s at 32. It’s way over
the Floor Area Ratio that should be permitted for this lot. I think it’s unacceptable. I think
that there’s lots of Waterfront Residential property within the community here in the Town
of Queensbury, where we have built houses, but there is a place to put the septic system and
reliably concern ourselves with the fact that it’s going to remain a viable system in the future,
and I think that the last time when I addressed this site, I came up basically with the same
thing. There’s a need for us to be reasonable. These people have purchased these properties.
I can understand wanting to raise your house up so you do have a dry cellar, and I think
that’s a reasonable thing to do with your house, but I think it’s wrong for us to allow what
essentially is new construction to occur and to go from a seasonal usage, which it originally
was, to year round usage, because it’s not a sustainable thing out there, and I buy your
argument. I think your argument that you made is very reasonable to assume, but you’re
not, we’re not, going to make a decision that’s in the best interest of the community out there.
All you’re basically doing is upping the ante and saying, well, more, more, more, more, and
that’s okay, but it’s not okay. I mean, realistically speaking, we have a responsibility, and
that responsibility should be to Lake George, you know. That’s the resource, and housing
and people’s futures, as far as where they live out there on the lake, you know, that’s all in a
flux right now. It may continue on if the Board decides that way, but then again, too, this
may be the time to have a moratorium on Rockhurst and say no more future projects on that
part of the lake until it’s addressed properly. So I’m not going to vote for it.
MR. ABBATE-Thank you, Mr. Underwood. May I turn again, please, to Mr. Bryant.
MR. BRYANT-I’m going to go down on the negative side. I think from an environmental
standpoint, maybe an individual project may not have compelling adverse effects, but I think
the cumulative building, as Mr. Underwood has said in that area, it’s got to have a negative
environmental impact. So I’d have to vote against it.
MR. ABBATE-I said earlier that the comments of the Board are made to the Chairman, and
by saying that, I pay attention to every word that each member of this Board states when
they present their comments on any appeal. My dilemma basically is I agree, the vote right
now is three and three. My dilemma is that I agree with both parties. However, it’s quite
clear, and Counsel has stated earlier, we don’t base our decisions on subjective preferences or
not liking a particular project. Judicially, we have a responsibility to base our decisions on
what they call regulatory review criteria, and in particular, we are charged with five specific
areas that we must take into consideration, whether or not to grant a particular variance, and
so, staying well within the framework of the law and the criteria set forth by New York State
Town Law, and being subjective, I have to come down in favor of the applicant. It’s my
opinion that I would agree with the comments stated by Mr. McNulty, Mrs. Hunt, and Mr.
Rigby, but for the record, I will vote yes, but for the record, I would like to say, it’s a
reservation vote yes, because I also try to do a balancing act with the comments made by Mr.
Bryant, Mr. Underwood, and Mr. Urrico, and my decision basically went 51 to 49% in favor
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of the applicant, and so I vote in favor of the applicant, and I’m going to ask for a motion for
Area Variance No. 81-2005. Is there one?
MOTION TO APPROVE AREA VARIANCE NO. 81-2005 STEVE & DEBBIE SEABOYER,
Introduced by Charles McNulty who moved for its adoption, seconded by Joyce Hunt:
83 Rockhurst Road. Proposing a 2,756 square foot single family residence with attached
garage, and as I understand it the applicant’s basically proposing to raise the top level of the
home by about two feet, but because he’s modifying the home, requires setback relief that
basically matches what currently exists on the property, and specifically that means 6.7 feet
of relief for a front setback where 30 feet is the minimum, shoreline setback relief of 16.1 feet
where 50 feet is the minimum, side setback relief of 12.4 feet for the south side where 20 feet is
the minimum, and side setback relief of .7 feet for the north side where 20 feet is the
minimum, and also Floor Area Ratio relief of nine percent where twenty-two percent is the
maximum allowed under the Code. In considering this decision, one consideration is whether
or not an undesirable change will be produced in the character of the neighborhood or a
detriment to nearby properties will be created. I think the fact that essentially what is going
to be there when this work is finished is what is there now with the notable exception that
there will be a drastically improved septic system. So I don’t believe there will be an
undesirable change in the character of the neighborhood. Second is whether the benefit
sought by the applicant can be achieved by some other method feasible for the applicant to
pursue, and I think we’ve identified that there’s only two possibilities. One is leave the house
as it is currently, or reduce it in size, and I think the applicant’s made the point that leaving
it the way it is is not really feasible. He needs to make some modification to get rid of some
water leakage in the lower level. The third item is whether the requested Area Variance is
substantial. If it’s viewed as a completely new construction, yes, it would be substantial, but
that’s not what’s currently proposed. What’s currently proposed is basically a slight
modification of what exists there now. So I think in that case, we can consider that it’s not
substantial relative to the current conditions. Whether the proposed variance will have an
adverse effect or impact on the physical or environmental conditions in the neighborhood or
district. I guess we can interpret that both ways. Yes, it does have an adverse effect or
impact on the environment, versus not having the building there at all, but it does not change
the affect on the environment. If anything, we’re improving the effect on the environment
because the applicant is putting in a new, compliant septic system. So in that sense there’s an
improvement from current conditions to what will be future conditions, and finally, Number
Five, whether the difficulty is self-created, on the one hand, you can argue that it is self-
created in that it’s something that the applicant wants to do, but on the other hand, he’s
trying to alleviate a condition that he did not cause, namely some water leakage that’s going
into the lower level. So, in that sense, it’s not self-created. I think when we do the entire
balancing test, at least based on change, there’s essentially no detriment to the community
versus what exists currently, and there’s certainly some clear benefit to the applicant. So for
that reason I move that we approve this Area Variance. That the non permeable areas that
have been specified in the current application to be removed will be removed. The applicant
first have their engineer consult with Dave Hatin to see if it’s feasible, and if Dave Hatin
thinks it’s feasible, along with our engineer, then we’ll go to the Town Board to modify the
septic system. The entire site stormwater management system be evaluated by the Planning
Board.
Duly adopted this 15 day of February, 2006, by the following vote:
th
MR. ABBATE-Extend the field further north.
MR. MC NULTY-I think at this point, if we’re going to suggest the possibility of extending
the field further north, what we should probably do is condition it that the applicant goes
back to the Board of Health and applies to them, because that’s their decision. We don’t
want to specify that he take an action that the Board of Health may, for some other reason,
disagree with.
MR. ABBATE-Okay. I’ll leave that out. So you would agree with the one condition that
they will move the permeable area?
MR. MC NULTY-Absolutely.
MR. ABBATE-All right. Thank you, sir.
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MR. O'CONNOR-Could you add in there that the applicant first consult with, have their
engineer consult with Dave Hatin to see if it’s feasible, and if Dave Hatin thinks it’s feasible,
along with our engineer, then we’ll go to the Town Board to modify the septic system.
MR. ABBATE-If Mr. McNulty has no problem with that?
MR. MC NULTY-I’ve got no problem with that.
MR. ABBATE-It will be included. At this point.
MR. RIGBY-Mr. Chairman, there’s also one other contingency that Mr. O’Connor
mentioned, and that was that the entire site stormwater management program be evaluated
by the Planning Board.
MR. ABBATE-Yes, and that will be part of it, too, Staff, would you please note that as well,
what Mr. Rigby has said, and I have been chastised by our Secretary for not closing the
public hearing. So the public hearing is closed.
PUBLIC HEARING CLOSED
MR. BRYANT-Mr. Chairman?
MR. ABBATE-Yes.
MR. BRYANT-Can I make a comment about the motion, very nice motion. However, Mr.
McNulty makes a ruling on Mr. Brown’s determination relative to the effectiveness, the type
of project. He addressed that directly, and he said that this is not new construction. This is
remodeling or rebuilding, and that has not yet been determined. We have to stick by what
Mr. Brown’s determination is, unless that determination is challenged. So I think that that
portion should be stricken from the motion, to make the motion even a legitimate.
MR. ABBATE-All right. Your comments are noted. Let me turn to Mr. McNulty. It’s your
motion, Mr. McNulty. Would you be kind enough to comment, please.
MR. MC NULTY-Certainly. I’d have no problem with removing those particular remarks.
MR. ABBATE-And I have no problem with that. It’s been then, Ms. Secretary, in the
minutes, please note that, there was no problem with Mr. Bryant’s comments requesting that
Mr. McNulty remove that portion. So duly noted.
AYES: Mr. Rigby, Mr. McNulty, Mrs. Hunt, Mr. Abbate
NOES: Mr. Underwood, Mr. Bryant, Mr. Urrico
ABSENT: Mr. Stone
MR. ABBATE-The vote to approve Area Variance No. 81-2005 is four in favor, three against.
The vote for approving Area Variance No. 81-2005 is approved.
MR. O'CONNOR-We thank you, and we thank the whole Board for its patience with us and
its cooperation. I would make the comment, I don’t mean to sit here and give body language.
I had no objection to what Mr. Urrico said or Mr. Bryant said, the Board has jurisdiction to
consider because of the change. Where I except this, and I will except this on this
application, and in the future, you have to balance it, not as though it’s a vacant lot. You
have to balance it as to what is there now, and you can’t simply look at it as a vacant lot.
MR. URRICO-That’s a matter of interpretation. I don’t think I need to be addressed by you
as to how to interpret it.
MR. O'CONNOR-That’s why I said I was disagreeing with your opinion.
MR. URRICO-And I respect your disagreeing, but I understand that I have a right to see it
as I see it.
MR. O'CONNOR-You have the superior right, in this setting.
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(Queensbury ZBA Meeting 02/15/06)
MR. URRICO-Okay.
MR. O'CONNOR-I thank you.
NEW BUSINESS:
AREA VARIANCE NO. 10-2006 SEQRA TYPE II SCOTT & AMY SUE LONG AGENT(S):
KYRAN D. NIGRO OF FERRAR & NIGRO OWNER(S): SCOTT & AMY SUE LONG
ZONING SR-1A LOCATION LOT 34, HOUSE NO. 15 WOODSHIRE COURT PINE RIDGE
ESTATES SUBDIVISION APPLICANTS HAVE CONSTRUCTED A 1,917 S. FT. SINGLE-
FAMILY DWELLING. RELIEF REQUESTED FROM FRONT YARD SETBACK
REQUIREMENTS. CROSS REF. SUBDIVISION NO. 7-2003, BP 2005-079 SFD WARREN
COUNTY PLANNING N/A LOT SIZE 0.65 ACRES TAX MAP NO. 308.7-1-13 SECTION
179-4-030
KYRAN NIGRO, REPRESENTING APPLICANT, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 10-2006, Scott & Amy Sue Long, Meeting Date:
February 15, 2006 “Project Location: Lot 34, House No. 15 Woodshire Court, Pine Ridge
Estates Subdivision, Description of Proposed Project: The applicant has constructed a 3,062
sq. ft. single-family residence.
Relief Required:
The applicant requests 1.95-feet of front setback relief from the 30-foot minimum, per §179-4-
030 for the SR-1A zone.
Parcel History (construction/site plan/variance, etc.):
BP 2005-079: Pending, 3,062 sq. ft. single-family dwelling, issued 3/11/05.
SB 7-2003: Pine Ridge Subdivision.
Staff comments:
A plot plan, dated 1/12/05, was submitted for the building permit, this map shows the
proposed house setback 39.1-feet from the front property line (see sheet S-1 attached).
However, the as-built survey shows that the house was built 28.05 from same. Both the
submitted plot plan and the final map are surveyed maps; therefore, no discrepancy between
the two with respect to the location of the front property line is apparent.”
MR. ABBATE-I see Counselor is at the table. We have Counselor for Area Variance No. 10-
2006. Would you please state your name.
MR. NIGRO-Kyran Nigro from the law firm of Ferrar & Nigro.
MR. ABBATE-Okay, and would you please proceed.
MR. NIGRO-Ladies and gentlemen, I think that it’s a fairly simple application that speaks
for itself. You have the comments there. So, for the sake of brevity, I will open the floor to
questions.
MR. BRYANT-Okay. Mr. Chairman, may I ask a question?
MR. ABBATE-Yes, by all means, please do.
MR. BRYANT-Actually, I have two questions for you. I’m looking at two documents in our
package, they appear to be surveys. One is dated January 12, 2005, where it shows the house
39 feet plus or minus the property line there, front setback, and then the other one is dated
12/16/05, and that’s the one that shows a 28 foot plus or minus, and the first question is, how
does somebody make an 11 foot mistake in construction, Number One, and Number Two, this
January 12, what stage of the house, what stage, was the house complete? This was the as
th
built, December 16?
th
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(Queensbury ZBA Meeting 02/15/06)
MR. NIGRO-Yes, the house was completed.
MR. BRYANT-The house was complete.
MR. NIGRO-All done.
MR. BRYANT-So, your builder, getting back to the first question, he’s digging for the
foundation, he’s pouring footings, and he doesn’t take out his tape measure. Is that what
you’re saying?
MR. NIGRO-Essentially it was an error by the excavator, and the builder has since replaced
that contractor.
MR. BRYANT-He never checked it? I mean, we’re talking about a 12 month period that this
building is being constructed, from the time that the excavator put his backhoe in the
ground, to the that time we put concrete in and we started to put studs up, they never
checked that? I mean, 11 feet is something that you can see visually. We’re not talking
about since inches here. We’re talking about 11 feet. So that’s my question. I don’t
understand it.
MR. NIGRO-Mr. Bryant, they are legitimate, valid questions, and I wish I had a legitimate
and valid answer for you. Unfortunately, what was going through their mind during the
building process, I can’t speak for the builder. Unfortunately, they weren’t available tonight.
I think that in the context of building the subdivision, and I’m speculating, you’re looking at
the surrounding homes and their distance to the road, and because this was not so much
closer, or an egregious violation of the Ordinance, that it wasn’t obvious without checking
specifically for that, and I don’t believe they did that.
MR. BRYANT-Who was the General Contractor?
MR. NIGRO-Farone. I think it’s T & B. I’m sure it’s in the packet somewhere, but it’s
Thomas J. Farone or one of his affiliate companies.
MR. BRYANT-Thank you.
MR. URRICO-Is there any way of shaving two feet off somewhere?
MR. NIGRO-Well, you could. You’d have to, on the north side of this house, there’s a bay
window, which appears to also be 28 feet. The measurement was taken from the front porch.
So you’d have to cut that off the front of the house. So I think, while it’s possible, it’s going
to have more of a negative impact on the neighborhood.
MR. URRICO-Especially if you go through the bay window.
MR. NIGRO-And it’s going to be considerable expense to the parties, to the homeowner now.
MR. ABBATE-Any other questions from members of the Board?
MR. RIGBY-A question for Staff. During the inspection process, this construction happens,
do we look at these types of situations as well? I mean, I would think that at some point
during the 12 month construction period we might be able to identify a problem.
MR. BRYANT-Can I answer that question?
MRS. BARDEN-Please.
MR. BRYANT-Okay. We took this at one of our workshops, and Mr. Brown was very
specific. It was one of the questions. I don’t remember who raised it, maybe even you were
there and raised it, but anyway, it’s not their responsibility to field check the setback
situation. Really, the burden is on the owner of the property to put his building in the correct
location. When everything is said and done, they do an as built, and then they deliver it to
the Town for their final approval, and then, that’s when the Administrator gets involved, but
he doesn’t, Bruce never goes out there with a tape measure to check the setbacks. He may
answer questions, but that’s really not his purview.
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(Queensbury ZBA Meeting 02/15/06)
MR. RIGBY-So the answer to that is no?
MR. BRYANT-Yes.
MR. MC NULTY-Yes. We’ve hit this before in other places, and I’ve hollered a lot of times.
MR. BRYANT-I disagree with that philosophy by the way.
MR. RIGBY-Well, that’s for another day.
MR. MC NULTY-We’ve hit others that have had this kind of an error, but it’s been a case
where they’ve been the 11 feet in front of the line of houses. So that, you know, in those cases
you could say, okay, I don’t care if the Building Inspector has got the job of checking it or
not, just standing there he should see that something’s wrong. In this case, I think as the
applicant has indicated, it looks like the house lines up, if you just look quickly at the other
houses. I think that’s the problem.
MR. ABBATE-Any other members of the Board have any questions?
MR. BRYANT-One more question.
MR. ABBATE-By all means, please.
MR. BRYANT-Thank you, Mr. Chairman. I’m looking at your as built survey, and you’ve
got the porch shown there, and then kind of above the porch you’ve got a little humpy thing,
must be some kind of bay window or something, I mean, that doesn’t extend beyond the
porch, does it?
MR. NIGRO-No. The corner of the porch, it’s difficult to read on this map, is the closest
portion to the road, and that’s where we get the measurement that forms the basis of this
application.
MRS. BARDEN-It’s the exact same dimension, exact same measurement, 28 feet, to the bay
window as well as to the front porch. It’s an even line.
MR. BRYANT-That is not one of the tools, they don’t give us a scale when you get on the
Board, Zoning Board of Appeals, they don’t give us scales or any of that. So, I mean, you
know, we’re in the dark here, and that’s why you’re here and we need you.
MRS. BARDEN-I’ve got my scale if you need to use it.
MR. NIGRO-Mr. Bryant, to answer your earlier question, the builder was Tra-Tom
Development.
MRS. BARDEN-That’s Mr. Farone.
MR. NIGRO-It’s Tom Farone.
MR. ABBATE-Okay. Any other questions from members of the Board? If not, I’m going to
open up the public hearing, if I may, for Area Variance No. 10-2006, and if we have any folks
in the audience, the public, who wish to comment on this variance, would you raise your hand
so I can recognize you.
PUBLIC HEARING OPENED
MR. ABBATE-I see no hands that are raised, and so I’m going to now ask members to offer
their comments on Area Variance No. 10-2006, and let’s do it a little bit different. Do we
have a volunteer?
MR. BRYANT-How about you start with me.
MR. ABBATE-Great. We’re going to be starting with Mr. Bryant, please.
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(Queensbury ZBA Meeting 02/15/06)
MR. BRYANT-We get a lot of these applications where something is built and all of a sudden
we have a problem and lo and behold, we’ve made a mistake and so forth and so on, but I’m
not really totally buying this mistake situation. I’m going to tell you why. As you look at
the two surveys, I mean, the septic system is not in the same place. You’ve got all kinds of
projections, porches, overhangs, gizmos here and there and things that are not shown. The
house is really a different shape. There’s not only a discrepancy in the front setback, but in
one of the side setbacks there’s a two foot plus discrepancy. So I’m wondering if we made
that mistake, and it was honest in the beginning, but frankly I don’t know that a contractor
could make an 11 foot mistake in building a whole house, okay. I want to address the actual
application, because you’re here for the application and not my determination of whether the
contractor is competent or not. Frankly, I think that this is an issue, not for the Zoning
Board, but for a civil issue between the owner and the contractor, but generally I look at
these applications and I review them as if nothing was ever done at that point, no backhoe
was in the ground, no studs were up, nothing. You’ve come with an application and you’re
asking for the two feet of relief. It’s a very modest request. It’s actually in character in the
neighborhood. So if you came to us without a building built, I would be in favor of it. So I’m
going to be in favor of your application tonight.
MR. ABBATE-Thank you, Mr. Bryant. Mr. Rigby, please?
MR. RIGBY-Yes. I always struggle, too, like Mr. Bryant, whenever anything is built and
then people come in after the fact, but also as Mr. Bryant said, it is a very modest request.
Had it been for, had the variance been requested up front, I probably would have granted it
as well. So I’m in favor of it as well.
MR. ABBATE-All right. Thank you, Mr. Rigby. Mr. Underwood, please.
MR. UNDERWOOD-I don’t think it’s any grand stretch of the imagination to think that
this is not going to have any effect on the neighborhood or the community. The less than two
feet of relief is not anything that really triggers my conscience in allowing this. So I’d be in
favor of it.
MR. ABBATE-Thank you. Mr. Urrico, please.
MR. URRICO-I sort of echo what Mr. Bryant said, that if you had come to us in the
beginning with the original proposal for the house, we would have said no problem at all, 39
feet from the road, and then it ends up being less than 30 feet from the road. If you had come
back to us at that point and said we made a mistake, I think we probably wouldn’t look at it
as passively as we’re doing it tonight. All things considered, I think I’d be in favor of it.
MR. ABBATE-Thank you. Mr. McNulty, please.
MR. MC NULTY-Okay. I can basically echo what everyone else has said, that, you know, I
can understand why this mistake was made, looking at the other houses near by. So I don’t
think somebody eyeballing it would have picked it up. Now if the applicant really wanted
that house 39 feet from the front lot line, then I would think he would be highly ticked off
and if it were that kind of a mistake where 11 feet across the setback line, I’d have a problem
with it, but in this case, less than two feet, obviously the benefit to the applicant certainly
outweighs any detriment to the neighborhood, and certainly the cost of correcting it is far
excessive for what the error is. So I’d be in favor.
MR. ABBATE-Okay. Thank you, Mr. McNulty. Mrs. Hunt, please.
MRS. HUNT-Thank you. Yes. I have to echo the fellow Board members. It’s a minimal
request, and the house next door, they look like they’re lined up, if you just sort of eye it. So
I would be in favor.
MR. ABBATE-Thank you, Mrs. Hunt. I will echo the comments of all the Board members,
and I, as well, will support the application. So, having said that, I’m going to close the public
hearing.
PUBLIC HEARING CLOSED
MR. ABBATE-And then what I’m going to do is please ask for a motion for Area Variance
No. 10-2006. Is there a motion?
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(Queensbury ZBA Meeting 02/15/06)
MRS. HUNT-I’ll make a motion.
MR. ABBATE-Thank you, Mrs. Hunt.
MOTION TO APPROVE AREA VARIANCE NO. 10-2006 SCOTT & AMY SUE LONG,
Introduced by Joyce Hunt who moved for its adoption, seconded by Allan Bryant:
Lot 34, House No. 15 Woodshire Court. The applicant has constructed a 3,062 square foot
single family residence. The applicant requests 1.95 feet of front setback relief from the 30
foot minimum per Section 179-4-030 for the SR-1A zone. Whether the benefits could be
achieved by any other means feasible to the applicant. I don’t think so. You’d have to
change the front of the house and I don’t think that it will be a desirable change. I don’t
think there will be an undesirable change to the neighborhood character or nearby properties.
If you look at it from the street, the houses seem to be lined up so that 1.95 feet is not
obvious. The request is not substantial. It’s very, very minimal. The request will not have
adverse physical or environmental affects, and the alleged difficulty was not self-created by
the owners. So I would request that we approve Area Variance No. 10-2006.
Duly adopted this 15 day of February, 2006, by the following vote:
th
AYES: Mr. McNulty, Mr. Rigby, Mr. Urrico, Mr. Underwood, Mr. Bryant, Mrs. Hunt,
Mr. Abbate
NOES: NONE
ABSENT: Mr. Stone
MR. ABBATE-Area Variance No. 10-2006, in a vote of seven yes, zero no, is approved,
Counselor.
MR. NIGRO-On behalf of the builder and the Longs, I want to thank you all for your time
and consideration.
MR. ABBATE-You’re very welcome. Thank you.
MRS. BARDEN-Mr. Chairman, just in general, the resolution that you made at the
beginning of the meeting about requiring a survey at the building permit stage?
MR. ABBATE-Yes.
MRS. BARDEN-I know that there has been some discussion about having the as-built
survey after the footings are in, conducted when the foundation is poured or the footings are
in, rather than when the entire house is built. So that might be something that you might
want to go along with that. Because this is kind of an example of, you know, a plot plan
comes in for the building permit, and then the as built survey comes in and they’re different.
In this case they’re both surveyed maps, but the house is built, they need two feet of relief,
and what do you do? So maybe discuss or think about requiring your as built survey a little
bit earlier on in the process.
MR. ABBATE-Gee, thank you so much for your advice, Mrs. Barden. I appreciate that.
MRS. BARDEN-You’re welcome.
MR. ABBATE-We will take that into consideration, and if, in fact, the Board feels it needs
modification, we will do it. Thank you so much.
MRS. BARDEN-Sure.
AREA VARIANCE NO. 6-2006 SEQRA TYPE II RICHARD AND ALICE WHITMORE
AGENT(S): N/A OWNER(S): RICHARD AND ALICE WHITMORE ZONING CURRENT
SR-20; OLD ZONING R-3 YEAR 1967 LOCATION 6 ARBUTUS DRIVE, OLD FORGE PARK
SUBDIVISION APPLICANT PROPOSES CONSTRUCTION OF A 912 SQ. FT. SECOND FLOOR
ADDITION, AND 304 SQ. FT. OPEN FRONT PORCH. RELIEF REQUESTED FROM FRONT
YARD SETBACK REQUIREMENT OF 30 FT. REQUIRED IN THE 1967 ZONING CODE (R-3
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(Queensbury ZBA Meeting 02/15/06)
ZONE) IN THE PLANNING BOARD APPROVED SUBDIVISION OLD FORGE PARK.
CROSS REF. SUBDIVISION NO. 1-72 BP 91-186 IN-GROUND POOL WARREN COUNTY
PLANNING N/A LOT SIZE 0.37 ACRES TAX MAP NO. 309.5-1-43 SECTION 179-4-030
RICK & ALICE WHITMORE, PRESENT
STAFF INPUT
Notes from Staff, Area Variance No. 6-2006, Richard and Alice Whitmore, Meeting Date:
February 15, 2006 “Project Location: 6 Arbutus Drive, Old Forge Park Subdivision
Description of Proposed Project: The applicant proposes a 912 sq. ft. second-floor addition to
their existing 1,312 sq. ft. single-family dwelling and a 304 sq. ft. front porch.
Relief Required:
The applicant requests 8-feet of front setback relief from the 30-foot minimum, per §179-4-030
for the R-3 zone (1967 zoning, for the Old Forge Park subdivision).
Parcel History (construction/site plan/variance, etc.):
SB 1-72: Old Forge Park subdivision.
Staff comments:
The applicant proposes an addition (912 sq. ft. of second-floor living space and 304 sq. ft.
front porch) to the front of the existing 1,312 sq. ft. single-family dwelling. These additions
will change the façade of the existing house (see front elevation drawing, sheet A-3).
Currently, the existing structure sits 30-feet from the front property line. This proposal will
encroach 8-feet into the front setback, resulting in a 22-foot setback from the front property
line.
MR. ABBATE-I see, I’m going to assume that the petitioners are at the table. Would you be
kind enough, folks, to identify yourselves and your place of residence, please.
MR. WHITMORE-My name is Rick Whitmore. We reside at 6 Arbutus Drive. This is my
wife, Alice.
MR. ABBATE-Okay. Thank you very much. Proceed. Tell us why you feel that there’s
merit to your request for a variance.
MR. WHITMORE-Okay. Our home now is, we’ve outgrown it. We’ve got two children now.
When we first got married we didn’t. So of course the family’s grown. The home we live in
now is too small for us, to be honest. We looked another route, at possibly buying and
building another home, but at the cost of these days, to remain in the Town was a little cost
prohibitive for us. So we’ve talked to our architect and he suggested possibly a second floor.
So that’s the route we’re going to take. We looked around the Town, got some ideas what
homes are in this Town, how they look and what not, and thought maybe we could
incorporate a front porch in this as well. The porch that’s now on the home is basically a four
by six piece of concrete on some old dry laid up blocks. This house was originally built in
1970 or ’72, I believe. In the wintertime, it’s treacherous out there. There’s no roof over it
right now, but to build a second floor the way we want to do it, we need the support of the
front porch as well, and it would certainly be an addition to the home that’s positive. I’ve
gone around and spoken with the different neighbors. I don’t know if you’ve had copies of
some of their replies.
MR. ABBATE-We do, and they will be read into the record.
MR. WHITMORE-Okay. So we’re hoping the Board recognizes our relief of eight feet so we
can continue our project and go to the Building Department.
MR. ABBATE-Do you have a picture you wish to show us?
MR. WHITMORE-Yes. Actually right now, I don’t know if anybody has come over to the
home, but my wife can bring these up to you. They’re all the same photos. I’ve got four. I
didn’t realize there were going to be seven of you.
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(Queensbury ZBA Meeting 02/15/06)
MR. ABBATE-Well, actually, I’ll just pass them down. It’s more important that the Board
members get these than I do. Okay. If you feel that, at any time during this hearing, that
there’s anything that you may have forgotten to tell us that would help support your case,
just raise your hand and I’ll acknowledge you and we’ll allow you to say what you have to
say. In the meantime, I’m going to ask the Board members if they have any questions they’d
like to ask of Area Variance No. 6-2006?
MR. BRYANT-Actually, I have a problem with the application, and that is, I’m looking
through the package, and we’re looking for an eight foot front setback relief, which is about a
third plus or minus a few, but I don’t see a site plan. I don’t see a survey. I see a nice
drawing of an addition and a house. The other question I have is, because that doesn’t exist,
I can’t determine if the second floor is encroaching in the setback or if it’s just the porch. I
mean, how can I make the determination? And the other thing is, if you don’t have any of
those documents, how did you determine that eight feet is the actual setback requirement?
MR. WHITMORE-I met with Susan and we went over all these different questions.
MR. BRYANT-Well, where is the document that you went over that showed a site plan or
something? How did you determine it was eight feet?
MRS. BARDEN-Again, a survey map, at this point, is not required, and he’s showing his
front property line.
MR. BRYANT-Where is he showing it?
MRS. BARDEN-It’s dimensions taken from the front property line. It looks to be about 10
feet off of the edge of Arbutus Drive, which is existing. Existing is 30 feet.
MR. BRYANT-Are you talking about C-1?
MRS. BARDEN-See Arbutus Drive right there, existing plot plan?
MR. BRYANT-That doesn’t say that this is the property line. It just says a dotted line.
How do I know that that’s a property line? How do I know where the road is?
MRS. BARDEN-Well, it has the metes and bounds right there.
MR. WHITMORE-If I could show you a survey of my neighbor’s property in regards to the
boundaries, would that be helpful to you?
MR. BRYANT-Is that how you determined it was eight feet? How did we determine it was
eight feet?
MR. WHITMORE-As far as the relief of what the size of the porch is going to be?
MR. BRYANT-Yes.
MR. WHITMORE-Because that’s the, the size of the porch was determined that’s how big we
wanted it.
MR. BRYANT-No, no, no.
MR. WHITMORE-As far as, the architect designed it.
MR. BRYANT-This is the property line?
MRS. BARDEN-From the covered porch to the property line is 22 feet.
MR. URRICO-He’s trying to determine how we arrived at the distance from the property line
to the front porch, because that helps us determine the relief that you’re requesting. So how
did we get to that point?
MR. WHITMORE-I have a copy of my neighbor’s survey.
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(Queensbury ZBA Meeting 02/15/06)
MR. BRYANT-It doesn’t say property line.
MRS. BARDEN-It doesn’t. It could be labeled better, I agree with you there. It shows 30
feet from what the assumed front porch.
MR. BRYANT-I just want to take this one step further. So, the existing house now is at the
normal setback 30 feet?
MR. WHITMORE-Correct.
MR. BRYANT-Okay, and you do show in this little plot plan that you’ve got here, you do
show that the second floor infringes, it goes over the porch somewhat?
MR. WHITMORE-I believe it’s going to be two feet, sir.
MR. BRYANT-Okay. So that does also, it’s also part of the setback requirement?
MR. WHITMORE-Yes, sir.
MR. ABBATE-Thank you. Other members of the Board have any questions concerning Area
Variance No. 6-2006?
MRS. HUNT-Yes. You were saying that the porch was necessary for structural, for the
second floor?
MR. WHITMORE-To some degree, yes. The way the front of the new home, we would like
to put the two bedrooms upstairs. The front would be a bathroom, and to achieve the peak of
the roof as it’s shown on the front of the plans right there, it’s needed to support that, let’s
say I’m going to guess it’s two feet. That would be incorporated in the porch that’s all part
of, the structure would be supported by, I believe it’s the roof rafters there.
MR. RIGBY-How did you determine that the depth of the porch would be eight feet? Why
not four feet or something less?
MR. WHITMORE-Well, speaking with our architect, driving around the Town looking and
getting different ideas, doing some measurements, he suggested that eight feet would be, that,
again, four foot probably wouldn’t be enough to put a chair to be able to walk by to put a
swing, and eight foot, basically, is the roofline as well. Again, if we were going to build it, we
were going to make it useable for us. We could put a set of chairs out there, and again, eight
feet, you know, these tables are six feet, and again, by the time you put your chairs out there
and have somebody walk by you.
MR. RIGBY-From the elevation, proposed elevation A-3, it shows the roofline of the second
story, actually where the front of the second story actually is quite a bit behind the end of the
porch. It looks like it only goes in probably about three feet or so into the depth of the porch.
MR. WHITMORE-What’s happened, years ago, on the back of the home, there’s an “L”
Shaped shed roof, per se. What’s happened over a period of time, we’ve had a lot of water
problems. We’re going to tear it out regardless. This roof has come to the point, now it needs
repair or replacing. So all we want to do is alleviate that old roof and get rid of it, and I
believe you’re talking at the back, I’m going to say it’s the southern end on the plans right
there.
MR. RIGBY-The front of the house. It’s the front of the house I’m looking at. I’m saying
that the porch, the depth of the porch is eight feet, the front of the proposed second story
probably comes about two or three feet into that front porch.
MR. WHITMORE-Just in the center of the home, and that would be where the front center
window would be. I believe there’s a better idea. If you look at the front of the house itself,
you’ll see the window, it could be the fourth page.
MR. RIGBY-Yes.
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(Queensbury ZBA Meeting 02/15/06)
MR. WHITMORE-And that just shows that window with like a half moon on top. That
would be the bathroom of the upstairs, and that would give us a little more room, and that
would jut out, I believe it’s two feet.
MR. URRICO-Judging from your request, the house as it exists now is 30 feet from your
property line.
MR. WHITMORE-Correct.
MR. URRICO-And the porch is what’s creating your need for relief, basically, the eight feet is
the relief we’re talking about?
MR. WHITMORE-Yes. We could build the second story without a front porch without any
relief, but in this case, to make the house look to our likes and our taste, we really wanted to
put a front porch on there, and it’s useable as well. It’s nice to be able to sit out. We have
young children as well, so it’s nice to be able to be out front, keep an eye on them as well.
MR. ABBATE-Okay, folks, do we have any other questions from members of the Board? If
not, I’m going to open up the public hearing on Area Variance No. 6-2006, and if there is
anyone in the audience who would like to address this, please raise your hand and you’ll be
recognized. I don’t see any hands to be recognized. So I’m going to now ask members to
please offer their comments on Area Variance No. 6-2006, and again, I respectfully remind the
members of our duties and obligations and what have you.
MR. UNDERWOOD-I just have two public comments that I have to read in.
MR. ABBATE-Yes, thank you. Please read them into the record. Thank you.
MR. UNDERWOOD-The Whitmores actually went out and solicited comment from their
neighbors regarding the project, and they asked, “We are asking are neighbors to support this
zoning change by signing below. We thank you for your support.” And it’s signed by seven
different people. And there also was a letter received, this was a note received by fax.
Attention Queensbury Zoning Board, RE: Richard and Alice Whitmore’s application for the
house addition at 6 Arbutus Drive. “We live directly next door at 10 Arbutus and believe the
variance should be given. The Whitmore’s plans to expand will be an asset to the
neighborhood and could only positively effect the value of the surrounding properties.” And
that’s signed Linda and David Rook.
MR. ABBATE-Any other correspondence?
MR. UNDERWOOD-No, that’s it.
MR. ABBATE-All right. Thank you, Mr. Secretary. I’m going to ask members, again, to
offer their comments. Anyone wish to volunteer first?
MR. BRYANT-I’ll volunteer.
MR. ABBATE-All right. Go ahead, Mr. Bryant, please.
MR. BRYANT-Today was a beautiful day to drive around, and I did drive around that whole
neighborhood, and when you filled out your application, there were five criteria, questions
that you had to answer, how would you benefit, you know, what effect does the variance have
on the character of the neighborhood. These are the actual criteria laid down by New York
State law that we have to make our decision by. Okay, and I’m looking at Item Number
Two, it says, What effect would this variance have on the character of the neighborhood and
the health, safety and welfare of the community, and your response was, it would be a
positive addition to the neighborhood, and like I said earlier, I had the opportunity to drive
around, and on Arbutus, I counted two houses with second floors. On Wintergreen, I counted
one house with a second floor. On Lupine there were zero houses with a second floor. So, as
you look at that question, and then you examine what the character of the neighborhood is,
because those are the three adjacent streets, you find that your house would actually be in a
minority with a second floor. One of the other questions is whether or not there’s a feasible
alternative, and as you look at the plan of your house, the pool is in the back. You’ve got a
deck in the back that you’ve scheduled, whatever, and Arbutus is relatively a busy
thoroughfare, so is Wintergreen, so is Lupine, because everybody travels from Peggy Ann to
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Sherman or Sherman to Peggy Ann, and some people do that little “L” Shape thing at
Arbutus, and unfortunately on the other side of Town, I live on an “L” shape, and
everybody’s trying to cut that little corner out, and that’s what they do on Arbutus. So I
think the feasible alternative is to sit around your deck. Sit on, you know, sit out by the pool,
and the front porch, put a gutter to control the winter, inclement ice or whatever that’s on
the sidewalk, and you don’t need a variance. Build your second floor right above the first
floor, and that’s your alternative. As it stands right now, Mr. Chairman, it is not in character
with the neighborhood, Number One, and Number Two, there is a feasible alternative, and
that is to use the space that’s actually designed for recreation. So I’d be opposed to it.
MR. ABBATE-All right. Thank you, Mr. Bryant. Mr. Rigby, please.
MR. RIGBY-I respectfully disagree with Mr. Bryant on an improvement to the
neighborhood. I think this would be an improvement to the neighborhood. I think it’s a nice
plan. It’s a nice project. I like what I see. What I don’t like is I don’t like granting eight feet
of a variance, and I’d like to see another alternative where we could reduce that amount of
variance. Other than that, I look at the project and I think it’s nice. I think it’s a nice
project. It’s an improved home, and it’s certainly a positive thing for the neighborhood. So I
look at it kind of from the other side of Mr. Bryant, but I do have a problem with the amount
of the variance request that you have, and I think that’s where I come from.
MR. ABBATE-And you’ll support the application?
MR. RIGBY-No.
MR. ABBATE-No, you will not.
MR. RIGBY-I’d like to see them go back and come up with a feasible alternative.
MR. ABBATE-Come up with a feasible alternative. Okay. I’ve got you. Mr. McNulty,
please.
MR. MC NULTY-Okay. I come down about where my two predecessors did here. I think
your design is nice. I can understand why you want it that way. I wish there was an easy
way of moving the whole house back eight feet. The question is not really whether or not you
can put on a second story. The question is whether you can get into the setback or not, and it
strikes me, looking at the way the houses are lined up on your street, that you would be
changing the character of the neighborhood, maybe not so much because of the second story,
but because you’re going to be protruding out from the other houses, and that gives me a
problem with that. So, like Mr. Rigby, I would like to see an alternative. The porch gives me
a problem. The second floor, if it protrudes out two feet, I’m not sure, it may still require a
variance for setback at that point. I wouldn’t have a problem with the two foot setback for
the second floor sticking out, and I think, engineering wise, it could be done without the
porch because those floor joists there could be cantilevered out. So it would change the
appearance of the house, however. So I can understand why you’re asking for what you’re
asking, but as it stands now, I couldn’t approve it the way it is. Without the porch, I could
approve it. So, if you can come up with some alternative for the porch, I would have no
problem with the two foot protrusion on the second floor.
MR. ABBATE-All right. Mr. Urrico, please.
MR. URRICO-Yes. I’m pretty much in the same area of agreement, in terms of, if we could
do something maybe smaller with the porch. I think the porch is a good idea. I think there
was a Reader’s Digest article a few years ago which said neighborhoods were friendlier in the
old days when there were front porches and people were able to walk around the
neighborhood, and we went away from that for awhile, and now I’m glad to see front porches
coming back. So I like the idea of a front porch. I think it adds character to the
neighborhood and also makes it a friendly place. So I think there’s a desirable change in the
neighborhood by the fact that you’re adding a front porch. However, needing the eight feet
of relief, I’m not sure that you need that much in order to achieve that. It’s kind of a big
front porch, I think, from what I can see, and maybe we can do a little better as far as the size
of that, and because we are charged with granting minimum variance necessary, I think
that’s something we have to look at. I think the request is 26%, as it’s currently put before
us, and I think that’s bordering on maybe too moderate, I think, for this project, and
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(Queensbury ZBA Meeting 02/15/06)
therefore I think it’s self-created and also probably could be achieved by other means feasible
to the applicant. That would mean a smaller porch.
MR. ABBATE-Thank you, Mr. Urrico. Mr. Underwood, please.
MR. UNDERWOOD-I would have to respectfully disagree with what’s been said here so far.
I think that, you know, the applicant has acted in good faith here. I think he’s explained the
situation. It’s only a 1300 square foot house. There really isn’t anywhere to build off the
back of the house, if you wanted to expand the house. It’s really not feasible to go anywhere
but up, as he’s proposing to do, and I really don’t think that the upstairs has any effect on the
neighborhood at all. It may indeed be doubling what is apparently in the neighborhood
primarily, you know, one story houses there, but I think that we have to also consider the
impact on the applicant. I think it’s very expensive, as he mentioned, to add on to a home or
to buy property elsewhere and to build a bigger house or buy a bigger home. A lot of people
just can’t afford it. It’s a stretch to do any kind of an improvement, and, you know, with
kids living in the house, 1300 square feet’s a tiny house, you know. I think that’s much
smaller than what most of us live in. I think, too, that if you’re going to have a porch, just
the same as if you’re going to have a deck, it ought to be a reasonable size, and I think that
eight foot is a reasonable size request from anyone. Certainly, you know, you can look at it in
the context of what’s in the neighborhood there, but if everybody in the neighborhood put a
porch on the front of their house, which may be where we’re headed if it gets granted, I don’t
really think it would be a detriment to the neighborhood. Porches are, as Roy said, are useful
things to have, and I think that it’s a reasonable request. So I’d be in favor of it.
MR. ABBATE-Thank you. Mrs. Hunt, please.
MRS. HUNT-Thank you. I have to agree with Mr. Underwood. I would be in favor of it. I
think it would be a very attractive addition, and it’s not like the houses are all lined up,
because the one house next to you is way back. So it’s not, you wouldn’t be changing the
character in that sense, and I also have to agree that eight feet is about the minimum you
could have for a usable porch. So I would be in favor of the variance.
MR. ABBATE-Okay. Thank you.
MR. URRICO-Mr. Chairman, just before you speak, I just reconsidered where I was
standing, and I would be in favor of it.
MR. ABBATE-That’s quite all right. Let me just modify this if I may, please. Well, it
appears that it’s, again, a three to three. I go back to the statutes that demand that we pay
particular attention to how we vote. It’s close. I tend to agree with Mr. Bryant, Mr.
McNulty, and Mr. Rigby in that there’s a strong possibility, and I truly mean this, of a
feasible alternative. Okay. The vote right now is three to three, and it’s up to me to make a
decision here. Do you have something substantial you want to say that you think may
influence my vote, is that what you’re trying to tell me?
MR. WHITMORE-Yes, sir.
MR. ABBATE-What would you like to say?
MR. WHITMORE-My next door neighbor was granted a variance.
MR. ABBATE-I’m not interested.
MR. WHITMORE-Okay.
MR. ABBATE-That’s immaterial. Let me explain something to you. We only cast our vote
based on the evidence that’s contained in the record and nothing else.
MR. WHITMORE-Well, I was just going to tell you, that protrudes out farther than my
house.
MR. ABBATE-I don’t care. I’m not interested.
MR. WHITMORE-He was mentioning the setbacks, it wouldn’t conform.
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MR. BRYANT-Mr. Chairman, point of order. I don’t think you can stop the vote once it
starts. You’ve got to continue, until it’s concluded.
MR. ABBATE-The vote hasn’t stopped. We have a duty and responsibility to be fair and
unbiased as well.
MR. BRYANT-We have already exercised that duty and responsibility. However, when the
vote of a motion starts, it can’t be stopped. So make your vote and end this thing.
MR. URRICO-He hasn’t voted yet. He’s just giving you his opinion. There’s no motion on
the floor yet.
MR. ABBATE-Thank you, gentlemen, for raising that.
MR. BRYANT-We’re having a discussion.
MR. ABBATE-That’s different than making an accusation, Mr. Bryant.
MR. URRICO-You’re right, but for a different reason.
MR. ABBATE-May I continue, please?
MR. BRYANT-Yes.
MR. ABBATE-I haven’t voted, and quite frankly, what has happened now, I feel that I’ve
been prejudiced, and I’m going to abstain from voting, which basically means that the vote is
three to three, and in effect, what has happened is that there appears to be no support for
your application. So I’m going to suggest to you this. In order to be fair, Mr. and Mrs.
Whitmore, you have an opportunity to request that we table your appeal for another hearing.
You have several other choices. It’s up to you to make the choice. You could withdraw your
application. You can request that we continue to hear your appeal this evening, but you
certainly have heard what each of the members of the Board have said and have taken a
particular position the thing, and so your basic choices are to request that we table it. Now, if
we table your request, what you’ll have to do is submit the new information on a feasible
alternative to Staff by the 15 of March, and if you do that, then we can take your
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application and hear it on the 19 of April. So you can ignore, frankly, anything that I have
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just said, because the final decision is up to you.
MR. WHITMORE-Well, I’d like to continue this, only because I’ve got a serious question
here at hand. If people had gone over to look at our home now, our neighbor directly next to
us has a protrusion three years ago which was built that sticks out 10 feet. We’re only asking
for 8 feet.
MR. ABBATE-Okay. We can do that, honor your request. If you folks feel that you want to
continue with the hearing, I’ll be more than happy to do that. Is that your wish?
MR. WHITMORE-Yes, sir.
MR. ABBATE-I’ll be happy to do it.
MR. WHITMORE-I just don’t understand how, when it’s nonconforming, when I have a
neighbor directly next door to me within a stone’s throw protruding farther out than my
home, I don’t understand this. This is actually what got me going on it, because, you know,
they were able to put it on the front of their house. I said, you know, that would work for us.
It’s actually going to be smaller. We’re asking for less relief.
MR. ABBATE-I understand what you’re saying, and it’s a matter of record.
MR. WHITMORE-And I just don’t understand that.
MR. ABBATE-Let me try to explain this to you one more time. We have a duty and an
obligation, under the law, to make a decision based upon the evidence that is contained in the
record and nothing else.
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(Queensbury ZBA Meeting 02/15/06)
MR. UNDERWOOD-Do you want to let your alternate come up and take your place, if you
don’t want to vote?
MR. ABBATE-Yes. I wouldn’t mind doing that. There has been a recommendation by the
Secretary that because of the fact that I felt that I have been prejudiced in that I have
become emotional, if you will, and I may have distorted my good judgment, I’m going to ask
that our new alternate come forward and sit in my chair. You have heard all the evidence
this evening.
RICHARD GARRAND
MR. GARRAND-I’ve heard all the evidence.
MR. ABBATE-Do you feel that you are prepared, based on the evidence that you’ve heard
this evening, to make a decision? All right. If you say yes, come up here, and what I’m going
to do is turn this over to the Vice Chair. Vice Chair, would you do that for me?
MR. MC NULTY-Certainly.
MR. ABBATE-Okay. Would you come up here, sit, and I will recuse myself.
MR. URRICO-Mr. Vice Chairman, I suggest that we poll Mr. Garrand and also explain the
options to the applicant, because I don’t think they fully understand what could happen,
okay.
MR. MC NULTY-Okay. I think probably with the sufficient discussion we’ve had, it might
pay to at least do a quick re-poll.
MR. BRYANT-Can I ask a question?
MR. MC NULTY-Certainly. Go ahead, Mr. Bryant.
MR. BRYANT-Mr. McNulty made a suggestion, and that is, he talked about the two feet
relief required for the upper level, okay, and he had a problem with the porch, and frankly I
feel the same way, and my question is, if we remove the porch and accept the upper level, is
that acceptable to you?
MR. WHITMORE-Not at this time, to be honest with you. It’s, basically our goal is, I could
show you a picture, right now, of what we want it to look like, if that would help you get a
visual of what our goal is.
MR. MC NULTY-Okay. Let’s start with a re-poll, then, and see where we get to. Mr. Urrico,
do you want to go first?
MR. URRICO-Yes, well, basically my position is I would accept the application as presented.
MR. MC NULTY-Okay. Mrs. Hunt?
MRS. HUNT-I agree. I would accept it as presented.
MR. MC NULTY-Mr. Underwood?
MR. UNDERWOOD-I’m not going to change my vote. I would agree with accepting it as
it’s been presented.
MR. MC NULTY-Okay. Mr. Garrand?
MR. GARRAND-Based on the knowledge that I currently have of this, I would have to not
accept this application, based on the available knowledge.
MR. MC NULTY-Okay. You’d be opposed. Okay.
MR. BRYANT-I would also opposed. However, I would accept the alternate removing the
porch.
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(Queensbury ZBA Meeting 02/15/06)
MR. MC NULTY-Okay. Mr. Rigby?
MR. RIGBY-I’d like to see a feasible alternative to the porch. I’m not adverse to having a
porch, but I’m just adverse to granting the amount of relief that you’re requesting. So a
smaller porch.
MR. WHITMORE-What would be acceptable to the Board?
MR. MC NULTY-And I think I’m still about where I was at, too. I would be opposed. That
being the case, the options we’ve got, we can move forward, ask for a motion to deny, because
it looks like we’ve got four opposed, three in favor. Or, if you want a chance to consider any
possible alternatives, or to come back with more evidence, say for instance, you sit down with
your builder and he says there’s no way to do it differently, or whatever, you know, whatever
arguments you want to bring back, but either stronger arguments or some kind of a
modification of either removing the porch or modifying it for size or wrapping it around the
side of the house, or I’m not sure just what, then we can table it, as the Chairman had
indicated. If you get information back in to the Planning Staff by the 15 of next month,
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that would get you on for April, and we could take it from there.
MR. WHITMORE-I’ll accept that.
MR. MC NULTY-Okay.
MOTION TO TABLE AREA VARIANCE NO. 6-2006 RICHARD & ALICE WHITMORE,
Introduced by Charles McNulty who moved for its adoption, seconded by Joyce Hunt:
6 Arbutus Drive, Old Forge Park Subdivision. Table until the April 26 meeting, with the
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understanding the applicant’s going to get more information in by the 15 of March. With
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the possibility of removing the porch or a smaller porch, require less of a variance, some kind
of a modification.
Duly adopted this 15 day of February, 2006, by the following vote:
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MR. URRICO-Mr. Chairman, would it be okay to give him some guidelines, as far as what
would constitute a reasonable shrinkage of the front porch?
MR. MC NULTY-I would think any guidance we can give them. There’s no absolute
guarantee you’ll have the exact same Board meeting when you come back in April. There
might one or two different, but this might give you a clue.
MR. URRICO-Like I said, I accepted it as it was, but I don’t know how everybody else feels
about it.
MR. MC NULTY-Okay. Does anybody else that had problems with it want to suggest
anything different than what I mentioned before of either removing the porch or wrapping it
around or what would be acceptable?
MR. BRYANT-Removing the porch would be acceptable.
MR. MC NULTY-Okay. Mr. Bryant would like to see the porch removed.
MR. RIGBY-From my standpoint, I’d be content with a smaller porch. Just encroach less on
the, require less of a variance.
MR. MC NULTY-And I think that’s probably where I’d come down, some kind of a
modification. I looked back at the one you referenced, incidentally, and I was the one person
that voted against that other one. Everybody else was in favor, but some modification, I
think, would help.
AYES: Mr. Underwood, Mr. Bryant, Mr. Urrico, Mr. Rigby, Mr. Garrand, Mrs. Hunt,
Mr. McNulty
NOES: NONE
ABSENT: Mr. Stone, Mr. Abbate
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(Queensbury ZBA Meeting 02/15/06)
MR. MC NULTY-Okay. We’ll see you in April.
MR. WHITMORE-Thank you.
MR. UNDERWOOD-We have a gentlemen who wishes to address us, I believe.
MR. ABBATE-Mr. Salvador, would you like to, please.
JOHN SALVADOR
MR. SALVADOR-With regard to the Seaboyer application, if you get a packet of drawings
that included that site plan and elevation drawings, if any of you are not going to keep those,
or use them, I’d just like a set. It would save me the trouble of getting one.
MR. ABBATE-Yes, I don’t see why not.
MR. SALVADOR-And, Mr. Chairman, do you agree that if there’s a misrepresentation on
those drawings, that the approval is null and void?
MR. ABBATE-No comment.
MR. SALVADOR-That’s in the Code. The Town Code has a provision for misrepresentation
being an automatic nullity of the approval. You should have listened more carefully to Ms.
Bozony’s comments, okay. First of all, this is a drawing that has been submitted and is
incomplete. Simply because it has no scale. It has no scale, and these dimensions don’t mean
anything because they don’t add up. Now this is the oldest trick in the book. Believe me, it’s
the oldest trick in the book, but I will look at these and we will find out where we think the
misrepresentation’s taken place, and I’ll communicate with Mr. Brown.
MR. ABBATE-Thank you, Mr. Salvador. I appreciate that. Thank you much. Let’s see, I
think our next thing that we have to do is go into an Executive Session, and I’m going to ask
that the recording be stopped, please, and I’m going to ask that everybody be removed from
this room who’s not a member of this Board.
On motion meeting was adjourned.
RESPECTFULLY SUBMITTED,
Charles Abbate, Chairman
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